STATE OF WEST VIRGINIA
Report of the Court of Claims 1942-1944
Volume 2
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the period from December 1, 1942 to November 30, 1944.
By
WM. S. O?BRIEN
Secretary of State and Ex Officio Clerk
and
JOHN D. ALDERSON
Deputy Clerk
VOJ TTMT II
(Published by authority of an order of the State Court of Claims and as required by and pursuant to section 25 of the Court of Claims law, Code 14-2-25).
WM.
W. GAUNT & SONS, INC.
Reprint Edition
Wm.
W. GAUNT & SONS, INC.
3011 Gulf Drive, Holmes Beach, Florida 33510
Printed in the United States of America
by
Jones Offset, Inc., Bradenton
Beach, Florida 33510
CONTENTS III
TABLE
OF CONTENTS
Claims, list of, classified according
to statute ?
?? Xi
Claims reported ? xxviii
Digest of Opinions ?
451
Enactment of Court of Claims Law vii
Financial report of Court?s operating expenses __ IX
Letter of transmittal ??__---?---??-????
V
Opinions of Court _________xxvii
Personnel of Court ??_?-?---?---?--?----?-
iv
Table of cases (claims) reported
Terms of Court -_---_-_-------_??_
vi
IV PERSONNEL OF
THE STATE COURT OF CLAIMS
PERSON
NEL
OF THE
STATE
COURT OF CLAIMS
HONORABLE ROBERT L. BLAND Presiding
Judge
HONORABLE CHARLES J. SCHUCK Judge
HONORABLE WALTER M. ELSWICK Judge
HONORABLE G. H. A. KUNST Alternate Judge
HONORABLE CHAS. G. GAIN Alternate Judge
WM. S. O?BRIEN
Secretary of State and Ex Officio Clerk
JOHN D. ALDERSON
Deputy Clerk
LETTER OF
TRANSMITTAL V
Letter
of Transmittal
To His Excellency
Honorable Matthew M. Neely
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, and an
order of the State Court of Claims entered of record on June nineteenth, one
thousand nine hundred forty-four, 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 forty-two to November thirtieth, one thousand nine
hundred forty-four.
Respectfully submitted,
Secretary of State and
Ex Officio Clerk.
VI TERMS OF COURT
TERMS OF COURT
Four regular terms of court are
provided for annually?the
second Monday of January, April, July and October.
ENACTMENT OF THE
W. VA. COURT OF CLAIMS LAW VII
ENACTMENT OF THE WEST VIRGINIA COURT
OF
CLAIMS LAW
The Legislature of 1939, under House Concurrent Resolution No. 26, adopted
March 11, 1939, created an Interim Legislative Committee to be composed of
fourteen members of the Legislature, including the President and five members
of the Senate to be appointed by the President, and the Speaker and seven
members of the House to be appointed by the Speaker, for the purpose of
studying legislative problems designated in the resolution. Among other
subjects on the agenda of the committee was: ?A plan of determination of claims
and grievances against the state and its agencies.? The committee was directed
to report to the Governor and the Legislature prior to the convening of the
next regular Session.
The personnel was:
Governor, Homer A. Holt
Committee members of the Senate
William M. Lafon, President
James Paui
Fred C. Allen
A. M. Martin
A. L. Helmick
Committee members of the House
James K. Thomas, Speaker
Fred L. Shinn
John E. Amos
J. C. Hansbarger
0. C. Flint
Glenn Taylor
Everett F. Moore
Harvey D. Beeler
VIII ENACTMENT OF
THE W. VA. COURT OF CLAIMS LAW
The Interim Committee having prepared the Court of Claims Bill, it was
introduced in the House of the 1941 Legislature, as House Bill No. 218, by
James Kay Thomas.
The bill passed March 6, 1941, in effect from passage. It was approved by
Governor Matthew M. Neely, becoming the Court of Claims Law?Chapter 20 Acts of
the Legislature, 1941, and Article 2, of Chapter 14 of the Code, as amended.
OPERATING
EXPENSES OF THE COURT IX
OPERATING
EXPENSES OF THE COURT
REPORT OF THE CLERK OF THE COURT OF
CLAIMS,
ON THE COURT?S EXPENDITURES FOR THE FISCAL
YEAR JULY 1, 1942 TO JUNE 30, 1943, INCLUSIVE
PERSONAL SERVICES
Judges? per diem $6,750.00
Court Reporter?s per diem 560.00
All Other Personal Services 1,997.50
Total $
9,307.50
CURRENT EXPENSES
Judges? Expenses 1,569.53
Office Supplies, Dockets, telephone,
ice, moving, etc 857.25
Transcripts 2,390.50
Court Report No. 1 (1000 copies) 1,714.56
Total $
6,531.84
EQUIPMENT
Fixtures and Law Books 440.75
Total $
440.75
Total for the Year $
16,280.09
Unexpended Balance $
8,719.91
Appropriation $
25,000.00
X OPERATING
EXPENSES OF THE COURT
REPORT OF THE CLERK OF THE COURT OF CLAIMS, ON THE COURT?S EXPENDITURES FOR THE
FISCAL
YEAR JULY 1, 1943 TO JUNE 30, 1944, INCLUSIVE
Expendi- Appropria PERSONA SERVICES tures tion
Judges? per diem $6,750.00
Court Reporter?s attendance 337.50
Other Personal Services 2,146.67
Total $9,234.17 $
10,600.00
CURRENT EXPENSES
Judges? Expenses $1,541.45
Reporter?s Transcripts 997.09
Other Current Expenses (stationery,
office supplies, dockets, telephone,
etc.) 228.39
Total $2,766.93 $
3,000.00
EQUIPMENT
New Furniture and Law Books $ 77.22 $ 800.00
Total for the Year 12,078.32
*Unexpended Balance for the
Year 2,321.68
Total (Appropriation) 14,400.00 $ 14,400.00
*This unexpended balance was revived and made available for publishing the
second biennial Court Report for the 1945 Legislature, and for other Court
expenses if needed.
