STATE OF WEST VIRGINIA
Report of the Court of Claims 1950-1952
Volume 6
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the period from December 1, 1950,
to November 30, 1952.
By
W. H. PERRY
Clerk
VOLUME VI
(Published by authority. Code 14-2-25).
WM.
W. GAUNT & SONS, INC.
Repdnt
Edition
Wm. W. GAUNT & SONS, INC.
3011 Gulf Drive, Holmes Beach, Florida 33510
Printed n
tF’e
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CONTENTS
UI
TABLE OF CONTENTS
Cases (claims) reported, table of XLI
Claims classified according to statute, list of XXXIV
Court of Claims Law -
VII
Digest of opinions (opinion index) 127
Letter of transmittal V
Opinions of the Court XXXIX
Personnel of the Court IV
Rules of practice and procedure XXI
Terms of Court VI
IV PERSONNEL OF
THE STATE COURT OF CLAIMS
PERSONNEL
OF THE
STATE
COURT OF CLAIMS
HONORABLE A. D. KENAMOND — Presiding Judge
HONORABLE ROBERT L. BLAND -
Judge
HONORABLE JAMES CANN Judge
HONORABLE WALTER T. CROFTON, JR Alternate Judge
HONORABLE PHILIP ANGEL Alternate Judge
W. H. PERRY Court Clerk
LENORE THOMPSON Law Clerk
JOHN G. FOX___ _Attorney General
IEI’TER OF
TRANSM1AL V
Letter
of Transmittal
To His Excellency
The Honorable Okey L. Patteson
Governor of West Virginia
Sir:
In conformity with the requirements of section twenty-five of the Court of
Claims law, approved March sixth, one thousand nine hundred forty-one, I have
the honor to transmit herewith the report of the State Court of Claims for the
period from December first, one thousand nine hundred fifty to November
thirtieth, one thousand nine hundred fifty-two.
Respectfully submitted,
W. H. PERRY
Clerk.
VI STATE COURT OF
CLAIMS LAW
TERMS
OF COURT
Four regular terms of court are
provided for annually— the second Monday of January, April, July and October.
STATE COURT OF
CLAIMS LAW VII
STATE
COURT OF CLAIMS LAW
Passed March 6, 1941; amended March 8,
1945
CHAPTER
14, CODE
Article 2. Claims Against the State.
Section
1. Purpose.
2. Definitions.
3. Proceedings against state officers.
4. Court of claims.
5. Court clerk.
6. Terms of Court.
7. Meeting place of court.
8. Compensation of members.
9. Oath of office.
10. Qualifications of judges.
11. Attorney general to represent state.
12. General powers of the court.
13. The jurisdiction of the court.
14. Claims excluded.
15. Rules of practice and procedure.
16. Regular procedure.
17. Shortened procedure.
18. Advisory Determination Procedure.
19. Claims under existing appropriations.
20. Claims under special appropriations.
21. Limitations of time.
22. Compulsory process.
23. Inclusion of awards in budget.
24. Records to be preserved.
25. Reports of the court.
26. Fraudulent claims.
27. Repealer.
28. Provisions severable.
Section 1. Purpose.—The purpose of this article is to provide a simple and
expeditious method for the consideration of claims against the state that
because of the provisions of section thirty. five, article six of the
constitution of the state, and statutory restrictions, inhibitions or
limitations cannot be determined in a court of law or equity; and to provide
for proceedings in which the state has a special interest.
VIII STATE COURT OF CLAIMS LAW
Sec. 2. Definitions.—For the purpose of this article “Court” means the state
court of claims established by section four of this article.
“Claim” means a claim authorized to be heard by the court in accordance with
this article.
“Approved claim” means a claim found by the court to be one that should be paid
under the provisions of this article.
“Award” means the amount recommended by the court to be paid in satisfaction of
an approved claim.
“Clerk” means the clerk of the court of claims.
“State agency” means a state department, board, commission, institution, or
other administrative agency of the state government: Provided, however, That a “state agency” shall not be considered to include county courts,
county boards of education, municipalities, or any other political or local
sub-division of the state regardless of any state aid that might be provided.
Sec. 3. Proceedings Against State
Officers.—The following proceedings
shall be brought and prosecuted only in the circuit court of Kanawha county:
1. Any suit in which the governor, any other state officer, or a state agency
is made a party defendant, except as garnishee or suggestee.
2. Any suit attempting to enjoin or otherwise suspend or affect a judgment or
decree on behalf of the state obtained in any circuit court.
This section shall apply only to such proceedings as are not prohibited by the
constitutional immunity of the state from suit under section thrity-five,
article six of the constitution of the state.
STATE COURT OF
CLAIMS LAW IX
Sec. 4. Court of Clairns.—There
is hereby created a “State Court of Claims” which shall be a special
instrumentality of the Legislature for the purpose of considering claims
against the state, which because of the provisions of section thirty-five,
article six of the constitution of the state, and of statutory restrictions,
inhibitions or limitations, cannot be heard in a court of law or equity, and
recommending the disposition thereof to the Legislature. The court shall not be
invested with or exercise the judicial power of the state in the sense of
article eight of the constitution of the state. A determination made by the
court shall not be subjected to appeal to or review by a court of law or equity
created by or pursuant to article eight of the constitution.
The court shall consist of three judges who shall be appointed by the governor
with the advice and consent of the senate. The terms of judges shall be six
years, except that the first membership of the court shall he appointed as
follows: One judge for two years; one judge for four years, and one judge for
six years. As these appointments expire, all appointments shall be for six-year
terms. Not more than two of the judges shall be members of the same political
party. An appointment to fill a vacancy shall be for the unexpired term. The
court shall each year elect one of its members as presiding judge.
The governor shall appoint three persons as alternate judges. Whenever a
regular judge is unable to serve or is disqualified, the governor shall
designate an alternate judge to serve in the place and stead of the regular
judge. Alternate judges shall be appointed for six-year terms except that the
first alternates appointed shall be designated to serve for two, four, and six
year terms as in the case of regular judges. Not more than two alternate judges
shall belong to the same political party. The provisions of sections eight to
ten, inclusive, of this article with respect to judges shall apply with equal
effect to alternates.
Sec. 5. Court Cterk.—The court shall have authority to appoint a clerk, and
shall fix his salary at not to exceed the sum of three thousand six hundred
dollars per annum to be paid out of the regular appropriation for the court.
The clerk shall have
X STATE COURT
OF CLAIMS LAW
custody of all records and proceedings of the court, shall attend meetings and
hearings of the court, shall administer oaths and affirmations and shall issue
all official summonses, orders, statements and awards.
Sec. 6. Terms of Court.—The court shall hold at least four regular
terms each year, on the second Monday in January, April, July and October. If,
however, one week prior to the date of a regular term, no claims are ready for
hearing or consideration, the clerk, with the approval of the presiding judge,
shall notify the members that the court will not be convened. So far as
possible, the court shall not adjourn a regular term until all claims then upon
its docket and ready for hearing or other consideration have been disposed of.
Special terms or meetings may be called by the clerk at the request of the
presiding judge whenever the number of claims awaiting consideration, or any
other pressing matter of official business, makes such a term advisable.
Sec. 7. Meeting Place of the Court.—The regular
meeting place of the court shall be at the state capitol, and the board of
public works shall provide adequate quarters therefor. When deemed advisable,
in order to facilitate the full hearing of claims arising elsewhere in the
state, the court may convene at any county seat.
Sec. 8. Compensation of members—Each judge of the court shaU receive twenty
dollars for each day actually served, and actual expenses incurred in the
performance of his duties. Requisition for traveling expenses shall be accompanied
by a sworn and itemized statement, which shall be filed with the auditor and
preserved as a public record. For the purposes of this section, days served
shall include time spent in the hearing of claims, in the consideration of the
record, and in the preparation of opinions. In no case, however, shall a judge
receive compensation for more than one hundred fifty days’ service in any
fiscal year.
STATE COURT OF
CLAIMS LAW XI
Sec. 9. Oath of Office.—A judge shall, before entering upon the duties
of his office, take and subscribe to the oath prescribed by article four,
section five of the constitution of the state. The oath shall be filed with the
clerk.
Sec. 10. Qualifications of Juclges.—A judge shall not be a state officer or a
state employee except in his capacity as a member of the court. A member shall
receive no other compensation from the state.
A judge shall not hear or participate in the consideration of a claim in which
he is personally interested. Whenever a member is thus disqualified, the clerk
shall notify the governor, and thereupon the governor shall assign an alternate
to act during such disqualification. Whenever a judge is unable to attend and
serve for any reason, the governor shall, when so notified by the clerk, assign
an alternate to act in the absence of the regular judge.
Sec. 11. Attorney General to Represent
State.—The attorney general shall
represent the interests of the state in all claims coming before the court.
Sec. 12. General Powers of the
Court.—The court shall in accordance
with this article, consider claims which, but for the constitutional immunity
of the state from suit, or of some statutory restrictions, inhibitions or
limitations, could be maintained in the regular courts of the state. But no
liability shall be imposed upon the state or any of its agencies by a
determination of the court of claims approving a claim and recommending an
award, unless the Legislature has previously made an appropriation for the
payment of a claim subject only to the determination of the court. The court
shall consider claims in accordance with sections sixteen to twenty, inclusive,
of this article.
Except as is otherwise provided in this article, a claim shall be instituted by
the filing of notice with the clerk. Each claim shall be considered by three
judges. If, after consideration, the
xri
STATE COURT OF CLAIMS LAW
court finds that a claim is just and proper, it shall so determine and shall
file with the clerk a brief statement of its reasons. If the determination of
the court is not unanimous, the reasons of the dissenting judge shall be
separately stated. A claim so filed shall be an approved claim. The court shall
also determine the amount that should be paid to the claimant, and shall
itemize this amount as an award, with the reasons therefor, in its statement
filed with the clerk. In determining the amount of a claim, interest shall not
be allowed unless the claim is based upon a contract which specifically
provides for the payment of interest.
Sec. 13. The Jurisdiction of the
Court.—The jurisdiction of the court,
except for the claims excluded by section fourteen, shall extend to the
following matters:
1. Claims and demands, liquidated and unliquidated, ex contractu and ex
delicto, against the state or any of its agencies which the state as a
sovereign commonwealth should in equity and good conscience discharge and pay.
2. Claims and demands, liquidated and unliquidated, cx contractu and ex
delicto, which may be asserted in the nature of set-off or counter claim on the
part of the state or any of its agencies.
3. The legal or equitable status, or both, of any claim referred to the court
by the head of a state agency for an advisory determination.
Sec. 14. Claims Excluded.—The jurisdiction of the court shall not extend to any
claim:
1. For loss, damage, or destruction of property or for injury or death incurred
by a member of the militia or national guard when in the service of the state.
2. For injury to or death of an inmate of a state penal institution.
STATE COURT OF
CLAIMS LAW XIII
3. Arising out of the care or
treatment of a person in a state institution.
4. For a disability or death benefit under chapter twenty- three of this code.
5. For unemployment compensation under chapter twenty- one-a of this code.
6. For relief or public assistance under chapter nine of this code.
7. With respect to which a proceeding may be maintained by or on behalf of the
claimant in the courts of the state.
Sec. 15. Rules of Practice and
Procedure.—The court shall adopt and
may from time to time amend rules of procedure, in accordance with the
provisions of this article, governing proceedings before the court. Rules shall
be designed to assure a simple, expeditious and inexpensive consideration of
claims.
The court shall also adopt and may from time to time amend rules pertaining to
persons appearing as representatives of claimants. Rules shall permit a
claimant to appear in his own behalf, or to present his claim through a
qualified representative. A representative shall be a person who, as further
defined by the rules of the court, is competent to present and protect the
interests of the claimant.
Under its rules, the court shall not be bound by the usual common law or
statutory rules of evidence. The court may accept and weigh in accordance with
its evidential value any information that will assist the court in determining
the factual basis of the claim.
Sec. 16. Regular Procedure—The regular procedure for the consideration of claims shall
be substantially as follows:
1. The claimant shall give notice to the clerk that he desires to maintain a
claim. Notice shall be in writing and shall be in
XIV STATE COURT
OF CLAIMS LAW
sufficient detail to identify the claimant, the circumstances giving rise to
the claim, and the state agency concerned, if any. The claimant shall not
otherwise be held to any formal requirement of notice.
2. The clerk shall transmit a copy of the notice to the state agency concerned.
The state agency may deny the claim, or may request a postponement of
proceedings to permit negotiations with the claimant. If the court finds that a
claim is prima faeie within its jurisdiction, it shall order the claim to be
placed upon its regular docket for hearing.
3. During a period of negotiations and pending hearing, the state agency and
the attorney general’s office shall, if possible, reach an agreement with the
claimant regarding the facts upon which the claim is based so as to avoid the
necessity for the introduction of evidence at the -hearings. If the parties are
unable to agree upon the facts, an attempt shall be made to stipulate the
questions of fact in issue.
4. The court shall so conduct the hearing as to disclose all material facts and
issues of liability. Any judge may examine or cross-examine witnesses. The
court may call witnesses or require evidence not produced by the parties; may
stipulate the questions to be argued by the parties; and may continue the
hearing until some subsequent time to permit a more complete presentation of
the claim.
5. After the close of the hearing the court shall consider the claim and shall
conclude its determination, if possible within thirty days.
Sec. 17. Shortened Procedure .—T he shortened procedure authorized by this section shall
apply only to claim possessing all the following characteristics:
1. The claim does not arise under an appropriation for the current fiscal year.
2. The state agency concerned concurs in the claim.
STATE COURT OF
CLAIMS LAW XV
3. The amount claimed does not exceed
one thousand dollars.
4. The claim has been approved by the attorney general as one that, in view of
the purposes of this article, should be paid.
The state agency concerned shall prepare the record of the claim consisting of
all papers, stipulations and evidential documents required by the rules of the
court. The record shall be filed with the clerk. The court shall consider the
claim informally upon the record submitted, If the court determines that the
claim should be entered as an approved claim and an award made, it shall so
order and shall file its statement with the clerk. If the court finds that the
record is inadequate, or that the claim should not be paid, it shall reject the
claim. The rejection of a claim under this section shall not bar its
resubmission under the regular procedure.
Sec. 18. Advisory Determination
Procedure.—The governor or the head of
a state agency may refer to the court for an advisory determination the
question of the legal or equitable status, or both, of a claim against the
state or one of its agencies. This procedure shall apply only to such claims as
are within the jurisdiction of the court. The procedure shall be substantially
as follows:
1. There shall be filed with the clerk the record of the claim including a full
statement of the facts, the contentions of claimant, and such other materials
as the rules of the court may require. The record shall submit specific
questions for the court’s consideration.
2. The clerk shall examine the records submitted and if he finds that it is
adequate under the rules, he shall place the claim on a special docket. If he
finds the record inadequate, he shall refer it back to the officer submitting
it with the request that the necessary additions or changes be made.
3. When the claim is reached on the special docket, the court shall prepare a
brief opinion for the information and guidance
XVI STATE COURT
OF CLAIMS LAW
of the officer. The claim shall be considered informally and without hearing. A
claimant shall not be entitled to appear in connection with the consideration
of the claim.
4. The opinion shall be filed with the clerk. A copy shall be transmitted to
the officer who referred the claim.
An advisory determination shall not bar the subsequent consideration of the
same claim if properly submitted by, or on behalf of, the claimant. Such
subsequent consideration, if undertaken, shall be de novo.
Sec. 19. Claims Under Existing Appropriations.—A claim arising, under an appropriation made by the
Legislature during the fiscal year to which the appropriation applies, and
falling within the jurisdiction of the court, may be submitted by:
1. A claimant whose claim has been rejected by the state agency concerned or by
the state auditor.
2. The head of the state agency concerned in order to obtain a determination of
the matters in issue.
3. The state auditor in order to obtain a full hearing and consideration of the
merits.
The regular procedure, so far as applicable, shall govern the consideration of
the claim by the court. If the court finds that the claimant should be paid, it
shall certify the approved claim and award to the head of the state agency, the
state auditor, and the governor. The governor may thereupon instruct the
auditor to issue his warrant in payment of the award and to charge the amount
thereof to the proper appropriation. The auditor shall forthwith notify the
state agency that the claim has been paid. Such an expenditure shall not be
subject to further review by the auditor upon any matter determined and
verified by the court.
Sec. 20. Claims Under Special
Appropriations.—Whenever the
Legislature makes an appropriation for the payment of claims
STATE COURT OF
CLAIMS LAW XVII
against the state, then accrued or arising during the ensuing biennium,
determination of claims and the payment thereof may be made in accordance with
this section. But this section shall apply only if the Legislature in making
its appropriation specifically so provides.
The claim shall be considered and determined by the regular or shortened
procedure, as the case may be, and the amount of the award shall be fixed by
the court. The clerk shall certify each approved claim and award to the
governor. The clerk shall issue his requisition to the auditor who shall issue
his warrant to the treasurer in favor of the claimant. The auditor shall issue
his warrant without further examination or review of the claim except for the
question of a sufficient unexpended balance in the appropriation.
_Sec. 21. Limitations of Time.—The court shall not take jurisdiction over a
claim unless the claim is filed within five years after the claim might have
been presented to such court. If, however, the claimant was for any reason
disabled from maintaining the claim, the jurisdiction of the court shall
continue for two years after the removal of the disability. With respect to a
claim arising prior to the adoption of this article, the limitation of this
section shall run from the effective date of this article: Provided, however, That no such claim as shall have arisen prior to the effective date of
this article shall be barred by any limitation of time imposed by any other
statutory provision if the claimant shall prove to the satisfaction of the
court that he has been prevented or restricted from presenting or prosecuting
such claim for good cause, or by any other statutory restriction or limitation.
Sec. 22. Compulsory Process.—In all hearings and proceedings before the court, the
evidence of witnesses and the production of documentary evidence may be
required. Summons may be issued by the court for appearance at any designated
place of hearing. In case of disobedience to a summons or other process, the
court may invoke the aid of any circuit court in requiring the evidence and
testimony of witnesses, and the production of books, papers, and documents.
Upon proper showing, the circuit
XVIII STATE
COURT OF CLAIMS LAW
court shall issue an order requiring witnesses to appear before the court of
claims; produce books, papers and other evidence; and give testimony touching
the matter in question. A person failing to obey the order may be punished by
the circuit court as for contempt.
Sec. 23. Inclusion of Awards in Budget.—The clerk shall certify to the director of the
budget on or before the twentieth day of November of each year next preceding
the year in which the Legislature meets in regular session, a list of all
awards recommended by the court to the Legislature for appropriation. The clerk
may certify supplementary lists to the board of public works to include
subsequent awards made by the court. The board of public works shall include
all awards so certified in its proposed budget bill transmitted to the
legislature.
Sec. 24. Records to Be Preserved.—The
record of each claim considered by the
court, including all documents, papers, briefs, transcripts of testimony and
other materials, shall be preserved by the clerk and shall be made available to
the legislature or any committee thereof for the reexamination of the claim.
Sec. 25. Reports of tli e Court—The clerk
shall be official reporter of the court. He shall collect and edit the approved
claims, awards and statements, and shall prepare them for publication and
submission to the Legislature in the form of a biennial report.
Claims and awards shall he separately classified as follows:
1. Approved claims and awards not satisfied but referred to the Legislature for
final consideration and appropriation.
2. Approved claims and awards satisfied by payments out of regular
appropriations for the biennium.
3. Approved claims and awards satisfied by payment out of a special
appropriation made by the Legislature to pay claims arising during the
biennium.
STATE
COURT OF CLAIMS LAW XIX
4. Claims rejected by the court with
the reasons theref or.
5. Advisory determinations made at the request of the governor or the head of a
state agency.
The court may include any other information or recommendations pertaining to
the performance of its duties.
The court shall transmit its biennial report to the governor who shall transmit
a copy thereof to the presiding officer of each house of the Legislature. The
biennial reports of the court shall be published by the clerk as a public
document.
Sec. 26. Fraudulent Claims—A person who knowingly and wilfully presents or attempts
to present a false or fraudulent claim, or a state officer who knowingly and
wilfully participates or assists in the preparation of a false or fraudulent
claim, shall be guilty of a misdemeanor. A person convicted, in a court of competent
jurisdiction, of violation of this section shall be fined not more than one
thousand dollars or imprisoned for not more than one year, or both, in the
discretion of such court. If the convicted preson is a state officer he shall,
in addition, forfeit his office.
Sec. 27. Repealer.—Section three, article three, chapter twelve of the official
code, one thousand nine hundred thirty- one, is hereby repealed. Any other
provision of law in conflict with the provisions of this act is hereby
repealed.
Sec. 28. Provisions Severable.—If any part of this act is held unconstitutional, the
decision shall not affect any portion of the act which remains. The remaining
portions shall be in full force and effect as if the portion declared
unconstitutional had never been a part of the act.
RULES OF
PRACTICE AND PROCEDURE XXI
Rules of Practice and
Procedure
OF THE
STATE
COURT OF CLAIMS
(Adopted by the Court July 30, 1941,
and Revised July 19, 1945)
XXII
RULES OF PRACTICE AND PROCEDURE
TABLE
OF RULES
Rules of Practice and Procedure
RULE
1. Clerk’s Office, Location, etc.
2. Clerk, Custodian of Papers, etc.
3. Filing Papers.
4. Records and Record Books.
5. Form of Claims, Number of Copies.
6. Copy of Notice of Claims to Attorney General and State Agency.
7. Jurisdiction, Prima Facie.
8. Preparation of Hearing Docket.
9. Proof and Rules Goveining Testimony.
10. Claims, Issues on.
11. Stipulations of Fact; Interrogatories to Determine.
12. Claimants, Appearances.
13. Briefs, Number of Copies.
14. Amendments to Notices, Petitions, etc.
15. Continuances: Dismissal for Failure to Prosecute.
16. Original Papers Not to be Withdrawn; Exceptions.
17. Withdrawal of Claims; Refihing, etc.
18. Witnesses.
19. Depositions.
20. Rehearings; Reopening, Reconsideration.
21. Shortened Procedure Records.
RULES OF
PRACTICE AND PROCEDURE XXIII
Rules
of Practice and Procedure
OF THE
State
Court of Claims
RULE 1. CLERK’S OFFICE LOCATION
AND HOURS.
The office of the Clerk of the Court
shall be at the State Capitol, in the City of Charleston, and shall be kept
open in charge of the Clerk, or some competent employee of the Court under the
direction of the Clerk, each weekday, except legal holidays, for the purpose of
receiving notices of claims and conducting the business of the Office, during
the same business hours as other public offices in the State Capitol are kept
open, except when otherwise required by the Court during a regular or special
session of the court.
RULE 2. CLERK, CUSTODIAN OF PAPERS, ETC.
The Clerk shall be responsible for all papers, claims or demands filed
in his office; and will be required to properly file, in an index for
that purpose, any paper, pleading, document, or other writing filed in
connection with any claim or demand. The Clerk shall also properly endorse all
such papers, claims, or demands showing the title of the claim or demand, the
number of the same, and such other data as may be necessary to properly connect
and identify the document or writing, claim or demand.
RULE 3. FILING PAPERS.
(a) Communications addressed to the Court or Clerk and all notices,
petitions, answers and other pleadings, all reports, exhibits, depositions,
transcripts, orders and other papers or documents received or filed in the
office kept by the Clerk of
XXIV
RULES OF PRACTICE AND PROCEDURE
this Court, shall be endorsed by him showing the date of the receipt or filing
thereof.
(b) The Clerk, upon receipt of a notice of claim, shall enter of record in the
docket book, indexed and kept for that purpose, the name of the claimant, whose
name shall be used as the title of the case, and a case number shall be
assigned accordingly.
RULE 4. RECORDS.
The Clerk shall keep the following
record books, suitably indexed in the names of claimants and other subject
matter:
(1) Minute and Order Book, in which shall be recorded at large, on the day of
their filing, all orders or recommendations made by the court in each case or
proceeding, and the Minutes of all official business sessions of the Court including
Rules of Procedure, orders paying salaries of members and expenses of the
Court, and the salaries, cpmpensations and expenses of its employees, and all
orders pertaining to the organization and administration of the Court, together
with such other orders as may be directed to be entered therein by the Court.
(2) Docket Book in which shall be entered each case or claim made and filed,
with a file or case number corresponding to the number of the case, together
with brief chronological notations of the proceedings had in each case.
(3) Financial Ledger, in which shall be entered chronologically, all
administrative expenditures of the Court under suitable classifications.
RULE 5. FORM OF CLAIMS.
Notices of all claims and demands must
be filed with the Clerk of the Court and may be by a written statement,
petition, declaration, or any writing without regard to form, which
sufficiently sets forth the nature of the claim or demand, the
RULES OF PRACTICE
AND PROCEDURE XXV
facts upon which it is based, the time, and place of its origin, the amount
thereof, and the State Agency, if any, that is involved. Technical pleadings
shall not be required. The Court however, reserves the right to require further
information before hearing, when, in its judgment, justice and equity may
require. It is recommended that notices of claims be furnished in triplicate.
RULE 6. COPY OF NOTICE OF CLAIMS TO
ATTORNEY GENERAL AND STATE AGENCY.
Upon receipt of a notice of claim or demand to be considered by the Court, the
Clerk shall forthwith transmit a copy of the notice to the State Agency
concerned, if any, and a copy thereof to the Office of the Attorney General of
the State, and the Clerk shall make a note of the time of said delivery of such
notice to the Attorney General’s Office.
RULE 7. JURISDICTION, PRIMA FACIE.
A reasonable time before the printing
of the docket, as provided by these rules, the Court will examine each claim to
ascertain whether it is prima facie within its jurisdiction. If it is found that the Court
has jurisdiction, the claim will then be ordered to be placed upon the docket.
If it is found that the Court is without jurisdiction, the claimant or
representative presenting the claim will be notified accordingly, by letter
from the Clerk; leave being granted the claimant or his representative to
appear before the Court at any time during a regular or special session
thereof, to show cause, if any, why the Court has or should assume jurisdiction
of the claim.
RULE 8. PREPARATION OF HEARING DOCKET.
The Clerk shall prepare fifteen days
previous to the regular terms of Court a printed docket listing all claims and
demands that are ready for hearing and consideration by the Court, and
XXVI
RULES OF PRACTICE AND PROCEDURE
showing the respective dates, as fixed by the Court, for the hearings thereof.
The said claims or demands shall appear on the said docket in the order in
which they were filed in the office of the Clerk. The Court, however, reserves
the right to rearrange or change the order of hearing claims or demands at any
regular term, when in its judgment such rearrangement or change would help to
expedite and carry on the work of the term. As soon as the docket is completed
and printed, a copy thereof shall be mailed to the address of record of each
claimant or his representatives of record, and a copy furnished the office of
the Attorney General.
RULE 9. PROOF, AND RULES GOVERING
TESTIMONY.
(a) Claims asserted against the State,
including all the allegations in a notice of claim, are treated as denied, and
must be established by the claimant with satisfactory proof, or proper
stipulation as provided under Rule 11 of the Court, before an award will be
made in any case. Affidavits are not admissible as proof of claims under the
regular procedure.
(b) While it is not intended or contemplated that the strict rules of evidence
governing the introduction of testimony shall control in the hearing or
presentation before the Court of any claim or demand; and while, so far as possible,
all technicalities shall be waived, yet the Court reserves the right to require
or outline from time to time certain formalities to be required in presenting
testimony in support of a claim or in opposition thereto, and to preserve the
proper sequence of procedure in the hearing of each individual claim, as the
circumstances may demand or require. Such requirements or formalities may be
announced from time to time during sessions of the Court.
(c) Under its rules, the Court shall not be bound by the usual common law or
statutory rules of evidence. The Court may accept and weigh, in accordance with
its evidential value, any information that will assist the Court in determining
the factual basis of the claim.
RULES OF
PRACTICE AND
PROCEDURE XXVII RULE 10. CLAIMS, ISSUES
ON.
In order to promote a simple,
expeditious and inexpensive consideration of the claim made, the Attorney
General shall within ten days after a copy of the notice has been furnished his
office file with the clerk a formal or informal statement or notice in writing,
either denying the claim, requesting postponement of proceedings to permit
negotiations with the claimant, or otherwise setting forth reasons for further
investigation of the claim, otherwise after said ten-day period the Court may
order the claim placed upon its regular docket for hearing, if found to be a
claim prima fade within its jurisdiction.
RULE 11. STIPULATIONS OF FACT,
INTERROGATORIES TO DETERMINE.
(a) It shall be the duty of claimants
or their attorneys or representatives, in claims under the regular procedure,
to negotiate with the office of the Attorney General so that the claimant and
the State Agency and the Attorney General may be ready at the beginning of the
hearing of a claim to read, if reduced to writing, or to dictate orally, if not
reduced to writing, into the record such stipulations, if any, as the parties
may have been able to agree upon, as for example, such factual data as the
following if material and applicable to the particular claim:
The control and jurisdiction over, location, grade, width, type of surface and
condition of particular roads, right of ways and bridges; exact or approximate
dates; identities of persons; iden— tity, description and ownership of
property; and any and all other evidential facts directly involved or connected
with the claim, without regard to the foregoing enumeration of data, and which
the parties may be able properly and definitely to agree upon and stipulate,
for the purpose of expediting the hearing, simplifying and shortening the
transcript or record of the claim and to facilitate the labour of the Court in
arriving at and resolving the controverted questions and issues involved; and
to the further end, where the claim is small, to avoid, if possible, the necessity
for the introduction of evidence.
XXVIII RULES OF
PRACTICE AND
PROCEDURE
(b) Where there is a controversy between a claimant and any State Agency, the
Court may require each party to reduce the
facts to writing, and if the
parties are not in agreement as to the facts, the Court may stipulate the
questions of fact in issue and require written answers to the said stipulated
questions.
RULE 12. CLAIMANTS, APPEARANCES.
Any claimant may appear in his own
behalf or have his claim presented through a duly qualified representative. The
representative may be either an attorney-at-law, duly admitted as such to
practice in the courts of the State of West Virginia, or one who has the
qualifications, in the judgment and opinion of the Court, to properly represent
and present the claim of a claimant. Where the representative is not an
attorney-at-law, then such representative must have the written authority of
the claimant to act as such.
RULE 13. BRIEFS, NUMBER OF COPIES.
(a) Claimants or their duly
authorized representatives, as well as the Attorney General or the State Agency concerned,
may file with the Court for its consideration a brief on any question involved,
provided a copy of said brief is also presented to and furnished the opposing
party or counsel. The Court may designate the time within which reply briefs
may be filed.
(b) All briefs filed with, and for the use of, the Court shall be in
quadruplicate—original and three copies. As soon as any brief is received by
the Clerk he shall file the original in the Court file and deliver the three
copies, one each, to the Judges of the Court.
RULE 14. AMENDMENTS TO NOTICES,
PETITIONS, ETC.
Amendments to any notice, petition,
or other pleading may be made by filing a new statement of claim, petition or
such other pleading, unless the Court otherwise directs.
RULES OF PRACTICE
AND PROCEDURE XXIX
RULE 15. CONTINUANCES; DISMISSAL FOR
FAILURE TO PROSECUTE.
(a) After claims have been set for
hearing continuances are looked upon by the Court with disfavor, but may be
allowed when good cause is shown there
for, or when the state and the
claimant jointly move for a continuance.
(b) A party desiring a continuance should file a motion showing good cause
therefor, before the first day of the
term, or otherwise at the earliest
possible date, so that if the motion be granted the opposing party may be
notified, if possible, in time to obviate the attendance of witnesses on the
day set for hearing.
(c) Whenever any claim regularly filed shall not be moved for trial by the
claimant during the time that four regular terms of Court have been held at
which the claim might have been prosecuted, and the state shall be ready to
proceed with the trial thereof, the Court may, upon its own motion or that of
the State, dismiss the claim unless sufficient reason appear or be shown by the
claimant why such claim cannot be tried.
(d) Whenever a claimant shall fail to appear and prosecute his claim on the day
set for hearing and shall not have communicated with the Clerk or the Court
prior thereto, advising of his inability to attend and the reason therefor, and
if it further appear that the claimant or his representative had sufficient
notice of the docketing of the claim for hearing, the Court may, upon its own
motion or that of the State, dismiss the claim.
(e) Within the discretion of the Court, no order dismissing a claim under
either of the two preceding sections of this rule shall be vacated nor the
hearing of such claim be reopened except by a notice in writing filed not later
than the end of the next regular term of Court, supported by affidavits showing
sufficient reason why the order dismissing such claim should be vacated, the
claim reinstated and the trial thereof permitted.
XXX RULES OF
PRACTICE AND PROCEDURE
RULE 16. ORIGINAL PAPERS NOT TO BE WITHDRAWN; EXCEPTIONS.
No original paper in any case shall be
withdrawn from the Court record, except upon special order of the Court, or one
of the Judges thereof in vacation, and except when an official of a State
Department is testifying from an original record of his de-’ partment a
certified copy of the original record of such department may be filed in the
place and stead of the original without special order of the Court.
RULE 17. WITHDRAWAL OR DISMISSAL MOTION
BY PARTY FILING CLAIM.
(a) Any claimant may move to withdraw
his claim and the same shall be dismissed. Should the claimant later refile the
claim, the Court shall consider its former status. such as previous
continuances and any other matters affecting its standing, and may redocket or
refuse to redocket the claim as in its judgment justice and equity may require
under the circumstances.
(b) Any department or state agency. having filed a claim for the Court’s
consideration. under either the advisory determination procedure or the
shortened procedure provision of the Court Act, may move to withdraw the claim
and the same shall be dismissed, but without prejudice to the right of the
claimant involved to file the claim under the regular procedure.
RULE 18. WITNESSES.
(a) For the purpose of convenience and
in order that proper records may be preserved claimants and State Departments
desiring to have subpoenas for withesses shall file with the Clerk a memorandum
in writing giving the name and number of the claim and setting forth distinctly
the names of such witnesses, and thereupon such subpoenas shall be issued and
delivered to the person calling therefor or mailed to the person designated.
