Price v. Halstead

• Decision Date: 19 March 1987
• Docket Number: No. 17022,17022
• Citation: 355 S.E.2d 380,177 W.Va. 592
• Parties: , 64 A.L.R.4th 255 Alex PRICE, Administrator, etc., et al. v. Larry HALSTEAD, Bobby Gillenwater, and Timmy Clay.
• Court: West Virginia Supreme Court

Page 380

355 S.E.2d 380

177 W.Va. 592, 64 A.L.R.4th 255

Alex PRICE, Administrator, etc., et al. v. Larry HALSTEAD, Bobby Gillenwater, and Timmy Clay.

No. 17022.

Supreme Court of Appeals of West Virginia.

March 19, 1987.

[177 W.Va. 593] Syllabus by the Court

1. " 'The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) Motion, should not dismiss the complaint unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Syl. Pt. 2 of Sticklen v. Kittle, [168 W.Va. 147] 287 S.E.2d 148 (1981)." Syllabus Point 1, McGinnis v. Cayton, --- W.Va. ----, 312 S.E.2d 765 (1985).

2. A joint venture or, as it is sometimes referred to, a joint adventure, is an association of two or more persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge. It arises out of a contractual relationship between the parties. The contract may be oral or written, express or implied.

3. A joint enterprise is distinguished from a joint venture by the fact that there is no business motive underlying the parties' efforts in a joint enterprise.

4. A passenger can be held liable as a defendant for the negligence of his driver if they were engaged in a joint enterprise.

5. "Where there is no showing of a common right to control the use of an automobile, an instruction to a jury that it may return a verdict based upon the existence of a joint enterprise is erroneous." Syllabus, Stogdon v. Charleston Transit Co., 127 W.Va. 286, 32 S.E.2d 276 (1945).

6. "The relationship of joint enterprise between the owner of an automobile driving the same and a guest passenger in the vehicle is not established by the mere fact that the driver and passenger were riding together to the same destination for a common purpose, where the passenger had no voice in directing and controlling the operation of the automobile." Syllabus Point 8, Frampton v. Consolidated Bus Lines, Inc., 134 W.Va. 815, 62 S.E.2d 126 (1950).

7. Most courts now reject application of the doctrine of joint enterprise to arrangements to travel together for merely social or recreational purposes.

8. Our guest passenger law recognizes the principle of contributory negligence that a passenger has a duty to exercise reasonable care for his own safety. This duty to exercise reasonable care for his own safety cannot be converted into a general duty on the part of a passenger to exercise reasonable care toward third parties.

9. The general rule is that there is no liability on the part of occupants of a vehicle for the negligence of the driver in the absence of a special relationship such as a joint enterprise or venture or master-servant.

10. "One who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm." Syllabus Point 2, Robertson v. LeMaster, --- W.Va. ----, 301 S.E.2d 563 (1983).

11. The violation of a provision of our motor vehicle statutes is prima facie evidence of negligence.

12. A passenger may be found liable for injuries to a third party caused by the intoxication of the driver of the vehicle in which he is riding, if the following conditions are met: (1) the driver was operating his vehicle under the influence of alcohol or drugs which proximately caused the accident resulting in the third party's injuries, and (2) the passenger's conduct substantially encouraged or assisted the driver's alcohol or drug impairment.

R. Edison Hill, Hill & Peterson, Charleston, for appellant.

Jenkins, Fenstermaker, Krieger, Kays & Farrell, Huntington, Steven P. Meyer, Meyer & Perfater, Charleston, for appellees.

Clarence H. Hall, Conaway & Hall, Madison, for Timmy Clay.

John S. Haight and George S. Sharp, Kay, Casto & Chaney, Charleston, for Vernon Harless.

Timothy E. Huffman, Preiser & Wilson, Stephen P. Goodwin, Goodwin & Goodwin, Charleston, for Halstead.

MILLER, Justice:

In this appeal we consider whether the passengers in a motor vehicle may be held liable for the negligence of their driver. The Circuit Court of Boone County dismissed the action against the defendants holding that the complaint failed to state a cause of action under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.

Our law respecting motions to dismiss is well established. We stated in Syllabus Point 1 of McGinnis v. Cayton, W.Va., 312 S.E.2d 765 (1984):

" 'The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) Motion, should not dismiss the complaint unless it appears beyond doubt the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Syl. Pt. 2 of Sticklen v. Kittle, 287 S.E.2d 148 (1981)."