REPORT OF THE COURT OF CLAIMS
For Period December 1, 1942 to November 30, 1944
(1-a) Approved claims and awards
referred to the 1943 Legislature, for the period from December 1, 1942, to
February 10, 1943, after Report No. 1 had gone to press; allowed by the 1943
Legislature; opinions therein included in this Report:
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|
? No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
|
248-S |
Arnett, Besse
D. |
State Road
Commission |
$ 22.50 |
$ 22.50 |
February 10,
1943 |
|
203 |
Bailey, Fleet |
State
Conservation Commismission |
1,248.00 |
2,500.00 |
February 8,
1943 |
|
165 |
Cain, James & Company |
State Road Commission |
28,500.00 |
5,500.00 |
January 26, 1943 |
|
226-S |
Deck, Helen
Clayton, Guardian of Wm. Clayton White, infant |
State Road
Commission State Road Commission |
53.00 |
53.00 |
February 9,
1943 |
|
238-S |
Edwards, R. H., Dr. |
State Road Commission |
200.00 |
200.00 |
February 2, 1943 |
REPORT OF THE COURT OF CLAIMS (Continued)
(1-a) Approved claims and awards
referred to the 1943 Legislature, for the period from December 1, 1942, to
February 10, 1943, alter Report No. 1 had gone to press; allowed by the 1943
Legislature; opinions therein included in this Report:
-4
(2
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|
No. |
Name of Claimant |
Name of |
Respondent |
Amount |
Amount |
Date of |
|
|
167 |
Geimer, Tessie |
State |
Road |
Commission |
2,500.00 |
250.00 |
January 15,
1943 |
|
246-S |
Harpold Bros. |
State |
Road |
Commission |
92.00 |
92.00 |
February 8,
1943 |
|
211-S |
Jones Cornett Company |
State |
Road |
Commission |
12.00 |
12.00 |
January 29, 1943 |
|
198 |
Kessel, C. R., Dr. Keyser, W. R. |
State State |
Road |
Commission Commission |
148.75 |
148.75 |
January 15,
1943 |
|
220-S |
Lilly, Effle |
State |
Road |
Commission |
103.35 |
103.35 |
January 27,
1943 |
|
224-S |
McClung, Alice B. |
State |
Road |
Commission |
720.00 |
720.00 |
February 9, 1943 |
REPORT OF THE COURT OF CLAIMS (Continued)
(1-a) Approved claims and awards referred to the 1943 Legislature, for the period from December 1, 1942, to February 10, 1943, after Report No. 1 had gone to press; allowed by the 1943 Legislature; opinions therein included in this Report:
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|
No. |
Name of Claimant |
Name of |
Respondent |
Amount |
Amount |
Date of |
|
|
235-S |
Park Pontiac,
Inc. |
State |
Road |
Commission |
11.00 |
11.00 |
February 2,
1943 |
|
243-S |
Racioppi, Nicholas |
State |
Road |
Commission |
9.50 |
9.50 |
February 8, 1943 |
|
225-S |
Skelton, Lottie
|
State |
Road |
Commission |
840.00 |
840.00 |
February 9,
1943 |
|
232-S |
Valley Motor Sales, assignee of 0. L. Harvey |
State |
Road |
Commission |
252.25 |
252.25 |
February 9, 1943 |
|
244-S |
Woods, Ola |
State |
Road |
Commission |
38.40 |
38.40 |
February 8, 1943 |
|
|
|
|
|
TOTALS |
91,213.88 |
25,628.69 |
|
REPORT OF THE COURT OF CLAIMS (Continued)
No.
(1-b) Approved claims and awards not satisfied but referred to the appropriation.
Name of Claimant
Name of Respondent
1945 Legislature for final consideration and
State Road Commission
155
358-S
412-S
264
362-S
370-S
296-S
337-S
394-S
336-S
152
156
333?S
382-S
410-S
398-S
State Road
State Road
State Road
State Road
State Road
State Road
State Road
State Road
State Road
Adkins, Roy H.,
Admr. of estate of Roy Herbert Adkins, Jr., deceased
Baltimore & Ohio Railroad Co.
Barker, A. C.
Bassett, George S. & Son
Baylous, E. L.
Beane, L. W.
Bennett, Mrs. S. E.
Bland, Lester
Buck, V. K.
Burgess, C. E.
Burgess, J. P., admr. of estate of Edward Sinclair Burgess, deceased
Burnette, Edward D., Admr. of estate of Edward D. Burnette, Jr., deceased
Burns, S. E.
Campbell, James M.
Cassady, V. E.
Clark, Dr. T. C.