RULES OF
PRACTICE AND PROCEDURE XXXI
(b) Request for subpoenas for witnesses
should be furnished to the Clerk well in advance of the hearing date so that
such subpoenas may be issued in ample time before the hearing.
(c) The payment of witness fees, and mileage where transportation is not
furnished, of any witness subpoenaed by or at the instance of either the
claimant or the respondent state agency, shall be the responsibility of the
party by whom or at whose instance such witness is subpoenaed.
RULE 19. DEPOSITIONS.
(a) Depositions to be read as part of
the record in any claim under the regular procedure shall not be taken,
recognized or allowed except in accordance with this Rule of the Court.
(b) Before any deposition shall be taken, permission shall be obtained from the
Court if in session, or from the Presiding Judge, or one of the other regular
Judges in the vacation of the Court. Application for such permission shall be
made in writing and show good and sufficient reason why the designated
witnesses, whose depositions are sought to be taken, cannot appear and testify
before the Court when such claim shall come up in regular order for hearing and
investigation.
(c) If such permission is granted to take the depositions of any designated
witnesses, reasonable notice of the time and place shall be given the opposite
party or counsel, and the party taking such depositions shall pay the costs
thereof and file an original and three copies of such depositions with the
Court. Extra copies of exhibits will not be required; however it is suggested
that where exhibits are not too lengthy and are of such a nature as to permit
it, they should be read into the deposition.
RULE 20. REHEARINGS AND REOPENINGS OF
CLAIMS AFTER DETERMINATION.
(a) Rehearings may not be allowed
except where good cause is shown why the case should be reconsidered. Motions
for
XXXII RULES OF
PRACTICE AND
PROCEDURE
rehearings may be entertained and
considered ex parte, unless the Court otherwise directs upon the petition
and brief filed by the party seeking the rehearing. Such petition and brief
shall be filed within 30 days after notice of the Court’s determination of the
claim, and the filing of the Court’s opinion therein, unless good cause be
shown why the time should be extended.
(b) Unless the petitioner expressly shall seek that the case also be reopened
upon the rehearing for the introduction of new testimony, and unless such
request for reopening the case appears proper and is supported by affidavits
showing good cause why the case should be reopened, such petition shall be
treated only as seeking a reconsideration of the claim upon the record already
made and before the Court. If a rehearing is allowed it shall be only for the
purpose of a reconsideration and redetermination of the case upon the record
already before the court unless the court, in its discretion shall, by its
order, otherwise direct.
RULE 21. RECORDS OF SHORTENED
PROCEDURE CLAIMS SUBMITTED BY STATE AGENCIES.
When claims are submitted under the
shortened procedure section of the Court Act, concurred in by the head of the
department and approved for payment by the Attorney General, the record
thereof, in addition to copies of correspondence, bills, invoices, photographs,
sketches or other exhibits, should contain a full, clear and acurate statement,
in narrative form, of the facts upon which the claim is based. The facts in
such record, among other things which may be peculiar to the particular claim,
should show as definitely as possible that:
(1) The claimant did not through neglect. default or lack of reasonable care,
cause the demage of which he complains. In other words, it should appear he was
innocent or without fault in the matter.
(2) The department, by or through neglect, default or failure to use reasonable
care under the circumstances caused the dam-
RULES
OF PRACTICE AND PROCEDURE XXXIII
age to claimant, so that the State in justice and equity should be held liable.
(3) The amount of the claim should be itemized and supported by a paid invoice,
or other report itemizing the damages, and vouched for as to the correctness
and reasonableness by some one in authority in the department.
The State Agency shall ascertain that it and the claimant are in agreement as
to the amount of the claim as proposed to be presented to the Court. Before the
record of the claim is filed with the Clerk it must bear the concurrence of the head of
the State Agency concerned and the approval for payment by the Attorney
General.
REPORT OF THE COURT OF CLAIMS
For Period December 1, 1950, to November 30, 1952
(1-a) Approved claims and awards referred to the Legislature, 1951, for the period from December 1, 1950, to January 26, 1951, after Report No. 5 had gone to press; allowed by the Legislature, 1951; opinions therein included in this report:
LI
|
No. |
Name of Claimant |
Name of
Respondent Amount |
Amount |
Date of |
|
|
727 |
Byard, Carter 0. (Mrs.) Chambers, Thurman, Sheriff |
State Road Commission State Auditor |
$ 197.27 |
$ 197.27 |
January 19,
1951 |
|
721 |
C1 ark, C. H. Cohen, Dma |
State Road
Commission |
42.08 |
42.08 |
January 16,
1951 |
|
729 |
Cramer, H. E. |
State Road Commission |
36.11 |
36.11 |
January 25, 1951 |
|
725 |
Daniels, Claire |
State Road Commission |
57.34 |
57.34 |
January 19, 1951 |
|
716 |
Gant, A. L. |
State Road Commission |
25.00 |
25.00 |
January 10, 1951 |
|
718 |
Garrison, Charles |
State Road Commission |
35.60 |
35.60 |
January 12. 1951 |
|
710 |
Hannas, Clearsin Lirikinogger, H. H. |
Department of Public Safety State Road Commission |
700.00 |
700.00 |
January 15,
1951 |
|
722 |
Mulims, Flem L. McBride, W. L. |
State Road Commission State Road Commission |
6,209.44 |
3,000 |
January 25,
1951 |
|
730 |
Resides, John B. and Service Fire Insurance Company |
State Road Commission |
60.46 |
60.46 |
January 23, 1951 |
|
728 |
Roberts, Orban, Father of Gary Roberts |
State Road Commission |
200.00 |
200.00 |
January 22, 1951 |
|
726 |
Smith, Kenneth G. and Calvert Fire Insurance Company |
State Road Commission |
164.63 |
164.62 |
January 25, 1951 |
|
717 |
Tabor, Woodrow |
State Road Commission |
150.00 |
150.00 |
January 12, 1951 |
|
715 |
Taylor, L. C. |
State Road Commission |
60.69 |
60.6 |
January 10, 1951 |
|
724 |
Town of Romney |
W. Va. Board of Educatlon |
872.38 |
872.3 |
January 16, 1951 |
|
1$ 9,816.54 |
$ 6,607.10 |
||||
Name
of Claimant
760 Andrews, Doyle
735 Bumgarner, Wallace
763 Cleaver, Tressie V. admx. estate of
Lemuel A. Cleaver, Jr., deceased
745 Copley, Jennie Bell
745 Copley, Stanley
772 Crighton, H. N. (Mrs.)
758 DelSignore, Jacquelyn R. and
American Farmers Mutual
Insurance Company
743 Esso Standard Oil Company
764 Gill, Stanley B. and Florence L.
771 Herbaugh, Sylvia
761 Higginbotham, P. 0.
767 Hogsett, Paul C.
769 Holliday, J. Kelvin and Kathleen
Holliday, d/b/a The FayetteTrib une 772 Johnson, Cora
756 Massi, Ugo J. and American Farm er Mutual Insurance Company
757 Milkint, Louis and Virginia and
American Farmers Mutual In suranc Company
Name of
Respondent
State Road Commission
State Board of Control
State Conservation Commission
State Road Commission
State Road Commission
State Adjutant General
State Road Commission
State Adjutant General
State Road Commission
State Conservation Commission
State Road Commission
State Road Commission
State Auditor
State Adjutant General
State Road Commission
State Road Commission
Amount Amount Date of
Claimed Awarded Determination
$
121.50 $ 121.50 January 16, 1952
3,079.30 2,000.00 July 17, 1951
256.80 256.80 April 30, 1952
350.00[ January 18, 1952
50.25 January 18, 1952
30.00 October 23, 1952
50.00 January 17, 1952
30.00 October 23, 1952
50.00 January 17, 1952
50.00 January 17, 1952
No.
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not
satisfied but referred to the 1953 Legislature for final consideration and
appropriation:
84.50
50.00l
53’JUly 12. 1951
1,100.00 April 30, 1952
75.00 October 20, 1952
600.00 April 30, 1952
127.50 October 17, 1952
76.55 October 16, 1952
58.00
1,514.01
75.00
2,000.00
127.50
76.55.
50.00
50.00
Name of Claimant
Milkint, Robert and Emogene and American Farmers Mutual Insurance Company
Motors Insurance Corporation Norris, Fred W.
Parks, Gerald H. and American Farmers Mutual Insurance Company
Rich Valley Dairy Company
Stewart, Clifford S.
Weekley, Margaret E.
Weekley, J. C.
Young, Hazen D.
State Adjutant
General Department of Archives and History
State Road Commission
State Adjutant General
State Adjutant General
State Adjutant General
State Adjutant General
State Adjutant General
Amount Amount
Date of
Claimed Awarded Determination
50.00 50.O01iariuary 17, 1952
176.31 176.31 October 24, 1951
150.OOi 150.00 October 16, 1952
40.00 40.00January 17, 1952
416.47 416.47July 19, 1951
196.97 79.41 October 24, 1951
725.82 57.00 October 23, 1952
608.82 October 23, 1952
202.90 202.90 January 16, 1952
$ 9,501.631 $ 6,806.51
tn
0
0
ci)
No.
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not
satisfied but referred to the 1953 Legislature for final consideration and
appropriation:
Name of Respondent
755
742
766
759
736
737
772
772
752
State Road Commission
C)
REPORT
OF THE COURT OF CLAIMS (Continued)
)
Approved
auns and awards satisfied bypaymentoutofregularappropriationforthebiennium.
No. Name of Claimant Name of Respondent Amount Amount Date of
Claimed Awarded Determination
738 Withrow, Bertram L. State Road Commission $ 30.60 $ 30.60 October 19,
1951
ci)
(3) Approved claims and awards satisfied by payment out of a special
appropriation made by the Legislature to pay claims arising during the
biennium: (None.)
U)
REPORT OF THE
COURT OF CLAIMS (Continued)
(4) Claims rejected by the Court:
|
No. |
. |
Name of Respondent |
Amount |
Amount |
Date of |
|
713 |
Bettina, Sergio
|
State
Commissioner of For— feited and Delinquent Lands |
$ 60.00 |
Dismissed |
January 9, 1951 July 11, 1951 |
|
754 |
Cassady, Kermit R. |
State Conservation Commission |
50.00 |
Dismissed |
January 15, 1952 |
|
740 |
Coleman Electric Service |
State Road Commission |
25.00 |
Dismissed |
January 14, 1952 |
|
711 |
Daniels, Raymond |
State Commissioner of For- |
168.16 |
Dismissed |
January 9, 1951 |
|
733 |
Dauenheimer, C.
V. |
feited and
Delinquent Lands |
100.88 |
Dismissed |
October 22,
1951 |
|
744 |
Friend, Harvey Graham, Homer |
State Department of Mines Workmen’s Compensation Commissioner |
150,000.00 |
Dismissed Dismissed |
December 17, 1951 January 9, 1951 |
|
723 |
Greene, H. F. |
State RDad
Commission |
18.16 |
Dismissed |
October 12,
1951 |
(4) Claims rejected by the Court:
REPORT OF THE COURT OF CLAIMS (Continued)
Amount I Amount Date of Claimed Awarded Determination
(5) Advisory determinations made at the request of the GovsrnDr or the heei of a state agency: (None).
Name of Claimant
No.
751
768
747
741
749
750
746
739
689
748
732
Name of Respondent
$198,379.74
NOTE: Subsections (1), (2), (3), (4), and (5), respectively, of the abev. table conform to and correspond with the similarly numbered subsections of Section 25 of the Court of Claims Law.
|
Mills,W. L. |
State Road
Commission |
315.00 |
Denied |
October 12,
1952 |
|
Vanata. Paul E.
|
State Road
Commission |
1,400.00 |
Dismissed |
January 9, 1951
|
OPINIONS
XLI
XLII TABLE OF
CASES REPORTED
TABLE
OF CASES REPORTED
American Farmers Mutual Insurance Company,
et als. V. State Road
Commission 75
Andrews, Doyle v. State Road Commission -- 71
Bumgarner, Wallace v. State Board of Control — 36
Byard, Carter 0. (Mrs.) v. State Road Commission 13
Calvert Fire Insurance Company, et al. v. State Road Commission 23
Chambers, Thurman, Sheriff V. State Auditor 14
Clark, C. H. v. State Road Commission — -. 11
Cleaver, Tressie V., admx. of estate of Lemuel A. Cleaver, Jr., deceased
v. State Conservation Commission 86
Cohen, Dma v. State Department of Employment Security 17
Copley, Jennie Bell and Stanley v. State Road Commission — 81
Copley, Louise v. State Road Commission . - __-_ 81
Cramer, H. E. v. State Road Commission 26
Crichton, H. N. (Mrs.) et als. v. State Adjutant General — 120
Daniels. Claire v. State Road Commission — — 12
Dauenheimer, C. V. v. State Road Commission . — 48
DelSignore, Jacquelyn R. and American Farmers Mutual Insurance
Company v. State Road Commission - --_—-_--. 75
Esso Standard Oil Company v. State Adjutant General_._ . 35
Farnsworth, Carlyle D. v. State Road Commission — -. 123
Flynn, William V. State Road Commission — - ._ 114
Gant, A. L. v. State Road Commission 2
Garrison, Charles v. State Road Commission __ 5
Gill. Stanley B. and Florence L. v. State Road Commission — 88
Hale Electric Company, a corporation v. W. Va. Board of Education - 94
Hannis, Clearsin v. Department of Public Safety - ——-.-- 6
Herbaugh, Sylvia V. State Conservation Commission ____ — 110
Higginbotham, P. 0. v. State Road Commission - _. 91
TABLE OF CASES
REPORTED XLilI
Hogsett, Paul C. v. State Road Commission —- 107
Holiday, J. Kelvin and Kathleen Holliday, d/b/a The Fayette Tribune
V. State Auditor 105
Johnson, Cora, et als. v. State Adjutant General - - 120
Linkinogger, H. H. v. State Road Commission B
Martin, Mary J. admx. of estate of James F. Martin, deceased V. State
Road Commission -
- - 51
Massi, Ugo J. and American Farmers Mutual Insurance Company V.
State Road Commission - - - 75
Maynard, Anna v. State Road Commission - - 81
Milkint, Louis and Virginia and American Farmers Mutual Insurance
Company V. State Road Commission — 75
Milkint, Robert and Emogene and American Farmers Mutual Insurance
Company V. State Road Commission 75
Mills, W. L. v. State Road Commission 117
Motors Insurance Corporation V. State Adjutant General 59
Mulling, Flem L. v. State Road Commission 28
McBride, W. L. v. State Road Commission 3
McKinley, Henry J. v. State Road Commission 111
Norris, Fred W. v. Department of Archives and History - - 102
Parks, Gerald H. and American Farmers Mutual Insurance Company v.
State Road Commission 75
Raynes, Brooks G. v. West Virginia University 61
Resides, John B. and Service Fire Insurance Company v. State Road
Commission -
22
Rich Valley Dairy Company v. State Adjutant General 39
Roberts, Orban, father of Gary Roberts V.
State Road Commission 15
Rutherford, Spence v. State Road Commission 66
Service Fire Insurance Company, et al v. State Road Commission 22
Smith, Kenneth G. and Calvert Fire Insurance Company V. State Road
Commission 23
Stewart, Clifford S. v. State Adjutant General __-_- 57
XLIV TABLE OF
CASES REPORTED
Tabor, Wood-row v. State Road Commission________ 4
Taylor, L. C. v. State Road Commission — — 1
Town of Ronmey v. W. Va. Board of Education __._ 9
Tsutras Brothers v. State Road Commission 43
Webb, Emmett Wayne v. State Road Commission 62
Weekley, J. C. et als. v. State Adjutant GeneraL - - —— 120
Weekley, Margaret E. et ais. v. State Adjutant GeneraL___ __ 120
West Virginia Insurance Company v. State Road Commission_.. 41
Witbrow, Bertram L. v. State Road Commission 46
Young, Hazen D. v. State Adjutant GeneraL.. __--_-——---- 70
Cases
Submitted and Determined
in the Court of Claims in the
State of West Virginia
(No. 715-S—Claimant awarded
$60.69.)
L. C. TAYLOR, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fi1eI January 10, 1951
JAMES CANN, JuDGE.
On or about the 20th day of July, 1949,
the agents and servants of the respondent were engaged in painting, by means of
a spray gun, a bridge spanning Elk river, at or near Big Chimney, Kanawha
county, West Virginia; they were using red lead paint commonly used in the
painting of bridges. On the above mentioned date, some of the paint that was
being used was sprayed on the claimant’s automobile while being operated over
said bridge, resulting in damages to claimant in the sum of $60.69.
It is evident that claimant’s automobile while traveling over said bridge was
not observed by the employes of respondent. The record discloses that no
flagman was present, or other means of warning used, to warn persons using said
bridge that it was being sprayed with paint. Further, the record fails to
disclose any negligence or contributory negligence on the part of the claimant;
but that the damage suffered by claimant was caused solely by the negligence of
the employes of the respondent.
2 REPORTS STATE
COURT OF CLAIMS [W.VA.
Recommendation of payment of this
claim is made by respondent and concurred in by the attorney general. Under all
the facts and circumstances as shown by the record, we are of the opinion, and
so hold, that the state should compensate claimant for the damages suffered;
therefore an award is made in favor of claimant, L. C. Taylor, in the sum of
sixty dollars and sixty- nine cents ($60.69).
(No. 716-S—Claimant awarded $25.00.)
A. 13. GANT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Jinuary 10, 1951
JAMES CANN, JUDGE.
On or about the 20th day of July,
1949, the agents and servants of the respondent were engaged in painting, by
means of a spray gun, a bridge spanning Elk river, at or near Big Chim ney,
Kanawha county, West Virginia; they were using red lead paint, commonly used in
the painting of bridges. On the above mentioned date, some of the paint that
was being used was sprayed on the claimant’s automobile while being operated
over said bridge, resulting in damages to claimant in the sum of $25.00.
It is evident that claimant’s automobile while traveling over said bridge was
not observed by the employes of respondent. The record discloses that no
flagman was present, or other means of warning used, to warn persons using said
bridge that it was being sprayed with paint. Further, the record fails to
disclose any negligence or contributory negligence on the part of the claimant;
but that the damage suffered by claimant was caused solely by the negligence of
the employes of the respondent.
W. VA.] REPORTS
STATE COURT OF CLAIMS
Recommendation of payment of this claim is made by respondent and concurred in
by the attorney general. Under all the facts and circumstances as shown by the
record, we are of the opinion, and so hold, that the state should compensate
claimant for the damages suffered; therefore an award is made in favor of
claimant, A. L. Gant, in the sum of twenty-five dollars ($25.00).
(No. 719-S——Claimant awarded $109.14.)
W. L. McBRIDE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Jinuary 12, 1951
JAMES CANN, JuDGE.
On or about the 20th day of July,
1949, the agents and servants of the respondent were engaged in painting, by
means of a spray gun, a bridge spanning Elk river, at or near Big Chimney,
Kanawha county, West Virginia; they were using red lead paint commonly used in
the painting of bridges. On the above mentioned date, some of the paint that
was being used was sprayed on the claimant’s automobile while being operated
over said bridge, resulting in damages to claimant in the sum of $109.14.
It is evident that claimant’s automobile while traveling over said bridge was
not observed by the employes of respondent. The record discloses that no
flagman was present, or other means of warning used, to warn persons using said
bridge that it was being sprayed with paint. Further, the record fails to
disclose any negligence or contributory negligence on the part of the claimant;
but that the damage suffered by claimant was caused solely by the negligence of
the employes of the respondent.
Recommendation of payment of this claim is made by respondent and concurred in
by the attorney general. Under all the
4 REPORTS
STATE COURT OF CLAIMS [W.VA.
facts arid circumstances as shown by the record, we are of the opinion, and so
hold, that the state should compensate claimant for the damages suffered;
therefore, an award is made in favor of claimant, W. L. McBride, in the sum of
one hundred nine dollars and fourteen cents ($109.14).
(No. 717-S—ChliTnrnt awarded $150.00.)
WOODROW TABOR, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
0-pinion jfled January 12, 1951
ROBERT L BLAND, JuDc.
This proceeding was submitted to the
court of claims for determination upon a record made by the state road
commission in pursuance of section 17 of the acts of the Legislature creating
the court of claims. The claim involved is in the sum of $150.00. The head of
the agency concurred in the claim and an assistant attorney general has
approved the said claim as one that in view of the purposes of the court of claims
statute should be paid. The determination must necessarily therefore be made
upon the basis of the record thereof submitted to the court as aforesaid. it is
made the duty of the attorney general by the court act to represent the
interest of the state in respect to all claims filed. This court must conclude
that neither the attorney general himself nor one of his assistants would
approve a claim asserted against the state without having carefully examined
such claim and making himself fully familiar with the facts out of which it
grew and with the knowledge that it is a claim for which the Legislature may
lawfully make an appropriation of the public revenues.
The facts in this case are substantially as follows. Employes of the state road
commission were, on the 28th day of March,
W. VA.] REPORTS
STATE COURT OF CLAIMS 5
1950, engaged in blasting on secondary route No. 52/2 in Mercer county, West
Virginia. Naturally, in performing work of this character precautionary
measures should be employed to prevent the possibility of accidents to persons
lawfully using the public highways of the state and their property. In the
instant case no flagman was present to warn persons traveling on the highway
that blasting operations were in progress. This fact alone would indicate a
dereliction of duty on the part of the road commission, and seemingly establish
its negligence in the performance of the work in which its employes were
engaged. The claimant had no knowledge of the work that was being done upon the
road and so far as it can be discerned from the record was guilty of no
negligence himself. However, as a result of the negligence of respondent
certain debris emanating from the blasting struck claimant’s car causing damage
thereto in the amount of $150.00.
Under all the circumstances and upon the clear showing of respondent’s
negligence, we are of opinion to approve the claim,
An award is therefore made in favor of the claimant Woodrow Tabor in the sum of
one hundred and fifty dollars ($150.00).
(No. 718-S-—Claimant awarded $35.60.)
CHARLES GARRISON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied Januar-y 12, 1951
JAMES CANN, JUDGE.
On the tenth day of April, 1950, at approximately two-thirty o’clock p• M., claimant,
while crossing the River Bridge at Monongah, Marion county, West Virginia, in
his automobile, was compelled to drive close to the guardrailing on his right
in
6 REPORTS STATE
COURT OF CLAIMS 1W.
VA.
order to avoid a large coal truck proceeding in the opposite direction. At this
point a piece of said giardrail, which was broken and sticking out from the
bridge railing, caught the right front fender of claimanfs car causing damage
thereto in the amount of $35.60.
The record discloses that shortly after this accident the broken guardrail was
welded and repaired.
This court has held in numerous cases that the statute requiring inspection and
proper maintenance of bridges controlled by the road commission is mandatory,
and failure to inspect and keep in repair a bridge so controlled and maintained
is negligence, making the state liable in case of an accident if caused by such
negligence. No negligence is shown on the part of claimant.
The respondent has recommended payment of this claim and the same is approved
by the attorney general. In view of the facts and circumstances as disclosed by
the record presented to this court, we make an award in favor of claimant,
Charles Garrison, for the sum of thirty-five dollars and sixty cents
($35.60).
(No. 710-S—Claimant awarded $700.00.)
CLEARSIE HANNAS, Claimant,
V.
DEPARTMENT OF PUBLIC SAFETY,
Respondent.
Opinion filed Ja.nuary 15, 1951
A. D. KENAMOND, JuDGE.
Claimant, Clearsie Hannas, of Romney,
West Virginia, seeks reimbursement in the sum of $700.00 as damages for the
loss of
W. VA.]
REP(jJtTh TH ZiJitT (jf CLAIMS 7
certain livestock occasioned by their eating poisonous lead paint and red lead which had been spilled and left in open buckets upon unfenced property adjacent to
or encircled by the pasture field af the claimant through the negligence of
employees of the state department of public safety on April 24. 1950.
In October 1946 respniienz had leased for ninety-nine years. for the
construction and in
ntenance of a remote radio control tower
and station. a cjne-a’re tarce of ground surrounded by land owned by the
pla:nt:f ‘who used the same for the pasture of livestock. According to the
terms of the lease, a copy of which was filed as exbh: A. respndcn was to erect
and maintain a permanent fenoe to enc.ose the said one-acre parcel of ground.
No fence was erected, and thus the cattle belonging to claimant had access :. the po:scnous tiaint left on the ground at the base of
the tower and to open used ‘cuckets cf paint strewn about near the tower.
The deposition of T. E. Names, a Hampshire county stock raiser experienced in
:rea:ng sick cattle, states that he was present with ve1erinarar..s rc::t
Boinr.ev. West Virginia. and Winchester, Virginia. when they ean.ined the sick
cattle arid came to the conclusion that they had symptoms of poisoning. Shortly
thereafter four of the c.arte died and said T. E. Haines was present when Sgt,
K. V. Shanholtzer. chemist for the state department of public safety, examined
contents of the dead cattle’s stomachs and after appropriate c.hemicall
analysis. decided that the cattle died as the result of poisoning.
Depositions of T. E. Haines, Daniel T. Williams and R. L. Baker,
competent appraisers, stated that they concurred in the following values for
the cattle which died as the result of eating the poisonous paint:
One bull, about thirteen months old $250.00
One heifer, about seventeen months old 175.00
One heifer. about thirteen months old 125.00
One heifer, about twelve months old 150.00
Total .
... $700.00
REPORTS STATE
COURT OF CLAIMS [W.VA.
This claim was originally filed on September 25, 1950, for consideration under
the regular procedure, but, after a thorough investigation by the state
department of public safety, it was submitted by respondent, with a record of
all the facts and circumstances in the case, as a shortened procedure claim
under the provisions of the state court of claims act.
The state department of public safety having concurred in this claim and
recommended an award of $700.00, and the attorney general having approved the
claim as one that should be paid, this court hereby makes an award and
recommends the payment of seven hundred dollars ($700.00) to the claimant,
Clearsie Hannas.
(No. 720-S-—Claimant awarded $56.80.)
H. H. LINKINOGGER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Op’inion
filed January 15, 1951
JAMES CANN, JUDGE.
On the 6th day of October, 1950,
claimant was driving cattle over and along Route No. 36, near Tariff in Roane
county, West Virginia, when a steer stepped into a broken corrugated metal pipe
culvert along said highway and almost severed its foot.
It appears from the record submitted to this court that this pipe culvert had
been separated and broken by a grader in putting the ditch line along this
highway; that an investigation by B. D. Shattoo, district safety director for
respondent, revealed that the pipe culvert had become separated from the collar
clamp leaving the pipe separated some four or five inches, the separa
W. VAJ REPORTS
STATE COURT OF CLAIMS 9
tion being along the berm about two feet from the paved surface and about four
feet from the ditch line.
The record further reveals that because of the injuries to the steer it had to
be slaughtered and sold to a butcher for $193.20; that at the time of the
accident the fair market value of the steer was $250.00, thus representing a
sacrifice loss to claimant in the sum of $56.80 for which claim is made. Mr.
Shatto’s report of his investigation of this claim contains the statement that
claimant’s claim of damages is just and that he should be reimbursed for the
loss he has sustained.
The respondent has recommended payment of this claim and said recommendation
has been concurred in by the attorney general.
Under all existing facts and circumstances as submitted to this court we are of
the opinion that this claim should be paid.
Therefore, an award is made to claimant, H. A. Linkinogger, in the sum of
fifty-six dollars and eighty cents ($56.80).
(No. 724-S—Claimant awarded $872.38.)
TOWN OF ROMNEY, Claimant,
V.
STATE BOARD OF EDUCATION, Respondent.
Opinion flied January 16, 1951
A. D. KENAMOND, JUDGE.
Claimant in this case seeks an award
in the sum of $872.38, representing pro rata share for the biennium 1947-1949
of the West Virginia school for deaf and blind, in maintenance of the sewage
disposal plant operated by the Town of Ronmey and
10 REPORTS
STATE COURT OF CLAIMS [W.VA.
jointly used and maintained by said
school and the Town of Romney. The claim includes $444.60 for 1947-1948 and
$427.78 for 1948-1949, making up the total of $872.38.
The state board of education would have authorized payment of the two items of
the claim if they had been brought to the attention of the board before
expiration of appropriation funds. The written agreement, under date of October
1, 1940, between the Town of Romney and the West Virginia board of control,
then and until July 1, 1947 in charge of the fiscal affairs of the school, set
35 per cent of cost as the school’s proportionate share of maintaining and
operating the sewage disposal plant. The superintendent of the school contended
that the proportion 35 per cent was too high and it was not until August 4,
1949 that the town council agreed to cut it from 35 to 20 per cent until the
census of 1950 should be taken, and a proper ordinance was adopted by council
to that effect. Thus the claims made after expiration of appropriated funds
were based on a lower rate than that which prevailed in the years 1947-1948 and
1948-1949 under the original contract.
The West Virginia board of education concurs in this claim and recommends an
award therefor under the shortened procedure provision of the state court of
claims act, and the claim is approved by the attorney general as one that
should be paid.
Accordingly, this court makes an award of eight hundred seventy-two dollars and
thirty-eight cents ($872.38) to the Town of Romney.
W. VA.] REPORTS
STATE COURT OF CLAIMS 11
(No. 721-S—Claimant awarded $42.08.)
C. H. CLARK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 16, 1951
JAMES CANN, JUDGE.
On the 4th day of October, 1950, claimant was operating his Ford truck over and
along the left fork of Sams Creek road in Wood county, West Virginia, when one
of his tires was cut by a sharp portion of a corrugated metal pipe culvert
which extended up alongside and into said road. From the record submitted to
this court it appears that a grader used in maintaining said road had struck
the pipe culvert splitting it in two near the end of the culvert and leaving a
sharp edge of said pipe sticking up inside of the road.
Respondent has approved this claim and has recommended payment and the said
payment is concurred in by the attorney general.
We are of opinion that upon the showing made by the record that claimant is
entitled to an award in the case; therefore, an award is made in favor of
claimant, C. H. Clark. for the sum of forty-two dollars and eight cents
($42.08).
12 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 725-S-—Claimant awarded $57.34.)
CLAIRE DANIELS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed J(LflUaTy 19, 1951
ROBERT L. BLAND, JUDGE.
The claim involved in this case comes
to the court of claims under the shortened procedure provision of the court
act. It is a claim concurred in by the head of the agency concerned and
approved by an assistant attorney general as one which within the meaning of
the court act should be paid by the state. The record prepared by the state
road commission and ified in the court discloses the following factst: On
October 21, 1950, claimant was driving her automobile in the town of Benwood,
where respondent had been engaged .in grading and widening the road, taking out
crossties, et cetera, when, at a point known as Kentucky Heights, her
automobile came in contact with a spike, damaging the tire and tube to the
extent of $57.34.
The court having informally considered the said claim is of opinion that under
the circumstances it would appear to be a claim possessed of merit. An award is
therefore made in favor of claimant Claire Daniels in the amount of fifty-seven
dollars and thirty-four cents ($57.34).
W. VA.]
REPORTS STATE COURT OF CLAIMS 13
(No. 727-S—Claimant awarded $197.27.)
MRS. CARTER 0. BYARD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Jnua.ry 19, 1951
JAMES CANN, JUDGE.
Claimant, Mrs. Carter 0. Byard, seeks
reimbursement in the amount of $197.27, which sum she was obliged to pay for
repair to her automobile damaged by rocks and debris thrown by blasting
operations on Hubbard’s Branch road, a secondary route of the state road
commission, in Wayne county. West Virginia.
The record submitted to this court reveals that the claimant, on the 19th day
of September, 1950, was operating her 1949 Ford sedan over and along said road
and as she approached the place where the employes of respondent were
reconstructing certain sections of said road, and were using dynamite to make a
new cut, she was halted by a flagman stationed for the purpose of halting
traffic while the blasting was occurring. After a blast had been shot claimant
was signaled and advised by the flagman to proceed and when she had traveled a
short distance a second blast was shot which threw rock and debris over her
automobile, damaging the top to the hood and side thereof which necessitated
the expenditure of $197.27, for repairs.
From the accident report form prepared and filed by the respondent it appears
that this accident was caused by improper flagging. From the report made by E.
C. Fields, foreman for the Wayne county maintenance department of respondent,
it appears that either the flagman or the employe in charge of blasting made
the mistake which caused the damages to claimant’s automobile, otherwise this
accident would not have happened.
From the whole record we conclude that the employes of the respondent working
on the project above mentioned were at
14 REPORTS
STATE COURT OF CLAIMS [W.VA.
fault and were solely responsible for
the damages claimed in this case.
The respondent concurs in claimant’s claim for damages and the same is approved
by the attorney general. We therefore make an award in favor of claimant, Mrs.
Carter 0. Byard, for the sum of one hundred ninety-seven dollars and
twenty-seven cents ($197.27).
(No. 731-S—--Claimant awarded $14.60.)
THURMAN CHAMBERS, Sheriff Minga
County, Claimant,
V.
EDGAR B. SIMS, State Auditor, Respondent.
Opinioii. filed.January 19, 1951
ROBERT L. BLAND, JuDGE.
Claimant Thurman Chambers, sheriff of
Mingo county, West Virginia, has filed a claim against Edgar B. Sims, auditor
of West Virginia, to obtain reimbursement in the sum of $14.60 on account of
witness certificates in felony cases which were paid by him. The auditor has
concurred in the claim and prepared and filed in the court of claims, under
section 17 of the court act, a record setting forth in detail the facts and
circumstances supporting said claim. These facts and circumstances are detailed
as follows:
“These are witness certificates from felony cases which were held at various
times ranging from the October 1945 term to the May 1949 term. Mr. Thurman
Chambers, Sheriff of Mingo County paid the witnesses for their expenses
itemized on the certificates, and in December 1950, submitted them to the State
for reimbursement from the Criminal Claims appropriation set up from General
Revenue Funds to pay certain expenses of felony cases, including witness fees such
as these. The State Auditor
W. VA.] REPORTS
STATE COURT OF CLAIMS 15
refused to reimburse the Sheriff out of the Criminal Claims appropriation for
the current biennium on the ground that these were for expenses incurred
prior to the current biennium. Recommendation of an award is urged so
that these delinquently submitted certificates can be paid.”
