Wanda Petroleum Co. v. Hahn

• Decision Date: 29 December 1972
• Docket Number: No. 704,704
• Citation: 489 S.W.2d 428
• Parties: WANDA PETROLEUM COMPANY et al., Appellants, v. Cynthia Jean Hickl HAHN, Appellee.
• Court: Texas Court of Appeals

Page 428

489 S.W.2d 428

WANDA PETROLEUM COMPANY et al., Appellants, v. Cynthia Jean Hickl HAHN, Appellee.

No. 704.

Court of Civil Appeals of Texas Corpus Christi.

Dec. 29, 1972.

Rehearing Denied Jan. 18, 1973.

Branscomb, Gary, Thomasson & Hall, Gary Norton, Corpus Christi, for appellants.

O. F. Jones, Victoria, for appellee.

OPINION

SHARPE, Justice.

This appeal is from a judgment rendered after jury trial awarding a recovery of $772.00 to Cynthia Jean Hickl Hahn, plaintiff-appellee, against appellants Wanda Petroleum Company and Clifford L. Monday, and denying a recovery to the other plaintiffs.

This suit was brought by Edward L. Hickl, Sr., individually and as next friend for Cynthia Jean Hickl, a minor, and by Edward L. Hickl, Jr. against Wanda Petroleum Company, a corporation, and Clifford L. Monday, its employee. After the suit was filed Cynthia Jean Hickl was married to Charles Hahn. For the purposes of this opinion she will be referred to as Cynthia Jean Hickl.

The basic facts may be summarized as follows: On January 17, 1970, in Refugio County, an automobile owned by Edward L. Hickl, Sr., which was operated by Edward L. Hickl, Jr. and occupied by Cynthia Jean Hickl, who was riding in the right front seat, collided with a disabled truck owned by Wanda Petroleum Company. Clifford L. Monday was the driver of appellant's truck. Appellee and her brother, Edward L. Hickl, Jr. were students at Texas A & I College in Kingsville, Texas and were returning to their home in Bay City, Texas, when the collision occurred. At that time, Edward L. Hickl, Jr. was 22 years of age and Cynthia Jean Hickl was four years younger, or 18 years of age. Appellants' truck had experienced motor trouble and was stopped in the right lane of the highway, the same lane in which the Hickl automobile ws traveling. Edward L. Hickl, Jr. testified that he was driving approximately sixty miles per hour immediately preceding the collision and that he noticed a blinking red light and reflectors as he approached the disabled truck. The testimony also reflected that the night was foggy and hampered Edward L. Hickl in identifying and locating the parked object. As a result of this collision, appellee Cynthia Jean Hickl sustained personal injuries.

The case was tried to a jury and in answer to the controlling special issues the jury found that:

(A) Clifford L. Monday was negligent in leaving the parked truck when it was not safe to do so and that such negligence was a proximate cause of the accident in question;

(B) Clifford L. Monday was negligent in leaving the truck unattended for a longer period of time than was necessary and that such negligence was a proximate cause of the accident in question;

(C) Edward L. Hickl, Jr. was negligent in failing to keep a proper lookout;

(D) Edward L. Hickl, Jr. was negligent in failing to make such application of the brakes as a person of ordinary care would have made under the same or similar circumstances;

(E) Edward L. Hickl, Jr. was negligent in driving at a greater rate of speed than a person of ordinary prudence in the exercise of ordinary care would have driven under the same or similar circumstances;

(F) Edward L. Hickl, Jr. was negligent in failing to turn to the left a sufficient degree before the collision; and that this and the preceding acts of negligence were a proximate cause of the collision.

Special Issue No. 21 and the jury answer thereto read as follows:

'Do you find from a preponderance of the evidence that on the occasion in question Edward L. Hickl, Jr., and Cynthia Hickl, had a joint interest in the object and purpose of the trip and an equal right, express or implied, to direct and control each other in the operation of the vehicle?

Answer 'We do' or 'We do not.'

Answer: 'We do"

The trial court, upon motion of Cynthia Jean Hickl, disregarded Special Issue No. 21 and the finding thereon and awarded $772.00 in her favor against Clifford L. Monday and Wanda Petroleum Company. The judgment also decreed that Edward L. Hickl, Sr., Edward L. Hickl, Jr., Clifford L. Monday and Wanda Petroleum Company (which corporation had filed a cross-action against Edward L. Hickl, Jr.) take nothing. We affirm.

Appellant's sole point of error is that 'The Trial Court erred in disregarding the jury's finding in answer to Special Issue No. 21 that Edward L. Hickl, Jr. and Cynthia Jean Hickl were on a joint enterprise at the time of the accident on the ground that there is legally probative evidence sufficient to raise such factual issue for submission to the jury and to support the jury's finding of fact.'