Amount
Awarded
$
3,500.00
160.00
24.94
39.91
25.00
50.00
47.99
100.00
30.00
60.00
Commission
Commission
Commission
Commission
Commission
Commission
Commission
Commission
Commission
Date of
Determination
July 22, 1943
July 12, 1944
October 24, 1944
July 30, 1943
July 12, 1944
July 12, 1944
January 11, 1944
July 11, 1944
October 10, 1944
July 10, 1944
Amount
Claimed
$
10,000.00
160.00
24.94
39.91
25.00
50.00
47.99
100.00
30.00
60.00
10,000.00
10,000.00
169.79
20.40
146.93
243.71
1:-?
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State Road
Commission
State Road Commission State Road Commission
3,500.00 July 22, 1943
State Road
State Road
State Road
Commission
Commission
Commission
3,500.00
169.79
20.40
146.93
243.71
July 22, 1943
October 9, 1944
October 9, 1944
October 24, 1944
October 11, 1944
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REPORT OF THE COURT OF CLAIMS (Confinued)
(1-b) Approved claims and awards not
satisfied but referred to the 1945 Legislature for final appropriation.
consideration and
27-S
388-S
263
375-S
250
334-S
357-S
385-S
312?-S
283-S
417-S
391-S
280
345-S
Coulter, Helen
Roper
Crow, Elmer
Darling Shops, Inc.
Davisson, Fred W.
Dixie, Elizabeth
Doolittle, Ralph
Downs, J. M.
Dulaney, Luther C., d/b/a Dulaney Motor Company
Dyer, Dr. Allen M.
Ely, Catherine D. and Farm Bureau Mutual Auto Insurance Company
Everhart, T. 0.
Fahey, Margaret
Firestone Tire & Rubber Company
Firestone Tire & Rubber Company
139.95
147.50
110.37
8.16
22.50
18.36
34.68
302.17
9.00
January 11, 1944
October 10, 1944
October 12, 1944
July 12, 1944
July 29, 1943
July 10, 1944
July 12, 1944
October 23, 1944 January 12, 1944
State Road
Commission State Road Commission
State Road Commission
State Road Commission
State Capitol Building and Grounds
State Road Commission State Road Commission
State Tax Commissioner State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Conservation Commission
State Department of Mines
139.95
147.50
110.37
8.16
22.50
18.36
34.68
302.17
9.00
117.12
5.00
385.76
43.31
32.56
117.12 October
18, 1943
5.00 October 25, 1944
385.76
43.31
32.56
October 10, 1944
July 30, 1943
October 26, 1944
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not satisfied but referred to the appropriation.
Name of Claimant
Name of Respondent
1945 Legislature for final consideration and
Amount Claimed
No.
261?S
197
359?S
360-S
361-S
251-S
282?S
329
411-S
342-S
265-S
368-S
415-S
256-S
354-S
State Road
Commission State Board of Control
State Tax Commissioner
State Tax Commissioner
Amount Date of
Awarded Determination
43.00 July 14, 1943
51.76 February 16, 1944
601.75 August 2, 1944
747.44 August 2, 1944
Fitzwater, Pearl
Fletcher, James M.
Fredeking, J. G. et als., partners, d/b/a Fredeking & Fredeking
Fredeking, J. G., Price, T. H., et als, partners, d/b/a T. H. Price Oil Company
Fredeking, J. G. et als., partners, d/b/a Service Oil & Gas Company
Gandee, J. D.
Goff, G. H.
Golden, Pauline
Gray, Dewey
Gregg, Frank T.
Grissell Funeral Home and El- mel E. Schweizer
Grisur, Ignacy
Grose, Roy L.
Hager, Hubert
Heldreth, Henry L. and United States Casualty Company
State
State
State
State
State
State
State
State
State
State State
43.00
51.76
601.75
747.44.
602.78
9.00
114.69
7,500.00
80.60
47.18
623.16
19.80
25.00
38.83
39.96
Tax Commissioner
Road Commission
Road Commission
Road Commission
Road Commission
Road Commission
Road Commission
Road Commission
Road Commission
Road Commission Road Commission
602.78
9.00
114.69
4,000.00
80.60
47.18
623.16
19.80
25.00
38.83
39.96
August 2, 1944
July 14, 1943
October 18, 1943
July 27, 1944
October 24, 1944
July 11, 1944
July 14, 1943
July 12, 1944
October 25, 1944
July 14, 1943
July 11, 1944
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not satisfied but referred to the appropriation.
Name of Respondent
1945 Legislature for final consideration and
Amount Claimed
No.
387-S
403-S
302?S
288-S
228
334-S
153
270?S
400-S
332-S
274-S
314
328?S
154
284-S
254-S
State Road
Commission
State Road Commission
State Road Commission
State Road Commission
State Board of Control State Road Commission
State Road Commission
Name of
Claimant
Hiley, L. C.
Hill, C. R.
Hill, L. B.
Ice, Bert
Johnson, Robert (Mrs.)
?hnson, Wilsie
Jones, C. J., Admr. of estate of Esther Jones, deceased
Kentucky-West Virginia Junk Company
Kuznior, Adam
Lantz, Willis
Legg, Katie H.
Lester, Bee
Little, Charles L.
