*1 al., et WANDA PETROLEUM COMPANY Appellants, HAHN, Appellee.

Cynthia Jean Hickl

No. 704. Appeals of Civil Corpus Christi.

Dec. 1972.

Rehearing Denied Jan. 1973.

Branscomb, Hall, Gary, Thomasson & Norton, Christi, appel- Gary Corpus for lants. Victoria, Jones, appellee. F. for

O. OPINION SHARPE, Justice. appeal is

This from a rendered awarding recovery after trial Hahn, Cynthia plain- Hickl $772.00 Jean tiff-appellee, against appellants Wanda Pe- Company Monday, troleum L. and Clifford plain- denying recovery the other tiffs. brought was Edward L.

This suit Sr., Hickl, individually and as next friend Hickl, minor, Cynthia and by Jean Hickl, against L. Pe- Wanda corporation, Clif- Company, troleum Monday, After employee. ford L. its Cynthia filed- suit was Jean pur- For married to Charles Hahn. be referred opinion will poses Hickl. Jean may summarized as facts The basic Refugio January follows: On by Edward owned County, an automobile Sr., operated Ed- which occupied by ward L. riding who was truck seat, a disabled front collided with Company. by Wanda Petroleum owned ap- driver Monday Clifford *2 brother, Hickl, negligent (F)Edward L. was pellant’s Appellee truck. and her Jr. Hickl, a sufficient failing in to the left L. students at turn Edward Jr. collision; degree and that this Kingsville, in before the College Texas A & I Texas negligence Bay preceding and acts of to their home in the returning and were proximate a cause of the collision. City, when the collision occurred. Hickl, time, At that L. was Edward Jr. Special jury answer Issue No. 21 and the years age and Hickl was of Jean thereto : read follows years age. younger, years or 18 of four Appellants’ experienced truck had motor preponderance find a of “Do stopped right lane trouble and was in the that on the occasion evidence highway, Hickl, of the the same lane in which the Jr., Cyn- and question Edward L. traveling. Hickl, Hickl automobile was Edward in had the ob- thia a interest Hickl, driving L. testified that he was equal and an ject purpose and of the Jr. approximately sixty per miles hour imme- implied, and right, to direct express diately he preceding the collision and that operation in of control each other the light blinking noticed a red and reflectors the vehicle ? approached

