This action was brought in the Circuit Court of Kanawha County by W. E. Stogdon, administrator of the *Page 287 estate of Albert Lee Stogdon, against the Charleston Transit Company for the purpose of recovering for death by wrongful act on the part of the defendant. On motion of the plaintiff the trial court set aside a verdict for the defendant and awarded the plaintiff a new trial, for the reason, as shown by his written opinion, made a part of the record, that instruction fourteen, given on behalf of the defendant over the plaintiff's objection, submitted to the jury the question of whether plaintiff's decedent, at the time of the collision resulting in his death, was engaged in a joint enterprise with the driver and other occupants of the car in which he was riding, so that any negligence of which the driver was guilty at the time could be imputed to him and thus bar recovery, the court being of the opinion, after studying a full transcript of the testimony, that the evidence would not sustain a finding to the effect that plaintiff's decedent was a participant in a joint enterprise at the time of the fatal injury. Plaintiff in error, defendant below, took the position that the giving of defendant below's instruction number fourteen concerning contributory negligence was not prejudicial, even though erroneous, because of the failure of the testimony of plaintiff below to establish negligence of any sort on the part of the defendant. The transit company took the further position that if the proof does justify submitting the case to a jury and admitting that there is no controversy concerning the material facts relevant to the question of joint enterprise, that question was properly submitted to the jury because divergent inferences necessary to a correct conclusion could be drawn by reasonable minds from the facts proven. In this state of the record it is necessary that we outline the surrounding circumstances, particularly the relationship of the occupants of the Stogdon car at the time of the collision, as disclosed by the record before us.
William E. Stogdon, the father of the decedent and of four of the other five occupants of the car at the time of the accident, lives in Sissonville, a town fourteen miles north of Charleston on U.S. Route 21, locally known as *Page 288 the "Sissonville Road", where he operates a service station. He owned, for family use, a five-passenger Chevrolet automobile, which was most frequently used by the persons who occupied the car at the time of the collision. These were his daughter, Mildred Stogdon, age twenty-six; his sons, William E. Stogdon, Jr., age twenty-one; Albert Lee Stogdon, age seventeen; Homer Stogdon, age fifteen and Robert Stogdon, age thirteen, usually accompanied by Ray Elswick, Jr., a neighbor, age fifteen. It was their custom to use the car in a drive to Charleston on Saturday night, it not being necessary for them, or any of them, to obtain permission, they "just used it any time they got ready to go", although W. E. Stogdon, Jr. was the only one of them who could drive. On the Saturday night in question they left their home at about seven o'clock, Junior driving, Mildred sitting next to him on the front seat and Albert at the far right. Ray Elswick, Jr. was on the back seat on the left, Robert Stogdon in the middle, and Homer Stogdon on the right. The object of the trip was to permit the three younger children on the back seat to go to a moving picture at the West Theatre located on Washington Street West, being the street on which Route 21 goes through the City of Charleston east and west, and to permit Albert to buy a coat and Mildred to make some purchases. Albert and Mildred were not driven to their ultimate destination, which was the principal business district of Charleston, but left the car, along with Junior, where it was parked on Walnut Street, going by bus to do their shopping. Before leaving the car it was understood by them all that Junior would get the car and pick up the three younger children at eleven o'clock in front of Goff's Drug Store on Washington Street near the West Theatre, and would then go to the Custer Theatre to meet Albert and Mildred, where it was understood they would then be. This they did, occupying the same positions in the car that they had coming into Charleston. It seems that Junior had no definite purpose in coming to Charleston on that particular evening other than to loaf. This he did by going to two beer parlors, meeting a number *Page 289 of friends from Sissonville and drinking some beer. He and his friends then went in the car to a bowling alley on Kanawha Boulevard, near Patrick Street, where he stayed until he started home. The testimony concerning the amount of beer that he drank is conflicting.
The declaration is in two counts, the first being based upon the violation of an ordinance of the City of Charleston and the second upon negligence coupled with the violation of a statute. The alleged ordinance was not introduced.
