Webb v. Huffman

• Decision Date: 26 January 1959
• Docket Number: No. 6833,6833
• Citation: 320 S.W.2d 893
• Parties: Carlton P. WEBB, Administrator of the Estate of Howard H. Huffman, Appellant, v. Minnie Jo HUFFMAN et al., Appellees.
• Court: Texas Court of Appeals

Page 893

320 S.W.2d 893

Carlton P. WEBB, Administrator of the Estate of Howard H Huffman, Appellant, v. Minnie Jo HUFFMAN et al., Appellees.

No. 6833.

Court of Civil Appeals of Texas, Amarillo.

Jan. 26, 1959.

Rehearing Denied Feb. 23, 1959.

Strasburger, Price, Kelton, Miller & Martin, Dallas, Royal H. Brin, Jr., Dallas, of counsel, for appellant.

Calloway Huffaker and Harold Green, Tahoka, for appellees.

CHAPMAN, Justice.

This is a death action brought by Minnie Jo Huffman, appellee, for herself and as next friend for her minor children in which she sought damages for the death of her husband, Archie Edgar Huffman, who was killed on January 24, 1957, with his brother, Howard H. Huffman, with whom he was at the time riding. The car, owned and driven at the time by Howard H. Huffman collided with a truck. The defendants below, appellants here, were Madie Monk Huffman, individually and as community survivor of her deceased husband, Howard H. Huffman and Carlton P. Webb as administrator of the estate of Howard H. Huffman, deceased.

Appellee alleged that the death of her husband, Archie Edgar Huffman, was caused by the negligence of his brother, Howard H. Huffman, alleged various grounds of ordinary negligence and pleaded affirmatively that Archie and Howard were joint enterprisers and that Archie Huffman was not a guest at the time in Howard Huffman's car within the meaning of our 'Guest Statute.' Vernon's Ann.Civ.St. art. 6701b. She prayed for recovery in the amount of $100,000, half of said amount for the benefit of herself and half for the benefit of her two minor children, Jo Beth Huffman and Danny Edgar Huffman. The Huffman brothers' mother was living at the time of their demise, but she was not mentioned anywhere as a party to the suit and no amount of recovery was asked for her in the prayer.

The case was tried to a jury and the verdict rendered for $47,500, $12,500 for the deceased widow, Minnie Jo Huffman, and $16,000 and $19,000 respectively for the two minor children, Jo Beth and Danny Edgar. From such verdict the trial court rendered judgment in accordance. The case is before us upon five points of error, the first four going to the question of whether the Huffman brothers were joint enterprisers on the occasion in question and the fifth point raising the question of the fatal defect of parties in that the mother of Archie Huffman, a beneficiary under the death statute and therefore a necessary party, was not joined in the action. Because of their necessary and essential relationship the first four points will be discussed together.

In an effort to establish the relationship between the brothers of a joint enterprise appellee offered defendant, Mrs. Madie Monk Huffman, surviving widow of Howard H. Huffman, the driver of the death car, Mrs. G. I. Huffman, mother of the two named Huffman brothers, Mr. Royce Mears and Hal Jones.

Mrs. Minnie Jo Huffman testified in substance that back through the years Archie and Howard worked together on oil drilling crews and rode with each other to work, one taking his car one day and the other the next; that the week of the collision in question they took pillows, blankets, groceries and cooking utensils and were batching together in San Angelo while working on an oil rig near Bronte and sharing expenses of batching together; that Archie was a driller and Howard a 'rough neck' or 'backup man.' She testified under questions from counsel that before goint to San Angelo the brothers agreed between themselves they would share the expenses incident to living in San Angelo and in the transportation 'backwards and forth,' though we would consider the probative force of such testimony concerning transportation worth little when further examination developed the fact that in March before the trial in September she made a written statement that, 'my husband did not mention what arrangements had been made between him and Howard for using the cars or buying the gasoline or anything about the use of cars.' Then, in questions designed to prove the equal right of each of the brothers, expressed or implied to direct and control the conduct of each other in the operation of the conveyance she testified, 'Well, when they come to the stop sign they knew to stop but if they suggested going somewhere the other was for it.'