An assistant attorney general has approved the claim for payment. The court has
informally considered the claim upon the basis of the facts above stated and is
of opinion to make an award in favor of the claimant.
An award is, therefore, made in favor of claimant Thurman Chambers, sheriff of
Mingo county, in the sum of fourteen dollars and sixty cents ($14.60).
(No. 728-S—Claimant awarded $200.00.)
ORBAN ROBERTS, father of GARY ROBERTS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinton filed Jcrnuary 22,
1951
A. D. KENNAMOND, JUDGE.
The record of the claim involved in
this case was prepared by the state road commission and filed with the clerk of
the court of claims on January 8, 1951, to be considered upon the record
submitted, under the shortened procedure provision of the court act.
This claim is for injuries received on August 24, 1949, by Gary Roberts, then
seven years old, the son of Orban Roberts, of Hamlin, West Virginia. The facts
in the case were fully investigated by John L. Moore, safety director for
district one, Putnam
16 REPORTS
STATE COURT OF CLAIMS [W. VA.
county, and by Harry R. Bell, claims
agent for the state road commission, and their statements of fact are found in
the record submitted and may now be briefly recited by the court.
While working on the Big Creek Road in Putnam county, state workmen left a
dynamite cap lying by the side of the road when they quit work, and this cap
(exploder) was found by the child and exploded by him causing painful injury.
The child has several pieces of this exploder imbedded in various parts of his
body, which his physician, Dr. C. W. Thompson, of Hamlin, says will eventually
work out. The father, Orban Roberts, was delayed for several days in his work
of caring for a large tobacco crop in order to take the boy to the doctor at
Hamlin, a distance of several miles, and had doctor bills including treatment
of wounds, anti- tetanus shots and administering penicillin.
On January 5, 1951, Orban Roberts and Lena Roberts, father and mother of Gary
Roberts, executed a release, witnessed by Locie Johnson, releasing the state
road commission from any and all liability for damages, doctor bills, compensation
for lost time, etc.,
accruing from the accident wherein the
said Gary Roberts was injured, upon an award being made and payment being made
to them in the sum of two hundred dollars, said amount to be in full settlement
of any claim they now have or may have in the future against the state road
commission by reason of this accident.
Taking into consideration the immaturity of the child Gary Roberts, the
negligence of employes of the state road commission, the absence of any
intervening third cause, and also time lost by the child’s father as a result
of the accident, we are impressed with the merit of this claim.
The head of the agency concerned concurs in the claim and the attorney
general’s office approves it as a claim which in view of the act creating the
court of claims should be paid.
An award is therefore made in favor of the claimant Orban Roberts for the sum
of two hundred dollars ($200.00).
W.VA.j REPORTS
STATE COURT OF CLAIMS_— 17
(No. 707—Claimant awarded $825.00.)
DENA COHEN, Claimant,
V.
STATE
DEPARTMENT OF EMPLOYMENT SECURITY,
Respondent.
Opinion flIed January 23, 1951
Pursuant to the purpose and spirit of
the act of the Legislature creating the state court of claims, an award may be
made for claims against the state when the peculiar facts supporting such claim
show it to be just and meritorious and for which the state received distinct
value and benefit; and by virtue of the same act an award may be made to a
claimant for losses arising from such benefit having been afforded the state.
Appearances:
John S. Stump, Jr., for claimant.
Eston B. Stephenson, assistant attorney general, for respondent.
A. D. KENAMOND, JUDGE.
Claimant in this case seeks damages in
the sum of $825.00, representing loss in rent for property occasioned by the
failure of respondent to vacate certain premises on West Main street in
Clarksburg, West Virginia, on the expiration date of a written lease.
By writing dated July 1, 1944, claimant leased these premises to the state
department of unemployment compensation (so titled until changed by the
Legislature of 1949 to the department of employment security) for a period of
one year with renewal option for an additional year, which option was
exercised, thereby extending the lease period to and including June 30, 1946.
On January 21, 1946, claimant notffied respondent that the lease would not be
renewed, the said premises having been demised
18 REPORTS
STATE COURT OF CLAIMS [W.VA.
to other and different tenants, and demanded possession of the premises on
expiration date of June 30, 1946, and further offering to waive the thirty-day
notice stipulation in the lease if the respondent found it convenient to move
to other suitable quarters before expiration date of lease and agreeing to
accept rent only to such earlier date.
Respondent failed and refused to vacate as demanded, on the ground that other
suitable quarters could not be found. Finally respondent did vacate the
premises on November 15, 1946, and paid claimant rental in the amount of
$1,125.00, or $250.00 per month, for the four and a half months of extended
occupancy beyond expiration of lease. During this extended period Arlene Shops,
Inc. would have been paying claimant a rental of $300.00 per
month, or a total of $1,350.00, under a lease dated January 14, 1946, with the
right of occupancy on July 1, 1946. There was no disposition on the part of
respondent to contest the claim for $225.00, the amount of rental claimant lost
by reason of respondent’s occupying the premises from July 1 to November 15,
1946.
Accordingly, this court unanimously favors and does hereby make an award of two
hundred twenty-five dollars ($225.00) to Dena Cohen, as a claim for which the
state received distinct value and benefit.
Consideration of an additional claim of $600.00 for loss to claimant arising
from respondent’s failure to vacate on June 30, 1946, and a determination
thereof, is more difficult, and Judge Bland will dissent from the majority
opinion.
Having been deprived of occupancy of the premises on July 1, 1946, through the
failure of respondent to vacate, until November 15, 1946, and having been
unable to make necessary preparations for the Christmas trade, Arlene Shops, Inc., entered
into a controversy with the claimant in this case, asserting both the right to
reject the lease and to hold the claimant for heavy damages. The controversy
was settled by the claimant’s releasing Arlene Shops from the payment of
$600.00 rent for two months, from November 15, 1946 to January 15, 1947, during
which time Arlene Shops could secure materials, no longer hay-
W. VA.] REPORTS
STATE COURT OF CLAIMS 19
ing the priorities obtained for the previous July 1, and make necessary
alterations and prepare for the Easter trade. By this compromise settlement
Arlene Shops waived the right to, and released claimant from, any and all
damages to which they may have been entitled.
Counsel for state, on learning during the hearing of this case that, by this
settlement, Arlene Shops, Inc., is precluded from proceeding in the court of claims or
having a claim against the state of West Virginia said “I think we got off
swell.” However, said counsel felt he would be derelict if he did not raise a
constitutional question in connection with the compromise settlement between
Dena Cohen and Arlene Shops. In a brief filed by the assistant attorney
general, Eston B. Stephenson, he says that “It follows, therefore,” (from
reference to the case of State ex rel.
Baltimore & Ohio Railroad Co. v. Sims, Auditor, 132
W. Va. 13; 53 S. E. 2d 505) “that we cannot under the guise of a moral
obligation, regardless of how equitable and just this claim may appear,
accomplish indirectly that which cannot be accomplished directly, within the
prohibition of section 6, article X of the constitution.”
Counsel for claimant responds to respondent’s contention that allowance of the
$600.00 portion of this total claim rests entirely upon the holding in the B. & 0. case,
cited in Mr. Stephenson’s brief, by pointing out that “That case rested its
decision upon the inability of the state, either directly, that is by express
contact, or impliedly, that is by recognition of a covenant running with the
land, to assume an obligation resting upon the Parkersburg Bridge Company, a
private corporation, as the result of a contract made many years before by that
corporation with the Baltimore and Ohio Railroad. That case is as though we
were here asking the state to assume a liability resting upon a former tenant
for whom it had taken over for an unexpired term, such as a covenant to deliver
up the premises in good repair where the damages had been done by a former
tenant.”
In the consideration and determination of this case we have weighed the
following statement from the case of State
ex rel. Davis Trust Co. v. Sims, 130 W.
Va. 638:
20 REPORTS STATE
COURT OF CLAIMS [W. VA.
“The doctrine which gives rise to a moral obligation of the State, in any
particular instance, is not rendered inoperative by, and it is not incompatible
with, the principle which recognizes the immunity of the State from suit,
* * It rests upon considerations of an entirely different
and independent character. * * * if there
were a legal liability upon the State, or any legally recognized remedy for
such against it, there would be no occasion for one aggrieved or injured to
seek from the State, upon the basis of a moral obligation, the relief which he
is denied by positive law but to which he would be entitled if, in the
identical situation, an obligation or duty would be judicially recognized in
cases between private persons.”
We have also weighted the applicability to the instant case of the opinion
rendered by our Supreme Court of Appeals in the case of Price v. Sims, 58 S.
E. 2d 657, in which Judge Haymond stated:
“Generally, moral obligation which will support appropriation of public funds
must be based on obligation or duty created by prior statute, or created by
contract or resulting from wrongful conduct, which would be judicially
recognized as legal or equitable between private persons.”
A majority of this court is of the opinion that claimant in the instant case
took reasonable measures to reduce damage inflicted upon her by a state agency,
that her claim is such a claim as between private persons would be enforced by
a court of law, and that the nature of the claim brings it within the
definition of a moral obligation. We think there is merit in the contention of
claimant’s counsel that “It cannot be disputed that the damage grew out of a
breach by the state of its contract to surrender the leased premises at the
expiration of its term.”
Accordingly, a majority of this court makes an award of six hundred dollars
($600.00) to Dena Cohen, in addition to the award of $225.00 made by unanimous
opinion of the court, making a total award of eight hundred and twenty-five
dollars ($825.00) to claimant.
W. VAJ REPORTS
STATE COURT OF CLAIMS 21
ROBERT L. BLAND, JUDGE, dissenting in part.
Upon its face the total claim involved
in this case would seem to be possessed of merit. In its consideration I have
been greatly perplexed. I have concurred in so much of the whole claim as would
recommend to the Legislature an appropriation in favor of claimant of the unpaid
balance of rental due to her for the occupation of the demised premises at
Clarksburg, that is to say, the sum of two hundred and twenty-five dollars
($225.00).
I would be pleased if I could see my duty in a way that would enable me to vote
for the residue of the claim amounting to $600.00. I have no hesitancy in
saying that if the case were an action between private persons in a court of
law of the state a judgment in favor of the plaintiff against the defendant
would be upheld. I am constrained to think, however, that the award made by
majority members of the court in favor of the claimant for the further sum of
$600.00 is in contravention of section 6 of article X of our state
constitution. That section reads as follows:
“The credit of the state shall not be granted to, or in aid of any county,
city, township, corporation or person; nor shall the state ever assume or
become responsible for the debts or liabilities of any county, city, township,
corporation or person; nor shall the state ever hereafter become a joint owner,
or stockholder in any company or association in this state or elsewhere, formed
for any purpose whatever.”
It seems to me that the said award for the said sum of $600.00 is in effect a
grant of the credit of the state in favor of claimant. It amounts to an
indemnity. It circumvents the constitutional inhibitions and nullifies the
organic law of the state. It is urged that there is a moral obligation of the
state to pay such sum of $600.00. May a moral obligation take precedence over an
express constitutional inhibition? I think not.
For the reasons hereinbefore set forth I respectfully note this dissent to the
award in the sum of $600.00.
22 REPORTS
STATE COURT OF CLAIMS [W. V
(No. 730—S—Claimant awarded $60.46.)
JOHN B. RESIDES and SERVICE FIRE INSURANCE
COMPANY, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flIed January 23, 1951
A. D. KENAMOND, JUDGE.
This claim is for damages sustained by
John B. Resides by reason of cinders being thrown on his automobile by a state
road commission employee while cindering U. S. route 60 at Cedar Grove, West
Virginia, on the morning of February 25, 1950. The record supporting the claim
includes a statement by Gary Thompson, who threw the cinders, that he was at
fault, an itemized estimate of repairs in the amount of $60.46 made by N. &. W. Motors, Inc., of Oak Hill, and the subrogation
agreement with Service Fire Insurance Company covering the payment of same. It
appears from the record that John B. Resides carried insurance against loss or
damage to his car with the Service Fire Insurance Company of New York.
The state road commission concurs in this claim and recommends that an award be
made theref or under the shortened procedure of the state court of claims act,
and the claim is approved by the attorney general’s office as one that should
be paid.
Accordingly, an award is hereby made in favor of the claimants, John B. Resides
and Service Fire Insurance Company, in the sum of sixty dollars and forty-six
cents ($60.46).
W.VA.] REPORTS
STATE COURT OF CLAIMS 23
(No. 726-S——Kenneth G. Smith awarded $63.90; Calvert Fire Insurance
Company awarded $100.73.)
KENNETH G. SMITH, and CAL VERT FIRE INSURANCE
COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Jznuary 25, 1951
A. D. KENAMOND, JUDGE.
On April 10, 1950, at one.-thirty
o’clock A. M., claimant Kenneth G. Smith was driving his 1949 Plymouth station
wagon over and upon the Bridge Street bridge, entering U. S. 40 in Wheeling,
West Virginia, when he collided with a protruding rail, damaging his car to the
extent that the sum of $164.63 was required to repair it. Of this repair cost
coclaimant Calvert Fire Insurance Company paid $100.73 by reason of a policy
which it had theretofore underwritten; the remaining portion of $63.90 is due
the Sonderman Motors, Inc., from Kenneth G. Smith.
The record in this case shows that the Bridge Street bridge had been abandoned
by the state road commission on September 6, 1949, said road commission hoping
that the city of Wheeling would assume its maintenance. The city of Wheeling
was unable to do this because of financial difficulties, and no notices or
barricades were placed by the road commission forbidding traffic to enter the
bridge. It appears that the accident was unavoidable on the part of the
claimant and the state road commission feels that the accident made claim for
is its liability. A copy of the Sonderman Motors bill for repairs to Kenneth G.
Smith’s automobile is included in the record.
The state road commission concurs in this claim and recommends that an award be
made therefor under the shortened procedure provision of the state court of
claims act, and the claim is approved by the attorney general’s office as one
that should be paid.
24 REPORTS STATE
COURT OF CLAIMS [W.VA.
Accordingly, an award is made by a majority of the court in the amount of
sixty-three dollars and ninety cents ($63.90) to Kenneth G. Smith, and in the
amount of one hundred dollars and seventy-three cents ($100.73) to Calvert Fire
Insurance Company.
ROBERT L. BLAND, JUDGE, dissenting.
The claim involved in this case is in
the sum of $164.63. It is concurred in by the state road commission and
submitted to the court of claims under section 17 of the court act. An award
for the full amount sought has been made by a majority of the court. I cannot
concur in such award.
It will be observed that an insurance company is interested in the claim. As a
matter of fact it is a subrogation claim. It is prosecuted in the name of
Kenneth G. Smith, for the benefit of the insurance company.
The claim, for which the award is made, has been informally considered upon the
limited showing made by respondent’s record. No other or independent
investigation has been made as to the merits of the claim. The court has merely
placed its “rubber stamp” upon the above mentioned concurrence and approval.
The record does not satisfy me that the claim is one which a sovereign
commonwealth should discharge and pay. I do not look with favor upon claims by
way of subrogation against the state. Where does a moral obligation exist to
pay such a claim? The only way that the Legislature may make a valid
appropriation of the public revenues in satisfaction of such claim is upon the
theory of a state’s moral obligation to do so, and after it has ascertained and
declared the existence of such moral obligation. The doctrine of subrogation is
the creature of equity. It was unknown to the common law. The rule of
subrogation might be invoked in a proceeding between private persons, when it
could not properly be invoked against the state.
The Legislative interim committee which worked out the court scheme in its
report to the Legislature that enacted the court act stressed the fact that the
“shortened procedure” of the court act
W. VA.1 REPORTS
STATE COURT OF CLAIMS 25
should only be used in cases involving no issues and where it is plainly
manifest that the claim should be paid. Is it plainly manifest that the claim
in question should be paid? The fact that a claim is referred to the court of
claims under section 17 of the court act does not make it obligatory to make an
award.
After approximately ten years on the court of claims I do not hesitate to
express the opinion that the shortened procedure provision of the court act
should be repealed. It is not sound or practical in its operation.
At the present term of the court of claims we have had sixteen shortened
procedure cases and three cases under the rgular procedure. If laymen of the
road commission may make investigations and determine for what claims awards
should be made I do not see any reason for three members of the court—however
honest, conscientious and upright they may be—to exercise no duty other than to
use a “rubber stamp” by way of approval.
I hold my colleagues in the higest esteem but I cannot be too outspoken in my
condemnation of the “shortened procedure” of the court act.
I most earnestly and respectfully note this my dissent to the award made in the
instant case.
REPORTS STATE
COURT OF CLAiMS [W.VA.
(No. 729-S---Claimant awarded $36.11.)
H. E. CRAMER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opiniou flied Januarj 25, 1951
JAMES CANN, JuDGE.
The claim involved in this case is
submitted to this court under the shortened procedure provision of the state
court of claims act.
After an investigation by the respondent, or its agent, of the circumstances
which are the basis for the instant claim, a record was made and submitted to
this court and it revealed the following state of facts.
On the afternoon of the twenty-ninth day of November. 1950, while claimant was
operating his automobile over and across a small wooden bridge located on
Figgett road in Kanawha county, West Virginia. a part of the undercarriage of
the bridge gave away causing the front end of his automobile to drop into a
large hole thereby causing damages to it in the amount of S36.11.
It appears that this bridge was a small wooden structure approximately two feet
in depth and approximately sixteen feet in width; that on the day previous to
the day of the accident the employes of the respondent had attempted tD move a
large piece of equipment—a bulldozer—over the bridge, and because of it weight
it broke through; the said employes then filled the break with rock, gravel and
dirt to road level, as a temporary foundation, to make it passable. No doubt
the bridge was in a very poor and weakened condition due to the above incident,
and no attempts were made by the respondent to advise the general public of it
being unsafe. The record discloses that after this accident a “Road under
construction, travel at own risk’ sign was erected at the scene of this
accident.
W. VA. REPORTS
STATE COURT OF CLAIMS 27
No negligence is shown on the part of the claimant. The respondent recommends
the payment of this claim and the same is concurred in by the attorney general.
In view of all the facts and circumstances as submitted an award, by majority
members of the court, is made in favor of claimant H. E. Cramer, for the sum of
thirty-six dollars and eleven cents ($36.11).
ROBERT L. BLAND, JuDGE, dissenting.
The facts, constituting the basis of
this claim for which an award has been made, as certified to the court of
claims by the head of the agency concerned, are as follows:
“This accident was caused by the automobile belonging to this claimant wrecking
on a wooden bridge located on Figgett Road, which road was under construction
at the time. The bridge had been broken by heavy equipment passing over it and
had been filled with dirt and gravel. It seems that when claimant attempted to
cross bridge it collapsed and the automobile dropped into a hole causing damage
to it.”
It occurred to me at the time the claim was being informally considered that
the record submitted to the court was inadequate. I was of opinion that it
should have been returned to the department for supplementary information.
It will be observed that the bridge on which the accident occurred was under
construction. Could not the claimant have observed that fact? Why did he
attempt to cross the bridge when it must have been apparent that the road was
under construction? In doing so was he guilty of such contributory negligence
as would defeat his claim for an award? The court is necessarily bound by the
limited informatnon contained in the record.
Not being satisfied that the claimant has a meritorious claim against the state
I cannot concur in the award made, and make this brief note setting forth my
dissent to such award.
28 REPORTS STATE
COURT OF CLAIMS [W.VA
(No. 722—Claimant awarded $3000.00.)
FLEM L. MULLINS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 25, 1951
I. Hours of labor on state public works; penalty. The service and
employment of all laborers and mechanics who now are or hereafter may be
employed by or on behalf of this state, or by any contractor or subcontractor,
upon any of the public works of the state, is hereby limited and restrictcd to
eight hours in any one calendar day, except in cases of extraordinary
emergency; and it shall be unlawful for any officer of the state, or any countractor,
or subcontractor whose duty it shall be to employ, direct or control the
service of such laborers or mechanics, to require or permit any such laborers
or mechanics to work more than eight hours in any calendar day, except as
hereinbefore provided.
Any officer or agent of the state, or any contractor or subcontractor, whose
duty it shall be to employ, direct or control any laborer or mechanic emplyed
upon any of the public works of the state, who shall intentionally violate any
provision of this section, shall be deemed guilty of a misdemeanor, and for
each and every such offense shall, upon conviction, be fined not to exceed one
thousand dollars or imprisoned for not more than six months, or both fined and
imprisoned, in the discretion of the court having jurisdiction thereof. Code,
chapter 21, article 4, section 2349 (2).
2. Where a former employe of the state road commission who had been required
and allowed to discharge the duties of night watchman for a period of time in
excess of eight hours per calendar day seeks an award in the state court of
claims for remuneration for such overtime work, an award will be made in his
favor for such sum as the evidence adduced upon the hearing and investigation
of his claim shows him to be reasonably and justly entitled to.
J. Paul Clark, for claimant.
W. Bryan Spillers, assistant attorney general, for respondent.
ROBERT L. BLAND, JuDGE.
In this proceeding Flem L. Mullins, sixty-two years of age and a resident of
Logan county, West Virginia, seeks an award of
W. VA.]
REPORTS STATE COURT OF CLAIMS 29
$6,209.44. He represents to the court
that he has been in the employment of the state road commission of West
Virginia for twelve years. Prior to January 10, 1946, he was employed as a
laborer, working on the state highway system in Logan county. He maintains that
said employment was on the basis of an eight- hour day and an hourly rate of
pay. He further maintains that on January 10, 1946, he was transferred by the
county road supervisor from his job as a laborer on the state highway system to
the position of night watchman at the road commission garage located at
Stollings, Logan county, and that the rate of pay was on an hourly basis and at
the same hourly rate as that of laborer working out on the state highway
system, and that the hourly rate of pay at that time and at the time he entered
upon his duties as night watchman were the same, He says that he entered upon
his duties as night watchman the 10th day of January, 1946, and worked sixteen
hours a day in that capacity on through December 31, 1948, but only received
remuneration for eight hours a day, and that said contract of employment was on
the basis of fifty-eight cents per hour from January 10, 1946 through the 31st
day of March, 1946; and sixty-five cents per hour from the 1st day of April,
1946, through the 30th day of April, 1947; and seventy-five cents per hour from
the 1st day of May, 1947, through the 15th day of April, 1948, and eighty-two
cents per hour from the 16th day of April, 1948 through the 31st day of
December, 1948.
Claimant further maintains that in July of 1949, no action having been taken by
the county road supervisor, he employed an auditor to audit the number of hours
he had worked and the different hourly rates of pay that were in effect during
the period from January 10, 1946 through December 31, 1948; that said audit of
time and the amount due and payable to him under said audit was presented to
the state road commission, but payment was refused; that said audit shows that
he worked a total of 17,296 hours but that he only received remuneration for
8,648 hours, and that by computing the number of hours for which he did not
receive remuneration by the different hourly rates of pay that were in effect
during this period, there is due and payable to him the sum of $6,209.44.
30 REPORTS
STATE COURT OF CLAIMS [W.VA.
Upon the investigation and hearing of
the claim the claimant testified at some length on his own behalf. We were not
favorably impressed by the method employed by him in keeping his time.
According to his statement, for the period that he discharged the duties of
night watchman—being approximately three years—he kept his time on calendars,
using three of such calendars. He would mark each day that he worked on these calendars.
He did not produce the calendars before the court or satisfactorily account for
their absence. He did, however, file what purported to be a copy of the
calendar showings as an exhibit with his testimony. As before stated, prior to
the filing of his claim he had employed an auditor to audit his time but the
auditor in question did not testify upon the hearing. It developed that in the
course of his examination that although by his petition he claimed to work
sixteen hours a day from the time of his employment as night watchman until a
period when the duties discharged by him were divided into two shifts and the
employes worked every other day, that there was confusion in his testimony, and
that on certain occasions he had not worked on Saturdays, thus making it
manifest to the court that his testimony was inconsistent with the allegations
of his petition. From the testimony of other witnesses introduced on claimant’s
behalf it is made quite clear that he had in fact worked many hours in excess
of eight hours a calendar day. His contention of overtime work was well
established by numerous witnesses, including a former county supervisor.
At the conclusion of claimant’s testimony, W. Bryan Spillers, an assistant
attorney general, who represented the interests of the state at the hearing,
moved the court to dismiss the claim for reasons assigned at the time, but the
court, being of opinion that the claimant having invoked relief through the
state court of claims, as he had a lawful right to do, was entitled to be given
full opportunity to present his claim, therefore the said motion was overruled.
The further testimony introduced in support of the claim in question gave the
court additional enlightenment and assistance, and claimant’s counsel offered
to stipulate with the assistant attorney general that no claim would be made
for overtime remunera
W. VA.]
REPORTS STATE COURT OF CLAIMS 31
tion for those days on which the
claimant was at any time absent from duty. It was apparent to the court,
however, although the question was not presented for its consideration, that
claimant was, during the approximate period of three years in which he
discharged the duties of night watchman, entitled to annual leave with pay. The
stipulation was not agreed to, and after the claimant rested his case the state
introduced its several witnesses who respectively testified according to their
personal knowledge of claimant’s overtime work. We deem it unnecessary in this
statement to detail in any length the testimony of these witnesses. Suffice it
to say that there was unanimity of statement by both the claimant’s witnesses
and the state’s witnesses with respect to the overtime work performed by
claimant. On the whole claimant’s contention that he was required and allowed
to work many hours in excess of eight hours per calendar day was supported by
the witnesses offered in opposition to the allowance of the claim. In the
judgment of majority members of the court the plaintiff’s claim that he did
work over a period of approximately three years far in excess of eight hours
per calendar day was satisfactorily established. It would be difficult to
determine the actual time of the over work, but in view of the determination
hereinafter made by majority members that fact is unimportant.
Majority members of the court are not unmindful of chapter 21, article 4,
section 2349 (2) of the official code of West Virginia, used as point 1 of the syllabi
in this statement, which is a general law and certainly means what it says.
It should be our guide in disposing of the claim, “Let the chips fall where
they may.” As we perceive our duty under the law of the state and the evidence
deduced before the court upon its investigation of the claim, we can do nothing
less than make an award in favor of claimant. Majority members feel that under
all the circumstances an award of $3000.00 would be reasonable in the premises.
It is possible that a greater award could have been made if claimant had been
able to show more satisfactorily than he did the exact number of days he was
employed.
Accordingly, majority members of the court make an award in
32 REPORTS
STATE COURT OF CLAIMS [W.VA.
favor of claimant Flem L. Mullins in
the sum of three thousand dollars ($3000.00).
JAMES CANN, JuDGE, dissenting.
The arbitrary award of $3000.00 made
to claimant in this case by a majority of the court, in the light of the
evidence introduced, compels me to file this dissent. So many matters were set
out in the majority opinion, justifying the instant award which, to my opinion,
were not part of the record or part of any one’s testimony. But without going
into any of that, I shall confine my dissent to the lack of proof, as required
by law, on the part of claimant. Mr. Mullens testified at great length with
respect to his employment as night watchman for respondent. He presented a
sheet of paper which purported to show the number of hours he had worked each
day as night watchman from the tenth day of January, 1946 to the thirty-first
day of December, 1948; this sheet of paper at- tempted to indicate that he had
worked sixteen hours each day, during the above period, and as he stated, was
paid for only eight hours at the prevailing hourly rate. He was asked from
where he had obtained the information shown on the above mentioned sheet of
paper, and his reply was “From three calendars” on which he had marked the
hours he had worked as a night watchman; he was further asked about the
whereabouts of such calendars and was unable to explain their absence from this
hearing; he was also further asked as to who had made up the purported record
of his time and he stated that an auditor, one James A. Hogg, had made up such
record. The auditor was not presented as a witness. He admitted that the sheet
of paper introduced in evidence, which set out the hours worked, was only a
copy of the original record. (R. pps. 29-30-42-43-44-45-46). No explanation was
ever made or attempted to be made, of the whereabouts of the purported
calendars or original record. The majority opinion states that the above proof
was unsatisfactory; that his itemized statement attempting to show that he had
worked sixteen hours each day during the disputed period, when he testified
that during such period he was off a number of days, made it manifest that the
testimony and proof were inconsistent with the allegations of his
W. VA. j REPORTS STATE COURT OF CLAIMS 33
petition. I was particularly impressed with claimant’s testimony with respect
to his complaint made to Charles Sattler, commissioner of labor of the state of
West Virginia. When claimant complained to Mr. Sattler about the hours he had
worked for respondent, for which he had not been paid, Mr. Sattler advised
claimant to prepare and furnish him with a statement, setting forth the days he
had worked for respondent and the number of hours worked over eight hours (the
legal limit provided by statute). This, claimant failed or refused to do and
Mr. Sattler gave the matter no further attention. Why was not the same
information requested or required of the claimant at the hearing of this case?
It is true that from the evidence one can conclude that claimant had at
sometime worked sixteen hours during his employment as a night watchman, but on
what, and for how many, days did he work that number of hours?
It is elementary law that the burden of proof rests upon the party asserting
the affirmative of an issue.
“In an action for tort, the plaintiff bearing the burden of proof, a verdict
for him cannot be found on evidence which affords mere conjecture that the
liability exists, and leaves the minds of jurors in equipoise and reasonable
doubt. The evidence must generate an actual rational belief in the existence of
the disputed fact.” Moore v. West Va.
Heat & Light Co., 65 W. Va. 552;
64 S. E. 721. Antonovich v. Home Life
Ins. Co., 116 W. Va. 159. Wiles v. Walker, 88 W.
Va. 147; 106 S. E. 423. Legg v. Junior
Mercantile Co., 105 W. Va. 287; 142 S.
E. 259.
Our own court has held on numerous occasions that when a claimant fails to
establish liability on the part of a respondent by the production of proper
evidence as proof in support of his claim an award will be denied.
“All claims asserted against the state or any of its agencies must be
established by satisfactory proof before awards may be made for the payment of
them. A claim asserted but not proved can have no meritorious status in the
court of claims.” Clark v. State Road
Commission, 1 Ct. Claims (W. Va.) 232.
34 REPORTS STATE
COURT OF CLAIMS [W. VA.
“Claimant must prove his claim by a preponderance or greater weight of the
evidence, and no award can be made in the absence of such proof.” Hartigan v. Board of Control, 2
Ct. Claims (W. Va.) 275.
“A claim is denied when claimant fails to establish liability on the part of
the department concerned by the production of proper evidence as proof in
support of his claim.” Swa,rtzwelder v. State Road
Commission, 2 Ct. Claims (W. Va.) 96.
“Where the evidence offered in support of a claim against the State fails to
establish by a preponderance of proof its merit as a claim for which an
appropriation should be made by the Legislature, an award will be denied.” Smith v. State Road Commission, 3 Ct. Claims (W.Va.) 1.
“An award will be denied upon failure to prove by a preponderance of the
evidence the justness and merit of a claim against the state or any of its
governmental agencies.” Loveless v. State Road
Commission, 4 Ct. Claims (W. Va.) 19.
“A claim for damages not sustained by the evidence and an award refused.” Thompson v. State Road Commission, 4 Ct. Claims (W. Va.) 74.
As another ground for dissenting, it is my firm belief that the purported
itemized statement, filed in this case, attempting to show the hours worked as
a night watchman, should have been rejected for two reasons: (1) It was not the
original record and (2) it did not correctly state on what actual days sixteen
hours were worked by claimant.
Our Supreme Court has held:
“The record offered is secondary evidence; the book in which the original
entries were recorded, so far as a record is concerned, being the best
evidence. The authorities are uniform to the effect that the best evidence must
be produced.” Thompson v. Turkey Gap
Coal Co., 139 S. E. 642; 104 W. Va.
134. Also Art Co. v. Thacker, 65 W. Va. 143. State
v. Gillaspie, 47 W. Va. 336. Fox v. Railroad Co., 34
W. Va. 466.
W. VA.]
REPORTS STATE COURT OF CLAIMS 35
“Courts should be cautious in
admitting the introduction of secondary evidence. Without an effort to procure
and offer the original contract or a showing entitling a party to offer
secondary evidence, secondary evidence should not be admitted. Sec. 120, Evidence, Michie’s
Jurisprudence. Also Cobb v. Dunlevie, 63 W. Va. 398; 60 S. E. 384.
For the reasons set out I respectfully dissent from the majority opinion in
this case.
(No. 743-S—-Claimant awarded $58.00.)
ESSO STANDARD OIL COMPANY, Claimant,
V.
STATE ADJUTANT GENERAL, Respondent.
Opinioi’L filed July 12, 1951
JAMES CANN, JUDGE.
Claimant seeks an award in the amount
of $58.00 representing damages done to one of its gasoline pumps located at
service station 83, St. Albans, West Virginia. The facts out of which this
claim arose are as follows: On the 15th day of March, 1951, private first class
Tom Cogan, of the St. Albans, West Virginia, detachment of the West Virginia
national guard, while operating a national guard 6 x 6 2½ ton truck, enroute to
the national guard center, Charleston, West Virginia, attempted to turn left at
Pennsylvania avenue, in said city of St. Albans, and enter the service station
of claimant. In doing so he was unable to straighten the wheels of said truck
before its left bumper caught against a gasoline pump, knocking it loose from
its foudiation and causing damages thereto in the sum of $58.00.
The record discloses that respondent has made a careful investigation of this
accident and as a result thereof has concurred
36 REPORTS STATE
COURT OF CLAIMS [W. VA.
in this claim and recommends an award, and, further, that the claim is approved
by the attorney general.