as he the disabled truck. Answer ‘We do’ or ‘We do not.’ night was testimony also reflected hampered in foggy L. Hickl Edward do”' ‘We Answer: locating parked object. identifying and court, upon of The trial motion collision, appellee Cyn- As a result of this Hickl, Special disregarded No. Issue Jean 21 personal injuries. sustained thia thereon and awarded and the jury to a and in an- The case was tried against L. in her favor Clifford $772.00 controlling special issues the swer Company. Monday Petroleum and Wanda that: found also that Edward L. decreed Hickl, Sr., Hickl, Jr., Clifford Edward L. (A) negligent Monday Clifford L. was Monday and Wanda Petroleum Com- leaving parked in truck when it was corporation pany (which filed cross- negli- do not safe to so and that such against Hickl, action take Jr.) Edward L. gence proximate was a cause of the acci- nothing. affirm. We question; dent in point Appellant’s sole of is that error (B) Monday negligent Clifford L. was disregarding in “The Trial erred Court leaving in the truck unattended for a Special finding in Issue jury’s answer longer necessary period of time than was Hickl, Cyn- 21 that Edward L. No. Jr. negligence such proxi- was a joint enterprise on a Hickl were thia Jean question; mate cause accident ground on the accident at the time legally probative evidence suf- that there negligent (C) Edward L. was lookout; factual issue sub- such ficient raise failing keep proper support jury and to mission to negli- (D) Edward L. fact.” jury’s finding of gent failing application to make such Com- Antonio Transit Bonney v. San person ordinary of the brakes as a (1959) 160 Tex. pany, care would made under the same or part follows: Supreme held circumstances; similar our general legion on the are “The (E) negligent cases joint enterprise, many speed question of greater rate of The estab of this State. courts person ordinary prudence than a them ordinary lished definition the exercise care would have the facts applicable to jurisdiction or similar circum- driven under same joint enter that a under review ; here stances appeared There it that the car in which an occu a driver where prise exists minor, Pannell, Flanagan Sharon only a not ‘have an automobile pant of by Mike Flana- riding, being then driven purpose object and joint interest brother, gan, her older at the time of equal right, enterprise, but also *3 car, by was owned collision with another and control implied, to direct express or jury The the of said children. father opera other of each the conduct found, that among things, other the drivers conveyance.’ El Elec the Paso tion of negligence guilty of of both cars were Tex.Com.App., Leeper, 60 S. tric Co. and that proximately causing the collision 187, 189; Barclay, fus Straf W.2d Flanagan were Flanagan 600, Mike and Sharon 219 S.W.2d 65. Tex. court upon enterprise. The trial joint above, principal ques the indicated As disregard to granted plaintiff’s the motion appeal jury in this is whether the tion joint enterprise issues findings the on the Special Issue No. finding in answer to and, things, judg- rendered among other supported any by 43 is evidence. We F. Pannell for ment in favor of Sharon That have concluded that it is not. Although the Fort Worth $1000.00. by observing, question may narrowed be ultimately Appeals reversed the of Civil first, before us a that we do not have damages cross-point concerning case on a present in case in which the owner was Sharon, by the Court held asserted another, as by his own automobile driven disregarded the properly trial court second, supra; Barclay, in fus Straf Flanagan finding to the effect that Sharon in parent present nor one in which a joint on Pannell and her brother were child, his minor an automobile driven enterprise, reasons and that there two Fulkerson, 298, 155 Tex. in Nelson v. enterprise did why the doctrine of 129; third, in which one 286 S.W.2d nor plaintiff, recovery by not defeat bor occupant jointly a driver and an was, first reason F. Pannell. The Sharon automobile, an in El Paso Elec rowed substance, was no evidence in that there supra; fourth, one Leeper, tric nor Co. equal had an probative force Sharon parties engaged in a in which the older brother right of control with her all were business venture which operating actions control his interested, jurisdictions which in some second during the regarded creating relationship akin substance, negli- was, reason partnership. This is one case imputed to could not be gence of the driver which the owner of the automobile Sharon, unemancipated 14 who trip. on a nonbusiness also driver the wreck. year minor at the time of old any unable to discover facts areWe held Flanagan the Court Fuller v. support a rea that would the evidence part as follows: Shipler impliedly sonable inference that authority in the weight United any part of ex “The agreed relinquish his although an rule that operation of follows the clusive to control States directly that he is liable for torts infant automobile.” infant’s commits, negligence numerous Texas de Although there are be im- agent cannot alleged servant or involving doctrine of en cisions puted the doctrine the minor under us that Fuller v. terprise appears superior. 16 Tex.Law respondeat See 171, (Tex.Civ. Flanagan, 468 S.W.2d 586,and A.L.R. 487. Rev. 1971, e.) r. App., ref’d n. Fort writ Worth cases that we have All of the Texas case of as it relates to the Sharon insofar in line point are to find on this ap been able Flanagan correctly Pannell states authority. Stur closely weight See more with plicable rules and is of law (San Pagel, 109 tevant v. point on than other decisions. the facts Sturtevant, plain- Antonio, Tex.Civ.App., Jr., aff. in 134 was a minor. de- 1017); against all judgment Tex. Fernandez tiffs recovered Paso, Lewis, appeal of Civil (El Tex. fendants. On the Court S.W.2d 305 page Civ.App., dism.); Appeals writ and Gar said at 558: ‘We however, Henderson, concluded, rard v. re- Tex.Civ.App., against no writ must (Dallas, (Sturtevant) Junior liable on cannot be held