Lively, E. W., Admr. of estate of Ruth Ann Lively, deceased
Logan Baking Corporation
McMillon, Luther
Amount
Awarded
53.00
102.84
18.01
17.85
$
35.00
110.09
3,500.00
20.25
255.00
47.53
120.98
750.00
4.59
3,500.00
29.84
7.14
53.00
102.84
18.01
17.85
$
35.00
110.09
10,000.00
20.25
255.00
47.53
120.98
750.00
4.59
10,000.00
29.84
7.14
Date of
Determination
October 10, 1944
October 25, 1944
January 12, 1944
October 18, 1943
October 19, 1943
July 11, 1944
July 22, 1943
July 14, 1943
October 11, 1944
July 11, 1944
July 14, 1943
February 1, 1944
July 10. 1944
July 22, 1943
October 18, 1943
July 14, 1943
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State State
State
State
State
State
State State
State
Road Commission
Road Commission
Road Commission
Road Commission
Road Commission
Road Commission
Road Commission Road Commission
Road Commission
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not
satisfied but referred to the 1945 Legislature for final consideration and
appropriation.
0
1:-I
(i2
Cl)
0
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
|
363-S |
Mabscott Supply
Company Mallow, Paul and Beula Marshall, Frank T. |
State Road
Commission |
50.00 |
50.00 |
July 28, 1944 |
|
255-S |
Norris, E. R. |
State Road Commission |
2.54 |
2.54 |
July 14, 1943 |
|
213 |
Perdue, Arthur
B. |
State Road
Commission |
10,000.00 |
3,000.00 |
July 17, 1944 |
|
338-S |
Rathbone, Thomas A. |
State Road Commission |
80.24 |
80.24 |
July 10, 1944 |
P?EPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not satisfied but referred to the 1945 Legislature for final consideration and appropriation.
Cl
C)
>4
|
No. |
Name of Claimant |
Name of |
Respondent |
Amount |
Amount |
Date of |
|
|
268-S |
Reimer, A. G. Rentschler, Carl |
State State |
Road |
Commission Commission |
49.47 |
49.47 |
July 14, 1943 July 11, 1944 |
|
413-S |
Reynolds, Mary Harris |
State |
Road |
Commission |
8.16 |
8.16 |
October 24, 1944 |
|
292-S |
Rial, L. D. |
State |
Road |
Commission |
60.00 |
60.00 |
January 11,
1944 |
|
320-S |
Sadd, Shaker |
State State |
Road |
Commission Commission |
23.16 |
23.16 |
January 13,
1944 |
|
239 |
Sargent,
Charley |
State |
Road |
Commission |
9,710.70 |
2,568.03 |
December 14,
1943 |
|
347-S |
Smock, Helen |
State |
Road |
Commission |
34.43 |
34.43 |
July 11, 1944 |
312-S
157
373-S
390-S
381-S
306-S
262-S
369-S
208
335-S
286-S
266-S
318-S
399-S
267-S
371-S
Stuter, W. 0.
Surber, Joe, Admr. of estate of Marguerette Frances Surber, deceased
Swint (Bishop), John J.
Teleweld, Inc.
Thornton, Grayson D.
Tomlinson, Robert
Tyler County Auto Sales
Underwood, Ray
Upton, Lon E.
Van Horn, Grace
Varner, G. B.
Webb, W. V.
West, George M.
Wheeling Public Service Company
White, C. P.
Wolf, Junior
State Road
Commission
State Road Commission State Road Commission
State Tax Commissioner State Liquor Control Commission
State Road Commission State Road Commission
State Road Commission State Road Commission
State Road Commission State Road Commission
State Road Commission State Road Commission
State Road Commission
State Road Commission
State Road Commission
No.
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not
satisfied but referred to the 1945 Legislature for final consideration and
appropriation.
Name of Claimant
Name of Respondent
Amount
Claimed
153.87
10,000.00
900.00
948.67
22.04
25.70
30.75
7.94
10,000.00
6.12
59.53
60.59
71.62
255.86
25.00
48.26
Amount
Awarded
153.87
3,500.00
900.00
948.67
22.04
25.70
30.75
7.94
1,500.00
6.12
59.53
60.59
71.62
255.86
25.00
48.26
02 (/2
Date of
Determination
January 12, 1944
July 22, 1943
October 9, 1944
October 23, 1944
October 9, 1944
January 12, 1944
July 14, 1943
July 12, 1944
July 22, 1943
July 10, 1944
October 18, 1943
July 14, 1943
January 13, 1944
October 11, 1944
July 14, 1943
July 12, 1944
REPORT OF THE COURT OF CLAIMS (Confinued)
(1-b) Approved claims and awards not satisfied but referred to the 1945 Legislature for final consideration and appropriation.
C)
(3) Approved
claims arid awards satisfied by payment out of a special appropriation made by
the Legislature to
pay claims arising during the biennium: (None.)