From the record submitted, the court is of the opinion that respondent, or its
agents, was solely at fault, and therefore makes an award in favor of claimant,
Esso Standard Oil Company, in the sum of fifty-eight dollars ($58.00).
(No. 735—Claimant awarded $2000.00.)
WALLACE BUMGARNER, Claimant,
V.
STATE BOARD OF CONThOL, Respondent.
Opinion filed July 17, 1951
An award may be made by the court of claims in favor of a claimant who,
while walking on a public highway in the nighttime from one county to his home
in another county, was attacked, shot and seriously and painfully wounded by a
guard at the state penitentiafy at Moundsville, acting at the time as captain
of the guard of a road camp while searching for am escapee from said camp, upon
the theory of the moral obligation of the state to make reparation for the
reckless and negligent conduct of its agent.
Wm. S. Ryan, for claimant.
W. Bryan Spillers, assistant attorney general, and L. Steele Trotter, treasurer of the board of control, for respondent.
ROBERT L BLAND, JUDGE.
On the 20th day of May, 1950 and for
some time prior to that date the state road commission of West Virginia
maintained a prison camp at Kyger in Roane county, West Virginia, where a
number of convicts from the state penitentiary at Moundsville were kept working
on the public roads of said county.
W. VA.] REPORTS
STATE COURT OF CLAIMS 37
It is provided by statute in West Virginia that all male persons convicted of
felony and sentenced to imprisonment or confinement in the penitentiary, or so
many thereof as may be required by the state road commissioner shall, as
incident to such sentence or confinement, constitute the state road force, and
as such may be employed under the supervision of the state road commissioner in
building, surfacing and maintaining roads under the supervision of the state
road commissioner. Code, chapter 17, article 5, section 1.
A large number of convicts were, upon the recommendation of the state road
commissioner, sent by the warden of the penitentiary to this camp and were
under the control of one I. M. Coiner, a guard at the penitentiary and captain
of the guard at the camp. One of these convicts had made his escape and was
running at large. The captain of the guard was in pursuit of him, armed with a
revolver which he was authorized to carry by the warden of the penitentiary.
One Wallace Bumgarner, a farm laborer residing in Wirt county, West
Virginia, who had gone on an errand from his home to Reedy in the county of Roane, was returning
to his home. He was walking on a public highway of the state of West Virginia,
being route 14 extending between the town of Reedy and the city of Parkersburg.
At a certain point on the thoroughfare he was approached by guard Coiner and
informed that he was under arrest. Bumgarner, the claimant, then twenty-six
years of age, was at once frightened and started to run. The captain of the
guard, without knowledge of the identity of the man and without the exercise of
ordinary prudence or judgment, shot him in the leg. According to Dr. A. T.
Gordon, who exarnined the patient after he had been transferred to a hospital
at Spencer, the point of entrance of the bullet was external, the exit being on
the inside some place about the middle or upper third of the thigh and on
through. Dr. J. M. DePue testified as follows: “Well, he (Bumgarner) was
brought in on May 21st, 1950, with a gunshot wound of the upper right thigh,
the bullet entering in the back and coming out in front, completely through
38 REPORTS
STATE COURT OF CLAIMS [W. VA.
the thigh. The examination did not
show any injury to any nerve, blood vessels or bones. It was entirely a
muscular injury.”
The captain of the guard, after shooting the man, reentered his automobile and
drove away. He subsequently returned to the scene of the shooting and found his
victim lying prostrate upon the ground, bleeding profusely, and wrapped in blankets
which considerate and sympathetic folks in the vicinity had furnished. It was
then that he was removed to the hospital.
Bumgarner later instituted an action of trespass on the case against the
captain of the guard, Coiner, in the circuit court of Roane county. A jury upon
his trial returned a verdict for $3000.00 in favor of the plaintiff. A motion
to overrule this verdict and grant defendant a new trial was denied and a
judgment entered upon the verdict. An application to the Supreme Court of Appeals
for a writ of error from and supersedeas
to said verdict was denied.
After having exhausted his remedy at law to enforce payment of the circuit
court judgment Bumgarner filed a claim in the court of claims. By stipulation
between counsel for claimant and counsel for the state a transcript of the
evidence heard upon the trial in the circuit court of Roane county was
considered by the court of claims. The only plea interposed by the state was
that of the general issue “not guilty.” It was maintained by the attorney
general that the court of claims is without jurisdiction to hear and determine
the claim in question since the court act provides that the jurisdiction of the
court shall not extend to any claim “p * * 7. With respect to which a proceeding may be maintained by or on behalf
of the claimant in the courts of the state.”; and that claimant had a remedy
against defendant in a court of law of the state. However, we are of opinion
that the only remedy afforded by the statute was exhausted by claimant and that
under the circumstances he has a clear right to come into the court of claims
and prosecute his claim against the state of West Virginia upon the theory that
the state should make reparation for the injuries inflicted and suffering
caused by the ruthless and unwarranted conduct of the state’s duly authorized
W. VA.]
REPORTS STATE COURT OF CLAIMS 39
agent. It is further maintained by the
attorney general that the doctrine of res
judicata would preclude the
prosecution of the claim in this court. Suffice it to say that the claimant did
not assert his claim against the state until he had exhausted his remedy
against Bumgarner in the courts of the state.
Considering the evidence before the court and giving full effect to the
probative proof offered in support of the claim, we are of opinion that it
would be unconscionable to say that no moral obligation of the state exists to
compensate the claimant for the injuries suffered by him at the hands of the
state’s duly accredited agent.
An award is therefore made in favor of claimant Wallace Bum- garner against the
state board of control in the sum of two thousand dollars ($2,000.00).
(No. 736—Claimant awarded $416.47.)
RICH VALLEY DAIRY COMPANY, Claimant,
V.
STATE ADJUTANT GENERAL, Respondent.
Opiuion filed July 19, 1951
1. Failure of motorist to stop at stop sign constitutes prima facie negligence and makes him responsible for all damage
resulting proximately from his failure to stop. Somerville v.
Delbosa,
56 S. E. (2d) 756.
2. Violation of a statute [W. Va. Code, chapter 17, article 8, section 10
(1537)1 alone is sufficient to make the violator prima facie guilty
of negligence, but to justify recovery it must be shown by a preponderance of
the evidence that the violation was the proximate cause of the damage. Id.
40 —_REPORTS
STATE COURT OF CLAIMS [W. VA.
Appearances:
Rummel, Blagg & Stone (Paul N. Bowles) for claimant.
W. Bryan Spillers, assistant attorney general, for respondent.
A. D. KENAMOND, JUDGE.
About the middle of the afternoon of March 15, 1951, Fred F. Willett, the
driver of one of Rich Valley Dairy Company’s trucks, a 1948 model 2-ton
Chevrolet, was driving out Fifth street, Point Pleasant, West Virginia, when at
the intersection of Fifth and Viand streets, the truck was struck by West
Virginia national guard truck 480-69-43. Claimant seeks to recover $376.47, the
amount required to repair damage to the Rich Valley Dairy Company truck caused
by the collision, and $40.00, the amount necessary to replace service of same
during the four days it was out of commission.
Respondent in the case resisted the claim with no testimony, only asking that
claimant presnt evidence to the court of claims that the driver of the national
guard truck was negligent and at fault and that the damages claimed were
reasonable and just.
Evidence presented by claimant showed that driver Willett had stopped his truck
on Fifth street when the traffic light was red, and when the light turned green
pulled into Viand street. The testimony showed that the national guard truck
driver had speeded up along Viand street hoping to cross Fifth street before
the light turned red. Too late to pass over Fifth street before the light
turned red, the national guard truck driver put on his brakes, but too late to
prevent crashing into the claimant’s truck, after skidding a considerable
distance.
Claimant secured three estimates of cost of repairs, which repairs were made by
Mason Motor Company, of Point Pleasant, at a cost of $376.47, the lowest of
three estimates secured.
Testimony showed that it was necessary for claimant to hire a truck for four
days to make his usual milk deliveries. Secur
W. VA.) REPORTS
STATE COURT OF CLAIMS 41
ing on short notice only a small truck necessitated
claimant’s making two trips of approximately 100 miles each day instead of the
accustomed single trip each day. Cost of use of the smaller truck to Rich
Valley Dairy Company was $10.00 per day or a total of $40.00.
With the testimony of the claimant before us and in the lack of counter testimony
of respondent, it is the unanimous opinion of the court of claims that the
driver of the national guard truck was negligent and solely at fault, that his
violation of the stop sign at point of collision was the proximate cause of
damages done to claimant’s truck, making the state agency involved II- able to
claimant for said damages.
Accordingly we make an award to Rich Valley Dairy Company in the sum of four
hundred sixteen dollars and forty-seven cents ($416.47).
(No. 732—Claim denied.)
WEST VIRGINIA INSURANCE COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 17, 1951
A case in which the state court of
claims declines to make an award for reason that it feels bound by the refusal
of the Supreme Court of Appeals of West Virginia to issue a rule in mandamus proceeding
to compel the state auditor to pay an award made by the said court of claims in
a companion case, and ratified by the Legislature.
Appearances:
Robert A. Holland and Floyd A.
Ross for claimant.
W. Bryan Spillers, assistant attorney general, for respondent.
42 REPORTS STATE
COURT OF CLAIMS [W.VA.
JAMES CANN, JuDGE.
Claimant asserts this claim of subrogation in the amount of $2000.00, which
amount was paid by it to Albert and Odesie Brown by reason of a fire loss
suffered by them on the 21st day of April, 1948, and which loss was occasioned
by a fire originating from a building occupied and used by respondent, located
at Huttonsville, in Randolph county, West Virginia.
As to the facts relied upon in support of this claim reference
is made to the case of J. A. Cox et at v. State
Road Commission,
5 Ct. Claims (W. Va.) 123, and Albert Brown et us v. State Road
Commission, 5 Ct. Claims (W. Va.) 133, heard on the 25th and
26th day of April, 1950, in the city of Elkins, Randolph county,
West Virginia, and to the awards made in both cases.
The awards made by this court in the Cox, et at and Brown cases supra were
included in and made a part of the budget bill (Sec. 4 of title 2 of chap. 8,
acts of the Legislature of West Virginia, fiftieth regular session, 1951, at
pages 66-67), which budget bill was passed by both houses of the Legislature on
March 10, 1951, and became effective from passage. On July 11, 1951, the state
road commissioner of West Virginia, acting for the state road commission of
said state, and acting upon such legislative flat, issued his requisition upon
the auditor of the state of West Virginia for a warrant for the payment of said
appropriation of the Legislature made in behalf of said Cox, et at, and Brown, in satisfaction of the approved awards for their
claims. The auditor refused to honor said requisition insofar as the same
covered and related to the approved awards for the claims of said Cox, et at, and Brown, on the grounds that the payment of said awards is in
violation of the constitution of this state, and further, in effect, that no
negligence on the part of the state was shown.
Following this action on the part of the auditor, one of the claimants, J. A. Cox, et at, sought in the Supreme Court of the state a writ of mandamus against
Edgar B. Sims, auditor to compel the issuance by him of a warrant on the state
treasurer for payment of their claim, so recommended by the court of
VJ. VA.] REPORTS
STATE COURT OF CLAIMS 43
claims, and appropriated for by the Legislature. The petition for said writ was
filed on the 31st day of July, 1951, and on the 3rd day of August, 1951, a rule
in mandamus was refused by a majority of the Supreme Court. On the
31st day of August, 1951, the petition for said writ of mandamus was
reified and on the 24th day of September, 1951, the rule in mandamus was
again refused by the same majority of the Supreme Court. To date nothing
further has been done, either in the Cox,
et at, case or the Brown case,
with reference to compelling the state auditor to issue his warrant for the
payment of the Cox, et at, and Brown claims.
From the action of our Supreme Court in the Cox, et al, matter we can only
conclude that they have in effect given affirmance to the reasons or part of
the reasons, set forth by the auditor in refusing to honor the Cox, et at and
Brown claims, and therefore to make any further awards for
claims arising out of the fire mentioned in this opinion, which occurred in
Huttonsyule, would be a useless gesture.
Regarding ourselves bound by the refusal of the Supreme Court to award a rule
to show cause in the Cox, et at, claim, an award in this case is now denied.
(No. 739—Claim denied.)
TSUTRAS BROTHERS, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 17, 1951
1. In an action to recover damages
based upon negligence, negligence will not be presumed from the mere proof of
injury, but it must be proved as
alleged.
44 REPORTS STATE COURT OF CLAIMS [W.VA.
2. Under the act creating the state court of claims, negligence on the part of
the state agency involved, or its agents, must be fully shown before an award
will be made.
Appearances:
Claimant, pro se.
W. Bryan Spillers, assistant attorney general, for respondent.
JAMES CANN, JUDGE.
Claimants prosecute this claim against
the state road commission for the breaking of a plate glass window in their
store situate at 105 West Fourth avenue, Williamson, Mingo county, West
Virginia, and facing u. s. route 52. They claim that because of the neglect of
the state road commission to repair a break in said route 52, facing their
store building, on the fifteenth day of February, 1951, a passing truck
“skidded” a rock or stone from the break in the road through their plate glass
window causing damage in the amount of $55 £4.
Gus Tsutras, one of the claimants, testified that u. s. route 52 was in bad
condition; that breaks or holes existed over a great portion of said highway,
particularly in front of claimant’s store building, where much water, mud and
stone had accumulated; that passing cars and trucks splattered much of the
water and mud against the window of his store, and it was presumed that one of
these passing cars or trucks had precipitated one of the accumulated stones
through their window.
The evidence disclosed that the portion of u. S. route 52 in question was
originally a brick road and later covered with a black top mixture; that breaks
in said road did exist but nothing could be done by respondent, by way of
repairs to said road, because of the inclement weather existing at that time of
the year; that the mud and water which accumulated in front of claimants’ store
was caused by the thawing of snow which had fallen several days before.
W. VA.)
REPORTS STATE COURT OF CLAIMS 45
Without giving further consideration
to the evidence concerning the condition of u. s. route 52, the question before
the court is, was the respondent, or any of its agents, responsible in any way
for the damages done to claimants’ window? No one knows how said window was
broken. One of the witnesses testified that a large round hole appeared in the
window and that a stone or rock measuring three to four inches in diameter and
resembling the brick which covered the bed of route 52, was found on the floor
inside of claimants’ store next to the broken window, which rock or stone was
not exhibited to the court. How the stone or rock was propelled or precipitated
through claimants’ window, or from where it came, no one seems to know. It may
have been thrown through the window. The record in this case is devoid of any
evidence from which the court could reasonably have inferred that claimants’
window was damaged as the result of the negligence of the respondent in failing
to keep route 52 in a reasonable state of repairs, or that respondent was in
any way responsible for the rock or stone being thrown, precipitated or
propelled through said window.
Negligence on the part of the state agency involved, or its agents, must be
fully shown before an award will be made.
In this jurisdiction, in an action to recover damages based
upon negligence, “negligence will not be presumed from mere
proof of the injury,” but it must be proved as alleged. Point 3,
syllabi, Keyser Canning Company v. Kiots
Throwing Co., 94
W. Va. 346.
In this case the only thing before the court is evidence of a broken window,
none as to negligence on the part of anyone. Therefore an award will be denied
and the claim dismissed.
46 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 738—Claimant awarded $30.60.)
BERTRAM L. WITHROW, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fl.Iecl October
19, 1951
An award will be made when it appears
that the proximate cause of the damages done to claimant’s motor vehicle was
the independent and negligent act of an agent of the state road commission and
such damages were in no way brought about by any fault on the part of claimant.
Appearances:
Claimant, pro Se.
W. Bryan Spillers, assistant attorney
general, for the state road commission.
A. D. KENAMOND, JuDGE.
Claimant Bertram L. Withrow, owner of
a 1950 model Pontiac sedan coupe, who lives on route 35, eight miles west of
Charleston, was traveling along route 35, about a mile east of Lock 6, on the
afternoon of April 18, 1951.
At that time the state road commission had a power shovel working at that point
on the highway. The state road foreman in charge had a flagman stationed near
the shovel to direct one- way traffic, part time to the east and part time to
the west, through a lane provided for the traveling public. The claimant’s car
was the last in a line of four or five cars that had been signaled to pass
along the lane. The other cars passed through in safety, but claimant’s car was
struck by a part of the body of the power shovel, which caused the top of his
car to be dented in and the windshield to be broken.
W. VA.1 REPORTS STATE
COURT OF CLAIMS 47
Claimant’s insurance company took care of the bill for windshield “on the
comprehensive coverage,” but claimant had to pay the remainder of the damage,
said remainder amounting to $30.60, for which he presented in evidence a receipted
bill from the West Virginia Body Works, Incorporated, Charleston, West
Virginia. This amount he seeks to recover, claiming the damage was due to
negligence on the part of the state road commission.
Respondent presented testimony of two employees on the job at the time—one, the
foreman, Lawrence Roberts, who was about 30 feet from the power shovel and did
not see the shovel hit claimant’s car, being engaged in flagging his trucks in
so the shovel could load them; the other, a laborer, Samuel Hill, who was
working at the slide behind the shovel, yet in view of the claimant’s car,
since he testified that he saw the shovel hit the claimant’s car and that
claimant was then following in the line of traffic.
Neither the flagman who directed the traffic nor the operator of the shovel
appeared to offer testimony.
Foreman Roberts and laborer Hill both said claimant got “too close to the
shovel.” Since the testimony showed claimant was traveling in the line of
traffic, that the shovel got too close to the claimant’s car would be an
equivalent explanation.
The shovel was continually in operation while the traffic passed, according to
the testimony, and when the shovel in its outward swing from the slide was
about to strike claimant’s car, the flagman jumped out of the way. Foreman
Roberts stated that said flagman had his back toward the truck carrying the
power shovel and faced the traffic he was directing.
It is the opinion of the members of this court that the flagman directing the
traffic was responsible and to blame for permitting and directing claimant’s
car to be in the line of traffic at a time when the power shovel was in its
outward swing from the slide, and that no fault on the part of claimant was
shown. We therefore make an award in favor of claimant, Bertram L. Withrow, for
the sum of thirty dollars and sixty cents ($30.60).
48 REPORTS
STATE COURT OF CLAIMS [W. VA
(No. 733—Claim Dismissed.)
C. V. DAUENHEIMER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 22, 1951
Claims with respect to which a
proceeding may be maintained by or on behalf of the claimant in the courts of
the state are expressly excluded from the jurisdiction of the state court of
claims by subsection 7 of section 14 of the court act.
Claimant, pro Se.
W. Bryan Spillers, assistant attorney
general, on behalf of respondent.
ROBERT L. BLAND, JuDGE.
Claimant C. V. Dauenheimer, a resident of
Harrison county, West Virginia, seeks an award against the state road
commission in the sum of $100.88 to compensate him for the damage done to his
automobile, a 1947 Dodge convertible coupe, which was parked at the far edge of
a wide berm on u. s. route No. 19, near the entrance to a county road leading
to the farm of Moore M. Reynolds, one mile north of the city of Clarksburg,
Harrison county, West Virginia, and while so parked was backed into by a road
commission truck operated by a road commission employe. The road commission
denies all responsibility for the damage done to claimant’s said car. The
material facts developed upon the hearing and investigation of said claim are
hereinafter set out.
On the evening of November 28, 1950, claimant, (then a student at West Virginia
university) drove his automobile from Morgantown to Harrison county. It was
snowing heavy that night. Claimant proceeded as far as the road leading to the
Reynold’s property. When he arrived at that point on the road
W. VA.) REPORTS
STATE COURT OF CLAIMS 49
he encountered a high wall shoveled up by snowplows coming up and down route
19. He was able to break through this snow wall but got only as far as the mail
box. His automobile was then parked, facing south on route 19. The following
morning it was still snowing. Claimant’s car was “snowed under” and could not
be seen. There was no traffic on the road, no buses, no automobiles or anything
moving. A heavy snowstorm prevailed. The road commission sent a grader to the
point near where claimant’s car was parked to clear the “county road” and “it
hung up in a snowdrift.” The commission then sent a state road truck to “pull
the grader out.” On the way out this truck “backed in” and damaged the right
side of claimant’s car. The amount claimed by claimant as compensation for the
damage done to his car is reasonable. Some days subsequent to the accident W.
A. Drummond, an employe of the road commission and a helper on the road truck,
which truck was driven and operated by one Robert Windon, informed Mr. Moore
Reynolds that claimant’s car was entirely covered by snow and that it was
supposed by this road crew to be a pile of cinders. No one on the road truck
knew that the claimant’s car was parked or that it had been struck by the road
commission crew. No person in the employ of the road commission reported the
accident to the commission. Claimant himself did not inform or give notice to
the commission that his car had been damaged as herein shown. In fact the only
step taken by him was to file his claim against the road commission in the
court of claims.
Under authority of law the state road commission is authorized to purchase and
carry insurance for the benefit and protection of its motor vehicle drivers.
Chapter 6, article 12, section 1, Michie’s code, reads as follows:
“Officers, boards, commissions or agencies of the state or of any county,
municipality or any other unit of local or state government, authorized to
spend public funds, or to direct the expenditure of public funds, may provide
at public expense for bodily injury liability and property damage liability
insurance against the negligence of the drivers of motor vehicles operated by
or for such officers, boards, commissions and agencies in such amount as such
officers, boards, commissions and agen
50 REPORTS
STATE COURT OF CLAIMS [W.VA.
des may specify, and any such officer,
board, commission or agency having the authority to contract for the use in the
service of such officer, board, commission or agency, of any motor vehicle, may
require the contractor to provide like insurance at his own expense in such
amount and as such officer, boards, commissions or agency may specify.”
The state road commission carries insurance as above authorized. The insurance
policy, issued in favor of Ray Cavendish, state road commissioner, provides
indemnity under the following coverage.
“It is hereby understood and agreed that such insurance as is afforded by this
policy covers PASSENGER OPERATORS of PASSENGER AUTOMOBILES, STATION WAGONS, all
types of TRUCKS, MOTOR GRADERS, TRUCK SHOVELS, HIGHWAY MOWING MACHINES,
ENDLOADERS, JEEPS, BLOWERS AND SWEEPERS, while such equipment is being operated
under its own power by an employee of the Unit of Government named in this
policy.
During the past year the road commission paid out in premiums for such
insurance $78,000.00.
Claims with respect to which a proceeding may be maintained by or on behalf of
the claimant in the courts of the state are expressly excluded from the
jurisdiction of the state court of claims by subsection 7 of section 14 of the
court act.
Claimant has a remedy in the courts of the state against Robert Windon, the
operator of the road commission truck which backed into his car and caused the
damage of which he complains. Robert Windon is suable. If he shall elect to
pro— ceed against him in a court of law of the state he should do so before the
28th day of November, 1951. If he should reduce his claim against Windon to
judgment it would be paid by the insurance company.
Since it is made clearly to appear that the court of claims is without
jurisdiction in the instant case, the claim is dismissed.
W. VA.] REPORTS
STATE COURT OF CLAIMS 51
(No. 734—Claim denied.)
MARY J. MARTIN, admx. of the estate of JAMES F.
MARTIN, deceased, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flIed October 23, 1951
No award will be made in favor of a claimant,
as administratrix of her deceased husband’s estate, when said husband has
contributed directly to the accident causing his death, notwithstanding that
respondent is not free from blame.
Appearances:
David Williams and Sam B.
Kyle, Jr., for claimant.
W. Bryan Spillers. assistant attorney general, for respondent.
A. D. KENAMOND, JUDGE.
Claimant Mary J. Martin, duly
qualified administratrix of her deceased husband’s estate, represented that on
January 12, 1951, at about nine o’clock in the morning, said husband, James F.
Martin, was driving a 1946 model Chevrolet 11/2 ton truck, owned by Lowry
Moser, then a passenger in said truck, along old u. s. 50, about 1/2 mile east of the city limits of Clarksburg, and that on
a decided downgrade the vehicle struck a badly broken portion of the highway,
causing it to swerve to the left into a deep slide at the left edge of the
paved portion of the highway, thence over an embankment to the the bottom
thereof, whereupon the said James F. Martin was instantly crushed to death.
Claimant seeks $10,000. for the wrongful death of her husband, charging
negligence on the part of the state road commission for knowingly permitting
this hazardous condition to exist for a long period of time, and failing to
maintain any guardrails or warning signs.
52 REPORTS
STATE COURT OF CLAIMS [W. VA.
When this case was called up for
hearing on October 10 in the Harrison county courthouse in Clarksburg, and
before any evidence was heard, the court and counsel for claimant and for respondent
adjourned to the scene of the accident, approaching the scene from the upper
side and taking the same route that the deceased took.
Turning off New-u. s. 50, a three-lane highway comparatively new and of
superior construction, and sharply to the left into Old. u. s. 50, a two-lane
macadam or blacktop road approximately sixteen feet in width in its wider and
normal stretches, and proceeding along its curves and changing grades, we felt
that a driver of a motor vehicle would normally be alerted to keep his eyes on
the road and open to any possible danger that might be ahead.
From the viewing it was possible to determine, from the repair and new
surfacing of the broken portion of the highway, both the surface area and shape
of the break, but not the depth of the break at the time of the accident. The
deep slide or breakoff extending straight downward to a depth of three or more
feet, at the very edge of the left lane of hard surface was still there, and no
guardrail had been erected for the protection of any driver who might under
certain conditions of traffic be pressed over to the berm normally maintained
along the course of that lane.
The hearing of the case resulted in a feeling on the part of the court that
everything was conspiring to take the life of James F. Martin, leaving a widow
and two children who are deserving of the deepest sympathy.
The state road commission was under no mandate of law, in view of the Supreme
Court decision in the Adkins case, 130 W. Va. 646, to maintain guardrails and
warning signs, but in the matter of proper maintenance of the two-lane highway
appears to have shown indifference, if not actionable negligence.
On the other hand, James F. Martin seems to have concurred and cooperated with
the state road commission in bringing on the accident by choosing the more
dangerous of two alternate routes,
W. VA.] REPORTS
STATE COURT OF CLAIMS 53
by giving little attention to the road over which he was passing, and by
driving when his physical state was not at its best.
Let us examine the facts in the case, insofar as they are
revealed by the testimony, first considering the conduct of the state road
commission with respect to the requirement “That the highways be kept and
maintained in a reasonably safe condition for travel with ordinary care and in
the ordinary mode by night and by day.” (See note, Code 1597 (9). citing Corbin v. Huntington 74 W.
Va. 479, and Reynolds v. Milton 93 W. Va. 108). Testimony showed that the broken
portion of the highway was in the shape of a triangle extending across both
lanes, but wider and deeper (variously estimated at 7, 8, 10, 12 or 14 inches) on the left going down, and
that, because of the break in the left lane, the traffic was using the
right-hand side of the road, getting onto the berm wholly or with the left
wheels on the shallow-break in the outer portion of the right lane.
The road maintenance superintendent for Harrison county had experienced trouble
with this break or dip over the entire four years of his service in that
capacity. The roadway would go down at least once a year and possibly two or
three times in a given year. At first he used cinders to fill up the dip, but
finally got to using crushed rock, which repair he regarded as more or less
temporary. The repair made after the accident, in the judgment of the court
viewing same, was of a more or less permanent nature and such repair could
reasonably have been made with some saving of the expense required under the
plan of repeated temporary repairs.
Trooper W. A. Wood, who visited the scene of the accident within a few days
thereafter, stated that “the break was a hazardous condition,” but the
maintenance superintendent testified that he “wouldn’t say it would be
particularly hazardous.” Between the street commissioner of Clarksburg and the
maintenance superintendent for the road commission they managed to keep the
break in such condition that the city garbage trucks and other vehicles would
not find it impossible to use the road by keeping well to the right going down.
It was not a pretty situation at best,
54 REPORTS
STATE COURT OF CLAIMS [W.VA.
but fortunately no serious accident
had occurred there before that in which James F. Martin lost his life. On
numerous occasions a driver going down the hill from the Wonder Bar, a night
club at the top of the hill, would get a wheel off the road and blow a tire,
but, according to John Folio, Wonder Bar proprietor, many of his patrons went
down over Old u. s. 50. Sometimes a garbage truck would be thrown down over the
road, but the street commissioner would then take the driver off, because “the
road was bad” and “because he had to be very careful with that big equipment on
that road.” W. Howard Drummond, maintenance superintendent, evidently put great
dependence on everyone exercising extreme caution because of knowledge of the
bad condition of the road. There was, however, testimony to the effect that
some indication of a break, and rutted arc of traffic to the right, could be
observed 75 feet away, though the depth of the break could not be seen until a
driver was “right up on it.”
As previously stated, James F. Martin seemed to concur and cooperate in
bringing on the accident causing his death. Let u examine the testimony. The
deceased had been employed as a truck driver hauling coal in the county for
more than five years, without a wreck. He lived in Bridgeport, about three or
four miles from the scene of the accident. Presumably, after driving a coal
truck in the vicinity for more than five years and going about in his own Ford
V-8 car, he would have known something of the bad condition on Old u. s. 50,
but there was no testimony to the effect that he did. The fairest statement
with reference thereto was that of his widow, who stated that she didn’t think
he ever traveled Old u. s. 50, that he never did go over it when she was with
him.
From about five-thirty o’clock of the evening before this accident until
one-thirty o’clock in the morning Lowry Moser and another boy and girl were
with James F. and Mary J. Martin at the Martin home, during which time all but
Mrs. Martin indulged in beer and highballs, the whiskey being furnished by the
visiting boy, but according to testimony, James F. Martin and Lowry Moser had
only one highball or drink of whiskey each. Shortly after one-thirty o’clock
the party broke up and James F. Martin
W. VA.]
REPORTS STATE COURT OF CLAIMS 55
was
in bed till four o’clock or four-thirty
o’clock when Moser returned with a ham. By eight minutes before five o’clock,
James F. Martin and Lowry Moser had partaken of fried ham and coffee and set
out for “Bob’s place” over in Glen Elk, about six miles from the Martin home,
for the purpose of delivering a ham. They stayed at Bob’s place till about
eight o’clock, during which time Moser had a highball.
A sequel to this social period of some fourteen hours, during which the
deceased had been in bed not more than three hours, was a report, dated January
13, 1951, from W. R. Bennett, chemist, criminal identification bureau,
Charleston, showing .15 of one percent of alcohol in the blood and stomach
content of the deceased. Dr. Kenna Jackson, county coroner, who examined James
F. Martin after he was killed, had the test made at the request of the
Department of Public Safety, and stated that the report indicated a little more
than a slight degree of intoxication, giving Dr. Lemoine Snyder, director of
the police department of the State of Michigan, as authority for his statement.
While Moser and James F. Martin were out on u. s. 50, they decided to go to the
P-K mine to see about coal. Testimony shows that Martin turned off onto Old u. s. 50 of
his own volition, without request or suggestion from Moser, and no one could
more than conjetcure why he chose a route generally known in that area to be in
poor condition when he might have traveled the improved New u. S. 50.
As Martin and Moser proceeded down Old u. S. 50, they were engaged in
conversation, according to Moser, whose testimony as to whether they were
watching the road was evasive, though he did say “He (referring to Martin) knew
about where we were.”
Trooper W. M. Simon, called to investigate the accident resulting in the death
of James F. Martin, made at least three statements that have a very material
bearing upon the merits of the claim under consideration. Moser told him that
the deceased had been drinking; his report showed “exceeding lawful speed,” but
he explained that there was no other heading he could mark to show
56 REPORTS
STATE COURT OF CLAIMS [W. VA.
“exceeding speed due to highway
conditions,” and describing “the way and the direction the truck traveled from
the time” in his opinion “it came into the rough spot on the highway,” and “it
went some little distance there with two wheels over the berm on the left-hand
side where the truck started skidding over the bank.”
Weighing all the facts from the testimony adduced in this case, the court is of
the opinion that the deceased James F. Martin made such a contribution to the
accident causing his death as could not be regarded as so indirect as to permit
an award to the claimant in this case (Wilihide
v. Biggs, 118 W. Va. 160.)
In the case of Overby v. Chesapeake
& Ohio Ry. Co., 37 W. Va. 524, we
note:
“The general rule in regard to contributory negligence is that, if the
negligence be mutual on the part of the plaintiff and defendant, there can be
no recovery.”
Also, Otte v. Miller, 125 W. Va. 324, which quotes Carrico v. W. Va. C. & P. Railway, 39 W. Va. 86:
“‘To debar a plaintiff from recovery of damages for an injury from negligence,
his negligence must be the proximate cause of the injury. When both parties are
charageable with negligence, the plaintiff cannot recover if his negligence
contributed in any degree to his injury; * * *
“‘a * * we do not apply the rule of
comparative negligence in this state, by apportioning between the plaintiff and
defendant the effect of the negligence of each one in producing the injury and
finding in favor of the less negligent.’”
Dale G. Casto v. Charleston
Transit Co., 120 W. Va. 676, quotes Keller v. N. & W. Ry Co., 109
W. Va., 522:
“‘When a plaintiff is negligent and his negligence concurs and cooperates with
that of the defendant, as a proximate cause of the injury complained of, he
cannot recover.’”
W. VA.]
REPORTS STATE COURT OF CLAIMS 57
And in the Casto opinion,
supra.,
“Whatever the surroundings, whether
urban or rural, if the situation is such that a traveler, in the exercise of
reasonable care, should look for impending danger, he must look efficiently,
and not carelessly or perfunctorily.”
The respondent’s conduct in leaving a deep break or slide at the edge of hard
surface portion of the road and failing to keep and maintain said portion in a
reasonably safe condition for travel may have constituted negligence which, in
other circumstances, would have afforded grounds for an award, but, for reasons
of the deceased’s conduct already set forth, we feel that such is not the
condition in thiscase. We feel that the claimant’s husband concurred and
cooperated with the respondent in the accident which caused his death.
Therefore, we deny an award and dismiss the claim.
(No. 737—Claimant awarded $79.41.)
