Le Sage v. Pryor

• Decision Date: 23 July 1941
• Docket Number: No. 1871-7686.,1871-7686.
• Citation: 154 S.W.2d 446
• Parties: LE SAGE v. PRYOR.
• Court: Texas Supreme Court

154 S.W.2d 446

LE SAGE v. PRYOR.

No. 1871-7686.

Commission of Appeals of Texas, Section B.

July 23, 1941.

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

Suit by H. M. Pryor against R. S. Le Sage to recover for injuries sustained in an automobile accident. From a judgment in favor of the defendant, the plaintiff appealed to the Court of Civil Appeals and the defendant cross-assigned error. To review a judgment of the Court of Civil Appeals, 133 S.W.2d 308, reversing the trial court's judgment and remanding the cause, the defendant brings error.

Judgment of the Court of Civil Appeals reversing and remanding the cause affirmed.

Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for plaintiff in error.

Napier & Napier and E. W. Napier, Jr., all of Wichita Falls, for defendant in error.

SMEDLEY, Commissioner.

The suit was instituted by defendant in error Pryor against plaintiff in error LeSage, the allegations being that LeSage was engaged in the business of buying and selling automobiles under the name of LeSage Motor Company and that Pryor, while riding in an automobile owned by LeSage and operated by Rollins, an employee of LeSage, suffered personal injuries caused by Rollins' negligence. The jury, in answer to special issues, found that plaintiff in error and Rollins were negligent in failing to keep the brakes of the automobile in good condition, in driving the automobile at an excessive rate of speed and in failing to keep a proper lookout, and that such negligence proximately caused plaintiff's injury. Issues submitting contributory negligence were answered favorably to the plaintiff, and the amount of plaintiff's damages was found to be $8,500. By answer to special issue No. 19 the jury found that "the plaintiff H. M. Pryor and A. A. Rollins were engaged in a joint enterprise during the trip in question." The trial court overruled the plaintiff's motion to set aside the jury's answer to issue No. 19 and his motion for judgment, granted defendant's motion for judgment and rendered judgment that plaintiff take nothing by his suit.

The Court of Civil Appeals held that there was no evidence to support the jury's answer to special issue No. 19 relating to joint enterprise and reversed the trial court's judgment and remanded the cause, stating in its opinion that it remanded the cause instead of rendering judgment for the plaintiff "because of defendant's objections and exceptions to the charge and other rulings of the court presented by the cross-assignments." It did not pass upon the cross assignments. 133 S.W.2d 308, 312.

It appears from the record made in the trial court and from the opinion of the Court of Civil Appeals that both of said courts decided the case on the theory that if defendant in error Pryor, plaintiff in the trial court, and Rollins, the driver of the automobile owned by plaintiff in error LeSage, were engaged in a joint enterprise, Pryor could not recover, for the reason, as stated by the Court of Civil Appeals, that "the negligence of the driver of the car proximately causing the injury would be imputed to plaintiff; hence his own negligence thus imputed to him would preclude a recovery against defendant."

Pryor owned an automobile which he desired to exchange for a truck. He made an agreement with one Keathley, who lived at Mineral Wells, by which he arranged to exchange his car for Keathley's Chevrolet automobile, with the understanding that he would allow Keathley for his automobile whatever LeSage Motor Company would allow him for the Chevrolet car in exchange for a used truck. Pryor took the Chevrolet car to the LeSage Motor Company's place of business in Wichita Falls and agreed upon a trade with Rollins, its salesman, whereby the Chevrolet car would be exchanged for a used truck owned by the motor company. Thereupon the used car manager or the credit manager of the motor company discovered that Pryor did not have a bill of sale for the Keathley car and that Keathley owed a balance of the purchase money for his car and told Pryor and Rollins that it would be necessary for them to go to Mineral Wells and procure a bill of sale from Keathley and see that the balance due was paid. Pryor left Wichita Falls in the Keathley car, Rollins following in a Ford automobile belonging to LeSage Motor Company, but near Archer City Pryor left the Keathley car, entered the motor company's automobile driven by Rollins and rode with him to Mineral Wells. There they found Keathley, secured the bill of sale and made arrangements to pay the balance due on Keathley's car. Pryor was injured on the return trip from Mineral Wells to Wichita Falls when the automobile owned by the motor company and driven by Rollins collided with a truck.

Defendant in error Pryor, by assignments and propositions in his brief in the Court of Civil Appeals, which are in our opinion sufficient to specify distinctly the grounds on which he relied, presented first the contention that the jury's finding that Rollins and Pryor were engaged in a joint enterprise is not supported by any evidence and second the contention that the doctrine of imputed negligence is not applicable as between Pryor and the driver of the automobile and may not be invoked to absolve Rollins or his employer from the consequences of Rollins' negligence by imputing it to the other party to the enterprise whom it has injured.

We need not determine whether there is evidence to support the jury's finding that the parties were engaged in a joint enterprise because it is our opinion that, even if they were so engaged, such fact does not preclude recovery by Pryor for the injuries suffered by him from Rollins' negligence. While there are a few authorities to the contrary, one of them being Frisorger v. Shepse, 251 Mich. 121, 230 N.W. 926, cited by plaintiff in error, the rule is established by the decisions in this state and by the great weight of authority that the doctrine of imputed negligence is inapplicable when the controversy is between the parties to a joint enterprise and that, although the parties are engaged in a joint enterprise at the time of the injury of one of them by negligence of the other, the injured party may nevertheless recover for the injury caused by the other's negligence. Rankin v. Nash-Texas Co., 129 Tex. 396, 404, 105 S.W.2d 195; Lockey v. Packard-Dallas, Inc., Tex.Civ. App., 119 S.W.2d 150, 152; Horne Motors, Inc. v. Latimer, Tex.Civ.App., 148 S.W.2d 1000, 1006; Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A.L.R. 785; O'Brien v. Woldson, 140 Wash. 192, 270 P. 304, 62 A.L.R. 436, and note pages 440, 442; Campbell v. Campbell, 104 Vt. 468, 162 A. 379, 85 A.L.R. 626, and note pages 630, 632; Archer v. Chicago, Milwaukee, etc., R. Co., 215 Wis....