Wilkinson v. Stevison

• Decision Date: 16 October 1974
• Docket Number: No. B--4310,B--4310
• Parties: Charlene WILKINSON, Petitioner, v. Louis Edward Stevision, respondent.
• Court: Texas Supreme Court

Page 895

514 S.W.2d 895

Charlene WILKINSON, Petitioner, v. Louis Edward Stevision, respondent.

No. B--4310.

Supreme Court of Texas.

Oct. 16, 1974.

Waldman & Smallwood, Daylee Wiggins and Alvin E. Wiggins, Beaumont, for petitioner.

Orgain, Bell & Tucker, Lawrence Louis Germer, Beaumont, for respondent.

DANIEL, Justice.

The only issue on this appeal is whether the contributory negligence of a husband-driver may be imputed to a wife-owner-passenger so as to bar her recovery from a negligent third party for personal injuries sustained in an automobile accident which occurred while an agency or joint enterprise relationship existed between the husband and wife.

Referring to the parties as in the trial court, Charlene Wilkinson, plaintiff, sought from the defendant, Louis Edward Stevison, damages for physical pain and mental anguish arising from a collision between their respective automobiles on March 21, 1971. Plaintiff was the owner of the automobile in which she was riding, and it was being driven at her request and under her direction by her husband, John Henry Wilkinson. The jury found her damages to be $2,000. The trial court, however, based upon findings of negligence by the defendant and contributory negligence by the husband-driver, each of which were found to be proximate causes of the collision, and findings of the existence of joint enterprise and agency between plaintiff and her husband, entered a take nothing judgment in favor of the defendant. The Court of Civil Appeals affirmed. 500 S.W.2d 549. We reach the same result and affirm for the reasons hereinafter set forth.

The four findings of the jury favorable to the defendant on agency and joint enterprise are set forth in the margin. ¹ No evidentiary points of error were assigned in the Court of Civil Appeals or in the original application for writ of error filed in this Court.

The issue on appeal was limited by the following statement and stipulation of the parties in accordance with Rule 377a, which resulted in the filing of an abbreviated statement of facts under Rule 375: ²

'It is stipulated that the only issue for the appellate court is whether or not the jury findings in this case as to agency and joint enterprise require that judgment be entered against Charlene Wilkinson. That it to say, in view of the recent decision of the Supreme Court in Franco vs. Graham, and any subsequent or related cases, are these jury findings sufficient to cause negligence of the husband to be imputed to the spouse, thus barring her recovery to (sic) pain and suffering and mental anguish.'

Plaintiff's only point in the Court of Civil Appeals (and before this Court in her original application for writ of error) complained of the trial court's judgment for the defendant 'because the negligence of the husband should not be imputed to the wife, in a joint venture and/or an agency relationship, barring recovery for the wife's personal injuries.' At these stages of the appeal, plaintiff's argument was based primarily upon the mistaken notion that our opinion in Graham v. Franco, 488 S.W.2d 390 (Tex.1972), precluded imputation of negligence between husband and wife as a bar to the recovery for personal injuries under any and all defenses and irrespective of whether legal relationships other than marital were shown to exist between the husband and wife. While plaintiff's application for writ of error was pending in this Court, we decided Shoemaker v. Whistler, 513 S.W.2d 10 (1974). Our opinion in that case substantially veried from previous decisions cited by the Court of Civil Appeals in this case on the elements of joint enterprise required for imputation of contributory negligence. On the same day that Shoemaker was decided, we granted the writ in this case and requested the parties to submit supplemental briefs.

Plaintiff filed an amended application for writ of error, in which it was insisted that both Franco and Shoemaker support her previous arguments that the jury findings are immaterial and should have been disregarded because imputation of the husband's nebligence to the wife is precluded by Franco even when the additional relationship of principal and agent or joint enterprise is found to exist.

Plaintiff further added for the first time on this appeal a 'no evidence' point, asserting that there was no evidence to raise the issue of agency so as to impute negligence of the husband to the wife. We consider this point outside the limited scope of this appeal. Rule 377a specifically provides that for the purpose of inducing the opposing party to accept an abbreviated statement of facts, an appealing party may file a statement of the points on which he intends to rely on appeal; 'and he shall thereafter be limited to such points.' The 'no evidence' point was not listed as one on which the plaintiff intended to rely. Furthermore, it would be impossible for the Court to consider it in the absence of a complete statement of facts.

After a careful re-examination of Franco and Shoemaker, we conclude that neither case precludes the possibility of an agency or joint enterprise relationship between a husband and wife which would make the negligence of one imputable to the other in actions for personal injuries. Our decision in Graham v. Franco, Supra, was concerned with property rights between husband and wife, holding that 'recovery for personal injuries to the body of the wife, including disfigurement and physical pain and suffering, past and future, is separate property of the wife,' and that as to such recovery the contributory negligence of the husband does not bar the recovery of the wife. The holding was that the mere relationship of husband and wife will not bar the enumerated recoveries, pointing out that, 'in the case at bar, the only acts of contributory negligence pleaded, submitted, and found were those of Mr. Franco.' The question of whether a different result would have been reached upon a jury finding that Mr. Franco was acting as agent for Mrs. Franco, or together with her in a joint enterprise, was not before the Court.

As stated in the subsequent case of ...