CLIFFORD S. STEWART, Claimant,
V.
ADJUTANT GENERAL, Respondent.
Opinion filed October 24, 1951
An award will be made to claimant
where it appears that the proximate cause of the damages done to claimant’s
motor vehicle was the independent and negligent act of the agent of the state
agency involved, and which is in no way brought about by any fault on the part
of claimant. H. A. Peifrey v Adjutant General,
5 Ct. Claims (W. Va.) 106; John Kipp v. Adjutant General, 5 Ct. Claims (W. Va.) 108.
Appearances:
Claimant, pro Se.
58 REPORTS STATE COURT OF CLAIMS LW. VA.
W. Bryan Spillers, assistant attorney general, for respondent.
JAMES CANN, JUDGE.
Claimant alleges that on Sunday, March
4, 1951, while operatmg his automobile over and upon u. s. route 60, in the
city of Ceredo, Wayne county, West Virginia, he had stopped for a traffic
signal, when a truck operated by private Robert Smith, a member of the West
Virginia national guard, struck the rear of his automobile causing damages
thereto in the sum of $79.41.
The evidence disclosed that on the afternoon of the above mentioned day,
claimant, in company with his wife and three children, was operating his
automobile over and upon u. s. route 60
enroute to Kenova, West Virginia. As he proceeded through the city of Ceredo,
he and several others operating automobiles immediately ahead of him were
compelled to stop at the intersection of u. s. route 60 and Main Street, in
said city, by reason of a traffic light showing red, indicating a stop signal.
As claimant came to a complete stop behind the other automobiles ahead of him,
the rear of his automobile was suddenly struck by a truck carrying a “live load”
of West Virginia national guardsmen, and operated by private Robert Smith of
the West Virginia national guard.
Colonel Marble Zickefoos, representing the respondent, testified that the truck
in question was one which was loaned by the U. S. government to the West
Virginia national guard, under the supervision of the state adjutant general in
the performance of his duty in maintaining national guard units in this state,
and said truck, at the time of the accident, was being operated by a member of
the West Virginia national guard, who, although paid by the federal government
under its scheme of maintaining state national guard units in all of the
states, was under the complete control, discipline and supervision of the
respondent. Colonel Zickefoos exhibited to the court an investigation report
which indicated that the operator of the truck at the time of the accident was
not alert; that no fault was shown on the part of claimant and in his opinion
this was a just and meritorious claim.
W. VA.]
REPORTS STATE COURT OF CLAIMS 59
All of the testimony in this case
indicates that the proximate cause of the damages done to claimant’s automobile
was the independent and negligent act of the agent of respondent, and which was
in no way brought about by any fault on the part of claimant.
Under the circumstances and facts presented to us, we make an award in favor of
claimant, Clifford S. Stewart, in the amount of seventy-nine dollars and
forty-one cents ($79.41).
(No. 742-S-—Claimant awarded $176.31.)
MOTORS INSURANCE CORPORATION, Claimant,
V.
ADJUTANT GENERAL’S DEPARTMENT,
Respondent.
Optnion filed October 24, 1951
A. D. KENAMOND, JUDGE.
Motors Insurance Corporation, by a
claim filed under shortened procedure on June 18, 1951, seeks an award for the
sum of $176.31, which amount was expended to repair an automobile owned by
Arthur Wingrove, of Powhatan, Ohio, and damaged to that extent when it was
struck by a W. Va. national guard truck, while said automobile was parked on
32nd street, in Bellaire, Ohio, on December 9, 1950. Motors Insurance
Corporation makes this claim as subrogee of the car owner by reason of an
insurance policy theretofore entered into.
The circumstances surrounding the accident damaging the Wingrove automobile,
and the facts out of which the claim arose, were fully determined by the
adjutant general’s department and reported to the court of claims.
M-24 tank belonging to Hq. Hq. & Sv. Co., 197th Tank Bn (Med), W. Va.
national guard, at the time driven by Eugene
60 REPORTS STATE
COURT OF CLAIMS [W. VA.
Day, member of the unit, was being pulled by another tank driven by Lt. James
Summers. A ten-ton wrecker was out in front leading the convoy and was forced,
by oncoming traffic, to stop after turning east off Guernsey street onto 32nd
street, in Bellaire, Ohio. The tank Day was driving stopped at a slight angle
when Lt. Summers’ tank was forced to stop. When the latter tank was able to
proceed again, the slight jerk in gaining forward momentum swung the rear end
of the Day tank to the right and into the left rear bumper and fender of
automobile driven by Mrs. Margaret Wingrove, wife of the owner. A thorough
investigation of the accident was completed by Lt. Summers on December 11,
1950, when he interviewed the car owner and his wife, patrolman George Busch,
of the Bellaire police department, and two other witnesses who were standing on
32nd street at the time the Day tank bumped the Wingrove car.
The car was repaired at Beam Motor Sales, Moundsville, West Virginia, whose
estimate in the amount of $176.31, including tax, is attached to the adjutant
general’s report on claim.
The adjutant general’s department having concurred in this claim and
recommended an award therefor under the shortened procedure provision of the
court act, and the attorney general having approved the claim, an award is
hereby made in the amount of one hundred seventy-six dollars and thirty-one
cents ($176.31) in favor of Motors Insurance Corporation.
ROBERT L. BLAND, JUDGE, dissenting.
The subrogee claimant in this case has a remedy at law. Subsection 7, of
section 14 of the court act expressly excludes from the jurisdiction of this
court claims for which a proceeding may be maintained by or on behalf of a
claimant in the courts of the state. I do not think that the court of claims
should assume to exercise jurisdiction when it is expressly excluded, as is the
case in the instant claim, as I see it. Without any consideration of the claim
upon its merits, I respectfully record this dissent.
W. VA.1
REPORTS STATE COURT OF CLAIMS 61
(No. 749—Claim dismissed.)
BROOKS G. RAYNES, Claimant,
V.
WEST VIRGINIA UNIVERSITY, Respondent.
Opinion filed October 25, 1951
Claims with respect to which a
proceeding may be maintained by or on behalf of the claimant in the courts of
the state are expressly excluded from the jurisdiction of the state court of
claims by subsection 7 of section 14 of the court act.
Appearances;
Kellum D. Pauley, for the claimant.
W. Bryan Spillers, assistant attorney general, for the respondent.
A. D. KENAMOND, JuDGE.
Claimant seeks an award in the amount
of $131.62 to compensate him for damages to his automobile, a 1947 Chevrolet
sedan, which he alleges were caused by the negligence of W. H. Roberts,
district agent, agriculture extension service, West Virginia University, who
was driving a university owned automobile, a 1949 Chevrolet sedan, at the time
their cars and two other automobiles were involved in a collision on u. s.
route 119 near Queen Shoals, West Virginia, on the morning of May 5, 1951.
Claimant Brooks G. Raynes testified that at the point above mentioned an
automobile about 100 feet ahead of him suddenly came to a stop and that he then
applied his brakes and stopped about 3 to 5 feet behind the car ahead. A third
automobile, a Cadillac, driven by an army captain, was suddenly brought to a
stop about the same distance behind the Raynes car, whereupon the car driven by
W. H. Roberts and following in the procession of four cars, struck the rear of
the third car, driven by the army
62 REPORTS STATE
COURT OF CLAIMS [W. VA.
captain, causing said third vehicle to
strike the rear of claimant’s car and thus causing claimant’s car to strike the
car immediately ahead of him.
W. H. Roberts, appearing as a witness for the respondent, said he didn’t think
he was involved directly with the Raynes’ car and that damages to the rear end
of the Cadillac, the car owned and driven by the army captain, which had been
struck by the university car, had been satisfied and cleared some two months
after the accident.
At this point in the hearing it developed that the West Virginia University,
the respondent state agency, under authorization of chapter 6, article 12,
section 1 of the West Virginia code, carried insurance for the benefit and
protection of its motor vehicle drivers. It appears that counsel for respondent
did not set up insurance as a plea of denial and it was not until the case was
heard before the court that it came to light that the Roberts car was covered
by insurance.
Since claimant has an adequate remedy in the courts of the state against W. H.
Roberts and his claim is thus excluded from the jurisdiction of the court of
claims, as set forth in the syllabus of this opinion, the claim is dismissed.
(No. 748—Claim denied.)
EMMETT WAYNE WEBB, Claimant,
V.
STATE ROAD COMMISSION, Respondent,
Opinion filed October 25, 1951
Under the act creating the court of
claims negligence on the part of the state agency involved must be fully shown
before an award will
be made. Robison v. State Board of Control,
3 Ct. Claims (W. Va.) 66.
W. VA.]
REPORTS STATE COURT OF CLAIMS 63
Claimant, pro Se.
W. Bryan Spillers, assistant
attorney general, for respondent.
ROBERT L BLAND, JUDGE.
In this proceeding claimant Emmett
Wayne Webb, a resident of the state of West Virginia and the county of Fayette
is of opinion that the court of claims should make an award of $662.53 in his
favor against the state road commission because of an accident which he had on
u. s. route 60 in said county of Fayette on the night of March 8, 1951. As a
result of said accident his 1950 Chevrolet four-door sedan automobile was very
considerably damaged, he sustained severe personal injuries, was hospitalized
for four days in a medical center at Montgomery and lost about a month’s time
from his usual employment.
He represents to the court that the cause of said accident was. due to the
failure of the state road commission to prevent and sulficiently guard against
a slide which occurred on said highway sometime during the night of March 8,
and on the further ground of the failure of such state agency to provide
warning signs, flares, and other notices of danger as he approached the site of
the slide. In his petition he avers: “ * * that
on the day and year aforesaid he was driving his said automobile as aforesaid
he was on said highway using due care on the right or north side of the center
of said highway at a lawful rate of speed, when suddenly and without warning of
any kind there being no flares or signs or other warning he ran into a slide
extending out over the paved surface of the highway approximately four or five
feet; that said slide was on a curve and that he did not see it until he was
too close to stop his automobile and trying to avoid it swerved to the left and
in so doing struck a large rock on the highway breaking or tearing loose the
tie rod on his car causing him to loose control of the vehicle and go over a
large embankment *
* “
Said route 60 is one of the most
extensively traveled and used highways in the state. In sections it frequently
abuts on momi
64 REPORTS
STATE COURT OF CLAIMS [W. VA.
tainsides. Pictures exhibited upon the
investigation of the claim show very clearly that the road at the point where
the accident occurred was a beautiful stretch of highway. By reason of the
topography of the state in the section traversed by the highway it infrequently
happens that slides occur on the mountainsides. In such cases, however, before
it could reasonably be contended that there would be responsibility on the part
of the state to compensate a traveler on the road for injuries sustained or
property damaged, it should be made to appear that the road commission had
knowledge of the slide and an opportunity to remove it.
Since claimant is a resident of the county in which his accident occurred there
is a reasonable inference, from the testimony offered by him in support of his
claim, that he was familiar with the highway over which he traveled and had
knowledge of the fact that slides frequently occurred on the mountain abutting
the road, and that it was his duty at all times when using the highway with his
automobile to exercise ordinary care and prudence.
The testimony adduced in support of the claim is reported in a transcript of
more Lhan eighty pages. However, the entire case was presented by claimant in
these words: “Well, it was—I had left home around 11:00 o’clock at night, March
8. It was on a Thursday. I was driving westward on u. S. 60. I was
driving along at the rate of 45 to 50 miles an hour and all of a sudden I came
upon this slip in the road without any warning whatsoever, no signs of any
slide, or any flares burning, or anything, so I applied my brakes and that way
swerved the car and I hit a rock in the slide that caused me to lose control
and go over an embankment, dropped right over on the New York Central Railroad
tracks. The weather that night, it was drizzling-like, quite foggy and smoky.
We have those coke ovens there at Harewood that holds the fog and smoke right
on the road and the visibility was very bad at the time the accident happened.”
The testimony as a whole was involved, obscure, vague and unsatisfactory to
establish any negligence on the part of respondent, or responsibility for the
sudden slide from the moun
W. VA.] REPORTS
STATE COURT OF CLAIMS 65
tainside. Being familiar with the road and the liability for slides to occur at
any time it was all the more the duty of claimant to employ sufficient
precautionary measures as he traveled on the highway to avoid accidents.
On the night of this particular accident it was drizzling rain; the weather
condition was foggy and the smoke from adjacent coke ovens presented a
situation sufficient to put claimant on notice of what might happen under the
circumstances of prevailing conditions.
No good purpose would be subserved by reciting at length the testimony relied
upon by claimant to establish his claim. It is sufficient to say that giving
full consideration and weight to all of such testimony it fails signally to
make out a case of negligence on the part of the road commission. It fully
appears that the road commission was in the habit of giving proper attention to
these slides when they would occur, which was frequently, and removing them
from the highway. It is, in our judgment, reasonable to conclude that by reason
of his lack of care and failure to employ reasonably precautionary measures he
contributed to his unfortunate dilemma.
This court has frequently, in its determination of claims predicated upon the
alleged negligence of the road commission, declared: “Under the act creating
the court of claims negligence on the part of the state agency involved must be
fully shown before an award will be made.”
“No duty, express or implied rests upon the state road commission of West
Virginia to maintain the highways under its jurisdiction in more than
reasonably safe condition for use in the usual manner and by the ordinary
methods of travel; and the state does not guarantee freedom from accident of
persons traveling on such highways.” Hutch.ison
v. State Road, 3 Ct. Claims (W. Va.)
217.
The state has very generously provided an excellent system of highways in the
state, which, as a general rule, are in reason-
66 REPORTS
STATE COURT OF CLAIMS [W.VA.
ably safe condition for pedestrian and vehicular use. No award on the ground of
the negligence of the road commission could be made or responsibility
attributed to it for the sudden slide. A person who rides in an automobile on
the very best highway of the state is liable to have an accident at any time.
We cannot agree, upon a full hearing of this case, that the road commission was
in any way responsible for the accident. Absolutely no negligence on its part can be inferred from the evidence offered by
claimant in support of his claim. In view of this conclusion by the court an
award in the instant case is denied and the claim dismissed.
(No. 746—Claim denied.)
SPENCE RUTHERFORD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied October 25, 1951
1. A claimant who contributes proximately to his own injury by assum— ing risks
may not recover damages for injuries notwithstanding the respondent is not
free from blame. Hamilton v. State Road Commissio,i, 5
Ct. Claims (W. Va.) 119.
2. If a traveler negligently fails to exercise ordinary care and caution for
his own safety against defects in a public highway, which he knows or can
readily see are dangerous, and has the opportunity to avoid them, he is not
entitled to damages, but must bear the burden of his own indiscretion. Williams
v. Main Thiand Creek Coal Co., 98 S. E. 511.
Appearances:
Claimant, pro Se.
W. Bryan Spillers, assistant attorney
general, for respondent.
W. VA.]
REPORTS STATE COURT OF CLAIMS 67
JAMES CANN, JUDGE.
Claimant alleges that on the evening
of the 22nd day of July, 1951, while proceeding in his pick up truck over
Patrick Creek road, leading to u. s. 52, in Wayne county, West Virginia, he
drove into a break on the right side of the road, overturned and rolled down a
bank, resulting in injury to his person and damages to his truck, which he
claims was caused by respondent’s negligence in permitting a break on the side
of the road to exist unrepaired or to be safeguarded by suitable barriers or
signs of warming.
Claimant testified that about six o’clock on the evening this accident
occurred, he met a friend, Bill Ferguson, in the city of Wayne, with whom he
discussed the possibility of procuring a cow from Ferguson’s brother, who lived
on the Patrick Creek road approximately five miles from the junction of u. s. route 52; together they drove to the Ferguson home and
after ascertaining that the brother was not at home, claimant proceeded to
return alone and approximately one and a quarter miles from the junction of u.
s. route 52, as he rounded a curve on said road, he drove into the break
complained of. Claimant further testified that when he and his companion drove
over the road in question proceeding to the Ferguson home, he had not noticed
the break because as he stated, it was on his left and “hardly noticeable”; and
that at that time it was still daylight and the weather clear.
When he proceeded to return from whence he came, it was dark or beginning to
get dark, necessitating the use of his truck lights, and as he rounded the
curve, above stated, his lights were directed to the bank of the left side of
the road causing him not to see the break in question on his right, and
therefore to drive into it, causing the damages complained of.
After this case was heard the members of the court went to the scene of this
accident and after careful investigation ascertained the following facts:
Branch Creek road is a secondary dirt road with a rock base and covered at
places with small gravel; at most places it is not very wide; proceeding west,
to-
68 REPORTS
STATE COURT OF CLAIMS [WI. VA.
wards the Ferguson home, the break in
question is readily and easily seen by anyone operating a motor vehicle, and
proceeding east, the curve, which claimant testified to being rather sharp and
immediately leading to the break, is not as sharp as the court was led to
believe. It is a fairly wide curve, the road at that point being approximately
16 to 18 feet in width and the break is at least fifty feet from its crest, and
one rounding said curve in the nighttime would sufficiently be straightened out
for the lights of his motor vehicle to be showing straight ahead and make the
break visible, if alert and using ordinary care and caution.
This court has held that a duty is imposed upon the state to guard all
dangerous places on the public road by suitable railings and barriers so as to
render the said roads reasonably safe for travel thereon by day or night, and
the failure of such duty may present a moral obligation on the part of the
state for which a claim may be awarded. We intend to still adhere to the above
ruling, provided of course, that if one suffers injury and damages because of
the lack of duty imposed on the state he may not recover if in any way, by his
own negligence, or by his lack of due care and caution, he contributed to his
own injury. It is elementary that a traveler on a public road must exercise
care and caution and not shut his eyes against apparent dangers. We do not
attempt to say that the respondent is free from blame for permitting the break
to exist without being properly barricaded, for something should have been done
to correct the situation which existed and brought about this accident, but we
do believe that claimant had ample opportunity to observe the condition of the
road and if he had used the ordinary care and caution required of him, he
surely would, or should, have seen the break, especially when he travelled the
road earlier in the evening when still daylight, and the break being on his
left in full view while proceeding to the Ferguson home.
Jess W. Horn, a witness for claimant, testified concerning the break as
follows: “But you go up a little rise and on the bend you would notice it, if
you were looking, but if you didn’t pay no mind you wouldn’t notice it.”
(R. p. 39): “Did you have
W.VA.] REPORTS
STATE COURT OF CLAIMS 69
any trouble getting around the curve?” “Not going up, you wouldn’t, no.” “Did
you have any trouble coming back?” “If you aren’t on the ball you would.” (R.
p. 41): From this we can see that anyone operating a motor vehicle over the
road in question could see the break and avoid driving into it if as Horn says,
“If you were looking” and “If you were on the ball.”
Our Supreme Court has held that:
“If a traveler negligently fails to exercise ordinary care and caution for his
own safely against defects in a public highway, which he knows or can readily
see are dangerous, and has the opportunity to avoid them, he is not entitled to
damages, but must hear the burden of his own indiscretion.” Williams v. Main Island Creek Coal
Co. 83 W. Va. 464; 98 S. E. 511.
* * *
Defects may be either patent or latent.
Where the defect is open and easily discovered the traveller cannot, acting
upon the presumption which exists in his favor, run blindly into it * * fl’.” Boyland v. City of Parkersburg, 78
W. Va. 749; 90 S. E. 347.
“A plaintiff who contributes proximately to his own injury by assuming risks
may not recover damages for injuries, notwithstanding that defendant is not
free from blame.” Lowe v. Norfolk & W.
Ry. Co. et al, 119 W. Va. 647; 195 S.
E. 593.
“When a plaintiff is negligent and his negligence concurs and cooperates with
that of defendant, as a proximate cause of the injury complained of, he cannot
recover.” Keller v. N. & W.
Ry. Co., 109 W. Va. 522.
“Whatever the surroundings, whether urban or rural, if the situation is such
that a traveler, in the exercise of reasonable care, should look for impending
danger, he must look efficiently and not carelessly or perfunctorily.” Casto v.
Charleston Transit Co., 120 W. Va. 676.
The respondent’s conduct in leaving the break in the side of the road open and
unguarded may have constituted negligence which, in other circumstances of
injury to person or property,
70 REPORTS
STATE COURT OF CLAIMS [W.VA.
would have afforded grounds for an award, but, for the reason stated and
bearing in mind the facts and attendant circumstances, we feel that such is not
the situation in this case. We feel that claimant contributed considerably, by
his lack of ordinary care and caution, to his injury and loss. Therefore, we
deny an award and dismiss the claim.
(No. 752-S—-Claimant awarded $202.90.)
HAZEN D. YOUNG, Claimant,
V.
STATE ADJUTANT GENERAL, Respondent.
Opinion flied January 16, 1952
JAMES CANN, JUDGE.
This case was submitted to this court
under the shortened procedure section of the court act, and the record
presented reveals that in the forenoon of June 29, 1951, one Kenneth L. Smith,
a member of the West Virginia national guard, while driving one of its trucks,
a GMC truck No. 4726012, in the city of Clarksburg, Harrison county, West
Virginia, was stopped in line of traffic, behind a milk truck, at the traffic
light located at the intersection of Sixth and Pike streets; the claimant was
stopped immediately in the rear of the national guard truck. When Smith
attempted to proceed, the milk truck did not move, so he looked for the driver
of the truck and found none in the cab. He then attempted to move around the
milk truck by first backing up, as he did so he heard the sound of a horn blown
by claimant, warning him of his presence in the rear, but before Smith could
stop he crashed into the front of claimant’s auto mobile causing damages in the
amount of $202.90.
The investigation made by the proper authorities reveals that the driver of the
national guard truck was primarily at fault,
W. VA.)
REPORTS STATE COURT OF CLAIMS 71
and nothing is shown that claimant in
any way contributed to this accident.
The state agency involved concurred in this claim and recommended that an award
be made, and the same was approved by the attorney general.
The majority of this court hereby makes an award in favor of claimant, Hazen D.
Young, in the amount of two hundred and two dollars and ninety cents ($202.90).
ROBERT L. BLAND, JuDGE, dissenting.
I am sure that I would much prefer to act in concert with my colleagues than to
record my dissent from their determina.. tion of a claim. However, because of
the manner in which this claim has been ified and prosecuted in the court of
claims and because the court has been restricted to the views of the adjutant
general and the attorney general without any independent investigation by the
court of claims of the real merit of the claim, I respectfully record my
dissent to the majority opinion and the determination therein made. I also
refer to my dissenting statement in claims No. 755-756-757-758-759, Milkint et als v. State Road Commission, determined at the present term of the court, and to my
dissent in claim No. 760-S Andrews v. Adjutant General. (Reported
elsewhere in this volume).
(No. 760—S—Claimant awarded $121.50.)
DOYLE ANDREWS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 16, 1952
1. The state is morally bound to keep its bridges in proper repair to protect the
traveling public and to make the necessary inspection as to their
72 REPORTS
STATE COURT OF CLAIMS [W.VA.
condition. Failure to do so, causing a bridge to become in bad repair, unsafe,
and to collapse while being properly used, renders the state liable for the
damages caused by the said neglect of duty. Price v State Road, 5
Ct. Claims (W. Va.) 22.
2. The statute requiring inspection and proper maintenance of bridges
controlled by the state road commission is mandatory, and failure to inspect
and keep in repair a bridge so controlled and maintained is negligence, making
the state liable in case of an accident, if caused by such negligence. Price v. Sims, 58 S. E. (2d) 657.
JAMES CANN, JUDGE.
During the month of August, 1951, the
claimant, Doyle Andrews, and one Worthy Preston Shock, were partners in a
logging enterprise on the Hance Casto farm in Webster county, West Virginia,
and were engaged in conveying logs from said farm to Elkins, in Randolph
county, West Virginia. On the 31st day of August, 1951, about one o’clock r’. M., while
claimants’ truck loaded with about 15 medium sized poplar logs and enroute from
the above mentioned farm to Elkins, was crossing a state controlled and
maintained bridge, known as the Jerry’s Run Road bridge, in Webster county, the
bridge broke and collapsed causing the rear end of said truck to go through the
bridge. By reason of said accident claimant asks damages to the extent of
$121.50.
The record as presented to this court shows that at the time of the accident
the truck was hauling a weight of approximately five tons, and was licensed to
haul 30,000 pounds, gross weight. The record further discloses that the
stringers supporting the floor of the bridge, which were chestnut logs, had
deteriorated, causing the collapse of the bridge. The record further reveals
that no warning signs of any kind had been posted or placed at the approaches
to the bridge, nor were there any signs as to load limits; neither does said
record reveal that any inspection of said bridge, as required by our laws, had
been made by the road authorities in charge.
This court has held on several occasions that the statute requiring inspection
and proper maintenance of bridges, controlled
W. VA.] REPORTS
STATE COURT OF CLAIMS 73
by the state road commission, is mandatory and failure to do so, causing a
bridge to become in bad repair, unsafe, and to collapse while being properly
used, renders the state liable for damages caused by the neglect of said duty.
The record before this court further reveals that the truck in question was not
overloaded; that neither the petitioner nor the driver of this truck knew that
the bridge was unsafe or that the stringers which supported it were in a rotten
condition, and, further, that nothing appears upon which to base contributory
negligence or assumption of risk on the part of claimant.
This claim was concurred in by the head of the state road commission and
approved by the attorney general.
A majority of the court is of the opinion that the unsafe condition of the
bridge, about which it was not shown that claimant had any knowledge, was the
proximate cause of the accident, and the state is therefore morally bound, in
view of all the facts and circumstances, to compensate claimant for his ioss.
Therefore, an award is made in favor of claimant, Doyle Andrews, in the sum of
one hundred and twenty-one dollars and fifty cents
($121.50).
ROBERT L. BLAND, JUDGE, dissenting.
I deeply regret that I find myself at
variance with my distinguished colleagues in the determination which they have
made of this case. My chief opposition to the determination made of the claim
grows out of the manner in which it was presented to this court, prosecuted and
determined.
I would not for a moment wish to be understood as saying what I would do or
would not do if the claim had been prosecuted under the regular procedure of
the court. I quite agree with Judge Cann, who wrote the majority opinion of the
court, that in the Price case, cited by him, our Court of Appeals held
very distinctly that in certain circumstances a valid appropriation of the
public funds of the state might be made by the legislature when
74 REPORTS
STATE COURT OF CLAIMS [W.VA.
it appeared from the evidence that a moral obligation existed on the part of
the state. My colleagues, however, overlook the difference between the manner
in which the Price case was prosecuted in the court of claims and the
manner in which the instant case was heard. In the Price case
the claimant introduced testimony at the bar of the court where the members of
the court had an opportunity to see the witnesses, exmaine them and where the
state had a like opportunity to introduce its witnesses in opposition to the
claim and have them examined and cross-examined by members of the court. In the
one case, there was a full, open and complete hearing and investigation made;
in the other case the court could only informally consider the claim on the ex parte record
of the head of the agency concerned. I sometimes wonder whether or not if .the
head of an agency who is so quick and ready to concur in a claim for damages
against the state of West Virginia—damages for which he himself by his
concurrence in the claim shows liiiself to be guilty and responsible—would do
so if he had to pay the money out of his own pocket. This case, in my judgment
merely confirms and establishes the truth which I have been contending for some
time now that the shortened procedure provision provided by the court act is a
detriment rather than a help to a thorough investigation of the claim
presented. If the legislature had intended to give to the head of a state
agency the power to concur in the claim and have it passed when approved by the
attorney general, it could easily have provided a revolving fund out of which
such payments could be made. This, however, the Legislature did not do. On the
contrary it created a court of claims, consisting of three members, who are
charged with the duty and responsibility of conducting such investigation of
every claim filed that would fully disclose the merits of the claim and whether
or not it should be classified as an approved claim. I think the shortened
procedure provision of the court of claims act should be abolished and that all
claims, large and small, should be heard under the regular procedure of the
court act.
For the reasons herein set forth I respectfully note this my dissent to the
award made in this case.
W. VA.] REPORTS
STATE COURT OF CLAIMS 75
(Nos. 755-S, 756-S, 757-S, 758-S and 759-S——Claimants Robert and Emo— gene
Milkint and American Farmers Mutual Insurance Co. awarded $50.00; Ugo J. Massi
and American Farmers Mutual Insurance Co. awarded $50.00; Louis and Virginia
Milkint and American Farmers Mutual Insurance Co. awarded $50.00; Jacquelyn R.
DelSignore and American Farmers Mutual Insurance Company awarded $50.00; Gerald
H. Parks and American Farmers Mutual Insurance Company awarded $40.00.
ROBERT and EMOGENE MILKINT and AMERICAN FARMERS MUTUAL INSURANCE CO.,
Claimants,
V.
STATE ROAD COMMISSION, Respondent.
UGO J. MASSI and AMERICAN FARMERS
MUTUAL INSURANCE CO.,
Claimants,
V.
STATE ROAD COMMISSION, Respondent.
LOUIS and VIRGINIA MILKINT and AMERICAN
FARMERS MUTUAL INSURANCE CO., Claimants,
V.
STATE ROAD COMMISSION, Respondent.
JACQUELYN R. De1SIGNORE and AMERICAN
FARMERS MUTUAL INSURANCE CO., Claimants,
V.
STATE ROAD COMMISSION, Respondent.
GERALD H. PARKS and AMERICAN FARMERS
MUTUAL INSURANCE CO., Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 17, 1952
76 REPORTS STATE
COURT OF CLAIMS [W.VA.
A. D. KENAMOND, JuDGE.
These claims submitted under the
shortened procedure provisions of the court of claims act and approved by the
attorney general, the state road commission having concurred in the claims and
recommended the awards claimed, all grew out of the same incident and act of a
paint crew of the state road commission. Each case involved an automobile
damaged by paint spray.
On September 5 and 6, a paint crew of the state road commission, under the
foremanship of Clay Ferris, was spray painting with aluminum the bridge which
spans Blackwater river on u. s. 219, at Thomas, West Virginia. The bridge
structural steel is completely in the sub-structure and the roadbed located
above the painting project. Evidently the paint crew failed to note a rising
wind, which Ward Hudson, safety director for district 8 and investigator of the
facts and circumstances in these cases, in a written report dated December 6,
1951, said carried specks of aluminum paint and caused damage to the several
automobiles in the amounts shown in photostatic copies of proof of loss.
Claimants Robert and Emogene Milkint had their 1951 Plymouth sedan parked in
front of their place of business approximately 80 feet from the bridge, said
automobiles being generously sprayed with paint from the operation at bridge,
with a resulting damage of $50.00.
Ugo J. Massie had his 1951 Ford sedan parked on a city street approximately 70
feet from the bridge and sustained damage of $50.00, amount necessary to remove
paint specks and rewax antomobile.
Louis and Virginia Milkint had their 1950 DeSoto sedan legally parked about 50
feet from the bridge and the paint spray which carried to their automobile
necessitated the expenditure of $50.00 for removal.
W. VA.]
REPORTS STATE COURT OF CLAIMS 77
Jacquelyn R. DelSignore had his 1951
Ford sedan parked in front of his residence approximately 100 feet from the
bridge and claims $50.00 to pay for removing aluminum paint and rewaxing car.
Gerald H. Parks had his 1950 Oldsmobile completely specked with aluminum paint
on September 6, 1951, while driving across the state owned bridge on u. s. 219
at Thomas, West Virginia, the sub-structure of which was then being spray
painted. His claim is for actual damage of $40.00.
The records submitted in all these cases rule out the possibility that the
aluminum paint spray on the automobiles involved could have come from any
source other than the operation of the state road commission paint crew. No
other painting activities were known to have been carried on at that time in
that locality either by public or private concerns or individuals. In each case
the report made by Ward Hudson, safety director, showed that in his opinion the
state road commission paint crew was at fault.
In view of the investigation made by the respondent in each of these cases
having shown said respondent to be at fault, and of the recommendation of
respondent that awards be made for the several amounts claimed, with the
approval of the attorney general, a majority of the members of this court make
the following awards:
To Robert and Emogene Milkint and American Farmers Mutual Insurance Company,
fifty dollars ($50.00);
To Ugo J. Massi and American Farmers Mutual Insurance Company, fifty dollars
($50.00);
To Louis and Virginia Milkint and American Farmers Mu. tual Insurance Company,
fifty dollars ($50.00);
To Jacquelyn DelSignore and American Farmers Mutual Insurance Company, fifty
dollars ($50.00);
Th REPORTS
STATE COURT OF CLAIMS W.VA.
To Gerald H. Parks and American
Farmers Mutual Insurance Company, forty dollars ($40.00).
ROBERT L. BLAND, JUDGE, dissenting.
Entertaining as I do certain pronounced and deepseated convictions with respect
to the assertion, presentation and proof of claims against the state or any of
its agencies, I am irresistably constrained to express my disapproval of the
five several claims for which awards were made by a majority of the court in
the above captioned cases, consolidated and heard together because they grow
out of the same facts. Each of the said claims is predicated upon the alleged
negligence of the state road commission in failing to anticipate and prevent an
Act of God, and thereby avoid claim damages to five motor vehicles by reason of
a sudden and heavy gust of wind that caused aluminum paint to be scattered in
the air and deposited upon the motor vehicles of the several claimants in these
combined cases. As appears from the majority opinion employes of the state road
conirnission were engaged in painting the bridge more particularly described in
said opinion. They were engaged in the exercise of a governmental function.