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
|||||
|
313-S |
Wolfe, Edward
L. |
State Road
Commission |
98.94 |
98.94 |
January 13,
1944 |
|||||
|
(2) Approved claims and awards satisfied by payments out of regular appropriations for the biennium: |
||||||||||
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
|||||
|
275 |
Arbogast, Ray Null, Earl |
State Board of
Control State Board of Control |
$ 62.50 $ 62.50 |
July 29, 1943 July 29, 1943 |
||||||
REPORT OF THE COURT OF CLAIMS (Continued)
(4) Claims rejected by the Courts:
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
|
140 |
Adkins, Boyd |
State Auditor |
$ 7,490.00 |
Denied |
January 25, 1943 |
|
356 |
Baisden, Homer
Ball, Elmer Clyde |
State Road
Commission |
5,000.00 |
Dismissed |
June 19, 1944 |
|
82 |
Consolidation Coal Company, a corporation |
State Auditor |
3,844.64 |
Denied |
December 18, 1942 |
|
376 |
Fair, Hazen H. |
State Road
Commission |
373.00 |
Denied Denied |
October 13,
1944 |
|
229 |
Frasier, Ivy, Executrix |
State Board of Control |
10,000.00 |
Denied |
July 22, 1943 |
|
301 |
Gill, Donald, infant |
State Road Commission |
50,000.00 |
Denied |
July 11, 1943 |
(4) Claims rejected by the Courts:
REPORT OF THE COURT OF CLAIMS (Continued)
(3
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|
No. |
Name of Claimant |
|
Name of Respondent |
Amount |
Amount |
Date of |
|
316 |
Harmon, Dora
|
|
State Road
Commission |
15,000.00 |
Denied Denied |
July 17, 1944 February 15, 1944 |
|
139 |
Lambert, 0. D. |
|
State Board of Control |
116.74 |
Denied |
October 19, 1943 |
|
315 |
McClure, B. B. |
State Board of
Control and Department of Building and Grounds |
15,000.00 |
Denied Denied |
February 15,
1944 |
|
REPORT OF THE COURT OF CLAIMS (Confnued)
(4) Claims rejected by the Courts:
C.)
C12
-4
C.)
0
0 C.)
|
No. |
Name of Claimant |
Name of |
Respondent |
Amount |
Amount |
? Date of Determination |
|
|
209 |
Polino Construction Company Pruitt, Edward |
State State |
Road |
Commission Commission |
85,686.20 |
Denied Dismissed |
November 15, 1944 June 19, 1944 |
|
389 |
Quick, Emma, Mildred Miller and Harry Miller |
State |
Road |
Commission |
1,928.25 |
Dismissed |
November 15, 1944 |
|
349 |
Ross, J. Shirley |
State |
Road |
Commission |
2,319.00 |
Denied |
July 17, 1944 |
|
194 |
Sandridge,
Jennie Canter, Executrix |
State State
State |
Road |
Commission |
360.00 |
Denied |
July 13, 1944 |
|
166 |
Tacey, James E, Thompson, B. J. |
State State |
Road |
Commission Commission |
25,000.00 |
Denied Denied |
January 15,
1943 |
REPORT OF THE COURT OF CLAIMS (Continued)
(4) Claims rejected by the Courts:
No. Name of Claimant Name of Respondent Amount Amount Date of
Claimed Awarded Determination
172 Utz, Edward Board of Education
Brooke County 10,000.00 Dismissed December 13, 1943
173 Utz, John Charles, infant Board of Education
Brooke County 20,000.00 Dismissed December 13, 1943
353 Varney, Lucinda State Road Commission 7,500.00 Denied October 13, 1944
352 Williams, Jessie State Road Commission 1,500.00 Dismissed October 16, 1944
392 Wilson, Blanche State Road Commission 108.16 Denied October 26, 1944
367 Woofter, Lewis State Road Commission 982.50 Denied October 12, 1944
340 Worrell, S. H. State Road Commission 251.20 Denied July 25, 1944
351 Wright, Jesse State Road Commission 1,200.00 Dismissed October 16, 1944
TOTAL $538,704.16
NOTE: Subsections
(1), (2), (3), (4), and (5), respectively, of the above table conform to and
correspond with the similarly numbered subsections of Section 25 of the Court
of Claims Law.
Where an ?S? appears after the number of the claim, such claim, as appears from
the records of the Court, was concurred in by the department concerned and
approved by the Attorney General.
REPORT OF THE COURT OF CLAIMS (Continued)
(5) Advisory determinations made at
the request of the G overnor or the head of the state agency:
>1
t-l
ci,
ci,
-4
I I- -q
C
z
C
I?lj
C,
ci,
z
|
No. |
Name of Claimant |
|
Advisory |
||||
|
258 |
American Insurance Agency, |
Inc. |
|||||
|
310 |
Dougan, Bretz & Caidwell |
|
State Auditor |
|
17.55 |
State |
January 13, 1944 |
OPINIONS
XX VIII TABLE OF
CASES REPORTED
TABLE
OF CASES REPORTED
Page
Adkins, Boyd, v. State Auditor 41
Adkins, Roy H. v. State Road Commission - ? 140
American Insurance Agency v. State Conservation Commission 175
Arbogast, Arlie Lewis v. State Road Commission 104
Arbogast, Howard v. State Road Commission ? ? 104
Arbogast, Ray v. State Board of Control ? 170
Arnett, Besse D. v. State Road Commission ? 99
Arnold, W. E. v. State Road Commission - _. 65
Ashenhart, E. U. v. State Road Commission 53
Bailey, Fleet v. State Conservation Commission 70
Baisden, Homer v. State Road Commission ? 352
Bail, Elmer Clyde v. State Department of Public Assistance 391
Baltimore & Ohio Railroad Company, The v. State Road Commission 304
Barker, A. C. v. State Road Commission ? 422
Bassitt, George S. & Son v. State Road Commission ? 174
Baylous, E. L. v. State Road Commission 305
Beane, L. W. v. State Road Commission 307
Bennett, Jacob F. v. State Road Commission 108
Bennett, S. E. (Mrs.) v. State Road Commission 246
Bland, Lester v. ?State Road Commission 294
Bobbitt, J. S. v. State Road Commission 55
Bolby, Joe M. Company v. State Road Commission 59
Bolyard, Dayton v. State Road Commission 61
Braid, William v. State Road Commission 23
Brockus, James R. v. State Department of Public Safety 164
Buck, V. K. v. State Road Commission 380
