Shoemaker v. Estate of Whistler

• Decision Date: 10 July 1974
• Docket Number: No. B--4391,B--4391
• Citation: 513 S.W.2d 10
• Court: Texas Supreme Court
• Parties: Wylie G. SHOEMAKER, Petitioner, v. The ESTATE of Clyde WHISTLER et al., Respondents.

Page 10

513 S.W.2d 10

Wylie G. SHOEMAKER, Petitioner, v. The ESTATE of Clyde WHISTLER et al., Respondents.

No. B--4391.

Supreme Court of Texas.

July 10, 1974.

Rehearing Denied Sept. 24, 1974.

Warren Burnett, Associated, Richard J. Clarkson and Timothy Ann Sloan, Odessa, for petitioner.

Cotton, Bledsoe, Tighe & Morrow, Charles L. Tighe, Midland, for respondents.

STEAKLEY, Justice.

The suit here is for damages for the death of the son of Petitioner, Wylie G. Shoemaker, who was killed in the crash of a single-engine four-passenger private airplane. The airplane was owned by Clyde Whistler, C. D. Carroll, Harvey Rogers, Barry Pendleton and Horace Fletcher. On July 13, 1968, two of the owners, Whistler and Carroll, accompanied by Jack Whistler the son of owner Whistler, and by Walter Shoemaker, the son of Wylie G. Shoemaker, were killed in the crash of the airplane while engaged in a voluntary Civil Air Patrol search mission. The search had no business or commercial purpose.

The airplane had taken off from the Dryden Airport near Sanderson, Texas, and the crash site was approximately six miles away. There was no direct evidence of the exact time of take-off, or of the circumstances of the departure, or of the weather conditions at the airport at the time. The circumstantial evidence, however, indicated that the airplane had taken off in the early morning under unfavorable weather conditions and that the crash occurred shortly thereafter. There was testimony that the early morning weather conditions at points approximately six to eight miles away was low ceiling and foggy. The evidence indicated that the airplane was found approximately thirty hours after the crash. The bodies of the four occupants were found outside the airplane at the crash site, and it could not be determined who was in the command pilot seat, or what seats were occupied by the others, either at the time of take-off or at the time of the crash.

The suit was initially filed against the surviving owners of the airplane and the estate of Clyde Whistler and his surviving widow, individually and as the qualified community survivor of the community estate. Prior to jury submission a nonsuit was taken as to all of the defendants except the estate of Clyde Whistler and Mrs. Clyde Whistler in the indicated capacities.

Upon trial, the jury found that the pilot of the airplane failed to exercise ordinary care in taking off when he did and that such failure was a proximate cause of the crash of the airplane; also, that immediately prior to the crash of the airplane it was flown into weather conditions which required an instrument-rated pilot for safe operation, and that such action was negligence proximately causing the crash. Carroll and Whistler were not instrument-rated pilots. There is no evidentiary attack upon the jury findings.

The trial court entered judgment against the estate of Clyde Whistler and against Mrs. Clyde Whistler, individually and as community survivor, in the sum of $35,000, the damages awarded Shoemaker by the jury, together with the sum of $1,200 burial expenses. Upon appeal, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment that Shoemaker take nothing. 502 S.W.2d 237.

As noted, Plaintiff-Petitioner Shoemaker seeks to impose liability only upon joint owner Whistler. There are three bases upon which such liability may be claimed to rest: that Whistler was in actual control of the airplane and hence was personally guilty of the negligent acts found by the jury; that whether or not he was in actual control of the airplane, Whistler is chargeable as an active participant in the negligence of taking off and of continuing the flight under the prevailing weather conditions in the sense that he knowingly acquiesced in the pilot's negligence and adopted it; and, finally, as sought to be invoked here, that the negligence found by the jury will be imputed to Whistler under the Texas doctrine of joint enterprise, whether or not he was in active command of the airplane or an active participant either at take-off or in flight prior to the crash.

We put aside the first possible basis for liability of Whistler since the parties agree that it cannot be determined which of the joint owners, Carroll or Whistler, was the command pilot of the airplane at the times in question; for purposes of decision, we assume that Whistler was not.