Instead of having the several claims heard and defended in the court of claims
under the regular procedure of the court act, the head of the agency concerned
saw fit to send said claims to the court under the provisions of section 17 of
said act, generally known and referred to as the shortened procedure. Under
this procedure the head of the agency concerned prepares the record of the
claim and files it with the clerk of this court together with a concurrence in
such claim. Each of said claims if prosecuted in a court of law of the state
would be held and treated as a tort action. From time immemorial since the birth of our great nation there
have been claims against the sovereign commonwealths of the union with which
each legislature has been called upon to deal, claims by the very nature of
which were of a peculiar and distinct type and pecuniary in nature. It is a
well and fundamentally recognized rule of law in each state of the union that a
sovereignty cannot be sued without its consent. In West Virginia, however, we
have a constitution which prohibits in any case the institu
W. VA.1 REPORTS
STATE COURT OF CLAIMS 79
tion of an action at law or in equity against the state of West Virginia, save
in the instance of a garnishment proceeding. Ninety per cent of the claims with
which the court of claims has had its dealing since its creation ten and
one-half years ago have been claims against the state road commission. This is
only natural when we reflect upon our extensive and magnificent system of highways
in the state. In view of the numerous accidents that have occurred from time to
time on the highways of the state there have been innumerable claims filed and
prosecuted upon the theory of the state’s negligence in one way or another. One
may examine the text books the country over and find that it is an elementary
proposition that a state is not liable to respond in damages for the negligence
of its officers, agents, servants and employes, in the absence of a prior
statute authorizing the prosecuton of such claims. That fundamental principle
of law has been distinctly recognized by our own Court of Appeals in the Adkins case
and in other cases that have been heard in that august tribunal in mandamus proceedings
against the auditor to compel him to pay requisitions made upon him which he
had refused to pay. The only way, as a result of our appellate court’s holding,
that a claim sounding in tort may warrant a valid appropriation by the
legislature and for which the public funds may be paid, is on the theory of the
moral obligation of the state. In no other instance would the legislature
itself have power to make a valid appropriation to satisfy a claim in damages.
Anyone who will take the trouble to read the several opinions of the Court of
Appeals must reach this inevitable conclusion. What constitutes a moral
obligation has been clearly defined by the Court of Appeals in the Cashman case
and in other cases, all of which follow the rule laid down in the case of Woodafl v. Darst, 71 W.
Va. 350. However, in spite of these pronouncements of our Court of Appeals the
head of the state road commission has submitted these cases, sounding in tort
and predicated upon alleged grounds of his negligence, to this court with his
concurrence.
These several claims have been informally considered by this court upon the
meagre record made and filed before the clerk of this court by the state road
commission, thus depriving this
80 REPORTS
STATE COURT OF CLAIMS [W.VA.
court of any independent inquiry or
investigation as to whether or not one or more of the claims would constitute
such a moral obligation of the state as our Court of Appeals has said it would
be within the province of the legislature to make a valid appropriation. No
defense whatever is made by the state against any one of the claims. This court
is limited and restricted in its informal consideration of the claims to the
facts set forth in the road commission record. Fortunately, however, it appears
from the well-written opinion of the majority of the court that the primary and
proximate cause of the damage claimed to have been sustained in each of the
five cases is the result of an Act of God and not of any negligence that the
state, as a sovereign commonwealth, could have anticipated and prevented. As
far back as January 1942, a claim came to the court of claims from Berkeley
county by a florist who sought an award against the state for the reason that
while employes of the state were engaged in sweeping the dust from the highway of
the state a heavy wind descended and spread the dust upon his flowers. I refer
to case No. 38-S, Walter R. Kniceley,
d/b/u. Knicely Florists v. State Road Commission, reported
in 1 Ct. Claims (W. Va.) 72. In our determination of that claim we held that the
cause of the damage for which the claimant sought reparation was the result of
an Act of God, and that case has been a well established precedent of this
court from that date until the present time. Even the majority opinion in these
cases does not now disapprove or reverse that holding.
For reasons herein set forth and many more which fill my mind at the moment I
most respectfully record this my dissent.
W. VA.] REPORTS
STATE COURT OF CLAIMS 81
o. 745—Stanley Copley awarded $50.25; Jennie Bell Copley awarded
$350.00.)
JENNIE BELL COPLEY, ANNA MAYNARD, LOUISE
COPLEY, and STANLEY COPLEY, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 18, 1952
A claim for damages to property or person injured by negligence of state
agent or employe while engaged in discharge of governmental function justifies
appropriation of public funds on the basis of valid moral obligation of state,
Appearances:
E. A. Hansharger, for the claimants.
W. Bryan Spillers, assistant attorney general, for respondent.
A. D. KENAMOND, JUDGE.
On June 30, 1950, claimants Jennie
Bell Copley, Anna Maynard and Louise Copley were walking along a path alongside
the hard surface of u. s. 52 enroute from their home in Big Branch to the
village of Dunlow, Wayne county, when at a point about a half mile from Dunlow
a truck driven by Richard Thompson of Radnor, skidded upon the highway of u. s.
52 and crashed into claimants, inflicting bodily injuries to three claimants,
and damage to personal property of one of them.
Stanley Copley, the fourth named claimant, is the father of Jennie Bell Copley,
and Anna Maynard, and grandfather of Louise Copley.
When the case was heard on January 16, 1952, neither Anna Maynard nor Louise
Copley appeared before the court, and no
82 REPORTS STATE
COURT OF CLAIMS [W. VA.
claim for an award in behalf of either was then presented. According to the
testimony both had suffered only minor injuries.
Stanley Copley asked to be reimbursed for the following expenditures in behalf
of Jennie Bell Copley, the minor daughter in the case:
To replace broken eyeglasses $34.75
To repair damaged watch 7.50
To sew up cut under chin 3.00
To trip to physician 5.00
Total $50.25
Testimony revealed that Jennie Bell Copley was struck down by Richard Thompson’s
skidding truck, causing bruises and pains, the latter persisting to the present
time. Members of the court noted that Jennie Bell Copley bore the marks of a
long cut under her chin which she will doubtlessly carry as a permanent
blemish. No definite claim for recompense was made but her counsel asked the
court to make some award in her behalf to compensate for her suffering and the
permanent disfigurement. Her father stated that she lost no wages due to the
accident, though she was unable for some time thereafter to perform usual
household duties in his home.
Who or what was responsible for the skidding of Richard Thompson’s truck and
the resulting damage to claimants?
The accident occurred on a hairpin curve, the berm alongside the lane normally
to be followed by Richard Thompson being somewhat higher than the 18 feet of
hard surface. Early in the afternoon of the accident a state road commission
crew under the foremanship of Hobart Marcum had shoveled calcium chloride onto
the berm for the purpose of killing weeds. According to his testimony his
supervisor, Kaye Booth, now deceased, had directed him to use up some calcium
chloride which had been in storage for a long time and had lumped up as a
result. Apparently the condition and quantity of this calcium chloride was such
as to cause it on melting to overrun the lower hard surface, covering
W. VA.j REPORTS
STATE COURT OF CLAIMS 83
its entire width for a length of 30 or more feet. According to foreman Marcum
there were no signs to indicate the hazardous condition of the road at time of
accident, which occurred about five-thirty o’clock in the afternoon. When
questioned he revealed that he knew before and after the accident that the road
was slippery by reason of melted calciuip chloride. Men Working signs had been
put up while the road crew applied the weed killer, but these signs were
removed when the work of application was completed.
The accident was investigated by Corporal Russell Hogg, of the department of
public safety, who testified that on the day of the accident he saw the injured
claimants at a doctor’s office, and upon their information he advised Richard
Thompson, driver of the truck involved in the accident, to appear before a
justice of the peace to answer charge of operating a motor vehicle on the wrong
side of the road. Upon Thompson’s insistence that he was not at fault for the
accident but had unavoidedly skidded at the curve, Corporal Hogg went to the
scene of the accident to make investigation. The corporal testified that, as he
entered the hairpin curve at a speed of 25 miles per hour, he came upon the
melted calcium chloride without warning and his car skidded some distance.
After viewing the scene of the accident and surrounding circumstances he
advised the justice of the peace of the same, resulting in the dismissal of
Richard Thompson as being without fault. Corporal Hogg further testified that
the melted calcium chloride covered the highway at the point of accident for a
distance of 30 feet, and that no person rounding the hairpin curve in question
would have any notice or opportunity to observe the hazardous condition of the
road, and thus be able to avoid the same, until he would actually be upon it.
He further testified that the road was unsafe and he therefore notified assistant
supervisor Atkins, whereupon the road was sanded.
Forrest Damron, also engaged in hauling mine post as was Thompson, attempted to
negotiate the curve with his truck just ahead of the latter, but skided off the
hard surface about five feet. He was able to stop, desiring to ascertain
whether he had struck any of the claimants.
84 REPORTS
STATE COURT OF CLAIMS [W.VA.
When Damron and Thompson had passed over this highway earlier in the day they
had found it in good condition, and the appearance of the road at time of
accident was not such as to indicate the hazard that it actually was.
The state road commission offered no testimony, although C. N. Plymale, safety
director for the district in which the accident occurred, was present at the
hearing.
This court is mindful of the fact that the state road commission was engaged in
a governmental function when its employes put a weed killer, calcium chloride,
on the berm above point of accident. But, in view of the testimony offered
before the court as to the condition and quantity of calcium chloride applied
and as to the manner of its application, we have serious doubts whether proper
and ordinary care was used. The state road commission might well have
anticipated that calcium chloride as applied in its lumpy state on a hot
afternoon, according to the testimony, would melt and flow down over and upon
the highway and result in a hazardous and dangerous condition for the traveling
public. According to the testimony melted calcium chloride is as hazardous as
ice on a highway, although to the driver of a motor vehicle it appears to be
nothing more than moisture.
Further testimony showed that after the application of the calcium chloride
“Men Working” signs were then removed, no warning signs were put up, and no
attention given to what be— came of the calcium chloride.
If a private individual owning land alongside a highway were to use calcium
chloride as a weed killer on his land and the same were to be applied as in the
instant case and in melting overrun the adjacent highway, thereby causing
damage and injury to any one lawfully using said highway, would he not be
liable for damages in any court in this state?
Applying the test of moral obligation on the part of the state to reimburse a
claimant who suffered injury to his property or person by the negligent act or
acts of employees of the state. we
W. VA.] REPORTS
STATE COURT OF CLAIMS 85
call attention to the language of the Supreme Court of Appeals in the case of Price v. Sims, 58 SE
(2d) (W. Va.) 657:
“Moral obligation of state, declared by legislature to exist in favor of
claimant for negligent injury to his property, will be sustained, and a
legislative appropriation of public funds made for its payment will be upheld,
when conduct of agents or employees of state which proximately caused such
injury is such as would be judicially held to constitute negligence in an
action for damages between private persons.”
From this language can we not say that, since the private individual above
mentioned would be liable for damages under the circumstances above set out,
the state road commission would be liable under the similar circumstances which
also prevail in this case?
Applying the test in the case of State
ex rel. Cashman v. Sims, 130 W.
Va. 430, does the factual situation by the instant record constitute such
wrongful conduct on the part of the road commission employe as would be
recognized in a court of law involving private parties? We think it does.
We therefore conclude that the employees of the state road commission, in
applying calcium chloride on the berm above and alongside the hairpin curve at
point of accident in this case were under duty to use ordinary and reasonable
care in its application and mode of application so as to prevent its encroaching
upon the highway thus making the same hazardous and dangerous to the traveling
public. Further, we conclude from the testimony that neither the claimants in
this case nor the driver of the skidding truck, involved in this accident,
contributed in any way to the accident; that the same resulted solely from the
negligent manner in which the employes exercised the governmental function
herein set out.
We therefore make an award of fifty dollars and twenty-five cents ($50.25) in
favor of Stanley Copley, and an award of three hundred and fifty dollars
($350.00) in favor of Jennie Bell Copley.
tEl’Oltl’S STALK (‘OLJltT (II” Cl.A1MS LW. VA.
flBERT L. BL’.ND, .JuI)c;E, disio’,z
tioq part,
rolU’Urrin!j part.
I cannot subscribe to the rule atmounc’t’d in the above Syll(Ll)US and dissent to so much of the opinion of the court as
holds that a claim for damages to property or person injured by negligence of
state aizont or citiplove while engaged in discharge of goVern mental function
justities appropriation of public funds on the basis of valid moral obligation
of state. however, I do concur in the conclusion reached and in
the awards made. The case has a very strong appeal to this court. No
precautionary measures were employed after the completion of the work to warn
persons using the road of the danger occasioned by the use of the calcium
chloride.
I think that every case presented to the court of claims should be
determined upon its own basis, and that the two claimants in whose favor awards
are made have established by sufficient proof their rights thereto.
I would not want to be understood as agreeing to a proposition that would deny
the state to discharge its governmental functions or hold that the rights of a
pedestrian on the highway are superior to the rights of the
state.
(No. 763-S—-Claimant awarded $256.80.)
TRESSIE V. CLEAVER, Aclmx., estate of Lemuel A. Cleaver, Jr.,
deceased, Claimant,
V.
STATE CONSERVATION COMMISSION,
Respondent.
O3iinn filed ApriL 30, 1952
JAMES CANN, JUOGE.
Thr facts as rlisclosc’rI by the record in this case show that on
W. VA.] REPORTS
STATE COURT OF CLAIMS 87
the 18th day of September, 1951, Lemuel A. Cleaver, Jr., claimant’s deceased
husband, was then an employe of respond.. ent in the construction of the Spring
Run Fish Hatchery, near the Dorcas Post Office, in Milroy district, Grant
county, West Virginia; that on the date aforesaid, in the course of his
employment and at the direction of his employers, he made a trip to Petersburg,
in said Grant county, in his own automobile, a 1941 Ford sedan; on his return
from Petersburg to the place of his employment he was stopped by other employes
of the respondent approximately 200 yards from where dynamite or other
explosive blasting operations were being conducted by the respondent in the
construction of said fish hatchery, and was told not to proceed any further
until said blasting operations were completed. Whereupon the said Lemuel A.
Cleaver, Jr. stopped his car as directed and was sitting in the left front seat
thereof when a large stone came hurtling through the air as a result of an
explosive charge set off by the employes of respondent and struck his car on
the roof of same with such force and velocity that it pierced the roof of said
automobile and struck him on the head and body causing him grave and serious
injuries, resulting in his death shortly thereafter, and also causing
considerable damages to his automobile.
The record further discloses that said Lemuel A. Cleaver, Jr. left surviving
him at the time of his death, his widow, Tressie V. Cleaver, the claimant, and
two children, all of whom are now receiving benefits from the West Virginia
workman’s compensation fund by reason of the death of the said Lemuel A.
Cleaver, Jr. caused by injuries received while in the course of his employment.
That said claimant on the 9th day of October, 1951, duly qualified as
administratrix of her husband’s estate and as such prosecutes this claim for
the damages done to decedent’s automobile as above set out, estimated by the
exhibits filed to amount to $256.80.
It is contended by the claimant that the employes of the respondent in
conducting explosive blasting operations at the time and place aforesaid
disregarded and were unmindful of their duty to use all due care and caution so
as not to endanger life
88 REPORTS STATE
COURT OF CLAIMS [W.VA.
or property out of the area designated to be the danger area and also to use
care and caution in the amount of explosives used in conducting said blasting
operations in order not to endanger life or property out of said designated
danger area.
Under the circumstances disclosed we are of the opinion to agree with claimant’s
contention and hold that the lack of due care and caution on the part of the
employes of respondent, as stated, was the sole and proximate cause of the
injuries received by the said Lemuel A. Cleaver, Jr., resulting in his death,
and of the damages done to his automobile.
The state agency concerned concurs in this claim and the same is approved by
the attorney general as one that, in view of the purpose of the court of claims
statute, should be paid.
We therefore make an award in favor of claimant, Tressie V. Cleaver, aclmx, etc., for the
sum of two hundred fIfty-six dollars and eighty cents ($256.80).
(No. 764—Claimant awarded $1100.00.)
B. STANLEY GILL, et ux, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied April 30, 1952
1. Negligence on the part of the
state road commission as shown by its failure to eliminate a
rockslide obstruction in a creek in the state road right-of-way, thereby
damaging the property of a resident along said road, presents a moral
obligation for which a claim for reasonable damages should be allowed.
2. Where proof of amount of
damage claimed is of uncertain nature
the court of claims will make an award for
such sum as is reasonably
shown by the evidence to be compensatory for
the damage sustained.
W. VA.]
REPORTS STATE COURT OF CLAIMS 89
Appearances:
Kay, Casto & Amos (Edward H.
Tiley), for the claimant.
W. Bryan Spillers, first assistant attorney general, and Arden J. Curry, assistant attorney general, for the respondent.
A. D. KENAMOND, JUDGE.
This claim filed on March 6, 1952
listed property damages to the amount of $1,514.01. When the case was heard on
April 16. 1952, permission was given to amend the bill of particulars
increasing the claim to $1,604.26. Damages alleged were to property bought and
occupied by B. Stanley Gill in December, 1949, said property being located
along state route 14, on Alum Creek, Washington district, in Kanawha county. In
August, 1950, a flood in that territory overran the Gill property, resulting,
as alleged, in considerable damages to claimants’ house and lot and to
provisions and materials therein and thereon.
Counsel for claimants, in an opening statement, said this claim arises out of
what they believed to be negligence on the part of the state road commission and
its failure to remove from Alum Creek a rockslide, which caused the water to
flow across the road and over and upon Mr. Gill’s property.
By agreement between counsel for claimant and counsel for respondent it was
stipulated that the Alum Creek which runs along the side of state route 14 is
part of the right-of-way of the state road commission, that the slide occurred
quite some time before the damage to the property, and that the state road
commission had notice of it.
B. Stanley Gill testified in his own behalf, and Clarence G. Wilson, a neighbor
and experienced construction worker, appeared as a witness in behalf of the
claimant.
The state offered no evidence in resistance of the claim. Though three
witnesses for the state were sworn, they were not called on to testify.
90 REPORTS
STATE COURT OF CLAIMS [W.VA.
That the flooding of Alum Creek and
resulting damage to the claimants’ property did not fall within the legally
accepted “Act of God” category was shown by the testimony. A week later Alum Creek
was more heavily flooded, but by this time the state road commission had
removed the rock slide so that the creek carried the larger volume of water and
the claimants’ property was not overrun. The court is constrained by the
testimony to hold that the rockslide obstruction was the primary cause of
damage to claimants’ property.
In numerous cases decided by our Supreme Court of Appeals individuals have been
held liable in damages to another for obstructing the natural flow of a water
course during freshets or ordinary flood. Citations from two of these decisions
should suffice.
“For obstructing or diverting a water course, and thereby damaging another, the
party is liable.” Neal et ux v. Ohio River R. Co., 47 W. Va. 316.
“One can not negligently obstruct or divert the water of a natural course to
the injury of another without liability.” Atkinson et al. v. Chesapeake & Ohio Ry. Co., 74 W. Va. 633.
This court is of the opinion that a moral obligation is involved in the Gill
claim, and, supported by the Supreme Court’s syllabus 2, Utterback v. Sims, 68 S.
E. 2nd, 678, favors an award for an amount which in its best judgment is
reasonably shown by the evidence to be compensatory for the damages sustained.
That the state road conu-nission recognized an obligation to the claimant is
shown by the fact that its agents agreed on September 21, 1950, to make partial
reparation for damages, which agreement was not carried out. This partial
reparation took into consideration only damages to claimants’ lot. State road
agents made no inspection of damage to foundation of house and to contents of
basement, nor any attempt to estimate the cost of their reparation or
replacement.
W. VA.] REPORTS
STATE COURT OF CLAIMS 91
It is possible
that claimant was damaged to the full
extent of
$1,604.26 as set forth in his amended bill
of particulars. For the most part the various and several amounts were
supported by cancelled check or bills for materials and labor. However, some of
the lesser items, at least in part, appeared to the court to be of uncertain
validity, and, in particular, the estimate of $500.00 for repair to house
foundation and basement wall seemed not to be based on definitely determined
requirements, whether basement wall would have to be replaced entirely or the
existing wall could be repaired.
The court feels that eleven hundred ($1100.00) dollars is not an overestimate
of the amount of damages sustained by the claimant and makes an award of that
amount in his favor.
(No. 761—Claimant awarded $600.00.)
P.O. HIGGINBOTHAM, Claimant,
STATE ROAD COMMISSION, Respondent.
Opinion filed April 30, 1952
Where the state road commission, in
the prosecution of a state highway relocation project, raises the grade of a
public road to such height as to destroy an abutting landowner’s means of
access to such reconstructed road and fails to provide necessary and convenient
ingress and egress for his benefit, and a claim is filed in the court of claims
by such abutting landowner an award for damages will be made in his favor.
J. Howard Hundley, for claimant.
W. Bryan Spillers, assistant attorney general, for respondent.
ROBERT L. BLAND, JUDGE.
In this case claimant P. 0.
Higginbotham seeks an award
92 REPORTS
STATE COURT OF CLAIMS [W.VA.
against the state road commission in
the sum of $2000.00. His claim arises out of a state highway relocation project
in Kanawha county, West Virginia.
Claimant is the owner of an aggregate of about one hundred and twenty-five
acres of land situate on the waters of Allen’s Fork of Poca River, in Poca
district of said county of Kanawha.
In the immediate neighborhood of claimant’s farm the said Allen’s Fork of Poca
River runs in a general north and south direction. His farm lies on both sides
of said creek. His residence is on the east side of the creek and his barn and
a large part of his farming land on the west side of said creek.
For many years there has been a public road running and extending in a general
north and south direction up and along Allen’s Fork of Poca River connecting
state route No. 21 and state route No. 34, and which road ran through
claimant’s farm and along and adjacent to the said Allen’s Fork branch and on
the east side thereof.
It was proved upon the hearing that claimant formerly had a good and ample
means of ingress from this public road across Allen’s Fork branch to and from
his barn and farm, which are on the west side of said Allen’s Fork branch and
that said roadway and means of access was used constantly by him.
Deeming it necessary and expedient to widen, repair, build and pave the old
road, the state road commission, in 1950, obtained a number of options from
landowners along the route of the old road for right-of-way purposes.
On July 17, 1950, respondent obtained from claimant an option in writing to
purchase a parcel of land shown on state road project No. 8574-(1), in Kanawha
county. This option was to be of no effect unless exercised within six months.
The evidence in the case fails to show that any notice of acceptance was given
to claimant. However, a witness for the state did testify that respondent
exercised the option “by taking posses-
W. VA.j
REPORTS STATE COURT OF CLAIMS 93
sion and entering upon the land.” It
seems to have caused much misunderstanding and confusion as to what respondent
should do if it purchased the land. No deed from claimant to the state has ever
been made and the road commission has no record title to the land actually
taken and used by it for right-of-way purposes.
The road commission filled in so much of the creek as had theretofore run on
the route of the old road and pushed the channel over on claimant’s land. A new
channel was created. A large fill was made on the east side of said channel. At
the point where claimant formerly had convenient access for many years to the
road and from the road to his farm to his barn on the west side of the creek
the newly built fill has entirely destroyed such access. Fill all along the
west side of the road is from seven to eight feet in height and renders all
vehicular travel from the road to claimant’s land and barn prohibitive. Whereas
claimant formerly had and enjoyed convenient and easy access, such access by
reason of the newly made fills in the road has been rendered impossible.
One witness for the state testifed that a crossing could be made for one
hundred dollars, while several witnesses for the claimant testified that it
would cost one thousand dollars to provide claimant with necessary access.
The members of the court visited the land of claimant and had an opportunity to
see and inspect the high fills made by the road commission.
There can be no question about the fact that by reason of the destruction of
claimant’s access and the impossibility of driving over the huge fill, that he
has sustained manifest damages which might easily have been prevented by the
road commission after making the fills.
The constitution of West Virginia provides that property may not be taken or
damaged without compensation. Our Supreme
94 REPORTS
STATE COURT OF CLAIMS LW. VA.
Court of Appeals, in the case of Pecldicord
v. County Court, 121 W. Va.,
270, says:
“Where the grade of a road is changed, resulting in damages to abutting
property in its natural state, the owner thereof is entitled to compensation. * * *“
In making the fills on the road the state
road commissioner acted within the lawful exercise of the power and authority
vested in him by statute, but was in duty bound to provide reasonable access for
claimant. This he has not done.
The claimant has shown himself entitled to an award.
An award is, therefore, made in favor of claimant P. 0. Higginbotham for the
sum of six hundred dollars ($600.00).
(No. 762—Claim denied.)
HALE ELECTRIC COMPANY, INC., Claimant,
V.
WEST VIRGINIA STATE BOARD OF
EDUCATION,
Respondent.
Opinion flIed June 27, 1952
1. The Court of Claims is not a
court of law. It is not invested with and does not exercise the judicial power
of the state in the sense of article eight of the constitution of th state. As
a special instrumentality and arm of the legislature its peculiar function is
to investigate the merit of claims asserted against the state, or any of its
agencies, and recommend the disposition of such claims. The court is not bound
by the usual common law or statutory rules of evidence. The court may accept
and weigh, in accordance with its evidential value, any information that will
assist the court in determining the factual basis of the claims.
W. VA.] REPORTS
STATE COURT OF CLAIMS 95
2. The burden of proof rests upon a
claimant in the Court of Claims to show his claim against the state, or any of
its agencies, to be meritorious and one for which the Legislature should make
an appropriation of public revenues in his favor for the satisfaction of such
claim, and upon failure to successfully carry such burden, an award will be
denied and the claim dismissed,
Howard R. Klostermeyer, Esq., for claimant.
W. Bryan Spillers and Arden J.
Curry, assistants attorney general,
for respondent.
ROBERT L. BLAND, JuDGE.
Claimant Hale Electric Company, Inc.,
a Pennsylvania corporation, with principal office in the city of Pittsburgh,
and duly qualified to hold property and transact business in the state of West
Virginia, seeks an award against West Virginia state board of education for
$9,659.02. Its claims is divided into two items, one for the sum of $3,274.36
and the other in the sum of $6,384.66.
The two and one-half million dollar project of the West Virginia state board of
education for the construction and equipment of a science hall on the campus of
Marshall college, a state- controlled educational institution located in the
city of Huntington, was divided into seventeen different contracts, according
to plans, specifications and drawings made by L. D. Schmidt, registered
architect, of Fairmont. Pursuant to its duly published advertisement, inviting
proposals for these various contracts, sealed bids were opened at the board’s
office in the state capitol, in the city of Charleston, on the 4th day of
December, 1947. Claimant had submitted two bids, one on contract No. 7, which
according to the architect’s instructions to bidders includes the general
electrical installation, not including the general experimental laboratory
equipment, section 29, paragraphs 17 to 45, both inclusive, but all others as
shown on drawings E-1 to E-16 both inclusive, and specified under section No.
29; and the other on contract No. 10, which includes the electrical
experimental laboratory equipment as shown on drawings E-1 to E-16, both
inclusive, of section No. 29. Its bid on contract No. 7 was in the
96 REPORTS
STATE COURT OF CLAIMS [W.VA.
sum of $178,293.00.
Its bid on contract No. 10 was in the sum
of $49,475.00. On the two contracts combined claimant was the lowest bidder.
Contract No. 7 was awarded to claimant for the said sum of $178,293.00.
Contract No. 10 was not awarded on account of limitation of funds.
It is the position of claimant Hale Electric Company that contract No. 7
provides that the contractor shall perform in a workmanlike manner all of the
work described under Contract No. 7, which includes section 29 of the
specifications and drawings
E-1 to E-16, inclusive, in connection with the general installation, but not
including the electrical experimental laboratory equipment as specified under
section No. 29, paragraphs 17 to 45, inclusive; and that contract No. 10 is a
contract covering the furnishing of all necessary tools, labor and equipment to
complete in a workmanlike manner all work required for the furnishing and
delivering to the building site electrical experimental laboratory equipment.
Claimant maintains that it was its understanding that both contracts 7 and 10
would be awarded to it and that it confidently expected that contract No. 10
would ultimately be awarded to
it. It contends that the architect as the agent of the state represented to its
president that both contracts 7 and 10 would be awarded to the lowest bidder on
the two contracts combined. It also contends that the state board of education
had advised it by letter that it would later be awarded contract No. 10.
However, when proposals were again invited on contract No. 10 claimant again
submitted a bid, but it was not the lowest bid, and the contract was awarded to
the Standard Electric Time Company, of Huntington, West Virginia. With
knowledge of this fact claimant admits that it started to do work, as it
contends, required to be done unde: contract No. 10. While testifying in
support of the claim claimant’s president was asked the following question:
“Q—After you were awarded Contract No. 7, did you have to make any preparations
to perform the work, and what did you do?” and answered:
W. VA.] REPORTS
STATE COURT OF CLAIMS 97
“A—Yes, we did. To begin with, we had to buy conduit and fittings necessary for
both contract No. 7 and contract No. 10, because the conduits had to be
installed simultaneously. For one thing, slabs, and in masonry, before slabs
could be poured, both sets of conduit had to be placed, therefore we estimated
sufficient conduit and fittings to do the roughing-in work for both contracts
as the building progressed.”
The record of the claim is voluminous. The transcript of evidence consists of
two hundred and fifty-seven pages. In addition to such evidence claimant
introduced as its exhibit No. 1, a large volume, containing approximately three
hundred and forty-five pages, prepared by architect Schmidt, and embracing all
of the documents pertaining to the science hail project, such as advertisement
for bids, instructions to bidders, the form of proposal, form of contract,
specification, etc.
It was admitted by claimant’s president that all of the work performed by it
under what it contends was required to be done under contract No. 10 was done
subsequent to the time that it had notice of the fact that contract No. 10 had
been awarded to Standard Electric Time Company. After contract No. 10 had been
awarded as aforesaid, claimant ceased to do any further work on the electrical
project. Respondent thereafter contracted with Harry Goheen or Goheen Electric
Company to complete the work of connecting the experimental laboratory
equipment at a cost of $3,274.36. When claimant submitted its final estimate
respondent, at the instance of the architect, deducted from said estimate the
said sum of $3,274.36 which it had paid to Goheen for connecting the
experimental laboratory equipment on the ground that such work was provided to
be done under contract No. 7. Claimant also contends that it is entitled to be
compensated on a quantum meruit basis the reasonable value, that is to
say the sum of $6,384.66 for the labor and materials which it furnished for
laying the conduit for installing the special experimental laboratory equipment
which it maintains was originally called for by contract No. 10.
During the progress of the hearing of the claim a number of objections were
made, and urged with insistence, to the admissi
98 REPORTS
STATE COURT OF CLAIMS [W. VA.
biity of evidence. The court’s rule 9
relates to proof governing testimony. The Court of Claims is not a court of
law. It is expressly provided in the act of the Legislature creating the Court
of Claims that it shall not be invested with or exercise the judicial power of
the state in the sense of article eight of the consttiution of the state. As a
special instrumentality and arm of the legislature its peculiar function is to
investigate the merit of claims asserted against the state, or any of its
agencies, and recommend the disposition of such claims. The court is not bound
by the usual common law or statutory rules of evidence. The court may accept
and weigh, in accordance with its evidential value, any information that will
assist the court in determining the factual basis of the claims. Judge Charles
J. Schuck, a former member of the Court of Claims, an able and distinguished
lawyer, was wont to say, when objections were made to evidence, that members of
the court were lawyers, or, at least had license to practice law and would
endeavor to separate the “wheat from the chaff.”
Claimant agrees that the sole issue in the case is whether or not contract No.
7 which was awarded to claimant required claimant to lay the conduit for and
otherwise install the special laboratory equipment referred to in paragraphs 17
to 45, inclusive, of section No. 29 of the specifications. Claimant contends
that such installation was not included in contract No. 7 but was intended to
be included in contract No. 10.
To establish the merit of its claim claimant bears the laboring oar. The claim
has been presented with ingenuity and marked ability. Contract No. 7 reads in
part as follows:
“WITNESSETH, That the Contractor and the Owner for the consideration stated
herein agree as follows:
ARTICLE I, SCOPE OF WORK—The Contractor shall perform everything required to be
performed and shall provide and furnish all of the labor, materials, necessary
tools, contractors’ equipment, and all utility and transportation services
required to perform and complete in a workmanlike manner all the work required
for the GENERAL ELECTRICAL INSTALLATION,
W. VA.]
REPORTS STATE COURT OF CLAIMS 99
NOT INCLUDING THE ELECTRICAL EXPERIMENTAL LABORATORY EQUIPMENT SPECIFIED UNDER
SECTION 29, PARAGRAPHS 17 to 45 INCLUSIVE, as part of the construction of a
Science Hall on the Campus of Marshall College, Huntington, West Virginia,
Project of the Owner, all in strict accordance with the drawings and
specifications, including any and all Addenda, prepared by L. D. Schmidt,
Architect, acting and in these contract documents referred to as the Architect,
which drawings and specifications are made a part of this contract, and in
strict compliance with the Contractor’s proposal and the other contract
documents herein mentioned which are a part of this contract; and the
contractor shall do everything required by this contract and the other
documents constituting a part hereof.”
This contract is a solenm and binding instrument. It means what it says. It
will be observed that the plans, specifications and drawings made by the
architect are by its express terms made a part of the contract. Recourse must
necessarily from time to time be made to the drawings. Everything required to
be done by the specifications is set forth on the drawings. In claimant’s
proposal for Contract No. 7 we read: “Alternate No. 1-B. For special laboratory
equipment install conduits only. Conduits to terminate at locations shown on
drawings with metal caps installed at all openings. Where panel boards are to
be installed all rough work shall be completed to provide for future
installation of the mechanical panel board assemblies. Under contract No. 10
roughing-in panel board shells or bracket supports shall be supplied but
installed under this contract.”
Claimant made a deduction of $464.00 from its contract since the assemblies
were not to be installed. As evidence that the conduits are within the terms of
contract No. 7, they are indicated on the architect’s drawings, and illustrated
as E-1 panel A. The drawings show a conduit extending from panel A to items
indicated on the equipment as experimental outlets. From panel A lines on the
drawings are also shown to indicate conduits to panel SP-1-la. Another conduit
extends from panel A to the electrical laboratory panel, room No. 109. On the
same drawing
100 REPORTS STATE
COURT OF CLAIMS jW. VA.
there are in room G-1O additional experimental laboratory outlets which are
indicated to connect to electrical panel A, in room G-13. In room G-46, physics
shop, there are experimental outlets indicated and conduits shown, sizes
indicated, etc., and noted to connect to electric panel A, in room G-13. This
same condition continues on many of the sheets on drawings E-1 to E-16.