hist.). versed. Junior Snyder, Jr., who A. theory that A. The ‘joint enterprise’ doctrine is founded accident, at the time of the principles ‘Imputed agency. See a minor Junior, because agent was the Contributory Negligence’ Page Dean agency, on the doctrine of cannot be held *4 Keeton, 161, 13 Tex.Law Rev. Hines v. con- by be created agency only can Welch, (Texarkana, Tex. 229 S.W. 681 tract, originally not and a minor 1921, Civ.App., and 11 hist.) no writ by his contract.’ bound true, Tex.Law Rev. 263. Because this is lengthy not a discus- We will undertake neg imputing forbidding rule rule we have sion of the reasons for the ligence alleged minor agent of the to the applied. are reasons discussed Such apply the mi would also to cases where the citations we referred above engaged nor is with 89, 90, and in Infants and 91 43 negligent §§ person commits the who C.J.S. 209, pages 204 to inclusive. question. act in holding negli For other cases ‘joint enterprise’ con- doctrine is ex gence cannot be of his adventurer agree It must be based on an tractu. Green, minor, imputed to a see Bell v. ment, express implied. Bonney either or Mo., In (Sup.Ct. 423 724 S.W.2d Company, Antonio Transit 317 San Banc., ; Paul 1968) St. Insurance Com Antonio, Tex.Civ.App., (San 69 S.W.2d pany Carlyle, (Spring 428 753 S.W.2d 1958, 11, gr. rev. on other in 160 Tex. App., Mo.1968); field Ct. of A. 127 State, 117); Powers v. b., 1454, for a of such L.R. Sec. number 23, 11 Brown v. (1940); A.2d 909 Md. cases. Wood, 148, 293 Mich. 291 N.W. (1940); Rosenstrom v. Bend North Lewis, Fernandez the case of su- Line, Stage Wash. 280 P. pra, Miss Fernandez was the owner of ; (1929) and 48 Adventures § C.J.S. Joint passenger and a ni the car that Mic- one 3, p. 816. kle was at the time of the wreck. following opinion is from the In the Pagel, case Sturtevant page that case at 307 of 92 S.W.2d: Antonio, Tex.Civ.App., (San ‘Appellee seeks to sustain the aff. in 134 Tex. against Miss Fernandez because the evi- 1017), the car with which the defendants Ray- dence shows Miss Fernandez and by Stur- connected owned Mr. Mickle, accident, mond at the time of the Sturtevant, son, tevant, Sr., let his who engaged joint enterprise in a Jr., upon it use occasion equal right Miss Fernandez had Sturtevant, At Jr., the time of the wreck operation her control and direct car, being was in the but it was then car. Sturtevant, Jr’s, permission driven with Sr., Sturtevant, by Snyder, theory ignores A. A. This obvious fact unsupported was not in it is but pleadings, the car. It collided with Pagel passen- car in which Selma was a aside from consideration it is set- such ger. injuries died she sus- tled that She while minor liable dam- parents ages personal tained in the wreck and her then for his tortious act he Snyder. both not tort sued Sturtevants liable committed 260, 36; agent employee. 14 R.C.L. A That’s correct. § 128; Cooley p. on (2d Ed.) Torts Ann. Q telling she you Was how to drive Cases, 1916A,959, note.’ the car? Infants, Tex.Jur.2d, See also 30 Sec. No, she wasn’t. page 704. Q you in Were control of the car? said,

