Alma LITTLE, Appellant, v. Donald LITTLEFIELD and Baker Littlefield, Appellees, 311 F.2d 885

TUTTLE, Chief Judge. This is an appeal from an order granting a judgment notwithstanding a verdiet. The appeal, of course, presents the question whether there was such an issue of fact as to require its submission to the jury. This issue related to the part which Alma Little, the owner of the automobile in question, played in the transaction and is to be resolved by answering the question whether the proved negligence of Wilmer Little, the driver of the automobile, is to be imputed to Alma either under the doctrine of agency or under the theory of joint enterprise under the Texas law.

The undisputed facts are that Alma Little owned an automobile; that his son and a friend of the son, Edd Cawley, discussed with him the proposition of taking Edd Cawley home during the evening in question; that the trip started with the son Wilmer driving the car with Edd Cawley sitting on the right hand side in front, and with Alma, the owner of the automobile, in the rear seat; while driving under these circumstances a wreck occurred with the Littlefield car, as a result of which Edd Cawley was killed, and Alma Little was injured.

As the owner of the automobile, Alma had complete power to exercise control over it, but as a matter of faet he did not in any way direct the driving of the car or participate in any decisions with respect to its route, speed or manner of driving prior to the accident.

Other disputed facts which give rise to the real argument in the case deal with the question whether the trip engaged in by Wilmer Little and his father was solely the project of Wilmer, undertaken for the benefit of his friend, Edd Cawley, or a joint excursion engaged in jointly by Wilmer and Alma, the owner of the car, for the benefit of the passenger.

It is the contention of the appellee, accepted by the trial court, that the evidence conclusively demonstrated that Alma, the owner, was as fully engaged in the project as was his son Wilmer, the driver; that this fact, coupled with the admitted power in Alma to take over control of the automobile at any time he saw fit, required a determination as a matter of law that Wilmer was acting as agent for Alma; thus Alma’s recovery for his injury and damage to his automobile was barred under the rule of contributory negligence. The testimony dealing with this precise question is not clear.

The witnesses, Wilmer and Alma Little, were easily persuaded by whichever lawyer was asking them questions to give an answer favorable to the lawyer’s theory of the law in the case. In this state of the record the appellee contends that the appellant is bound by the most damaging statements elicited from him and his other witness, Wilmer, under what is asserted to be a Texas rule that parties are bound by all that is said to their detriment by witnesses sponsored by them. This, however, is not the federal rule. See Osley et al. v. Adams, 5 Cir., 268 F. 114, where, at page 116, this.

Court said: “While it may be true that the plaintiff by introducing adversary parties as his witnesses in an equity cause in the United States courts, is as much bound by their testimony as in the case of other witnesses, yet this does not mean that he is bound by every statement or conclusion of such witness, nor does it mean that he may not show that the witness is in error.” See also Liberty Mutual Ins. Co. v..

Hanovich, 5 Cir., 171 F.2d 168, whereon page 169, this Court said: “A litigant may vouch for the good character and general credibility of the witness without being estopped to deny the correctness or truthfulness of any particular fact or facts testified to by such witness.” See also Fort Worth and Denver Rwy. Co. v. Janski, 5 Cir., 223 F.2d 704, 709. Here there was evidence that the trip to take Edd Cawley home was at the request of Wilmer, and that Alma consented to it because he knew of the close relationship between Wilmer and Edd-Cawley. There is further evidence that Alma had no interest in the trip.

To-be sure, on cross examination, as indi— “friendship” trip, and he also conceded that all three parties were equally interested in going to Edd Cawley’s home.

We think the jury could sort out from the answers given by both Wilmer and Alma Little sufficient factual statements to warrant a finding that the trip was one consented to by Alma, the owner of the automobile, but at the request of, and for the benefit of, his son, whose project it was. cated above, Alma testified that it was a This brings us then to the question whether, notwithstanding an answer by the jury, in response to a special interrogatory, that Wilmer was not acting as the agent for Alma, the other facts in the case warrant the taking of the issue of imputing the contributory negligence of Wilmer to Alma from the jury as a matter of law.

The cases most strongly stressed by appellee are Johnston Testers, Inc. v. Taylor, 309 S.W.2d 117 (Tex. Civ.App.Ref.N.R.E.) and Straffus v. Barclay, 147 Tex. 600, 219 S.W.2d 65. We think that because of the different fact situation here present, neither of these cases is controlling.

Looking first at the Straffus case, it is clear that the court found a joint purpose or objective between the driver of the Straffus car, Hilda, and her father, Carl, since the court said there: “Certainly between Carl and Hilda there was an object to clean the church and buy the groceries.” The court also strongly stressed the testimony by the father, the owner of the automobile, that he participated with the driver in deciding to malee the turn that the jury found constituted a negligent act on the part of the driver.

The court stressed the fact that thus it was just as plainly the act of the owner of the automobile as if he had jointly had his hand on the wheel. In the more recent Johnston Testers case, the Texas Court of Civil Appeals was dealing with circumstances where the owner of the automobile was sitting in the front seat with the driver while they were returning from a joint date. Thus, the joinder of purpose was undisputed.

Under these circumstances the court then said: “Under all the circumstances, the law will presume that Jim Taylor was in full control of his automobile and that Bud McCumber was driving it under Taylor’s direction and as his agent.” Then, the court speaks of this presumption as a “rebuttable presumption.” It says in the opinion, “This is a rebuttable presumption which may be overcome by evidence to the contrary, but we have searched the record and find no evidence that would show that Jim Taylor had relinquished the control of his automobile to Bud McCumber.” In that case Taylor had been killed and was, therefore, not able to testify and McCumber was knocked unconscious and was equally unable to testify to any of the circumstances occurring at the time of the accident.

In light of the permissible inference which the jury could find from the evidence before them here that the trip was solely the project of the driver of the automobile, the essential element of a joint enterprise was not present. There was thus absent a critical factor which was present in both of the cases relied on by the appellee.

No case has been cited to us to indicate that under the Texas decisions the mere fact of the presence of the owner of an automobile in the car at the time of an accident creates an irrebutable presumption that the driver is his agent merely on the theory that the owner could, if he saw fit to do so, terminate the consent given to the driver to drive the automobile and retake control of it himself.

The cases speak of this fact as a “presumption” and as being “evidence.” We conclude, therefore, that the jury’s finding that Wilmer Little was not the agent of the owner of the automobile, the only special issue presented on this point, was warranted by the evidence and thus resolves the question whether the driver’s negligence is to be imputed to the owner of the automobile. The judgment of the trial court setting aside the verdict was, therefore, erroneous and the jury verdict must, therefore, be reinstated. The judgment is reversed for further proceedings not inconsistent with this opinion.