El Paso Electric Co. v. Leeper

• Decision Date: 26 May 1933
• Docket Number: No. 1671-6151.,1671-6151.
• Parties: EL PASO ELECTRIC CO. v. LEEPER.
• Court: Texas Supreme Court

Page 187

60 S.W.2d 187

EL PASO ELECTRIC CO. v. LEEPER.

No. 1671-6151.

Commission of Appeals of Texas, Section A.

May 26, 1933.

Error to Court of Civil Appeals of Eighth Supreme Judicial District.

Suit by Augusta Leeper against the El Paso Electric Company. Judgment for plaintiff was affirmed by Court of Civil Appeals [42 S.W.(2d) 863], and defendant brings error.

Judgments of District Court and Court of Civil Appeals reversed, and judgment rendered.

Brown & Brooke, of El Paso, and Baker, Botts, Andrews & Wharton, of Houston, for plaintiff in error.

Knollenberg & Cameron and E. F. Cameron, all of El Paso, for defendant in error.

CRITZ, Judge.

This suit was filed in the district court of El Paso county, Tex., by Miss Augusta Leeper against El Paso Electric Company, a corporation, for damages for personal injuries alleged to have been received by Miss Leeper as the result of the negligence of the electric company. The case was submitted to a jury on special issues and based on the answers thereto, judgment was entered for Miss Leeper for $7,500. This judgment was affirmed by the Court of Civil Appeals. 42 S.W.(2d) 863. The electric company brings error.

The case is before the Supreme Court on numerous assignments of error, but the view we take of the issue of joint enterprise makes it unnecessary for us to consider any other question.

It is shown by the evidence that while the car in which Miss Leeper was riding, but which was being driven by Lieut. Nutter, was rounding a curve on a wet paved road it left the pavement and struck one of the transmission wire poles belonging to the electric company. Four people were riding in the car at the time, to wit: Miss Leeper, Lieut. Nutter, Lieut. Howze, and Mrs. Howze. Miss Leeper was badly injured, and Mrs. Howze was killed in the accident. It is shown that the accident occurred at night. The pole in question was located at a point in the road right of way, at its intersection with another public road, and about twelve feet from the edge of the pavement of the road on which the car in which Miss Leeper was riding was traveling. Also the point of intersection of the pole was between the two roads.

The jury found the electric company guilty of negligence in placing and maintaining its transmission line pole at the place it was, resultant injuries to Miss Leeper, and the amount of her damages.

The jury also found that Lieut. Nutter, who was driving the car in question at the time of the accident, was negligent, and that his negligence was a proximate cause of the accident.

The electric company contended in the district court, and Court of Civil Appeals, and here contends, that the evidence in this case shows as a matter of law that Miss Leeper and Lieut. Nutter were engaged in a joint enterprise in driving the car at the time of the accident. In this connection, the electric company contends that the evidence in the case shows as a matter of law that Miss Leeper had at least had an equal right with Lieut. Nutter to control the car in which they were driving. It is then contended that the finding of the jury that Lieut. Nutter was guilty of negligence and that such negligence was the proximate cause of the accident entitled the electric company to a judgment.

The evidence bearing on the question of joint enterprise and control of the car is all included in the testimony of Miss Leeper and her mother, Mrs. Wallace. We therefore deem it expedient to quote all of the testimony bearing on that question.

Miss Leeper was sworn as a witness in her own behalf, and touching the question of joint enterprise and control of the car she testified as follows:

"My name is Augusta Leeper and I am the plaintiff in this case. This is the first time I have ever testified. I am twenty-three years old. I was in this accident down the valley in 1928. The date of the accident was October 30th, the night before Halloween. I should say it was about ten o'clock at night. The car was my mother's, Mrs. George Wallace's. At that time we lived in the Wallace Annex, 1205 Randolph. At the time we were going to the West Ysleta Country Club to a Calumus dance. Lieutenant and Mrs. Howze and Lieutenant Nutter were in the car with me. Lieutenant Nutter was driving the car, he was sitting on the front seat on the left-hand side and I was sitting on the right in front. That was a masquerade, where we all dressed up kind of funny. We were going down to the masquerade dance at the West Ysleta Country Club and I think it was about ten o'clock. When we started to the dance, we started from Lieutenant Howze's. Before that, Lieutenant Nutter came by for me at my home in the Wallace Annex. He came in his own car to my house, a small one-seated car. We stayed for a little while at my house, getting ready to go. Then some people from the same apartment, going to the dance, came to show us their costumes. Lieutenant Nutter was at my home about an hour. My mother was there, she was there in the room when Lieutenant Nutter and I were there. She was looking at our costumes and helping fix them up. Lieutenant Nutter had a costume on, too. When we started to go, we didn't go in this small car of Lieut. Nutter's because we all wanted to go together, the four, the Howzes and Lieut. Nutter and I wanted to go together. If mother would let me have her car, we would all go together.

"By direction of the Court, in order to get the proper understanding of the testimony, the following is written in question and answer form:

"Q. And she let you have the car? A. Yes, sir.

"When we started to get in the car, Lieut. Nutter took the wheel. He drove all of the time until the time of the accident, I didn't do any driving. When we left our house, mother was with us, she was going to Mrs. Kettler's, on Montana, in the 1400 block, we were going to drop her there, which we did, and went to the Post. When we got to Fort Bliss, we stopped at Major Allen's, I wanted to return a crown I had borrowed, then we went to Lieut. Howze's house. We stayed there about a half hour, I think. Then we got in my mother's car again and Lieut. Nutter took the wheel. Lieut. Nutter and I were in the front, he was on the left-hand side and I was on the right, and Lieut. Howze was in the back seat on the left side and Mrs. Howze on the right. * * * It was raining that night, it had been raining most of the day. It was not raining when we left our house but the streets were wet. When we came out of the Howzes' it was sprinkling. * * * We stopped at Mrs. Kettler's just long enough to let mother out and she spoke to us, then we stopped at the other house about five minutes and I think we stopped at the Howzes' about thirty minutes. Then we proceeded to go to the West Ysleta Country Club. * * * I have driven cars all my life and I had driven this particular car, my mother would turn it over to me, and other cars. * * * I had nothing to do with the driving of the car. The Calumus Club has members and the members invite other people to these dances. There was a bid given to me, Lieut. Nutter wasn't a member of the club, but the bid was given us. I talked to him before and I went in his company to that dance. My mother loaned the car and Lieut. Nutter drove it all the time.

"The bid was given to me for Bill—Lieut. Nutter—by a friend of mine. This car belonged to my mother. As to who suggested using that car that night,—well, you see, it was in the afternoon we decided we would probably...