Buckley, George L. v. State Road Commission 340
Burgess C. E. v. State Road Commission 288
Burgess, J. P. Adm. v. State Road Commission 140
Burnette, Edward D. Adm. v. State Road Commission 140
Burns, Deipha Bay v. State Road Commission 439
Burns, S. E. v. State Road Commission ? 363
Cain, James, and Company v. State Road Commission_ 48
Campbell, James M. v. State Road Commission ? 367
Cassady, V. E. v. State Road Commission 420
Clark, C. T. v. State Road Commission _-_ ? 381
Consolidation Coal Company v. State Auditor ? ? 10
Coulter, Helen Roper v. State Road Commission ? 247
Crow, Elmer v. State Road Commission ___-_____ ? 377
Darling Shops of Clarksburg, Inc., The v. State Road Commission 397
Davisson, Fred W. v. State Road Commission ? 309
Deck, Helen Clayton, Gdn., v. State Road Commission 87
Dixie, Elizabeth v. Department of Building and Grounds ? 171
Donovan, J. H., Dr. v. State Road Commission ? 30
Doolittle. Ralph v. State Road Commission ? 287
Dornon, Freda M. Gdn., v. State Road Commission 30
Dornon, Robert, infant, v. State Road Commission _-_-- _--_ 30
Dougan, Bretz & Caidwell, Agts. v. State Board of Control 260
Downs, J. M. v. State Road Commission - _--__--__----_ -- 303
Dulaney, Luther C., etc. v. State Tax Commissioner 417
Dyer, Allen M., Dr. v. State Road Commission 254
TABLE OF CASES
REPORTED XXIX
Edwards, R. H. v. State Road Commission 63
Ely, Catherine D. v. State Road Commission 192
Everhart, T. 0. v. State Road Commission - 424
Fahey, Margaret v. State Road Commission 378
Fair, Hazen H. v. State Road Commission 401
Farm Bureau Mutual Auto Insurance Company v. State Road
Commission 192
Firestone Tire & Rubber Company (No. 280) v. State Conservation
Commission ?
173
Firestone Tire & Rubber Company (No. 345) v. State Dept. Mines 431
Fisher, Herbert v. State Board of ControL 428
Fitzwater, Pearl v. State Road Commission 117
Fletcher, James M. v. State Board of Control 280
Ford, Mrs. Mary L., et als. v. Randolph County Court 238
Frazier, Ivy, executrix, v. State Board of Control 130
Fredeking, J. G., et als, partners (No. 359) v. State Tax Com missio 360
Fredeking, J. G., and T. H. Price, et als, (No. 360) v. State Tax
Commission 360
Fredeking, J. G., et als, (No. 361) v. State Tax Commission - - 360
Gandee, J. D. v. State Road Commission 115
Geimer, M. N. v. State Road Commission 36
Geimer, Tessie v. State Road Commission. 36
Gill, Donald, an infant, v. State Road Commission 290
Goff, G. H. v. State Road Commission 191
Golden, Pauline v. State Road Commission 346
Gore, Jim v. State Road Commission 52
Gray, Dewey v. State Road Commission 421
Gregg, Frank T. v. State Road Commission 295
Grissell Funeral Home & Elmer Schweizer v. State Road Com missio 119
Grisur, Ignacy v. State Road Commission 306
Grose, Roy L. v. State Road Commission 426
Hager, Hubert v. State Road Commission 116
Harmon, Dora v. State Road Commission - - 329
Harpold Bros. v. State Road Commission - - -- - 69
Hartigan, J. W., M.D. v. State Board of Control - -- 275
?Tatfield, Leslie, etc., v. State Road Commission - 3
Heidreth, Henry L. v. State Road Commission - 301
Hiley, L. C. v. State Road Commission - 376
Hill, L. B. v. State Road Commission 248
Hill, C. R. et als, v. State Road Commission 427
Hoover, W. P. v. State Road Commission -- 62
Ice, Bert v. State Road Commission - 196
James Cain and Company v. State Road Commission 48
Johnson, Robert, Mrs. v. State Board of Control 203
Johnson, Wilsie v. State Road Commission 297
Jones, C. J. Adm., v. State Road Commission 140
Jones Cornett Company v. State Road Commission 56
-4
Kentucky-West Virginia Junk Company v.
State Road Commission 124
Kessell, C. R., Dr., v. State Road Commission 30
Keyser, W. R. v. State Road Commission 57
XXX TABLE OF
CASES REPORTED
Kuznior, Adam v. State Road Commission 383
Lambert, 0. D. v. State Board of Control ? 198
Lantz, Willis v. State Road Commission 300
Legg, Katie H. v. State Road Commission ? 125
Lester, Bee v. State Road Commission 265
Lilly, Effie v. State Road Com.mission ?------
Lindsey, M. B. v. State Road Commission 92
Little, Charles L. v. State Road Commission 284
Lively, E. W. Adm., v. State Road Commission _____ 140
Logan Baking Company v. State Road Commission ? 193
Lude, M. G. v. State Road Commission 101
Lynch, Max G. v. State Board of Control 1
McClung, Alice E. v. State Road Commission 83
McClure, E. E. v. Department Building and Grounds 269
McMillon, Luther v. State Road Commission 115
Mabscott Supply Company v. State Road Commission 349
Mace, V. E., Dr., v. State Road Commission 399
Mallow, Paul and Beulah v. State Road Commission 411
Marsh, Jack, an infant, v. Brooke County Board of Education 226
Marsh, Margaretta v. Brooke County Board of Education 224
Marshall, Frank T. v. State Road Commission ? 206
Maryland New River Coal Company v. State Road Commission 256
Mattis, Mildred v. State Road Commission 31
May, Hugh W. v. State Road Commission 245
Meyers, lona v. State Road Commission 128
Meyers, Otto L., et al. v. State Road Commission 128
Miller, F. M. v. State Road Commission ? 112
Miller, Harry, et als. v. State Road Commission 441
Miller, Mildred, et als. v. State Road Commission 441
Moore, Tom v. State Conservation Commission _ 438
Morris, Willie, et al. (233-S) v. State Road Commission 102
Morton, Artenis G. v. State Road Commission 262
Morton, B. F. v. State Road Commission 180
Mullins, A. B. and J. G. v. State Road Commission 180
Myer, Q.
