I cannot agree with the majority opinion that the trial court erred in holding as a matter of law that the appellant, Tom Nelson, and his son, Gene Nelson, were engaged in a joint enterprise. Where there was not dispute or conflict in the testimony, there was no disputed issue to submit to the jury. From the holding of the majority opinion, it is conceded that if the facts establish joint enterprise by appellant and his son, Gene Nelson, then appellant could not recover under the record in this cause because of the findings of the jury as to the negligence of Gene Nelson. It is further conceded that the uncontroverted *Page 290 evidence in the record establishes they had a joint interest in going to work on a farm, the object and purpose of the enterprise. Then the only difference between us on this point is that I cannot agree with the majority opinion where it is held that 'an examination of the record as to the element of control reveals no evidence of a right in either the appellant or in his son to direct and control the conduct of the other in the operation of the conveyance'. I am of the opinion that in order to constitute joint enterprise that it is necessary to have a joint interest and also joint control.
Both Gene Nelson and his father, Tom Nelson, testified that Gene Nelson was the son of Tom Nelson, that Gene was nineteen years of age and lived there at home with his father and mother. It is further shown by the undisputed record that they were living there together in the home of Tom Nelson and working together and sharing expenses and used the car for the purpose of going to work and making money with which to buy all their necessities and that all of the money went into one pot so far as their living expenses were concerned and they both went about this common purpose of making the living for both of them and were just living there together and working it out together.
The title to the car in question was in the name of Tom Nelson and this case was submitted to the jury as though the car belonged to Tom Nelson and the appellant did not object to such submission. I am of the opinion, however, whether the automobile was owned by Tom Nelson or by Gene Nelson is immaterial if it was at the time of the accident being used by the son while acting as the servant or agent of Tom Nelson. Altoonian v. Muldonian, 277 Mass. 53, 177 N.E. 830.
Under Article 4118 of Vernon's Revised Civil Statutes, it is provided:
"If the parents live together, the father is the natural guardian of the person of the minor children by the marriage.'
Article 4163 provides:
"It is the duty of the guardian of the person of a minor to take care of the person of such minor, to treat him humanely, and to see that he is properly educated, and, if necessary for his support, that he learn a trade or adopt some useful profession."
Article 4162 provides:
"The guardian of the person is entitled to the charge and control of the person of the ward, and the care of his support and education, and his duties shall correspond with his rights." (Emphasis ours).
Here we have the father and mother and the two boys living together in the father's and mother's home. The father and this minor son, the father being the natural guardian, are returning from work where they have been laboring for a common fund for the care of the father's family-including Gene. Tom Nelson being the natural guardian and having charge and control of Gene Nelson would naturally have some say as to the action of Gene in the way he drove the car at the time. Webster's Dictionary defines control as 'To exercise restraining or directing influence over; to dominate; regulate; hence, to hold from action; to curb; subject; also, obs., to overpower.' and gives the synonyms as restrain, rule, govern, guide, direct, check, subdue-'The act or fact of controlling; power or authority to control; directing or restraining domination; as, under parental control'. Tom Nelson being the head of the family and having the obligation of taking care of the person of said minor and being entitled to the control and custody of the child and the right to his services and earnings would, in our opinion, — constitute Gene Nelson the agent of Tom Nelson at the time in question under the record of this case since they were returning from work where they had been working for funds for the support of Tom Nelson's family. But whether or not this record is such as to constitute Gene Nelson the agent of Tom Nelson, we are of the opinion that the law *Page 291 as applied to the facts of this case show that Tom Nelson had the right of control of Gene Nelson and could control his operation of the conveyance and that under this record the trial court correctly held as a matter of law that this was a joint enterprise. Where the father and minor son are working together for the general support and benefit of the father's family and the son is doing something in forwarding and carrying-on of that work and in the presence of the father and in assisting the father in doing the work to hold the father has no control over the minor son in driving the car in question would render Article 4162 invalid and of no force and effect. Neither can I agree that the case of Cox v. Johnson, Tex.Civ.App., 259 S.W.2d 623 is in point here or was decided upon like facts. I am of the opinion the facts of this case constitute a joint enterprise as a matter of law as decided in the case of Straffus v. Barclay, 219 S.W.2d 65, at page 68, where it is stated:
"(4) Since the theory of joint enterprise is to make each party thereto the agent of the other and thereby to hold each responsible for the negligent acts of the other, it may have the effect of making a passenger liable to a third person not a party to the enterprise as well as barring his recovery against a third person on the ground of contributory negligence. Howard v. Zimmerman, 120 Kan. 77, 242 P. 131; Crescent Motor Co. v. Stone, 211 Ala. 516, 101 So. 49; Lucey v. John Hope Sons Engraving Mfg. Co., 45 R.I. 103, 120 A. 62; Ahlstedt v. Smith, 130 Neb. 372, 264 N.W. 889. The contributory negligence type of case is therefore in point here. In El Paso Electric Co. v. Leeper, Tex.Com.App., 60 S.W.2d 187, which has been cited with evident approval by this court (see Ford Motor Co. v. Maddin, 124 Tex. 131, 76 S.W.2d 474, 476; Rankin v. Nash-Texas Co., supra), a joint enterprise was held to exist as a matter of law as between the young lady plaintiff and her escort, who was driving her and himself in a car belonging to the young lady's mother, who in turn had let the couple use it to go to a dance. The court holds the enterprise to exist where there is 'not only a joint interest in the object and purpose of the enterprise, but also an equal right, express or implied, to direct and control the conduct of each other in the operation of the conveyance'."
I am of the opinion that, under the undisputed record in this case, the trial court was correct in holding as a matter of law that Tom Nelson and son, Gene Nelson, were engaged in a joint enterprise and that the negligence of Gene Nelson was imputed to Tom Nelson and that the judgment of the trial court should be affirmed.