It is our further view that under the record here Whistler is not chargeable as a matter of law with the negligent acts found by the jury under a theory of active participation or knowing acquiescence in the ill-fated flight under the prevailing conditions. Nor can this follow from the jury finding that the pilot was negligent in taking off when he did. As noted above, the evidence does not establish the time or circumstances of the take-off or the exact nature of the weather conditions at the airport at such time. No issue was requested or submitted to inquire whether the joint owners were negligent in the fact of taking off when they did; the finding was that the pilot was negligent in doing so. Nor can liability be imposed upon Whistler under the finding of the jury that immediately prior to the crash the airplane was flown into weather conditions which required an instrument-rated pilot for safe operation. Under the assumption we have been required to indulge, i.e., that Carroll and not Whistler was actually piloting the airplane at the times in question, Whistler could not have been expected to forcibly take the controls away from Carroll while in flight for the purpose of preventing the airplane from being flown into weather conditions requiring an instrument-rated pilot. For aught that appears from this record, such conditions may have developed after take-off and at a time when Whistler could not have been expected to take affirmative action, or would have had opportunity to do so.

So we reach the question of whether the negligence of the pilot-owner will be imputed to occupant-owner Whistler, and the solution of this requires an examination of the decisions that have formulated the Texas doctrine of joint enterprise. It is upon the basis of these decisions that Shoemaker asserts that Whistler was vicariously liable as a matter of law for the death of his son upon the theory that he was engaged in a common mission with his fellow owner, with each having the right of control of the airplane by reason of their joint ownership. Respondent Whistler, on the other hand, urges that the proper test for determining the right-of-control element is whether or not the person to whom negligence is being imputed has some position of superiority over the person who commits the negligent act, and this was the view of the intermediate court.

Whistler also strongly insists that our decision in Graham v. Franco, 488 S.W.2d 390 (Tex.1972), settled the issue here favorable to his position. But such was not the case. In the context of the community property defense, we there sustained the constitutionality of a statutory provision that a recovery for personal injuries would be the separate property of the injured spouse; and from this we further held that the acts of negligence of a husband were not imputed to the wife so as to bar her recovery for injuries to her person. Prior cases imputing the negligence of the husband to the wife, and thus denying her recovery for personal injuries, were based on the reasoning that the recovery would be community property and hence the husband would be benefiting from his own wrong. So it was logically concluded in Franco that the reason for the imputation of negligence based upon the community property defense falls where the recovery for the wife's injuries is her separate property. There was no showing or contention that the husband and wife in Franco were engaged in a joint enterprise calling for the imputation of the negligence of one to the other and our decision there does not rule the question here. Cf. Wilkinson v. Stevison, 500 S.W.2d 549 (Tex.Civ.App.1973, writ granted today) where the negligence of the husband was imputed to the wife-owner of the automobile in question under the doctrine of joint enterprise but where there was reserved the question of the rights of the parties had the automobile been jointly owned as community property.

The distinction between imputed negligence, or vicarious liability as often called, as sought to be applied here, and imputed contributory negligence, should also be noted. A recognized legal scholar in the field of torts has expressed the concepts in this manner:

'A is negligent, B is not. 'Imputed negligence' means that, by reason of some relation existing between A and B, the negligence of A is to be charged against B, although B has played no part in it has done nothing whatever to aid or encourage it, or indeed has done all that he possibly can to prevent it. The result may be that B, in an action against C for his own injuries, is barred from recovery because of A's negligence, to the same extent as if he had been negligent himself. This is commonly called 'imputed contributory negligence.' Or the result may be that B, in C's action against him, becomes liable as a defendant for C's injuries, on the basis of A's negligence. This is sometimes called imputed negligence. More often it is called vicarious liability, or the principle is given the Latin name of Respondeat superior.' Prosser, Law of Torts, 4th ed., § 69, p. 458 (1971).

This same author further says of the doctrine of joint enterprise:

'Where the enterprise is for some commercial or business purpose, and particularly where the parties have agreed to share profits and losses, it usually is called a joint adventure. It is then governed, as to tort liability, by the law applicable to partnerships, which is beyond the limited scope of this text. The extension of 'joint enterprise' beyond such business ventures is almost entirely...