Edward v. State Road Commission 126
Neese, S. E., v. State Conservation Commission ? 177
New River and Pocahontas Consolidated Coal Company, a Cor poration v. State
Road Commission 210
Norris, E. R. v. State Road Commission 116
Null, Earl v. State Board of Control ?----_ 169
Park Pontiac, Inc. v. State Road Commission ? 60
Peerless Milling Company v. State Road Commission 58
Perdue, Arthur B. v. State Road Commission ? 312
Perdue, Dollie E. v. State Road Commission 312
Petry, Florence E. v. State Road Commission 299
Pierson, R. Clarence v. State Road Commission ? 273
Pigott, Bessie A. v. State Road Commission 91
Pocahontas Amusement Corporation v. State Road Commission 250
Poland, A. C. v. State Road Commission 244
Polino Construction Company, a Corporation v. State Road Com missio 443
Polino, Sam G. & Company v. State Road Commission 354
TABLE OF CASES
REPORTED XXXI
Pratt, Effie Savage v. State Road Commission 89
Price, T. H. et als, v. State Tax Commissioner 360
Pritchard Motor Car Company, et al. v. State Road Commission - 102
Producers Gas Company, a Corporation v. State Tax Commissioner 283
Proudfoot, Hugh B. v. State Road Commission 78
Pruitt, Edward v. State Road Commission 350
Quick, Emma v. State Road Commission 441
Racioppi, Nicholas v. State Road Commission 66
Rathbone, Thomas A. v. State Road Commission 289
Reimer, A. G. v. State Road Commission 123
Rentschler, Carl v. State Road Commission 296
Reynolds, Mary Harris v. State Road Commission 423
Rial, L. D. v. State Road Commission 242
Riggs, B. W. Funeral Home v. State Road Commission 285
Rogers, Bob v. State Road Commission - - 252
Rose, Ruben v. State Road Commission 197
Ross, J. Shirley v. State Road Commission -? 337
Rudolf, H. L. v. State Road Commission ? 195
Sadd, Shaker, v. State Road Commission 259
Sandridge, Jennie Canter, Admx. v. State Road Commission 309
Sanitary Baking Company v. State Road Commission 249
Sargent, Charley v. State Road Commission 228
Schmidt, Teresa v. State Road Commission 286
Schweizer, Elmer E. v. State Road Commission 119
Scott, James C. v. State Road Commission 386
Scott, Julia W., admx. v. State Road Commission 386
Scott, Julia W., (in her own right) v. State Road Commission 386
Service Oil & Gas Company v. State Tax Commissioner 360
Shafer, C. F., Dr. v. State Road Commission 248
Shreve, 0. R. v. State Road Commission 368
Sibbald, Minerva L. v. State Road Commission 127
Simms, Benton v. State Road Commission 425
Sims, Agnes Marie, admx. v. State Road Commission 369
Sizemore, W. E. v. State Road Commission 180
Skelton, Lottie v. State Road Commission - 85
Smith, F. M. v. State Road Commission 241
Smith, John S. v. State Road Commission 8
Sn. wk, Helen v. State Road Commission ? 298
Snaith, C. B. v. State Road Commission 252
Solomon, Aitha E. (Dillon) and F. P. Solomon v. State Road Com missio 434
Spragg, F. J. v. State Road Commission 129
Standard Advertising Corporation v. State Road Commission 302
Stewart, Lewis v. State Road Commission 251
Stiles, W. L. v. State Road Commission 100
Stilimack, Lewis v. State Road Commission 375
Stone, E. L. v. State Road Commission 258
Stretton, B. S. v. State Road Commission -- 103
Strickland, George v. State Road Commission 68
Stuter, W. 0. v. State Road Commission 253
Surber, Joe, Adm. v. State Road Commission 140
-Swartzwelder, Earl v. State Road Commission 96
Swiger, Floyd v. State Road Commission 93
Swint, John J., Bishop, v. State Road Commission 364
Swisher, Ray M. v. State Road Commission 72
XXXII TABLE OF
CASES REPORTED
Tacey, James E. v. State Road Commission ? 27
Teleweld, Inc. v. State Tax Commissioner ?---? 418
Thompson, E. J. v. State Road Commission ? 74
Thornton, Grayson D. v. State Liquor Control Commission 366
Tomlinson, Robert v. State Road Commission 250
Tyler County Auto Sales v. State Road Commission 118
Underwood, Roy v. State Road Commission 307
United States Casualty Company, et al, v. State Road Commission 301
Upton, Lon E. v. State Road Commission 134
Utz, Edward v. Board of Education Brooke County 220
Utz, John Charles v. Board of Education Brooke County 222
Valley Motor Sales v. State Road Commission ? 95
Van Horn, Grace v. State Road Commission 288
Varner, G. B. v. State Road Commission 194
Varney, Lucinda v. State Road Commission 403
Webb, W. V. v. State Road Commission 121
West, George M. v. State Road Commission ?---?- 257
Wheeling Public Service Company v. State Road Commission 382
White, C. P. v. State Road Commission 122
White, William Clayton v. State Road Commission 87
Williams, Jessie v. State Road Commission 408
Wilson, Blanche v. State Road Commission 432
Wolf, Junior v. State Road Commission 308
Wolfe, Edward L. v. State Road Commission 255
Wood, David W. v. State Road Commission 384
Woods, Ola v. State Road Commission 67
Woofter, Dollie v. State Road Commission 393
Woofter, Lewis, v. State Road Commission 393
Workman, Albert v. State Road Commission 385
Worrell, S. H. v. State Road Commission 342
Wright, Jesse v. State Road Commission 405
Cases Submitted and Determined in the
Court of Claims of the State of
West Virginia
(No. 191?Claimant awarded $60.17.)
