dissenting.
I dissent, because the evidence does not support the jury’s finding of a business or pecuniary purpose. In Shoemaker v. Estate of Whistler, 513 S.W.2d 10 (Tex.1974), the supreme court made a decisive turnaround in the law applicable to joint enterprise, requiring a business or pecuniary purpose, so that “[it would] henceforth be avoiding the imposition of a basically commercial concept upon relationships not having this characteristic.” Id. at 17. The court would no longer consider such conduct as driving to work, to a dance, going to church, and going to buy groceries to be joint enterprises that would impose liability on the non-driver for the driver’s negligence. Id. at 16.
Shoemaker made it clear that merely a joint interest and equal right of control is not sufficient to impose vicarious liability or impute contributory negligence. Id. at 17. The commercial nature of the venture is the key, and it is exactly what is missing from the facts of this case.
The Rheas came to Fort Worth to run errands: Mrs. Rhea picked up facial cream, Mr. Rhea got a haircut, and they delivered tax papers to their accountant. The majority holds that this last errand involved their pecuniary interest and satisfied this element of Shoemaker. “Pecuniary” means “of or relating to money,” (Webster’s Third New International Dictionary, G. & C. Merriam Co., 1981), and would consequently apply to each of the Rheas’ errands, but none of the errands were of the commercial nature intended in Shoemaker. If a mere pecuniary interest met that standard, then purchasing groceries or going to work to earn one’s livelihood would still constitute a joint enterprise.
Williams also claimed that Mrs. Rhea was her husband’s agent. It was unnecessary for the majority to address this point because of their findings on the joint enterprise theory, but as Williams relies on this in the alternative, I will address it briefly. Williams contends the agency theory is supported by four facts: the Rheas delivering the tax papers; Mr. Rhea getting a haircut; Mr. Rhea being the registered owner of the car; and Mrs. Rhea driving it. In short: the papers concerned their taxes; Mrs. Rhea also ran a personal errand; the car registration in Mr. Rhea’s name does not overcome the community property presumption; see TEX.FAM.CODE ANN. § 5.02 (Vernon Supp.1990) and Austin v. Austin, 619 S.W.2d 290, 292 (Tex.Civ.App.—Austin 1981, no writ), and finally, Mrs. Rhea testified that her husband always drove their truck, and she always drove their car. There was no agency. Williams’ claim that Mr. Rhea had control over Mrs. Rhea assumes the outdated and unacceptable idea that a woman is subservient to her spouse.
I would therefore sustain the Rheas’ points of error concerning the lack of evidence to support the agency or joint enterprise theories, and reverse and render judgment based on the remainder of the jury’s findings.