See also Mandolidis v. Elkins Indus., Inc., 161 W.Va. 695, 246 S.E.2d 907 (1978); John W. Lodge Dist. Co. v. Texaco, Inc., 161 W.Va. 603, 245 S.E.2d 157 (1978); Chapman v. Kane Transfer Co., 160 W.Va. 530, 236 S.E.2d 207 (1977). We also said in Chapman, 160 W.Va. at 538, 236 S.E.2d at 212, that on a "motion to dismiss, the complaint is construed in the light most favorable to [the] plaintiff." The plaintiff's burden in resisting a motion to dismiss is a relatively light one, but he is required at a minimum to set forth sufficient information to outline the elements of his claim. If he fails to do so, dismissal is proper. John W. Lodge Dist. Co. v. Texaco, Inc., supra. With these principles in mind, we turn to the salient facts pled in the complaint and the various theories advanced by the plaintiffs to support their action.

I.

The plaintiffs are the administrator of the estate of Kenneth C. Wall and Mr. Wall's surviving wife, Louise Wall. The complaint alleges that on November 24, 1983, Mr. Wall was driving a pickup truck northbound on U.S. Route 119 near Peytona, West Virginia. His wife and two minor children were passengers in the truck. Stephen E. Garretson was driving in a southerly direction in an automobile owned by his mother, and in which the defendants were passengers. According to the complaint, Mr. Garretson was driving while under the influence of alcohol and marijuana and was traveling at an excessive rate of speed.

The complaint also states that both before and during the trip, Mr. Garretson and his passengers were consuming alcoholic beverages and smoking marijuana. All of the passengers were actively engaged in providing these substances to Mr. Garretson. Mr. Garretson lost control of his automobile and struck the Wall's vehicle head-on while attempting to pass another southbound vehicle. Mr. Wall was killed and his passengers received serious bodily injuries.

The plaintiffs advanced four theories of recovery against the defendants. First, they alleged that the defendants were engaged in a joint venture, the purpose of which was to "purchas[e] and/or utiliz[e] gas, beer, and marijuana" while joy riding. Second, they alleged the above described activities constituted a joint enterprise. Third, they alleged the defendants were negligent in failing to restrain or remonstrate Mr. Garretson when they knew or should have known he was driving while under the influence of alcohol and drugs. Finally, it is alleged that the defendants, knowing Mr. Garretson was driving while intoxicated, substantially assisted or encouraged his tortious activity by providing him with additional drugs and alcohol.

II.

THEORIES OF JOINT VENTURE AND ENTERPRISE

A.

The plaintiffs attempt to impute liability to the passengers upon alternative theories of joint venture and joint enterprise. While at least one of our older cases apparently used these terms interchangeably, Horchler v. Van Zandt, 120 W.Va. 452, 199 S.E. 65 (1938), we take this opportunity It is a single, isolated business pursuit which, as we said in Nesbitt, may be likened to a partnership, except "that a partnership relates to a general business ... while [a] joint adventure relates to a single business transaction." 149 W.Va. at 74, 138 S.E.2d at 865. We said in Horchler that a joint venture "is sometimes called a limited partnership; not limited as to liability, but as to its scope and duration." 120 W.Va. at 456, 199 S.E. at 67. We also pointed out in Nesbitt that a joint venture arises out of a contractual relationship between the parties. The contract may be oral or written, express or implied. See also Pownall v. Cearfoss, 129 W.Va. 487, 40 S.E.2d 886 (1946); Gelwicks v. Homan, 124 W.Va. 572, 20 S.E.2d 666 (1942).

to reaffirm our line of cases which serve to distinguish them. A joint venture or, as it is sometimes referred to, a joint adventure, is "an association of two or more persons to carry out a single business enterprise for profit, for which purpose they combine their property, money, effects, skill, and knowledge." Nesbitt v. Flaccus, 149 W.Va. 65, 73-74, 138 S.E.2d 859, 865 (1964). (Emphasis added).

Here, there are no allegations in the complaint which would indicate that the occupants of the car were engaged in any type of business enterprise. Thus, the trial court was correct in dismissing this theory as a matter of law.

B.

A joint enterprise is distinguished from a joint venture by the fact that there is no business motive underlying the parties' efforts in a joint enterprise. This point was made in a rather peripheral fashion in Stogdon v. Charleston Transit Co., 127 W.Va. 286, 292, 32 S.E.2d 276, 279 (1944), where the Court distinguished "between a 'joint adventure' and a 'joint enterprise', the first being for profit and the second not necessarily so." See 30 Am.Jur.2d Joint Ventures § 5 (1969).

We have utilized the joint enterprise concept in suits involving automobile accidents where the negligence of the driver is sought to be imputed to the passenger. The most common fact pattern involves a motor vehicle passenger...