From what we have follows that disregard- the trial court did not err in A Yes. ing the the effect Q your Had sister ridden with that Sharon Pannell and F. Mike Flana- several occasions— gan a joint enterprise.” were on A Yes. We believe that the two reasons stated Flanagan support in Fuller Q —to and from school? trial court action in disregarding A Yes. enterprise finding in the case F. Sharon applicable Pannell equally are here try to tell how to Did ever case Hickl. car? drive the *5 instant of the accident At the time A No. years of case Edward L. was up you ? to left that She years Cynthia Hickl was age and Jean In factual then our age of and unmarried. A That’s correct. cases, situation, other the own- unlike some present the acci- er not of car was who was the one Q And were testimony addition, In there was no dent. on how fast to making decisions expressly or Cynthia Hickl was that drive, put on the brakes Jean or when to right of either impliedly entrusted with the thing? of and this sort equal control of the automo- exclusive or A That’s correct.” hand, evidence, on the other bile. The appellee’s hav- points brother more toward that also testified he He testified that ing exclusive control. expenses in the appellee shared and he routine all the as matter of drove car a and the automobile of maintenance Furthermore, he was time. he stated that trips for their expenses in the shared charge “mostly”, he was the elder since that in substance also testified home. He child. is no that Edward There evidence Hickl, had sister, appellee his Jean say they were where right much to as fa- of car their joint bailees owned did; they that trip as he going on the ther. he City, Bay to going home kept her Appellee testified that brother place gone other some not have would “rarely, she if “all the time” the car Antonio, being men- will, San against her it. stated: ever” drove She if had example; that he de- an tioned fog, hour in the per to miles cided drive 90 Primarily, it was his car and “Q right tell him slow sister had the just rode in it? done so. have probably would and he down Right.” cases set- Appellants cited several part Hickl, Jr., testified Edward L. doc- applicable to the the law ting forth follows: cases, enterprise. These joint trine analyz- however, assistance little offer Eddie, questions a more. just few “Q right to a passenger’s ing constitutes right in the what riding was Your sister a motor operation of and control right direct seat, ? front situa- her far as the instant factual borrowed the car from mother and vehicle standing a sense it was she who was tion concerned. her place of mother see that the car was held, supra, among Bonney, Furthermore, operated properly. the court expenses, con things, that sharing other agreement found that there was no be- stops to to be ferring on routes taken parties tween the that the date was to have pertain do not to the manner be made control of he exclusive or that support a rea driving nor an automobile driving exclusively. to do the right a to con joint sonable inference of operation. Appellants’ its contention note that some reflect a trol We authorities request away enterprise finding joint had a her trend appellee right a slower, except pecuniary that matter in- brother to drive or for where there some road, or to terest such as an actual relation- observe the rules of involved impending danger, ship principal-agent, employer-employee, is not evi warn him of partners or en- supports business adventurers dence which prosecution enterprise. appellee gaged felt of their business. The fact that brother right to caution her had the Torts, Second, Restatement Section if danger, her she considered life C, comment reads as follows: opinion her in her brother any right or imply recklessly, does not which are essential to elements “The vehicle; of control claimed commonly stated to are her brother she remonstrated with and had agreement, express or (1) four: any driving, she would reckless because implied, among the members of per any prudent than have done no more purpose to be car- group; a common (2) v. Worth son should have done. Siratt community by the group; (3) ried out *6 Co., (Tex. 263 842 Construction purpose, of interest in that pecuniary 1953), reversed on Civ.App., Fort Worth members; equal among (4) the an in other 154 Tex. grounds right to in direction of the a voice the (Tex.Sup.1954). right 615 gives equal an of enterprise, which . .” control. . by the the cases relied Analysis of others, particular- parties herein as as O’Brien, well N.J.Sup. also Clemens v. 85 See supra, Flanagan, in Fuller ly those cited (1964); 204 895 Stam Can A.2d trial, the to the conclusion that non, lead us Sup.1970); (Iowa 176 N.W.2d 794 finding properly disregarded jury the Co., court Liberty 36 Bach v. Mutual Fire Ins. Cynthia Ed- Hickl and in effect that 72, 152 911 Sher (1967); Wis.2d N.W.2d Hickl, on a enter- Korff, ward man 353 Mich. 91 N.W.2d Jr. appel- prise. the cases relied on of Bradshaw, One (1958); MacGregor 193 Leeper, El Electric Co. v. Paso ; Weintraub, lants 361 (1952) Va. 71 S.E.2d 1933, judg- (Tex.Comm.App., Enterprise Doctrine in The Automo Joint The facts there reflected approved). Law, ment L.Q. Cornell (1931); bile her borrowed daughter and date Keeton, Imputed Contributory Negligence, daughter’s mother. from the automobile an (1935); 38 Tex.L.Rev. 13 Tex.L.Rev. driving the the car and date The of The case Clemens (1960). of passenger at the time daughter was O’Brien, an re contains exhaustive supra, out, pointed The court accident. the doctrine of history the of the view of daughter the among things, other light on the and sheds much equal right had that she age application. and held scope its proper of the car and control date direct with her is af- trial court The the deter- Underlying the court’s question. daughter firmed. fact that mination was admitted that Even Edward NYE, (dissenting). Chief Justice right his sister had as much to control the majority The respectfully dissent. I going car as far as home was concerned as facts of this sets out the opinion accurately he did. apparently deter- majority The has case. examination, Upon cross proba- was no evidence mined that there testified: equal Hickl had an