Royce Mears, a workman on the rig with the Huffman brothers testified the boys were 'light housekeeping' together and working together. He undertook to testify to the custom of oil field workers in riding with each other, saying, 'Well, at anytime that a car wasn't being operated safely or anything, well, anybody in the car, they could voice their opinion about it or call the driver down, what they thought about it, and usually they complied with it.' On cross-examination he testified that sometimes they will slow down and sometimes they will not. He further testified:

'Q. And in the sum and substance of your testimony is, that you oil field people are courteous to each other in those respects, isn't that right? A. Yes, sir.'

Over objection of appellant that it violated the 'Dead Man's Statute' Article 3716, Mrs. G. I. Huffman, mother of the deceased boys testified when they left on Sunday the week of their deaths they took two pies from her house, took 'a batching outfit' such as blankets, pillows and dishes, and that they got along well, 'they go a lot together.'

Hal Jones, an oil field worker who worked for Archie the last part of 1956 testified to arrangements whereby the four men working would take time about from Post to the job cite using each person's car every fourth day. He testified, 'You can go ask a man to slow down if you want to, and they usually do what you ask them to, or if you see something they don't you can tell them about it.' He went on then to explain that by seeing something they don't he meant stop signs, driving too fast, or a car coming from another direction and if he saw a car coming from another direction and he thought the driver didn't, he would tell him about it and expect him to heed the admonition. He further testified they tried to get him to work on the Bronte job with them and they would all three batch together and share expenses on room, food and on each of their three cars but that he decided not to go and he didn't know what the agreement was anytime after that conversation or what final arrangements were made between the brothers. With respect to the control those riding had over the driver he testified in part as follows:

'Q. If you were riding with one of them and you saw one of them going to run a stop sign, or something like that you felt like you had a right to say, 'No, sir, there is a stop sign.'? A. Yes.

'Q. That is just the same thing as riding with anybody else from day to day, isn't that the truth of the matter? A. Well, I would probably tell anybody.

'Q. Sure, if you are riding with me or your own brother or your father or anybody else you would, or even your boss, you would tell him there is a stop sign, wouldn't you? A. I sure would.

'Q. And that is really what you are talking about here, about telling each other what to do, etc. As long as that was your car and you were driving it that was your car? A. It was my car.

'Q. And you had absolute control of it, didn't you? A. Yes.

'Q. When these other crew members have ridden with you, do they have any privileges to ask you or direct you to do anything other than drive directly to and from work? A. If they want you to stop, if they want to get something or go by a certain place it is customary to do what they ask you to.

'Q. If they want you to go by a different route would you do that? A. If they think it is nearer, if they think it will benefit them, we do.

'Q. If you disagree you don't have to do it? A. No further driving, but it is customary.

'Q. It is customary to get along with your passengers, isn't it? A. Yes, sir.

'Q. As long as he is driving his own car he is the boss of it isn't he? A. Yes.'

The issue submitted on joint enterprise was as follows:

'Do you find from a preponderance of the evidence, that at the time of and immediately before the happendings in question Archie Edgar Huffman and Howard H. Huffman were upon a joint enterprise?'

The following definition was given:

'In passing upon the above issue you are instructed that by the term 'joint enterprise' is meant the occupants of a conveyance are supposed to be on a joint enterprise where they have not only a joint interest in the object and purpose of the enterprise, but also an equal right, expressed or implied, to direct and to control the conduct of each other in the operation of the conveyance.'

Though we do not follow the trial court's purpose in using the word 'supposed' in the definition just quoted appellants did not raise any question in their beief concerning that part of the definition so it is immaterial to our discussion.

The question that now presents itself is whether the testimony above related, and all other testimony in the case, established that the Huffman brothers were joint enterprisers on the occasion in question. It would extend this opinion entirely too long to quote all the testimony and we believe what we have quoted is representative of and is practically the same tenor as the other testimony on the question. From the above issue and under the authority of McCarty v. Moss, Tex.Civ.App., 225 S.W.2d 883, 886 (writ refused) we believe the burden was upon appellee to establish by a preponderance of the evidence the relationship of joint enterprise or else Archie would have occupied the status of his brother's guest. In the case just cited the trial court had instructed the verdict for the owner of the car against the occupant rider, McCarty, and he had appealed to the Austin Court of Civil Appeals. That court said, 'We overrule appellant's second point, because he failed to establish that he was not being transported as Moss' guest without...