Under date of December 22, 1947, H. K. Baer, secretary of the West Virginia
board of education addressed a letter to claimant, reading as follows:
“Hale Electric Company, Inc.
1105 Washington Boulevard
Pittsburgh, Pennsylvania
Gentlemen:
We are returning herewith your bid proposal on Contract No. 10—Electrical
Experimental Laboratory Equipment, Marshall College Science Building—together
with your bid bond in the amount of $5,000.
We regret to inform you that the West Virginia Board of Education cannot accept
any bids under this contract due to limitations of appropriated funds for the
erection and equipment of the Marshall College Science Building.
We appreciate your bidding on this part of the science building project and
trust that when funds become available we may have the pleasure of negotiating
with you on the equipment items listed in the plans and specifications for the
completion of this building.
Very truly yours,
(Signed) H. K. Baer
fdv H. K. Baer, Secretary
enc. State Board of Education”
Nothing is observed in the letter that could be construed as a representation
that claimant would be awarded contract No. 10. Contracts are aw’rded publicly
and in the manner prescribed by law. The architect is not the general agent of
the state board of education. He would have no power to bind the board beyond
the scope of his employment as architect for the project.
W. VA.] REPORTS
STATE COURT OF CLAIMS 101
John
E. Hale, president of claimant company,
was the only witness who testified before the court in support of the claim.
L. D. Schmidt, respondent’s architect, testified in resistence of the claim on
behalf of the board. H. K. Baer, secretary of respondent, introduced as a
witness at the instance of the court, but not examined by the state, testified
that in writing the letter to claimant above quoted, it was not his intention
or purpose to represent that contract No. 10 would be awarded to claimant.
All other evidence was of a documentary character consisting of numerous
exhibits, including the large volume hereinbefore referred to which embraced
the specifications for the project, instructions to bidders and various forms
to be used in making proposals and entering into contracts, etc. The
writer of this statement cannot forego this opportunity to commend the
magnitude of this splendid volume, dealing as it does with the minutest details
of the vast project of the science hail. It is, indeed, an outstanding evidence
of architectural skill.
We see nothing in contract No. 10 that has anything to do with electrical
installation. It deals solely with the furnishing and delivery of experimental
laboratory equipment to the site. Contract No. 7 relates to the general
electrical installation throughout the four floors of the science hall. The
architect’s drawings are, we think abundantly sufficient to remove any doubt
that claimant might have had as to what was required to be done under the terms
of contract No. 7. The manifest purpose of the architect in contract No. 7 was,
in the judgment of the writer, to advise prospective bidders that bids on
contract No. 7 would not relate to furnishing the experimental laboratory
equipment which was to be furnished and delivered to the building site under
the terms of contract No. 10.
Claimant had a copy of the architect’s large volume containing specifications, etc., for
approximately two months for inspection and study before making its proposals
for contract No, 7 and contract No. 10.
Considering all the facts and circumstances developed upon the investigation
and hearing of the claim we perceive no a’ enue
102 REPORTS
STATE COURT OF CLAIMS [W.VA.
of escape from the conclusion that contract No. 7 awarded to claimant obliged
claimant to do and perform everything for which it seeks an award in this
proceeding.
The members of the court were much interested in their consideration of the
excellent brief filed by learned counsel for claimant. It is regrettable that
the court could not have had the benefit and assistance of a brief on the part
of the state.
The burden of proof rests upon a claimant in the Court of Claims to show his
claim against the state, or any of its agencies, to be meritorious and one for
which the legislature should make an appropriation of public revenues in his
favor for the satisfaction of such claim, and upon failure to successfully
carry such burden, an award will be denied and the claim dismissed.
An award in this proceeding is, therefore, denied and the claim dismissed.
(No. 766—Claimant awarded $150.00.)
FRED W. NORRIS, Claimant,
V.
STATE DEPARTMENT OF ARCHIVES AND HISTORY,
Respondent.
Opinion filed October 16, 1952
Where a claimant upon being solicited
by the state archivist withdraws from his private collection of firearms a
valuable antique derringer and the same is placed in the state museum for
exhibition and the gun is at a subsequent date stolen from the museum and all
efforts by the department of archives and the department of public safety to
recover same are unsuccessful then because of the public-spirited gesture and
purpose surrounding the lending of the said gun an award will be made t
claimant in an amount to equal the present market value thereof.
W.VA.] REPORTS
STATE COURT OF CLAIMS 103
Claimant, pro se.
Arden J. Curry, assistant attorney
general, for respondent.
ROBERT L. BLAND, JuDGE.
In the year 1933, claimant Fred W.
Norris resided in the city of Charleston, West Virginia. His family and the
late Clifford Meyers, at that time state historian and archivist of West
Virginia, were close friends. It was the frequent custom of Mr. Meyers to visit
claimant’s home where he discussed art, literature and so forth with claimant
and his family. On the occasion of one of these visits Mr. Meyers observed in
claimant’s collection of antiques and other v1ued possessions a double-barrel
41 caliber Derringer Early American Pistol which he admired exceedingly, and he
solicited claimant to loan it to the department of archives for display in the
state museum. A few days later claimant himself took the gun to the archivist’s
office in the state capitol in the city of Charleston, together with an
affidavit of ownership. It was delivered to the archivist with the distinct
understanding that it was to be kept on public display or promptly returned to
claimant, aiid that it would remain claimant’s property and be returned to him
at any time upon demand therefor. Thereafter claimant became employed in the military
service and was absent, in California and elsewhere, from his home in the city
of Charleston for several years. In the year 1942 claimant, being in West
Virginia, visited the state museum and observed that the card descriptive of
his gun was publicly displayed but that the gun was missing! He inquired of the
then archivist, Mrs. Bess Harrison, and was informed by her that his gun had
been stolen in 1937, but that an investigation to determine its whereabouts was
then in progress and that claimant would be advised when the investigation was
concluded so that he might reclaim his property and remove it to his home.
Nothing further was heard about the missing gun by claimant until March of the
year 1952 when he again visited the state capitol and made further inquiry in
respect to his property. It appears from the record of the claim that members
of the state department of public safety had instituted and concluded a careful
and thorough investigation
104 REPORTS
STATE COURT OF CLAIMS (W.VA.
in relation to the missing gun but to
no avail, and claimant was at that time informed by the state archivist that
the investigation was closed. Claimant thereupon filed his claim in the court
of claims, seeking an award of $150.00 to compensate him for the loss which he
had sustained.
The investigation of the claim revealed the fact that the gun in question was
not only an antique but a rare and unusual type of gun. Claimant made inquiry
in the city of Pittsburgh as to the value placed upon guns of the same
manufacture and age, and learned that $150.00 was considered to be a reasonable
value. Claimant himself did not have the gun for sale. He placed a sentimental
value upon his possession of it and gave it a high place and standing in his
collection of firearms.
The department has interposed no defense to the claim and, as a matter of fact,
is unable to explain or account for the loss of claimant’s valuable property.
Where a claimant upon being solicited by the state archivist withdraws from his
private collection of firearms a valuable antique derringer and the same is
placed in the state museum for exhibition and the gun is at a subsequent date
stolen from the museum and all efforts by the department of archives and the
department of public safety to recover same are unsuccessful then because of
the public-spirited gesture and purpose surrounding the lending of the said gun
an award will be made to claimant in an amount to equal the present market
value thereof.
An award is therefore made in favor of claimant Fred W. Norris in the sum of
one hundred and fifty dollars ($150.00).
W. VA.] REPORTS
STATE COURT OF CLAIMS 105
(No. 769—Claimants awarded $76.55.)
J.
KELVIN HOLLIDAY and KATHLEEN HOLLIDAY,
trading as THE FAYETTE TRIBUNE, Claimants,
V.
STATE AUDITOR, Respondent.
Opinion fIled October 16, 1952
When a publishing company publishes legal notices contracted for by constitutional
authority, as prescribed by statute, it becomes a just obligation and an award
should be made. Berkelep Printing &
Publishing Cornpciny v. State Auditor. 3
Ct. Claims (W. Va.) 231.
Appearances:
Mahan, White & Higgins (S. C.
Higgins, Jr.) for claimants.
Arden J. Curry, assistant attorney general, for respondent.
JAMES CANN, JuDGE.
Claimants, J. Kelvin Holliday and Kathleen
Holiday, are partners, trading as The Fayette Tribune, and as such partners are
the owners and publishers of a newspaper of general circulation in and about
Oak Hill, in Fayette County, West Virginia.
The Honorable Edgar B. Sims, as auditor of the state of West Virginia, is by
virtue of the statute in such cases made and provided, es-officio commissioner
of delinquent and forfeited lands.
It appears from a stipulation of facts agreed upon by counsel for claimant, by
the assistant attorney general, representing respondent, who appeared in
person, and from the exhibits and other evidence offered in this case, that
Howard W. Carson was by respondent appointed deputy commissioner of forfeited
and delinquent lands for Fayette county, West Virginia, and as such was
requested by respondent, under authority of chapter hA, art. 4 of the code of
West Virginia, to institute a certain suit in the circuit court of said Fayette
county for the sale or other dis
106 REPORTS
STATE COURT OF CLAIMS [W.VA.
position of certain parcels of land delinquent or forfeited to the state of
West Virginia for the nonpayment of taxes. Said suit was filed by the said
deputy commissioner, and as provided by sections 139 and 150 of said chapter
hA, art. 4 of the code, he contracted for and caused certain publications to be
published in the newspaper of claimants, on May 31, June 7, June 14, August 2
and August 9, 1951, at a total cost of $112.25. From the sale of the lands
proceeded against by said suit sufficient funds were not realized with which to
pay the total costs of said publication, and as a result thereof $35.70 was
paid to said claimants, leaving a balance due them of $76.55, for which this
claim is made.
Both section 139 and section 150 of said chapter hA, art. 4 of the code provide
“That the cost of publication as provided therein shall be taxed to the state
as part of its costs in the suits filed and shall be paid as hereinafter
provided,” which• no doubt means as provided in sec. 163 of said chapter and
article.
At the hearing of this case the respondent testified and emphatically declared
that the claim of the claimants was not only a moral but a legal obligation of
the state, that the same was justly contracted by the state according to law,
that the state had received the benefit thereof and that the state should pay
the same, but that he, as state auditor, was powerless to honor said claim
because the Legislature had failed to provide by statute for payment of such
claims in the event of a deficiency caused by the failure to realize sufficient
funds from the sale of lands as provided in said chapter hA, art. 4 of the
code.
It may be true, as contended by respondent, that the Legislature did not specifically
state in the statute in question how the costs incurred as provided by law
should be paid in the event of a deficiency at any sale made by virtue of said
statute, yet this court is of the opinion that when a publishing company,
acting in good faith, publishes legal notices contracted for by constitutional
authority, as prescribed by statute, it becomes a just and legal obligation and
an award should be made; that the integrity and credit of the state should at
all times be held in-
W. VA.] —_REPORTS
STATE COURT OF CLAIMS 107
violate. This opinion has been held by this court in several cases,
particularly in the following: Charleston
Mail Association v. State Health Dept., 3 Ct. Claims (W. Va.) 174, and Berkeley
Printing & Publishing Co. v. State Auditor, 3
Ct. Claims (W. Va.)
231.
The failure to pay the state’s just and legal obligations because the head of
the state department involved, after said obligations are incurred, discovers
what he believes to be a technicality existing in the law under which the
obligation was created, would be a blot upon the integrity and credit of the
state and a condition might arise whereby its prospective creditors would
demand cash payments, and justly so, before the performance of any contract for
fear that later it would be discovered that a technicality in the statute,
under which said contract was performed, existed, and payment would be denied.
To this practice we cannot subscribe. Therefore, for the reaSons herein set
out, an award is made in favor of claimants
J. Kelvin Holliday and Kathleen Holliday, trading as The Fayette
Tribune, in the amount of seventy-six dollars and fifty-five cents
($76.55).
(No. 767-S—-Claimant awarded $127.50.)
PAUL C. HOGSETT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 17, 1952
JAMES CANN, JUDGE.
The record in this case as submitted
to us for our consideration reveals that sometime during the month of
September, 1951, claimant, the owner of a 1950 four-door Packard
automobile,
108 REPORTS
STATE COURT OF CLAIMS [W.VA.
parked his car in the rear of the
Greenbrier county courthouse, Lewisburg, West Virginia; while so parked it was
damaged by fine sprays of yellow paint carried by the wind from the paint shop
of the respondent situate some fifty feet away, which paint was being sprayed
presumably on equipment of respondent. Attempts to remove the paint spots from
claimant’s automobile by simonizing were made to no avail, and it became
necessary to repaint claimant’s automobile at a cost of $127.50.
The record further reveals that George N. White, safety director for
respondent, made an investigation of the claim on the 27th day of September,
1951, and stated that in his opinion the respondent was liable for the damage
done to the automobile of the claimant. No act or omission on the part of
claimant from which we could conclude that he was guilty of contributory
negligence was shown, but the record does show that the respondent, or its
agents and employes, by or through their neglect, default, or failure to use
reasonable care under the circumstances, caused the damages complained of.
The respondent has concurred in the payment of this claim and the same has been
approved by the attorney general Therefore, a majority of this court recommend
and make an award in favor of claimant, Paul C. Hogsett, in the amount of one
hundred twenty-seven dollars and fifty cents ($127.50).
ROBERT L. BLAND, JUDGE, dissenting.
I am constrained to note my opposition to the award made in this proceeding by
a majority of the court. The claim is informally heard upon a record prepared
and submitted to the court by the state road commission. The members of the
court of claims have made nd independent investigation of the facts which
constitute the basis for the award made. By its action the court of claims has
simply approved such investigation of the claim as was made by subordinate
employes of respondent.
Paul C. Hogsett carried insurance upon his automobile covered by a policy
issued to him by the Farm Bureau Mutual Auto-
W. VA.]
REPORTS STATE COURT OF CLAIMS 109
mobile Insurance Company. This company
paid to the said Hogsett $127.50 to remunerate him for the liability which he
incurred when having his automobile repainted. By virtue of a provision
contained in the policy of insurance the nominal claimant in this proceeding is
subrogated to the rights of the insurance company with power and authority to
institute and conduct any suit or proceeding deemed necessary to be repaid the
said sum of $127.50. As a matter of fact the claim is distinctly a subrogation
proceeding asserted in this court by the insurance company in the name of its
assured Paul C. Hogsett.
While the writer of this statement thinks that he understands reasonably well
the rule or doctrine of subrogation he is nevertheless of opinion that the
claim in question is not the type or character of claim which may be asserted
and successfully maintained against a sovereign state. That excellent authority
Blashfield, on Automobile Law and Practice, in Sec. 4171, very appropriately
declares:
“The doctrine of subrogation has long been an established branch of equity
jurisprudence, owing its origin neither to the statute nor to custom but based
upon equitable principles wherever justice demands its application, and the
right of subrogation depends upon the facts and circumstances of each
particular case, being allowed whenever the equities of the case demand it.
* *
*“
The rule of subrogation may be invoked
between individuals when it could not be lawfully invoked in a proceeding
against the sovereign state. The subrogee in this case, that is the Farm Bureau
Mutual Automobile Insurance Company, has no inherent right against the state of
West Virginia. Equity follows the law. It is a well recognized maxim.
110 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 771-S-—Claimant awarded $75.00.)
SYLVIA HERBAUGH, Claimant,
V.
CONSERVATION COMMISSION, Respondent.
Opinion filed October 20, 1952
A. D. KENAMOND, JUDGE.
This claim submitted under the
shortened procedure provisions of the court act arose out of the loss of a
pocketbook at the bathhouse at Cacapon state park by Sylvia Herbaugh, of
Winchester, Virginia, in July of the past season.
The claim is for $75.00 as compensation for loss of the pocket. book and its
contents consisting of $35.00 in cash, eyeglasses, keys, and a lady’s Bulova
wristwatch. The claimant also carried her driver’s permit in the pocketbook.
According to the investigation of the conservation commission of West
Virginia, completed on July 29, 1952, the loss occurred by reason of the fact
that the attendant at the bathouse at Cacapon state park, after accepting the
pocketbook in the regular course of duty, placed the same in the wrong basket.
The state conservation commission concurs in this claim and it is approved by the
attorney general.
The court of claims hereby makes an award in the amount of seventy-five dollars
($75.00) in behalf of claimant Sylvia Her. baugh, and recommends that same be
authorized by the Legislature.
W.VA.) REPORTS
STATE COURT OF CLAIMS 111.
(No. 768—Claim denied.)
HENRY J. McKINLEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 20, 1952
There are reasonable limitations
to the right of the public to unobstructed use of a highway, and the state does
not guarantee freedom from accident to persons traveling on its highways.
Appearances:
Charles M. Love, Jr., for claimant.
Arcien J. Curry, assistant attorney general, for respondent.
A. D. KENAMOND, JUDGE.
On the morning of April 14, 1952, at
about four-thirty o’clock, claimant Henry J. McKinley, of Elkins, West
Virginia, was driving his Plymouth automobile over and upon u. S. route
33, in an easterly direction, enroute to Baltimore, whereupon at or near
Bowden, Randolph county, West Virginia, he ran his car into a large tree which
had slipped from the hillside and fallen across the highway during the
preceding night. Claimant in his petition asserts that the front end of his car
was demolished, that he was thereby deprived of the use of the same, and that
he suffered cuts and bruises to his left knee. For all of this he seeks an
award in the sum of $1500.00.
The hearing on this claim was held on October 16, 1952, in the court of claims
place of meeting in the state capitol, when testimony revealed that the damages
to claimant’s car amounted to approximately $681.00. The major part of the
testimony related to the weather conditions immediately before and at the time
of accident, the probable time when the tree fell across the highway, the
efforts of the state road commission to patrol the par-
112 REPORTS STATE
COURT OF CLAIMS [W.VA.
ticular portion of highway involved and to keep it free from obstructions, and
the claimant’s approach to the point of accident.
The claimant stated that at the time of the accident Victor Goldberg was riding
with him, that they were traveling at forty to forty-five miles per hour and
talking as they went along, apparently not anticipating an obstruction in the
highway, and suddenly about sixty feet ahead of them they saw a rather large
tree lying across the full width of the road proper. At four-thirty o’clock in
the morning it was beginning to get light and it was somewhat foggy. There was
apparently no chance of stopping the car to avoid a crash nor any safe passage
around the tree at either side of the highway.
Victor Goldberg’s presence as a witness could not be secured, he being way down
in Virginia. However, his affidavit corroborating testimony of claimant was
presented to the court and admitted to record.
Don Isner and Okey Chenoweth, state road maintenance workers, testified for the
claimant verifging the accident and the presence of the obstruction across the
roadway.
These two workers also appeared as witnesses for the state, and to their
testimony was added that of Dewey Phares, road supervisor in that neighborhood.
The testimony adduced showed that there had been two hard rainstorms in the
region of the accident on the preceding evening, one at about five-thirty or
six o’clock and the other a few hours later. Sensing that, as a result of the
rains, the highway in the vicinity of Bowden might be rendered hazardous by
stone and other debris carried down from the steep hillside, Mr. Phares called
Mr. Isner, who lived nearby, to patrol the highway, which he did by going over it
more than once. At ten o’clock immediately preceding the accident the highway
was free from obstruction.
The evidence revealed the fact that the first intimation or knowledge of the
failing of the tree across the highway was given by the claimant himself to the
road commission and that prompt steps were taken to remove the tree.
W. VA.] REPORTS
STATE COURT OF CLAIMS 113
Counsel for the respondent maintained that, in view of the testimony, the state
road commission could not be charged with negligence and asked that an award be
denied.
To this, counsel for the claimant disclaimed any charge of negligence but
asserted that an award is justifiable on the ground that the highway was “Out
of repair.”
The term “Out of repair” has by popular interpretation a much less
comprehensive application than it has by judicial interpretation, the latter
holding that repair applies to obstructions to the highway as well as defects
therein. It is doubtless in the latter sense that the term “Out of repair” was
used by counsel for claimant. While the state road commission is charged with
keeping and maintaining the highways in reasonably safe condition for travel
with ordinary care by day and night, there must be some reasonable limitations
to the ability of the road commission to provide an unobstructed highway at all
times and under all conditions. We believe those limits were reached in the
present case. The highway on which accident occurred had been patroled for the
discovery and removal of any obstruction brought down from the hillsides after
the rainstorm of the preceding night. Who can say that the presence of a road
crew on the spot could have prevented the falling of the tree, or being there
at the time of the fall they could have removed the obstruction before some one
came along in a motor vehicle, or would have had time to send out couriers to
halt approaching traffic? As before stated the testimony revealed that the
claimant was the first person to discover the obstruction, which might have
occurred only a few minutes previously. While the testimony of the road workers
showed that this particular tree somewhere up on the hillside had never been
detected as a possible menace to the highway, they had at different times
removed trees and other objects that might fall on the highway.
The court of claims has repeatedly held that “The state is not a guarantor of
safety to the traveling public, since if it had such burden placed upon it the
state as a whole might soon be bankrupt and unable to function as a
commonwealth or as a body
114 REPORTS
STATE COURT OF CLAIMS [W.VA.
politic.” Clark v. State Road Commission,
1 Ct. Claims (W. Va.)
230, at page 231. Harvey v. State Road
Commission, 1 Ct. Claims
(W. Va.) 345, at page 347. Harmon v. Swte Road Commission,
2
Ct. Claims (W. Va.) 329. Chariton v. State Road
Commission,
3 Ct. Claims (W. Va.) 132. Hutchison v. State Road Commission,
3 Ct. Claims (W. Va.) 217. hendricks v. State Road Commission,
3 Ct. Claims (W. Va.) 258. Ch,artrand v.
State Road Commission,
5 Ct. Claims (W. Va.) 98. Keystone Hardware, et al, V. State
Road Commission, 5 Ct. Claims (W. Va.)
143.
In view of the testimony in the case and other reconsiderations herein set
forth, the court denies an award, recognizing that the claimant has recourse to
a relief bill in the Legislature of which he is a distinguished member.
(No. 770—Claim denied.)
WILLIAM FLYNN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 20, 1952
T0 secure an award a pedestrian
suffering injury while crossing a highway bridge must show conclusively that
the state road commission’s failure to maintain a sidewalk on said bridge was
the proximate cause of his injury as asserted in his claim, and that other
forces, including his own lack of prudence, did not contribute heavily thereto.
Appearances:
Joseph Luchini for claimant.
Arden J. Curry, assistant attorney general, for respondent.
A. D. KENAMOND, JuDGE.
W. VA.] REPORTS
STATE COURT OF CLAIMS 115
Claimant William Flynn states in his petition that on the night of January 21,
1952, he was walking home and it was necessary for him to walk over the highway
bridge spanning Stone Coal Creek on the secondary road at Lego, West Virginia;
that the bridge had no section set apart as a sidewalk for pedestrians; and
that while crossing the bridge a car came from the opposite direction and
forced him off the bridge and into the creek bed, resulting in personal
injuries that entailed hospitalization for a period of nine weeks and disabled
him from his job as a coal loader from January 21, 1952 till August 4, 1952. He
seeks damages in the sum of $2500.00.
Testimony as to the damages sought, adduced from the claimant, for the purpose
of making a reasonable award, in the event of an award, showed that his
hospital expenses had been paid from miners’ insurance and that, since he
received no other benefits during his disabilty, he did suffer loss of wages
for nearly six and one-half months to the total amount of approximately
$1600.00.
C. E. Allen, state road maintenance engineer, testifying for the respondent,
stated that the bridge over Stone Coal Creek at Lego is not provided with a
sidewalk for pedestrians, and cited legal opinion to the effect that the
erection and maintenance of a sidewalk on any particular bridge is left to the
discretion of the state road commission. Carl N. Montgomery, state road
commission safety director, gave the length of the bridge as 20 feet, its width
as 17 feet 8 inches, on both sides of which are vehicular traffic rails 9 by 9
inches, and the distance from the middle of bridge to creek bed as
approximately 10 feet. These measurements were in practical agreement with the
estimates of claimant.
The time of the accident must have been only a few minutes after midnight on
the morning of January 21, 1952. Claimant said he had been at night service at
church, had afterward stopped at the home of some of the folks, and set out
toward the bridge about eleven-thirty o’clock. The night was dark, so dark that
he could not see when he was entering on the bridge. He carried no light to
guide his footsteps or to warn automobile drivers of his pres
116 REPORTS
STATE COURT OF CLAIMS [W.VA.
ence on the highway, though he had at
times previously carried such a light. Considering the nature of the bridge, it
would have been no more than ordinary prudence on this occasion. Seemingly he
was too much accustomed to the bridge for his own safety. He had lived in its
vicinity for some nine years and had crossed the bridge a thousand times. Even
in the dark he had gotten on the bridge and was confident of being on its left
side approaching traffic, about halfway across when he was crowded off the
bridge by an automobile coming from the opposite direction. If the driver of
the automobile saw the claimant on the bridge ahead or being crowded over its
side, he successfully avoided apprehension by the hit-and-run method.
Before nearing the bridge claimant saw automobile lights on the hill beyond. A
little later he saw the approaching car about 100 yards beyond the bridge.
Considering the darkness of the night and the nature of the bridge, counsel for
respondent suggested it would have been an act of prudence on the part of
claimant to cover the distance of 10 feet to one end of the bridge, and thus be
off the bridge before the car approached it.
Taken as a whole the evidence is not strong enough to support the claim that
the state road commission’s failure to maintain a sidewalk on the Stone Coal
Creek bridge at Lego was the proximate cause of claimant’s injury. Considering
all the circumstances it is the opinion of this court that the claimant took a
long chance in attempting to cross the bridge without a light even when no
vehicular traffic was involved, and an even longer chance when he had warning
that a vehicle was approaching. It is recognized that few people act with
prudence on all occasions, which is all the more reason for regretting the
claimant’s unfortunate accident and resulting suffering and loss, but not a
proper basis on which to ask the Legislature to make an appropriation.
An award is therefore denied.
W. VA.]
REPORTS STATE COURT OF CLAIMS 117
(No. 751—Claim denied.)
W. L. MILLS, Claimant,
STATE ROAD COMMISSION, Respondent.
Opinion filed October 22, 1952
The burden of proof rests upon a claimant
in the court of claims to show his claim against the state, or any of its
agencies, to be meritorious and one for which the Legislature should make an
appropriation of the public revenues in his favor for the satisfaction of such
claim, and upon failure to sUccessfully carry such burden, an award will be
denied and the claim dismissed. Hale
Electric Company v. Board of Education,
6 Ct. Claims (W. Va.)
94.
Claimant, pro se.
Arden J. Curry, assistant attorney
general, for respondent.
ROBERT L. BLAND, JuDGE.
In this proceeding claimant, The
Honorable W. L. Mills, an incumbent member of the West Virginia House of
Delegates from McDowell county, seeks an award against the state road
commission for the sum of $315.00 to compensate him for damages to his
automobile in a mishap which occurred while he was driving on a state highway
in Mercer county. Upon the hearing of his claim he decsribed the circumstances
attending the accident in the following language:
“On June 29, 1951, on the night of June 29, I was on my way from Kimball to
Princeton, and on Route 52, near Maybeury, West Virginia, just as we start up
grade from going out of Maybeury, I was going up the road and I came up on some
dirt, where the grader had been grading along and thrown it up on the edge of
the concrete, and I was running to the left hand side of that with one wheel
near the center line, maybe over the center line, of the road, but I met some
traffic and it was raining and the oncoming car looked to me like it was
pushing me close and I had to either get into this ridge of dirt or let the car
hit me, so I drove into the ridge of dirt. I don’t know whether there was a
rock or what there was in it, but as I hit in it something started sliding the
wheel and
118 REPORTS
STATE COURT OF CLA]S (W.VA
I undertook to stop from hitting the ditch, but mud on the road made it slick
and I hit into the ditch and tore the side of the car up. That is all there was
to it.”
The evidence upon the investigation of the claim was signaily conflicting. It
was, however, well established that on the afternoon prior to the occurrence of
the accident employes of the state road commission were engaged in cleaning out
the ditch running along the side of the highway. In the course of this work
dirt from the ditch was thrown on the outer edge of the paved highway forming a
ridge. It was this windrow of dirt that claimant observed and ran into, causing
the damage to his automobile of which he complains.
It may be well to observe at this juncture that the court of claims has
heretofore announced and applied the following rule in the prosecution of
claims against the state.
“The burden of proof rests upon a claimant in the court of claims to show his
claim against the state, or any of its agencies, to be meritorious and one for
which the Legislature should make an appropriation of the public revenues in
his favor for the satisfaction of such claim, and upon failure to successfully
carry such burden, an award will be denied and the claim dismissed.”
It seems from the evidence that employes of the road commission are in the
habit of discontinuing work about four o’clock in the afternoon, and had done
so upon the afternoon preceding the occurrence of claimant’s accident.
Respondent attempted to show that the entirety of the dirt ridge had been
removed from the highway before its employes discontinued work at four o’clock
on the afternoon of Friday. Claimant’s accident occurred between ten thirty and
eleven o’clock on Friday night. One witness from the state of Virginia, who
traveled the highway regularly in the course of his employment, testified that
he passed the point where the mishap is alleged to have occurred and saw no
dirt on the highway. Another witness, whose daily custom was to travel the
highway in question at frequent intervals also testified that he passed the
point
W. VA.]
REPORTS STATE COURT OF CLAIMS 119
where the mishap is supposed to have
occurred about four o’clock in the afternoon of Saturday and saw no dirt on the
road. Two graders. employes of the road commission, who had been engaged in
cleaning out the ditch alongside the highway, testified that bef ore they quit
work on Friday afternoon they had removed all of the ridge of dirt which had
been taken out of the ditch. It is difficult for the court to reconcile this
conflicting testimony. There can be no question in the minds of the members of
the court, after listening to all of the evidence and the frank, honest and
straightforward manner in which claimant presented his case and the fact that his
automobile u,as actually damaged to the extent that he was obliged to expend
the sum of $315.00 for its repair and removal, that claimant was testifying to
what he believed to be the truth, the whole truth, and nothing but the truth.
If the ridge of dirt had been removed by four o’clock on the afternoon
preceding the night of the occurrence of the accident, it would be hard to
understand how the presence of the windrow of dirt could have been responsible
for the mishap. But all of the testimony in relation to the damage done to the
car and the removal of the automobile from the point where the mishap occurred
would seemingly afford strong corroborative proof of claimant’s version of the
accident. But whatever the truth may actually be, the question which addresses
itself to the court for determination is whether or not, upon the actual
showing made by the claimant, an award could properly be made in his favor in
this proceeding. Claimant apprehended that an oncoming car might strike him. He
was fearful that this would occur and in order to avoid it he deliberately
drove his car into the ridge of dirt. There was ample room for claimant to
travel in safety notwithstanding the existence of the ridge of dirt. The
oncoming car passed claimant without stopping. There was room on the highway
for both claimant’s car and the oncoming car to use the highway in safety.
We believe that upon sober reflection claimant himself will conclude that his
claim is not such a claim as would justify the Legislature in making an appropriation
of the public revenues in his favor.
120 REPORTS
STATE COURT OF CLAIMS [W. VA.
Being of opinion that claimant has not sustained the burden which rests upon
him to establish his claim, an award is denied and the claim dismissed.
(No. 772—S—Margaret Weekley awarded $57.00; J. C. Weekley awarded $608.82; Cora
Johnson awarded $30.00; Mrs. H. N. Crichton awarded $30.00.)
MARGARET E. WEEKLEY, J. C. WEEKLEY, CORA JOHNSON, and MRS. H. N. CRICHTON,
Claimants,
V.
STATE ADJUTANT GENERAL, Respondent.
Opinion filed October 22, 1952
Where it appears that the
proximate cause of the damages done to claimants was the sole, independent and
negligent act of the agent of the state agency involved, and award will be
made.
JAMES CANN, JUDGE.
On the 30th day of June, 1952,
claimant Margaret E. Weekley, accompanied by one Cora Johnson and a Mrs. H. N.
Crichton, was driving her husband’s (claimant J. C. Weekley) 1950 Plymouth
automobile east on Washington avenue, approaching Third street, west, in the
city of Huntington, county of Cabell, state of West Virginia. As she neared the
intersection of Washington avenue and Third street, west, she was compelled to
stop in obedience to a red signal light, when an army vehicle 21/ ton, 6 X 6
truck, No. 4874171, driven by Cpl. Carl L. Morton, battery C, 468th field
artillery battalion, West Virginia national guard, Huntington, West Virginia,
turned into Washington avenue from said Third street, west, veered into the
wrong lane to the left and struck a motor vehicle owned by Carl V. Ridgley, of
said city of Huntington, which was the automobile directly ahead of claimant,
and who also had stopped in obedience to said red light traffic
W. VA.]
REPORTS STATE COURT OF CLAIMS 121
signal, then struck the automobile
driven by claimant causing damage thereto amounting to $608.72, and personal
injuries to her and her companions, necessitating doctor and hospital expenses
in the aggregate amount of $117.00.
This claim was presented to the court under the shortened procedure section of
the court of claims act and the record was prepared by the office of the
adjutant general. A full and comprehensive investigation of this accident was
made by the respondent which reveals that no fault is alleged against either of
the two civilian drivers, Mrs. Weekley or Mr. Ridgley, that the proximate cause
of the accident was either malfunction of the steering mechanism of the truck
or error of the driver thereof, and that the investigation further did not
determine definitely that the steering mechanism of the truck had locked as the
driver thereof had claimed.
