Whistler's Estate v. Shoemaker
| Decision Date | 14 November 1973 |
| Docket Number | No. 6310,6310 |
| Citation | 502 S.W.2d 237 |
| Parties | The ESTATE of Clyde WHISTLER and his Surviving Widow, Individually and as the Qualified Community Survivor of the Community Estate of the Sald Clyde Whistler, Appellant, v. Wylie G. SHOEMAKER, Appellee. |
| Court | Texas Court of Appeals |
Stubbeman, McRae, Sealy, Laughlin & Browder, Charles L. Tighe, Midland, for appellant.
Warren Burnett, Associated, Richard J. Clarkson, Wm. Ruff Ahders, Odessa, for appellee.
This is an action for the death of the son of Appellee, who was killed in the crash of a private plane near Dryden, Texas. At the time of the crash, the plane was occupied by four people, two boys and two of five owners of the plane. The two owners who were in the plane were C. D. Carroll and Clyde Whistler. Each held a private pilots license, while the boys held no pilot rating, and the purpose of the flight was to search for a plane reported down in the area. All occupants were killed in the crash and there was no evidence by which it could be determined who was flying the plane. All owners except Carroll were sued but prior to submission to the jury a nonsuit was taken as to all except Appellant. Judgment was in the amount of $36,200.00. The controlling question is whether the negligence of one co-owner as pilot is imputed to the other co-owner passenger as a matter of law. We have concluded that Texas law is that it is not imputed.
The case was tried on Plaintiff's allegations that Clyde Whistler was the pilot but there was no evidence presented as to who was piloting the plane, and no issue was submitted as to whether Whistler was the pilot. This was a Plaintiff's issue and Defendant objected to the failure to submit the issue as required by Rule 279, Texas Rules of Civil Procedure, so Appellee has waived recovery on the theory that Whistler was the pilot. Glens Falls Insurance Co. v. Peters, 386 S.W.2d 529 (Tex.Sup .1965).
The judgment rests on two acts of negligence found by the jury, one being that 'the pilot' should not have taken off when he did, and the other being that the plane was flown under conditions requiring an instrument rated pilot. Since it was not established that Whistler was the pilot, the only way these acts of negligence can be the basis of a judgment against his estate is for them to be imputed to him. Again, Rule 279 comes into play for there was no issue submitted by which the negligence of the pilot could be imputed to Whistler, and the Defendant objected to the failure to submit such an issue. Appellee urges that joint enterprise is established as a matter of law by the presence of the two co-owners in the plane. We resolve the question by a determination that a passenger coowner has no right of control over the pilot co-owner. The question of whether the negligence of a co-owner operator of a vehicle will be imputed to a co-owner passenger has never been previously determined in Texas, according to our research.
In a situation like this, the imputation of negligence from the operator of a vehicle to the passenger rests on the right of control existing in the passenger. Obviously, that right of control must come from some position of superiority such as master over servant, principal over agent, or owner over non-owner. Where a nonowner is driving and the owner is present in the vehicle there is a presumption that the driver is the agent of the owner and the negligence of the driver will be imputed to the owner. Cases most often cited for this well established rule of law are: Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65 (1949), and ...
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