The collision took place just east of the intersection of "B" Street with West Washington Street, the bus of the defendant having stopped in the middle of the street just west of "B" Street to permit passengers to alight and having started east and gone between fifty and sixty feet before the impact. At the moment of the collision it could not have been going faster than fifteen miles an hour, and due to the fact that the driver had applied his brakes either simultaneously with or just preceding the collision, some witnesses thought that the bus was standing still. The Stogdon car, which at that time was proceeding west at a speed variously estimated and calculated to have been between twenty-five and sixty miles an hour, struck the left front of the bus with its left side so violently that its frame and bumper back to its left front wheel were forced under the left front corner of the bus so quickly that its driver was unseated. All of the occupants of the Stogdon car were injured, Mildred and Albert both being killed.
The front of the bus had been knocked off its course so that its forward end was facing diagonally to its left and toward the north or hill side of West Washington Street from beyond its left side of the street "center". The Stogdon car had been turned towards its left, so that it faced diagonally in the opposite direction with the bus and its rear had been forced against the north or hill side of West Washington Street where there is no sidewalk.
There is a great deal of detailed evidence in this record resting upon the question of negligence which we believe *Page 290 to be immaterial upon review and which we think unnecessary to recite.
Code, 17-8-4, reads as follows: "An operator meeting another vehicle coming from the opposite direction on the same highway shall turn to the right of the center of the highway so as to pass without interference." At the end of the plaintiff's proof, the defendant moved that the plaintiff be required to elect whether he sought recovery under the statute or under the ordinance. This the circuit court declined to require because, in its opinion, the provisions being identical, the same set of facts that would give rise to the right of recovery upon one would create the same right under the other, and consequently, the plaintiff had the right to submit both to the jury. The ordinance not having been proved, it was not error to decline to require an election because there could have been no recovery under the unproved ordinance.
We will first consider the matter of primary negligence on the part of the defendant. There seems to be no controversy concerning the fact that at the time of the collision the bus had just let out passengers on the west side of "B" Street, where it stopped in the "center" of Washington Street in a position where its left front and rear wheels were both north of the middle line of that street. At the time of the collision it had proceeded east not more than sixty feet and had not changed its direction, with the consequence that it was in the middle of the street when the bus and car collided. Upon its left or north there was an open and unobstructed space in the street estimated to have been twelve feet, with room for the Stogdon car to have safely passed. Defendant contends that that being so it was contributory negligence for the driver of the Stogdon car not to take advantage of what it contends was a plain opportunity of safety. Defendant assigns as a reason for the bus being in the middle of the street the fact that parking was permitted on the bus's right side, and when there were vehicles parked on that side of the street those going east were forced to travel in the middle of the street. According to defendant's contention, that *Page 291 practice gave rise to the custom of vehicles going east on Washington Street traveling in a lane outside the space allotted to parked vehicles at all times. To this the plaintiff replies by saying that the proof shows that there were no vehicles parked on the right of the bus within more than a hundred feet and that there are no exceptions named in the statute upon which it relies. Impossibility of compliance with a regulatory statute excuses performance; customary non-compliance cannot.
Under these circumstances we do not feel that we can say, as a matter of law, that the evidence of the plaintiff entirely failed to show a breach of legal duty incumbent upon the defendant which resulted in the death of plaintiff's decedent.
This brings us to the point of whether the question of joint enterprise has been properly submitted to the jury.