The record presented to this court complies in every respect to the
requirements of the court act. It sets forth a full, clear and accurate
statement, in narrative form, of the facts upon which the claim is based; it
further shows that the claimants, or either of them, did not through neglect,
default or lack of reasonable care, cause the damages complained of. It further
shows that the proximate cause of the damages complained of was the sole,
independent and negligent act of the agent of the respondent. It still further
shows that the nmount of the claim is properly itemized and supported by proper
invoices and statements and are all vouched for as to their correctness and reasonableness
by the head of the state agency involved; and it further shows that the state
agency involved has concurred in this claim and the same has been approved by
the attorney general as one that, in view of the purposes of the court of
claims statute, should be paid.
For the reasons set out, a majority of this court favors and grants an award in
the amount of seven hundred twenty-five dollars and eighty-two cents ($725.82),
to be paid as follows:
To Margaret E. Weekley the sum of fifty-seven dollars ($57.00), doctor and
hospital bills occasioned by the personal injuries received;
122 REPORTS
STATE COURT OF CLAIMS [W.VA.
To J. C. Weekley the sum of six
hundred eight dollars and eighty-two cents ($608.82), representing damages done
to his automobile;
To Cora Johnson the sum of thirty dollars ($30.00), doctor and hospital bills,
occasioned by the personal injuries received;
To Mrs. H. N. Crichton the sum of thirty dollars ($30.00) doctor and hospital
bills, also occasioned by personal injuries received.
It is recommended by the majority of this court that before the above claims
are paid that proper releases be executed and delivered to the state agency
involved.
ROBERT L. BLAND, JUDGE, dissenting.
The legislative interim committee, which worked out the scheme for the creation
of the court of claims, in its report to the Legislature, emphasized the fact
that it was not the intention of the committee that the shortened procedure
provision of the court act should be resorted to or used in a case where an
issue was presented by the record. The court of claims is naturally bound b/
the rules which it has heretofore adopted for its guidance and for the guidance
of those state agencies which submit claims to it for determination. The
interim committee also stressed the fact that the shortened procedure provision
of the court act should only be used where it was plainly manifest that an
award should be made. Under a rule of the court of claims all claims are
treated as denied and therefore call for strict proof. In the instant case,
proceedings involving several claims all presented by claimant Margaret Weekley
the claim of her husband sounds in tort and is for damages occasioned to his
automobile. The record of these several claims has been prepared by the head of
the state agency concerned. It consists chiefly of affidavits with
recommendation on the part of the head of the agency that awards should be made
as set forth in the majority opinion.
W. VA.]
REPORTS STATE COURT OF CLAIMS 123
The court of claims has had no
opportunity whatever to make any independent investigation of the merit of the
several claims, presented by the record. It has merely approved the conclusiL
of the adjutant general’s office that the owner of the automobile damaged
should be paid by way of remuneration in the sum set forth in the majority
opinion. The effect of the manner of the presentation of these claims and the
way in which they have been determined by the adjutant general is to defeat the
very purpose of the court act. If the adjutant general, or any other single
agency of the state, can investigate claims asserted against the state and make
determination of such claims there would seem to be no real need for the court
of claims. It may be true that the awards made to the parties other than the
owner of the automobile are just, and it may be true that the amount of the
award made in favor of J. C. Weekley is likewise fair and reasonable if, in
fact. an award should under the law and under the facts set forth in the record
he made at all. My chief grounds of objection to the determination of the case
is based upon the manner in which it is presented to the court of claims. As an
individual member of the court I am not satisfied with the result of
respondent’s investigation and determination of the claims for which awards are
made by majority members of the court and cannot concur in such awards, My
judgment constrains me to disapprove the investigation of claims in the manner
in which such investigation has been made in the instant case. I think the
awards made constitute a dangerous precedent and one that strikes at the very
necessity for the continued existence of the court of claims.
(No. 765—Claim denied.)
CARLYLE D. FARNSWORTH, Claimant,
V.
STATE ROAD COMMISSION, Respondent
Opinion filed October 23, 1952
124 REPORTS
STATE COURT OF CLAThlS [W.VA.
1. Under the Act creating the state
court of claims negligence on the part of the state agency involved, or its
agents, must be fully shown before an award will be made. Farm Bureau Mutual Automobile Insurance Co. et al
v. Adjutant Gcrteral, 5 Ct. Claims (W. Va.) 69.
2. When the basis of a claim prosecuted against a state agency is negligence
and omission of duty, and it is clearly established by the evidence that it is
not a claim which the state as a sovereign commonwealth should discharge, an
award will be denied. Taylor v. State Road, 5 Ct. Claims
(W. Va.) 184.
Appearances:
W. L. Jacobs, for claimant.
Arden J. Curry, assistant attorney general, for respondent.
JAMES CANN, JUDGE.
On the 9th day of July, 1951, at about
ten-thirty o’clock A. M. of that day, claimant, a resident of the city of
Parkersburg, Wood county, West Virginia, was driving his 1950 Buick automobile
in an easterly direction on and over state route No. 47, in said Wood county,
enroute from Parkersburg to Marlinton, West Virginia. As he rounded a curve on
said highway, about 20 miles from said city of Parkersburg, he heard or
observed that his traveling bag which was on the rear seat of his automobile,
had fallen to the floor thereof. Desiring to stop his automobile in order to
replace his bag onto the rear seat, he proceeded to round the curve which led
to a straight stretch of said highway about a quarter of a mile in length, and
after traveling a few hundred feet thereon he drove onto the berm on the right
of said highway and stopped. As he stopped the right front wheel of his
automobile slipped over the edge of said berm causing said vehicle to be
catapulted over what he described as a steep bank, causing such damages to said
automobile that it became necessary to trade the same for a new one at a loss
of $1600.00.
Considering all of the testimony introduced at the hearing of this case, the
court is more concerned with the testimony of the claimant concerning the
occurrence of the accident in question.
W. VA.]
REPORTS STATE COURT OF CLAIMS 125
He states that the morning, of the day
this accident occurred, was clear, visibility good, and the highway upon which
he was traveling in good condition. As he rounded the curve in question and
proceeded on the straight stretch no other motor vehicle was in sight. He
further states that the grass on the berm to his right had been cut or mowed,
but in such a manner as to give him the impression or illusion that said berm
was at least 15 feet in width instead of the 5½ or 6 feet in width it actually
was; and relying on said impression or illusion he proceeded on said berm on
the assumption of the greater width. Was it necessary for claimant to proceed
on said berm at all for the purpose intended? Could he have not, in view of the
fact that no other motor vehicle was in sight, stopped his car momentarily on
the highway, replaced his bag on the rear seat as intended without even getting
out of his car, then proceeded pn his way? Isn’t that what an ordinary person
under the same circumstances would have done? But forgetting this for the
moment—the claimant and respondent introduced a number of snapshots portraying
the surroundings at or near the scene of the accident. Claimant was asked if
the pictures introduced by respondent actually or nearly portrayed the scene
and surroundings at or near the scene of the accident; his answer was yes.
Those pictures, larger and clearer than those introduced by claimant, portrayed
a straight stretch of highway with a clear berm along the right side of one
proceeding east, and further portrayed along the full distance of the highway
and said berm, thick foliage, trees, bushes and weeds. It can be readily
ascertained from said pictures that said foliage, trees, bushes and weeds were
not on land level with said berm but grew on a bank adjacent thereto, and from
this view and from the fact that a barn situate at or near the scene of the
accident was far below the level of the said berm, and that a tree at or near
the scene of the accident which gave clear evidence that it was seated way
below the level df said road, certainly was indicative that a bank was at
or very near from the edge of the road. The berm appears wide enough for any automobile
to rest. From the above mentioned pictures, introduced by claimant and
respondent, we are unable to understand how claimant was ever given the
impression or had the illusion that the berm was much or any wider than it
actually was. It was shown from the evidence that the employes
126 REPORTS STATE
COURT OF CLAIMS [W.VA.
of respondent had sometime near the date of this accident mowed the grass on
the berm to the point of the bank, but that the foliage, trees, bushes and
weeds which grew along the bank were not cut or removed because, as they
stated, there was no reason for cutting or removing the same, since an adequate
berm existed which could be used by motorists finding the same necessary. The
respondent or its agents were under no legal duty to anticipate the unusual,
nor to guard against consequences which could not reasonably be expected.
Bearing in mind that there were other ways, unattended by danger, if any, and
reasonably convenient, which claimant could have used to accomplish his purpose,
his testimony does demonstrate that, with full appreciation of the possible
danger from the scene which confronted him, he voluntarily accepted the risk
when he ventured too far over on the berm, without first making some reasonable
attempt to ascertain the width of said berm. Our Supreme Court has stated that
the essence of assumption of risk is venturousness.
Where one has knowledge of, or should have knowledge of, any apparent or
possible danger, by reason of his surroundings, and under such circumstances,
without any special exigency compelling him, he exposes himself to such
apparent or possible danger, his act in such case may be deemed to have been
done voluntarily.
We have held on numerous occasions that under the act creating the court of claims,
an omission of duty on the part of the state agency involved, or its agents
must be fully shown before an award will be made. Such negligence or omission
of duty on the part of the respondent or its agents has not been proven to our
satisfaction; nor has it been clearly established by the evidence that this
claim is one which the state as a sovereign commonwealth should discharge.
Therefore, an award will be denied.
REFERENCES
ACT OF GOD
See
Milkint v. State Road -- __- 75
ADVERTISING, see Publications
ANIMALS
See
Hannas v. Dept. Public Safety — 6
Linkinogger v. State Road 8
ASSAULT WITH A DANGEROUS OR DEADLY
WEAPON
An award may be made by the court of
claims in favor of a claimant who, while walking on a public highway in the
nighttime from one county to his home in another county, was attacked, shot and
seriously and painfully wounded by a guard at the state penitentiary at
Moundsville, acting at the time as captain of the guard of a road camp while
searching for an escapee from said camp, upon the theory of the moral
obligation of the state to make reparation for the reckless and negligent
conduct of its agent. Bumgar’ner v.
Board Control —
36
ASSUMPTION OF RISK
No award will be made in favor of a
claimant, as administratrix of her deceased husband’s estate, when said husband
has contributed directly to the accident causing his death, notwithstanding
that respondent is not free from blame. Martin v. State Road 51
If a traveler negligently fails to exercise ordinary care and caution for his
own safety against defects in a public highway, which he knows or can readily
see are dangerous, and has the opportunity to avoid them, he is not entitled to
damages, but must bear the burden of his own indiscretion. William.s v. Main
Island Creek
Coal Co., 98 S. E. 511. Rutherford v. State Road 66
AUTOMOBILES
An award will be made when it appears that the proximate
cause of the damages done to claimant’s motor vehicle was the independ127
128 REPORTS
STATE COURT OF CLAIMS [W. VA.
ent and negligent act of an agent of the state road commmission and such
damages were in no way brought about by any fault on the
part of claimant. Withrow v. State Road - - - - - 46
An award will be made to claimant where it appears that the proximate cause of
the damages done to claimant’s motor vehicle was the independent and negligent
act of the agent of the state agency involved, and which is in no way brought
about by any fault on the part of claimant. H. A. Peifrey v. Adjutant General, 5 Ct. Claims (W. Va.) 106; John
Kipp v. Adjutant General, 5 Ct.
Claims (W. Va.) 108. Stewart v. Adjutant
General 57
BAILEE AND BAILOR
Where a claimant upon being solicited
by the state archivist withdraws from his private collection of firearms a
valuable antique derringer and the same is placed in the state museum for
exhibition and the gun is at a subsequent date stolen from the museum and all
efforts by the department of archives and the department of public safety to
recover same are unsuccessful then because of the public- spirited gesture and
purpose surrounding the lending of the said gun an award will be made to
claimant in an amount to equal the
present market value thereof. Norris v. Archives
& History 102
See also
Herbaugh v. Conservation
Commission 110
BLASTING OPERATIONS
See
Tabor V. State
Road 4
Byard V. State
Road 13
Roberts V. State
Road 15
BRIDGES
The state is morally bound to keep its
bridges in proper repair to protect the traveling public and to make the
necessary inspection as to their condition. Failure to do so, causing a bridge
to become in bad repair, unsafe, and to collapse while being properly used,
renders the state liable for the damages caused by the said neglect of duty. Price v. State Road, 5
Ct. Claims (W. Va.) 22. Andrews V.
State Roa.d 71
The statute requiring inspection and proper maintenance of bridges controlled
by the state road commission is mandatory, and failure to inspect and keep in
repair a bridge so controlled and maintained is negligence, making the state
liable in case of an accident, if caused by such negligence. Price v. Sims, 58 S. E.
(2d) 657. Id.
To secure an award a pedestrian
suffering injury while crossing a highway bridge must show conclusively that
the state road commission’s failure to maintain a sidewalk on said bridge was
the
W. VA.)
REPORTS STATE COURT OF CLAIMS 129
proximate cause of his injury as asserted in his claim, and that other forces,
including his own lack of prudence, did not contribute
heavily thereto. Flynn v. State Road 114
See also
Cramer V.
State Road -_ — 26
CONTRIBUTORY NEGLIGENCE, see also
Negligence
A claimant who contributes proximately
to his own injury by assuming risks may not recover damages for injuries
notwithstanding the respondent is not free from blame. Hamilton v. State
Road
Commission, 5 Ct. Claims (W. Va.) 119. Rutherford v. State Road
66
If a traveler negligently fails to exercise ordinary care and caution for
his own safety against defects in a public highway, which he knows or can
readily see are dangerous, and has the opportunity to avoid them, he is not
entitled to damages, but must bear the burden of his own indiscretion. Williams
it.
Main Island Creek Coal Ce., 98 S. E. 511. Id.
No award will be made in favor of a claimnt, as administratrix of her
deceased husband’s estate, when said husband has contributed directly to the accident
causing his death, notwithstanding
that respondent is not free from blame. Martin V. State Road __ 51
To secure an award a pedestrian suffering injury while crossing a highway
bridge must show conclusively that the state road commission’s failure to
maintain a sidewalk on said bridge was the proximate cause of his injury as
asserted in his claim, and that other rorces, including his own lack of
prudence, did not contribute
heavily thereto. Flynn v. State Road - 114
DAMAGES. Uncertainty of Amount
Where proof of amount of
damage claimed is of uncertain nature the court of claims will make an award
for such sum as is reasonably shown by the evidence to be compensatory for the
damage sus tained Gill v. State Road 88
EMPLOYES, State
1. Hours of labor on state public works; penalty. The service and employment of
all laborers and mechanics who now are or hereafter may be employed by or on
behalf of this state, or by any contractor or subcontractor, upon any of the
public works of the state, is hereby limited and restricted to eight hours in
any one calendar day, except in cases of extraordinary emergency; and it shall
be unlawful for any officer of the state, or any contractor, or subcontractor
whose duty it shall be to employ, direct or control the service of such
laborers or mechanics, to require or permit any such laborers or mechanics to
work more than eight hours in any calendar day, except as hereinbefore
provided. Mullins it.
State Road 28
Where a former employe of the state road commission who had been required and
allowed to discharge the duties of night watch-
130 REPORTS
STATE COURT OF CLAIMS [W. VA.
man for a period of time in excess of eight hours per calendar day seeks an
award in the state court of claims for remuneration for such overtime work, an
award will be made in his favor for such sum as the evidence adduced upon the
hearing and investigation of his claim shows him to be reasonably and justly
entitled to. Id.
EVIDENCE
The Court of Claims is not a court of
law. It is not invested with and does not exercise the judicial power of the
state in the sense of article eight of the constitution of the state. As a
special instrumentality and arm of the legislature its peculiar function is to
investigate the merit of claims asserted against the state, or any of its
agencies, and recommend the disposition of such claims. The court is not bound
by the usual common law or statutory rules of evidence . The court may accept and weigh, in accordance with its
evidential value, any information that will assist the court in determining the
factual
basis of the claims. Hale Electric v. Board
Education 94
Where a former employe of the state road commission who had been required and
allowed to discharge the duties of night watchman for a period of time in
excess of eight hours per calendar day seeks an award in the state court of
claims for remuneration for such overtime work, an award will be made in his
favor for such sum as the evidence adduced upon the hearing and investigation
of his claim shows him to be reasonably and justly entitled to. Mul—
lins v. State Road - - - 28
Where proof of amount of damage claimed is of uncertain nature the court of
claims will make an award for such sum as is reasonably shown by the evidence
to be compensatory for the damage sus tained Gill v. State Road - - - 88
Violation of a statute [W. Va. Code. chapter 17, article 8, section 10 (1537)]
alone is sufficient to make the violator prima
facie guilty of negligence, but to
justify recovery it must be shown by a preponderance of the evidence that the
violation was the proximate
cause of the damage. Rich Valley Dairy v. Adjutant General
39
1. In an action to recover damages based upon negligence, negligence will not
be presumed from the mere proof of injury, but it
must be proved as alleged. Tsutras
Bros. v. State Road 43
2. Under the act creating the state court of claims, negligence on the part of
the state agency involved, or its agents, must be fully shown before an award
will be made. Id.
To secure an award a pedestrian
suffering injury while crossing a highway bridge must show conclusively that
the state road commission’s failure to maintain a sidewalk on said bridge was
the proximate cause of his injury as asserted in his claim, and that other
forces, including his own lack of prudence, did not contribute
heavily thereto. Flynn v. State Road 114
When the basis of a claim prosecuted against a state agency is negligence and
omission of duty, and it is clearly established by the evidence that it is not
a claim which the state as a sovereign commonwealth should discharge, an award
will be denied. Taylor V.
State Road, 5 Ct. Claims (W. Va.) 184. Farnsworth v. State Road— 123
W. VA.]
REPORTS STATE COURT OF CLAIMS 131
GLASS, PLATE GLASS BROKEN BY ROCKS,
Etc.
In an action to recover damages based
upon negligence, negligence will not be presumed from the mere proof of injury,
but it must be
proved as alleged. Tsutras Bros. v. State Road - 43
GOVERNMENTAL FUNCTIONS
A claim for damages to property or
person injured by negligence of state agent or employe while engaged in
discharge of governmental function justifies appropriation of public funds on
the basis
of valid moral obligation of state. Copley v. State Road - 81
fflGHWAYS AND ROADS
There are reasonable limitations to
the rights of the public to unobstructed use of a highway, and the state does
not guarantee freedom from accident to persons traveling on its highways. McKin
le v. State Road 111
Where the state road commission, in the prosecution of a state highway
relocation project, raises the grade of a public road to such height as to
destroy an abutting landowner’s means of access to such reconstructed road and
fails to provide necessary and convenient ingress and egress for his benefit,
and a claim is filed in the court of claims by such abutting landowner an award
for damages
will be made in his favor. Higginbotham v. State Road - 91
If a traveler negligently fails to exercise ordinary care and caution for his
own safety against defects in a public highway, which he knows or can readily
see are dangerous, and has the opportunity to avoid them, he is not entitled to
damages, but must bear the burden of his own indiscretion. Williams v. Main
Island Creek Coa.L
Co., 98 5. E. 511. Rutherford v. State Road - _-.._ 66
JURISDICTION
Claims with respect to which a
proceeding may be maintained by or on behalf of the claimant m the courts of
the state are expressly excluded from the jurisdiction of the state court of
claims by subsection 7 of section 14 of the court act. Daue-nheimer v. State
Road —
43
Claims with respect to which a proceeding may be maintained by or on behalf of
the claimant in the courts of the state are expressly excluded from the
jurisdiction of the state court of claims by subsection 7 of section 14 of the
court act. Raynes v. WVU _-_ 61
A case in which the state court of claims declines to make an award for reason
that it feels bound by the refusal of the Supreme Court of Appeals of West
Virginia to issue a rule in mandamus proceeding to compel the state
auditor to pay an award made by the said court of claims in a companion case,
and ratified by the Legislature. W. Va. Insurance v.
State Road -___
____--_-- __--—---- 41
132 REPORTS
STATE COURT OF CLAIMS [W. VA.
LANDLORD AND TENANT
Pursuant to the purpose and spirit of
the act of the Legislature creating the state court of claims, an award may be
made for claims against the state when the peculiar facts supporting such claim
show it to be just and meritorious and for which the state received distinct
value and benefit; and by virtue of the same act an award may be made to a
claimant for losses arising from such benefit having
been afforded the state. Cohen v. Employment Security 17
LARCENY
Where a claimant upon being solicited
by the state archivist withdraws from his private collection of firearms a
valuable antique derringer and the same is placed in the state museum for
exhibition and the gun is at a subsequent date stolen from the museum and all
efforts by the department of archives and the department of public safety to
recover same are unsuccessful then because of the public- spirited gesture and
purpose surrounding the lending of the said gun an award will be made to
claimant in an amount to equal the present market value thereaf. Norris v.
Archives & History 102
1USDEMEANOR, Penalties
Any officer or agent of the state, or
any contractor or subcontractor, whose duty it shall be to employ, direct or
control any laborer or mechanic employed upon any of the public works of the
state, who shall intentionally violate any provision of this section, shall be
deemed guilty of a misdemeanor, and for each and every such offense shall, upon
conviction, be fined not to exceed one thousand dollars or imprisoned for not
more than six months, or both fined and imprisoned, in the discretion of the
court having jurisdiction thereof. Code, chapter 21, article 4, section 2349
(2). Mullins
V.
State Road 28
MORAL OBLIGATION
An award may be made by the court of
claims in favor of a claimant who, while walking on a public highway in the
nighttime from one county to his home in another county, was attacked, shot and
seriously and painfully wounded by a guard at the state penitentiary at
Moundsville, acting at the time as captain of the guard of a road camp while
searching for an escapee from said camp, upon the theory of the moral
obligation of the state to make reparation for the reckless and negligent
conduct of its agent. Bumgarner V.
Board of Control -. 36
When a publishing company publishes
legal notices contracted
for by constitutional authority, as prescribed by statute, it becomes
a just obligation and an award should be made. Berkeley Printing &
Publishing Company v. State Auditor. 3 Ct. Claims (W. Va.) 231.
Holliday v. Auditor 105
Negligence on the part of the state road commission as shown by its failure to
eliminate a rockslide obstruction in a creek in the
W. VA.]
REPORTS STATE COURT OF CLAIMS 133
state road right-of-way, thereby damaging the property of a resident along said
road, presents a moral obligation for which a claim
for reasonable damages should be allowed. Gill v. State Road —- 88
(As to requirement that the Legislature, when appropriating money to pay a
claim, make an express declaration or finding of fact that a moral obligation exists on the part of the State, see the opinion of the State Supreme
Court of Appeals in Adkins V. Sim.. 127 W. Va. 786; 34 S. E. 2d 585.)
NEGLIGENCE
To secure an award a pedestrian
suffering injury while crossing a highway bridge must show conclusively that
the state road commission’s failure to maintain a sidewalk on said bridge was
the proximate cause of his injury as asserted in his claim, and that other
forces, including his own lack of prudence did not contribute
heavily thereto. Flynn v. State Road 114
Where it appears that the proximate cause of the damages done to claimants was
the sole, independent and negligent act of the agent of the state agency
involved, an award will be made. Weekley
et al
V. Adjutant General - 120
When the basis of a claim prosecuted against a state agency is negligence and
omission of duty, and it is clearly established by the evidence that it is not
a claim which the state as a sovereign commonwealth should discharge, an award
will be denied. Taylor V.
State Road, 5 Ct. Claims (W. Va.) 184. Farnsworth v. State Road 123
Violation of statute [W. Va. Code, chapter 17, article 8, section 10 (1537)]
alone is sufficient to make the violator prima
fac-ie guilty of negligence, but to
justify recovery it must be shown by a preponderance of the evidence that the
violation was the proximate
cause of the damages. Rich Valley Dairy
v. Adjutant General 39
Failure of motorist to stop at stop sign constitutes prima facie negligence
and makes him responsible for all damages resulting proximately from his
failure to stop. Somerville V. Delbosa,
56 S. E. (2d) 756. Id.
An award will be made when it appears
that the proximate cause of the damages done to claimant’s motor vehicle was
the independent and negligent act of an agent of the state road commission and
such damages were in no way brought about by any fault on the
part of claimant. Withrow v. State Road __ 46
A claim for damages to property or person injured by negligence of state agent
or employe while engaged in discharge of governmental function justifies
appropriation of public funds on the basis
of valid moral obligation of state. Copley
V. State Road _--- 81
Under the act creating the court of
claims negligence on the part of the state agency involved, must be fully shown
before an award will be made. Robisoa v. State Board of Control, 3 Ct. Claims
(W. Va.) 66, Webb v. State Road. 62
Under the act creating the state court of claims, negligence on the part of the
state agency involved, or its agents, must be fully shown
before an award will be made. Tsutras v. State
Roa&____ 43
134 REPORTS
STATE COURT OF CLAIMS [W.VA.
Negligence on the part of the state road commission as shown by its failure to
eliminate a rockslide obstruction in a creek in the state road right-of-way,
thereby damaging the property of a resident along said road, presents a moral
obligation for which a claim for
reasonable damages should be allowed. Gill
v. State Road - 88
A claimant who contributes proximately to his own injury by assuming risks may
not recover damages for injuries notwithstanding the respondent is not free
from blame. Hamilton v. State Road
Commission, 5 Ct. Claims (W. Va.) 119.
Rutherford v. State Road 66
The state is morally bound to keep its bridges in proper repair to protect the
traveling public and to make the necessary inspection as to their condition.
Failure to do so, causing a bridge to become in bad repair, unsafe, and to
collapse while being properly used, renders the state liable for the damages
caused by the said neglect of duty. Price v. State Road, 5 Ct. Claims (W. Va.)
22. Andrews V.
State Road . - 71
The statute requiring inspection and proper maintenance of bridges controlled
by the state road commission is mandatory, and failure to inspect and keep in
repair a bridge so controlled and maintained is negligence, making the state
liable in case of an acci-. dent, if caused by such negligence. Price v. Sims, 58 S. E. (2d) 657. Id.
An award will be made to claimant
where it appears that the proximate cause of the damages done to claimant’s
motor vehicle was the independent and negligent act of the agent of the state
agency involved, and which is in no way brought about by any fault on the part
of claimant. H. A. Pelfrey v. Adjutant
General, 5 Ct. Claims (W. Va.) 106; John Kipp v. Adjutant General, 5 Ct. Claims
(W. Va.) 108. Stewart v. Adjutant
General 57
Where the state road commission, in the prosecution of a state highway
relocation project, raises the grade of a public road to such height as to
destroy an abutting landowner’s means of access to such reconstructed road and
fails to provide necessary and convenient ingress and egress for his benefit,
and a claim is filed in the court of claims by such abutting landowner an award
for damages will be
made in his favor. Higg€nbotham v. State Road. - 91
See also
Herbaugh v. Conservation
Commission -
. 110
OBSTRUCTIONS, in Roads and Right of
Ways
Negligence on the part of the State
Road Commission as shown by its failure to eliminate a rockslide obstruction in
a creek in the state road right-of-way thereby damaging the property of a
resident along said road, presents a moral obligation for which a claim
for reasonable damages should be allowed. Gill V.
State Road 88
There are reasonable limitations to the right of the public to unobstructed use
of a highway, and the state does not guarantee freedom from accident to persons
traveling on its highways. McKinley V. State Road . 111
lfIP( >1 i’i’—
S’1’A’J’F ( ‘
IJII’l’ (.d” (‘I A IMS
PAINTING OPLRATIONS
See
Talor V.
State Road
Cant V.
State
Road 2
M(I3ride v. State Road
Milkint et (11 v. State Road 75
Hoysett v. State Road 1(i7
PEDESTRIANS
To secure an award a pedestrian
suffering injury while crossing a highway bridge must show conclusively that
the state road commission’s failure to maintain a sidewalk on said bridge was
the proximate cause of his injury as asserted in his claim, and that other
forces, including his own lack of prudence, did not contribute
heavily thereto. Flynn v. State Road 114
PRIMA FACIE JURISDICTION, see
Jurisdiction
PROOF OF CLAIM, see also Evidence
The burden of proof rests upon a
claimant in the court of claims to show his claim against the state, or
any of its agencies, to be meritorious and one for which the Legislature should
make an appropriation of the public revenues in his favor for the satisfaction
of such claim, and upon failure to successfully carry such burden. an award
will be denied and the claim dismissed. Hale Electric Company v. Board
of Education, 6 Ct. Claims (W. Va.) 94. Milks v.
State Road 117
Under the act creating the state court of claims negligence on the part of the
state agency involved, or its agents, must be fully shown before an award will
be made. Farm Bureau Mutual Aulomobile Insurance Co. et al v. Adjutant
General. 5 Ct. Claims (W. Va.) 69.
Farnsworth V.
Slate Road 123
In an action to recover damages based upon negligence, negligence will not be
presumed froni the mere proof of injury, but it
must be proved as alleged. Tsntras Bros. v. Stute Road 43
Under the act creating the state court of claims, negligence on the part of the
state agency involved, or its agents, must be fully shown before an award will
he made. Id.
The burden of proof rests upon a claimant in the Court of Claims to show
his claim against the state, or any of its agencies, to be meritorious and one
for which the Legislature should make an appruprintion of public revenues in
his favor for the satisfaction of such claim, and upon failure to successfully
carry such burden, an award will be denied and the claim dismissed. Hale
Electric V.
Board Education 94
136 REPORTS STATE
COURT OF CLAIMS [W.VA.
To secure an award a pedestrian suffering injury while crossing a highway
bridge must show conclusively that the state road commission’s failure to
maintain a sidewalk on said bridge was the proximate cause of his injury as asserted
in his claim, and that other forces, including his own lack of prudence, did
not contribute
heavily thereto. Fly-an v. State Road_ - - — 114
PROXIMATE CAUSE
Failure of motorist to stop at stop
sign constitutes prima facie negligence and makes him responsible for all damages
resulting proximately from his failure to stop. Somerville v. Delbosa, 56 S.
E.
(2d) 756. Rich Valley Dairy v. Adjutant
General 39
Violation of a statute [W. Va. Code, chapter 17, article 8, section 10 (1537)]
alone is sufficient to make the violator prima facie guilty
of negligence, but to justify recovery it must be shown by a preponderance of
the evidence that the violation was the proximate cause of the damage. Id.
An award will be made to claimant where it appears that the proximate cause of
the damages done to claimant’s motor vehicle was the independent and negligent
act of the agent of the state agency involved, and which is in no way brought
about by any fault on the part of claimant. H. A. Pelfrey v. Adjutant General, 5 Ct. Claims (W. Va.) 106; John
Kipp v. Adjutant General 5 Ct.
Claims (W. Va.) 108. Stewart v. Adjutant
General 57
An award will be made when it appears that the proximate cause of the damages
done to claimant’s motor vehicle was the independent and negligent act of an
agent of the state road commission and such damages were in no way brought
about by any fault on the
part of claimant. With row v. State Road 46
A claimant who contributes proximately to his own injury by assuming risks may
not recover damages for injuries notwithstanding the respondent is not free
from blame. Hamilton v. State Road
Comrn.iss-ion, 5 Ct. Claims (W. Va.)
119. Rutherford v. State Road
66
To secure an award a pedestrian
suffering injury while crossing a highway bridge must show conclusively that
the state road commission’s failure to maintain a sidewalk on said bridge was
the proximate cause of his injury as asserted in his claim, and that other
forces, including his own lack of prudence, did not contribute
heavily thereto. Flynn v. State Road 114
Where it appears that the proximate cause of the damages done to claimants was
the sole, independent and negligent act of the agent of the state agency
involved, an award will be made. Weekley
et al
V.
Adjutant General - - - -
PUBLIC WORKS
Hours of labor on state public works;
penalty. The service and employment of all laborers and mechanics who now are
or hereafter may be employed by or on behalf of this state, or by any con-
W. VA.]
REPORTS STATE COURT OF CLAIMS 137
tractor or subcontractor upon any of the public works of the state, is hereby
limited and restricted to eight hours in any one calendar day, except in cases
of extraordinary emergency; and it shall be unlawful for any officer of the
state, or any contractor, or subcontractor whose duty it shall be to employ,
direct or control the sewice of such laborers or mechanics, to require or
permit any such laborers or mechanics to work more than eight hours in any calendar
day, except as hereinbefore provided. Mullins
v. State Road_ 28
PUBLICATIONS
When a publishing company publishes
legal notices, contracted
for by constitutional authority, as prescribed by statute, it becomes
a just obligation and an award should be made. Berkeley Printing
& Publishing Company v. State Auditor, 3 Ct. Claims (W.
Va.) 231.
Hollidayv. Auditor -
- — _ 105
REAL ESTATE, Leases
Pursuant to the purpose and spirit of the
act of the Legislature creating the state court of claims, an award may be made
for claims against the state when the peculiar facts supporting such claim show
it to be just and meritorious and for which the state received distinct value
and benefit; and by virtue of the same act an award may be made to a claimant for
losses arising from such benefit having
been afforded the state. Cohen v. Employment Security 17
RES JUDICATA
A case in which the state court of
claims declines to make an award for reason that it feels bound by the refusal
of the Supreme Court of Appeals of West Virginia to issue a rule in mandamus proceeding to compel the state auditor to pay an award
made by the said court of claims in a companion case, and ratified by the
Legislature. W. Va. Insurance v. State RoacL._ — 41
ROCKS AND ROCKSLIDES
Negligence on the part of the state
road commission as shown by its failure to eliminate a rockslide obstruction in
a creek in the state road right-of-way, thereby damaging the property of a
resident along said road, presents a moral obligation for which a claim for
reasonable damages should be allowed. Gill v. State Road 88
STATE NOT GUARANTOR
There are reasonable limitations to
the right of the public to unobstructed use of a highway, and the state does
not guarantee freedom from accident to persons traveling on its highways. McKin
le v. State Road —
- _-_-__ 111
138 REPORTS STATE
COURT OF CLAIMS [W.VA.
STATUTE OF LIMITATIONS
See
Town of Romney v. Board Education __ 9
Chambers v. State Auditor - 14
SUBROGATION
See
Smith et al v. State Road 23
Motors Insurance Corp. v. Adjutant General 59
Milkint et al v. State Road 75
Hogsett v. State Road 107