In Bonney v. San Antonio Transit Company, 160 Tex. 11, 325 S.W.2d 117 (1959) our Supreme Court held in part as follows:

'The cases are legion on the general question of joint enterprise, many of them by courts of this State. The established definition of joint enterprise in this jurisdiction as applicable to the facts here under review is that a joint enterprise exists where a driver and an occupant of an automobile 'have not only a joint interest in the object and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance.' El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187, 189; Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65.

As indicated above, the principal question in this appeal is whether the jury finding in answer to Special Issue No. 43 is supported by any evidence. We have concluded that it is not. That question may be narrowed by observing, first, that we do not have before us a case in which the owner was present in his own automobile driven by another, as in Straffus v. Barclay, supra; second, nor one in which a parent was present in an automobile driven by his minor child, as in Nelson v. Fulkerson, 155 Tex. 298, 286 S.W.2d 129; third, nor one in which a driver and an occupant jointly borrowed an automobile, as in El Paso Electric Co. v. Leeper, supra; fourth, nor one in which the parties were engaged in a joint business venture in which all were interested, which in some jurisdictions is regarded as creating a relationship akin to partnership. This case is one in which the owner of the automobile is also the driver on a nonbusiness trip. We are unable to discover any facts in the evidence that would support a reasonable inference that Shipler impliedly agreed to relinquish any part of his exclusive right to control the operation of his automobile.'

Although there are numerous Texas decisions involving the doctrine of joint enterprise it appears to us that Fuller v. Flanagan, 468 S.W.2d 171, 175 (Tex.Civ.App., Fort Worth 1971, writ ref'd n.r.e.) insofar as it relates to the case of Sharon Flanagan Pannell correctly states the applicable rules of law and is more closely in point on the facts than other decisions.

There it appeared that the car in which Sharon Flanagan Pannell, a minor, was riding, then being driven by Mike Flanagan, her older brother, at the time of the collision with another car, was owned by the father of said children. The jury found, among other things, that the drivers of both cars were guilty of negligence proximately causing the collision and that Mike Flanagan and Sharon Flanagan were upon a joint enterprise. The trial court granted the plaintiff's motion to disregard the findings on the joint enterprise issues and, among other things, rendered judgment in favor of Sharon F. Pannell for.$1000.00. Although the Fort Worth Court of Civil Appeals ultimately reversed the case on a cross-point concerning damages asserted by Sharon, the Court held that the trial court properly disregarded the jury finding to the effect that Sharon Flanagan Pannell and her brother were on a joint enterprise, and that there were two reasons why the doctrine of joint enterprise did not defeat a recovery by the plaintiff, Sharon F. Pannell. The first reason was, in substance, that there was no evidence of probative force that Sharon had an equal right of control with her older brother to control his actions in operating the car during the trip in question. The second reason was, in substance, that the negligence of the driver could not be imputed to Sharon, who was an unemancipated 14 year old minor at the time of the wreck. In Fuller v. Flanagan the Court held in part as follows:

'The weight of authority in the United States follows the rule that although an infant is liable for torts that he directly commits, the negligence of the infant's alleged servant or agent cannot be imputed to the minor under the doctrine of respondeat superior. See 16 Tex.Law Rev. 586, and 103 A.L.R. 487.

All of the Texas cases that we have been able to find on this point are in line with the weight of authority. See Sturtevant v. Pagel, 109 S.W.2d 556 (San Antonio, Tex.Civ.App., 1937, aff. in 134 Tex. 46, 130 S.W.2d 1017); Fernandez v. Lewis, 92 S.W.2d 305 (El Paso, Tex.Civ.App., 1936, writ dism.); and Garrard v. Henderson, 209 S.W.2d 225 (Dallas, Tex.Civ.App., 1948, no writ hist.).

The 'joint enterprise' doctrine is founded on principles of agency. See 'Imputed Contributory Negligence' by Dean Page Keeton, 13 Tex.Law Rev. 161, Hines v. Welch, 229 S.W. 681 (Texarkana, Tex.Civ.App., 1921, no writ hist.) and 11 Tex.Law Rev. 263. Because this is true, the rule forbidding the imputing of negligence of the alleged agent to the minor would also apply to cases where the minor is engaged in a joint enterprise with the person who commits the negligent act in question.

The 'joint enterprise' doctrine is ex contractu. It must be based on an agreement, either express or implied. Bonney v. San Antonio Transit Company, 317 S.W.2d 69 (San Antonio, Tex.Civ.App., 1958, rev. on other gr. in 160 Tex. 11, 325 S.W.2d 117); Powers v. State, 178 Md. 23, 11 A.2d 909 (1940); Brown v. Wood, 293 Mich. 148, 291 N.W. 255 (1940); Rosenstrom v. North Bend Stage Line, 154 Wash. 57, 280 P. 932 (1929); and 48 C.J.S. Joint...