Under our West Virginia cases the common right to control a vehicle being used by the persons concerned to achieve a mutual purpose, definite in its scope, is deemed to be a joint enterprise. Here, of course, the mutual purpose was to drive from their home at Sissonville to the City of Charleston and return. Beyond that, their purposes and destinations varied. Three wanted to go immediately to a moving picture, two to shop and one to simply loaf. The three were taken to their destination in the car evidently because it was located on Washington Street and on their route to a parking place. Two had to reach the store in which they wished to buy by other means of transportation from the parking place, and the driver, after parking the car, later used the automobile to fulfil his purpose. We do not believe that here simply traveling together from one town to another is sufficient unity of purpose to constitute a joint enterprise. Neither do we believe that the proof in this case establishes sufficient common control of the vehicle to make the negligence of one imputable to the other. It is not shown that any one of these young people on this trip, or on any other trip that they took together, suggested to Junior either the route that he should follow or his definite destination. It *Page 292 does not appear that at any time any number of the others attempted to direct him in any way. All but Mildred were considerably younger. In fact, Robert, whose age was thirteen, and Homer, whose age was fifteen, could hardly be expected to exercise joint control upon equal terms with their sister, twenty-six, and their brother, twenty-one. See Howe v. CentralVermont Railway, 91 Vt. 485, 101 A. 45, 48, for a brief discussion on the question of infancy as it affects joint enterprise. We think our West Virginia case of Horchler v. VanZandt, 120 W. Va. 452, 199 S.E. 65, contains a clear discussion of a joint enterprise under our West Virginia holdings and cites applicable authorities. We do not think it necessary to repeat that discussion here, except to say that the case referred to fails to distinguish between a "joint adventure" and a "joint enterprise", the first being for profit and the second not necessarily so, according to its recent treatment. We have been unable to find in this record evidence of the control, either physical or authoritative, of the Stogdon car on one of the Saturday night trips exercised by any person or persons other than Junior. True, he apparently was very anxious to please his brothers and sister, but there is nothing, either direct or circumstantial, to show that his conduct was subject to their control, either individually or as a whole. Under these conditions, inferential conclusions are barred. We believe that a special verdict stating that his conduct was so controlled, from this record would have to be set aside, and that being so, it follows it was error to submit to the jury the question of whether the occupants of the Stogdon car were engaged in a joint enterprise when the collision took place. We do not think that it needs a citation of authorities to sustain the statement that an instruction given to a jury without sufficient proof to sustain a finding based thereon constitutes reversible error where prejudicial, and here it certainly prejudices the plaintiff's case by making available to the defendant a defense not justified by the evidence.
There is, we believe, a fatal defect in the phraseology of instruction number fourteen that is not briefed. Following *Page 293 the usual premise, that instruction contains the following language, emphasis supplied: "* * * that all were equallyengaged in a joint enterprise, that each acted voluntarily, and that all acted in unison, and that they were doing a thing necessary or convenient for their mutual enjoyment, and that none of them had exclusive control of the automobile, but that they all had at least equal right to control the actual operation of the car, even though the actual operation of the car was entrusted by them to W. E. Stogdon, Jr., then the Court instructs the jury that Albert Lee Stogdon, deceased, wasengaged in a joint enterprise * * *". It will be observed that the subject, or phrase, to be defined is included among the constituent elements in the definition. According to the instruction, in order for a person to be engaged in a joint enterprise he must not only be so engaged, but must also act voluntarily, in unison with others, and have equal right of control, et cetera. To our minds this is plainly what is known as a circle in definition and as such is bound to be confusing. This question is not raised and we comment for the purpose only of preventing the form of the instruction in question from receiving our implied approval.
The question whether Albert Stogdon, as a guest passenger, was guilty of contributory negligence due to the fact that he failed to remonstrate with Junior concerning his apparent negligent driving we believe to be obviously a jury question, and since this record does not plainly show that the jury's verdict for the defendant was based upon a finding of fact to that effect it cannot be sustained for that reason.
The final question briefed but not raised in the Circuit Court by the plaintiff in error is that W. E. Stogdon, the father of Albert and of Junior, is barred from recovery due to the fact that he is one of the distributees and that to permit him to recover would be to permit him to profit by his own wrong, because Junior, the driver, was acting as his agent under the family-purpose doctrine to which this Court is definitely committed. It is undoubtedly true *Page 294 that in those cases where a judgment for the plaintiff would, of necessity, be based upon the wrongful act of the distributee, through his agent or otherwise, there can be no recovery to the extent of that distributee's interest in the judgment. The same result would logically follow in this case if a possible recovery were unavoidably based upon Junior's negligence, which the verdict necessarily found. However, we do not believe that that verdict can be set aside because it was based upon an erroneous instruction concerning joint enterprise and can yet be left to stand for the purpose of establishing Junior's other contributory negligence. Neither do we believe that this record establishes Junior's contributory negligence as a matter of law. That being so, and there being no basis upon which we can now say that Junior's contributory negligence has been established, and being of the opinion that the order of the Circuit Court of Kanawha County setting aside the verdict of the jury and awarding the plaintiff a new trial is justified by the record before us, that order is affirmed.
Affirmed.