Straffus v. Barclay

• Decision Date: 30 March 1949
• Docket Number: No. A-1981.,A-1981.
• Citation: 219 S.W.2d 65
• Parties: STRAFFUS et al. v. BARCLAY et ux.
• Court: Texas Supreme Court

219 S.W.2d 65

STRAFFUS et al. v. BARCLAY et ux.

No. A-1981.

Supreme Court of Texas.

March 30, 1949.

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

Action by Ray Barclay and wife against Carl Straffus and his daughter, Hilda Catherine Straffus, for damages resulting from an automobile collision, wherein defendants reconvened in a cross-action against plaintiffs. Judgment for plaintiffs was affirmed by the Court of Civil Appeals, 214 S.W.2d 826, and defendants bring error.

Judgments of the Court of Civil Appeals and of the District Court affirmed.

H. H. Cooper, of Amarillo, and W. D. Wilson, of Lubbock, for petitioners.

James W. Witherspoon and John D. Aikin, both of Hereford, for respondents.

GARWOOD, Justice.

This is an automobile collision case in which plaintiffs Barclay and wife, respondents here, had judgment in the trial court for personal injuries and damage to their car against petitioners Carl Straffus, age 82, who owned the other car and was riding therein at the time of the collision, and Hilda Straffus, age 45, who is the daughter of Carl and was driving the Straffus car. The judgment was affirmed by the Court of Civil Appeals. 214 S.W.2d 826. We granted the writ of error to review the question of liability of petitioner Carl Straffus. The parties are hereinafter referred to by their respective trial court designations.

Just prior to the collision, which occurred November 8, 1947, about 7:30 P. M., on a paved highway, the car of plaintiffs Barclay and wife was going north and that of the defendants going south. The impact occurred when the Straffus car turned across the road to the left or eastwardly in the path of plaintiffs' car in order to enter a driveway located on the east side of the highway and leading to the Straffus home. Upon proper pleadings and in answer to special issues the jury found defendant Hilda Straffus guilty of various acts of negligence, proximately causing the collision and relating to the time and manner in which she made the turn, including failure to keep a proper lookout or properly signal her intentions, failure to wait for the plaintiffs' car to pass, etc. The jury acquitted plaintiffs of alleged contributory negligence. No issues were requested or submitted nor any findings made by the court with respect to negligence on the part of defendant Carl Straffus, who was sitting beside Hilda on the front seat, nor with respect to any other matter whatever which might link him as codriver, party to a joint enterprise, or otherwise, with the negligent acts of his daughter, although plaintiffs' pleadings did allege that Hilda was driving both for her father and for herself, that the former was present and acquiesced with the way she operated the car and that both defendants did the acts which the jury specifically found were done by Hilda. The answer of the defendants was joint, omitting any special exceptions, but containing a general denial and, following the latter, specific pleas of contributory negligence and a cross action for the damages sustained by each. These affirmative pleadings of the defendants made various general references to the operation of the Straffus car as if it were under the physical control of both defendants at the time of the collision, but in the light of the general denial cannot be considered as a judicial admission of such joint operation, even if they were specific enough to be otherwise treated as such. Dallas Ry. & Terminal Co. v. Hendricks, 140 Tex. 93, 166 S.W.2d 116; Rules 84 and 92, Texas Rules of Civil Procedure.

The evidence conclusively establishes that the two defendants lived together at the home of defendant Carl Straffus who was a widower, Hilda keeping house and doing the cooking for both; that at the time of the collision they were returning home from a trip to the nearby town of Vega to which they had gone together in the early afternoon of the same day; that, while in Vega, the daughter had purchased some groceries and both parties had been to the church to which Hilda — and presumably her father also—belonged, where Hilda cleaned the church, while her father assisted her by moving around a few benches. The evidence does not directly disclose that cleaning the church or any other particular purpose of either or both defendants was the primary object of the trip, but does show that members of the church took turns cleaning it, and that Hilda — if not both defendants—was at the church pursuant to this arrangement. It is clearly established, furthermore, that Hilda was at the wheel and in exclusive physical control of the car at and prior to the accident with Carl sitting beside her; that, just before Hilda made the turn, both parties, after first looking behind, saw a light of some kind on the road ahead of them, and that Carl Straffus asked what kind of light it was and received a reply from Hilda. With respect to this latter point of time, and in answer to a question as to what Hilda then did about trying to cross the road, Carl Straffus testified, "Well, we considered it perfectly safe to make that crossing because we only had twenty-two feet to go and we was on the west side and had half of the pavement to cross. We were about out of the way." And in answer to a double question as to whether he did not tell Hilda he saw a light ahead and ask, "Have we got time enough to get across before that light gets here", he said "I don't exactly know. We decided that there was all kinds of time to cross there and she crossed over. I think I told her, if I remember, `We have twenty-two feet to cross over.' There we was on the west side of the pavement and half of the pavement to cross." It is also undisputed that Carl Straffus had more or less ceased to do active work; that, while possessing a driver's license, he did not actually drive his car when he could get his daughter or someone else to do it for him; and that Hilda usually did the driving when the two were together.

The foregoing is in substance all the evidence on which the liability of Carl Straffus, as distinguished from that of his daughter, may be rested. Much of it consists of admissions by Carl himself. These evidently establish, beyond the ability of reasonable minds to differ, that, just prior to Hilda's negligent turn, Carl, as well as Hilda, knew and commented on the presence of a traffic problem, consisting of a possibly approaching vehicle, that Carl then considered it proper to make the turn and somehow communicated this view to Hilda. His words "we considered * * *" and "we decided * * *" do not necessarily imply that he attempted to direct or even affirmatively suggest that the turn be made, but, considering their character of an admission, must in our opinion be taken as establishing at least a communication to Hilda of his conclusion, with the knowledge that she might act on it.

With regard to the absence of findings or requested issues bearing on the relationship of defendant Carl Straffus to the accident, it is complained on his behalf that such absence leaves the judgment against him without support. On behalf of the plaintiffs it is contended that, even though the evidence be not conclusive as to Carl's responsibility for Hilda's negligent acts, the necessary fact findings will be presumed in support of the plaintiffs' judgment, and that in any event the evidence does establish Carl's responsibility as a matter of law. If this last contention is correct, the absence of requested issues and findings, of course, becomes immaterial. Rule 279, T.R.C.P. We have concluded that it is correct and will therefore pass to our reasons for this conclusion.

The evidence strongly suggests that aside from the matter of Hilda's agency, Carl Straffus was by ideas and word of mouth himself actually engaged in the operation of his car with Hilda in the same sense as if he had had a hand on the wheel or, by mutual understanding between the two, was performing the duty of lookout or signalman, so that a verdict based on that theory could be sustained under decisions such as Reetz v. Mansfield, 119 Conn. 563, 178 A. 53; Johnson v. Newman, 168 Ark. 836, 271 S.W. 705; Williams v. Blue, 173 N.C. 452, 92 S.E. 270; Langley v. Southern Ry. Co. 113 S.C. 45, 101 S.E. 286; and Hutchings v. Vacca, 224 Mass. 269, ...