Hines v. Welch
229 S.W. 681
Tex. App.
1921
Check Treatment
DEVX, J.

(after stating the facts as above). The appellant requested the court, and the court refused, to submit to the jury for finding, in effect: (1) Whether or not J. L. Welch, the father, was guilty of negligence in driving his wagon to the door of the car for unloading after he had been notified that the train would move against the standing car; and (2) whether or not such negligence of J. L. Welch, the father, caused or contributed to cause the injuries of the plaintiff W. W. Welch. The evidence shows, as very correctly stated in appellants’ brief, that—

“The father was moving, and the appellee was aiding his father in loading household goods in the car placed by appellant for the purpose on the loading track, and it became necessary for appellant to move the car in order to switch other cars ahead of it on the side track. The employee of appellant before moving the car saw appellee standing in the car in a place of safety in the car, and saw J. L. Welch, the father, driving his wagon towards and near the side door of the car, and the employee then and there called out to the father not to stop his wagon by the car, as they were going to move the train, and for him to watch out.”

The father testified:

That he “heard the brakeman call to him, but that he was hard of hearing and didn’t understand what he said.”

The amellants’ proposition under this first assignment, predicating error on refusal to submit the charges, is:

“Where two or more persons are engaged in a joint enterprise, the negligence of one is at *683 tributable to the other, and notice to one is notice to the other.”

[1-3] There is not involved in the present contention any question of whether or not the appellee himself was guilty of contributory negligence. The court submitted that issue to the jury. The precise question is that of whether or not there is applicable to the pleading and evidence in this case the doctrine of imputed negligence. Was the negligence, if any, of J. L. Welch, the father, as predicated in the circumstances, chargeable to W. W. Welch, and a recovery denied him for that reason? The' act or omission charged against thq father was not the sole and only cause of the injury. A similar duty of warning appellee of the intention to move the car rested upon the railway company, and the real producing cause of the injury was the impact from the operation of the train. The rule is well established, as a general proposition, that where an injury has been sustained by reason of the concurring negligence, if such were the case here, of two or more persons each, all may be held liable and suit may be maintained against them jointly or separately. If the defendant’s act was operative at the moment of the injury, he will be liable, although the injurious result was contributed to by the act of a third person. Railway Co. v. McWhirter, 77 Tex. 356, 14 S. W. 26, 19 Am. St. Rep. 755; Railway Co. v. Croskell, 6 Tex. Civ. App. 160, 25 Si W. 486. But, while the general rule is as above stated, “if it appears,” as stated in 20 R. C. L. p. 148, § 121, “that either of the persons whose negligence injures a third person (plaintiff) is the agent or representative of the injured person (plaintiff) or under his control, he (plaintiff) cannot recover therefor because the negligence of the representative or agent is in law the negligence of his principal, and, being chargeable with the negligence of his agent, he is deemed guilty of contributory negligence.” That principle was applied in the case of Johnson v. Railway Co., 2 Tex. Civ. App. 139, 21 S. W. 274. In that case it was determined that, when one is under such physical disability as to find it necessary to place himself in the care of the other, he would be constituting the other his agent, and the negligence of such agent in so driving upon a railway track as to cause the plaintiff injury through a collision will be imputed to the latter. And in Railway Co. v. Tankersley, 63 Tex. 57, the contributory negligence of a bailee of cotton, whereby it was consumed by fire proceeding from a railway engine, was imputed to the owner thereof. There, of course,- the bailee was charged with the custody of the property of the owner so as to charge the owner with the consequences. And the rule as to imputed negligence as settled in this state, in cases other than parent and child, is that, in the absence of the relation of principal and agent, negligence in the conduct of another will not be imputed to a plaintiff if he neither authorized such conduct nor participated therein, nor had the right or power to control it. Railway Co. v. Kutac, 72 Tex. 643, 11 S. W. 127; Railway C'o. v. Johnson, 224 S. W. 282, and see authorities there cited; also see 20 R. C. L. p. 128, § 121; 1 Sutherland on Damages (3d Ed.) § 27. 1 Sutherland on Damages, § 27, states the rule to be that in order to impute the negligence of a third person to the plaintiff such third person must be “some one subject to his control or direction, or with whom he is so identified in a common enterprise as to become responsible for the consequences of his negligent conduct.” And it is stated in I Thompson on Negligence (3d Ed.) § 506:

“There is some small authority in support of the proposition that the negligence of one of two joint undertakers may be imputed to the other; the governing principle being that each is the agent of the other.”

[4-6] The principle of imputed negligence then, as seen, rests on agency, or authority of each, express or implied, to act for all in respect to the control of the means or agencies employed to execute the common purpose or enterprise. It is obvious in the instant case that the evidence is not sufficient to authorize a finding that J. D. Welch and appellee were in the relation of copartners or joint owners of the household goods or the wagon and team. Appellee had no joint interest or interest at all in the goods or team; and it is clear that J. D. Welch and appellee were not in the relation of principal and agent; and, if it were so, the appellee would be the agent, and not the principal. It is true that the jury were authorized to find from the evidence that J. D. Welch was loading his household goods in a car, and the appellee was his helper. They were working together in a sense in a joint venture or enterprise, but it is entirely consistent with the idea of personal service of employer and employee. Appellee had no other duty to perform than to receive the goods from the wagon and place.them in the car, and had no will in or control over the management of the wagon and team or J. L. Welch in driving the team to the car. A joint enterprise, within the meaning of the law of imputed negligence, is, as given in 20 R. O. L. p. 149, § 122:

“The joint prosecution of a common purpose under such circumstances that each has authority, express or implied, to act for all in respect to the control of the means or agencies employed to execute such common purpose.”

It is further evident that appellee did not authorize or participate in the driving of .the wagonload of freight beside the ear at .the time in question. In the case of Schron v. Railway Co., 16 App. Div. 111, 45 N. Y. Supp. 124, the father and son were engaged in moving goods, for which purpose a horse and vehicle were used, and they were so occupied and upon the wagon when the accident hap *684 pened. Negligence of the one was there imputed to the other upon the ground that each was present and had control at hand of “the means or agency employed to execute the common purpose.” Either one at the time could have prevented the injury. It is believed that J. L. Welch and appellee were not, in the evidence, engaged in such common or joint enterprise, .within the meaning of the law of imputed negligence, as to make the appellee responsible for the negligence of J. L. Welch, assuming there was negligence on his part.

[7] It is believed that there is no error in the third assignment of error; and it is overruled. The evidence is ample to show a permanent injury and mental anguish therefrom. The jury can take notice of longevity; the age of appellee and his father being shown.

The judgment is affirmed.

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