tive force that brother to with her older right of control Okay. “Q right did She have much operating his actions direct and control home, car, going to control as far as And trip during did, you she ? didn’t second, negli- brother’s Cynthia’s older right. She had imputed to her because gence could not be decided, Q right. All if And eighteen year old minor. she was an golly, going car and we’re take this preponderance from a jury found go Antonio, you turn around and to San ques- the occasion the evidence that on right, you? did not have that did You tion Edward L. equal right, say- all had an what I am object interest had a ing, didn’t ? right, equal ex- purpose and an A More or less.” and control each press implied, to direct redirect, following of the vehicle. operation On was elicited: other finding disregarded “Q But controlling court she was not the car The trial it; authorized trial as far as just you court she was jury. — only when jury finding both disregard going home ? probative evidence suffi legally there is no A Right. justWe both—she had fin- for sub cient such factual issue to raise ished exams. She tired and she was support ju to the and to mission home, ready go and she was—we were ry’s finding making this deter of fact. way on our home from school. mination, all be considered evidence must But as far to control the light jury’s find most favorable to the car, way you drove the did not exer- ing every fact reasonable inference that, cise did she ? deductible from the evidence is to in A No.” dulged *7 jury’s favor of the Seale, fact. Harbin v. 461 591 S.W.2d appellee’s On recross, brother testified: Ricketts, (Tex.Sup.1970); Lynch 158 “Q Okay. question One more. It’s not 487, (Tex.Sup.1958). Tex. 314 S.W.2d 273 not; whether she exercised it or very Following this dictate we find that few of us exercise it. But she had the right say, to going ‘We are not any- Edward and his sister Jr. home’, but where she had that right University were students at Texas A I& equally you, with didn’t she ? Kingsville. at given The car was to both They expenses of them. shared in the (Emphasis supplied). A That’s correct. up- connection with its maintenance and also, say, right she had the if And to keep family while at school. Their shared you suddenly you decided that were expenses trips in their incurred to their ninety going to drive miles an hour on home. direct examination Edward On down, night, foggy say, this to ‘Slow replied kept “We it at school.” brother’, right she have that ? didn’t drove for “We home semester breaks Oh, A yes.” our vacation time.” The clear and reason- able inference alone is from admission Finally, on redirect: jointly his to his father loaned that, “Q joint If had told would daughter son use for their “we done it ? kept . . home . ”. it . we drove . .

435 away find Yes, probably agree A I trend I would have.” except ing enterprise exists joint that a clearly The evidence showed pecuniary interest in where is some there his sister had the admitted that principal agent, volved as an actual such right to if tell him to slow down he was partners or employer-employee, business fast; to that if she told him too prosecu joint engaged adventurers obeyed; slow down that he he would have is concerned. How tion their business right opposition did not have the to ever, “equal right Texas abolishes until destination; sister to go a different test, that must follow of control” I feel we right say that she had much the same Barclay, 147 authority. such Straffus v. they going where the occasion El (Tex.1949); Tex. 219 S.W.2d 65 question he did. as set The evidence Leeper, Paso Electric Co. 60 S.W.2d legally forth sufficient raise above App.1933, judgment adopt (Tex.Comm’n the factual issue of for ; Freight, Inc. Arn ed) Ball Motor Red disregarding submission to the spiger, (Tex.Civ.App.— 449 S.W.2d sup- the other sufficient evidence e.); o. McCormick v. no w. Stowe port en- of fact jury’s Co., (Tex.Civ. Lumber terprise. e.) and see App.1962, refused n. r. error right distinction is drawn between Co., 160 Transit Bonney San Antonio power physical control and actual 1959). (Tex. Tex. capacity may control. The latter and render I reverse would lacking affecting the without the defendant. physi of control not actual applied in such cal control is the usual test

cases. Com Benson v. Wanda Petroleum

pany, (Tex.Civ.App.— grounds.)

Houston reversed on other

If the evidence this case demonstrates

that on question Cyn- the occasion in Edward,

thia and her brother et Receiver, Tom I. equal right al., opera- McFARLING, to direct and control the Appellants, tion of the car and each had a inter- object est in such their would legal recovery. bar to her

constitute LAPHAM et Appellees. John al., dispute There is no as to the latter element No. 7412. being satisfied. brother and sister Appeals Civil travelling Bay City home to after se- Beaumont. They mester expenses exams. shared *8 It car. uncontestable that Dec. 1972. purpose brother sister had a common Rehearing 1973. Denied Jan. trip. making and a interest in majority cite the v. Flana- Fuller case, gan supra, authority a brother impute negligence

cannot to an une-

mancipated (14 year minor. old) How-

ever, I believe that this is no authori- case

ty refusing impute negligence year

a brother to a 18 because old woman An year

she is minor. old woman is emancipated escape this

sufficiently fic-

tion.