MAX G. LYNCH, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion fIled December 17, 1942
When, upon the hearing of a claim
filed by a former employee of a state department, it is disclosed by the record
that it is the policy of such state department to allow employees who have been
in the service of the state for more than one year an annual vacation with pay,
an award will be made in accordance with such policy.
Guy Burnsic1e, Esq., for claimant;
Eson B. Stepkenson, special assistant Attorney General for respondent.
ROBERT L. BLAND, JUDGE.
Claimant Max G. Lynch seeks an award
in the sum of $60.17. His claim is predicated upon the ground that he had been
an employee of the West Virginia penitentiary at Moundsvile for a period of
five years, and that for the year 1941 he earned a vacation of two weeks with
pay amounting to the said sum of $60.17. Upon the hearing of the claim it was
shown that where an employee of the penitentiary has rendered service for one
year he is, during the next year, entitled to a two weeks? vacation with pay
some time during the year. The time of the vacation is determined by the
2 REPORTS STATE COURT OF CLAIMS [W. VA.
employees of the institution drawing from a box capsules
containing the exact date of each employee?s vacation. Claimant received such
vacation and pay for four years. On the 1st day of March 1942, he with other
employees of the penitentiary drew the capsules in accordance with the custom
observed for determining their respective dates of vacation. In this manner
claimant?s vacation was fixed to begin on August 16, 1942, but he resigned his
position at the institution on the 16th of May 1942, prior to the date when his
vacation should begin. At the time of such resignation claimant was informed by
the warden of the penitentiary that there was no money available for the payment
of the amount to which he was entitled on account of his earned vacation. It
clearly appears from the record that there was no money to the credit of the
penitentiary out of which claimant could be paid for the two weeks vacation
allowed him for the year 1941 and which he was entitled to be paid during the
year 1942. The state board of control, the state agency involved in this case,
after due investigation of the claim in question and conference with the
attorney general?s office, admits that the claim in the amount of $60.17 should
be paid. It is further established to the satisfaction of the court that it has
been the policy of state departments to allow vacation with pay for two weeks
where an employee has been in regular service of the department throughout the
year. Liability on the part of the state to pay the claim in question is
admitted by the board of control.
We are of opinion and accordingly hold that when, upon the hearing of a claim
filed by a former employee of a state department, it is disclosed by the record
that it is the policy of such state department to allow employees who have been
in the service of the state for more than one year an annual vacation with pay,
an award will be made in accordance with such policy.
An award will, therefore, be entered in the instant case allowing claimant Max
G. Lynch the sum of sixty dollars and seventeen cents ($60.17).
W. VA.]
REPORTS STATE COURT OF CLAIMS 3
(No. 105?Claimants awarded $7,179.91.)
LESLIE HATFIELD and HALLIE HATFIELD, Surviving partners of HARRY HATFIELD, and
company, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled December 17, 1942
A claim in which the evidence
justifies a finding for the claimant company for extra compensation, to wit,
for wages paid during ?shutdowns? caused by change of plans on the part of the
state road commission; fair rental value of equipment on the project not used
during the cessation of work caused by said changes; and extra compensation for
work done and not contemplated in any manner by the plans and specifications
under which the contract was originally entered into.
Appearances:
Okey P. Keadle, Esq., for the claimants;
Eston B. Ste phenson, Esq., assistant attorney general and Arden Trickett, Esq., state right-of-way agent, state road commission, for the state.
CHARLES J. SCHUCK, JUDGE.
The claimant company, in the summer of
the year 1936, was awarded a contract by the state road commission for
excavating and grading the project known as the 29th street overhead approaches
in Cabell county, West Virginia, and designated as project F. A. 187-E.
Work began on or about September 1, 1936. On or about January 27, 1937, a flood
of the Ohio river interfered with the progress of the work; caused numerous
slides and part of the roadway in question to slip away. Work was resumed after
the effects of the flood in question had been removed, and continued to about
May 26, 1937, when the project was closed down by order of the state road
commission for the purpose of changing certain plans,
4 REPORTS
STATE COURT OF CLAIMS [W. VA.
and remained closed until
approximately July 26, 1937, or for a period of about two months.
During this period, the claimant company was obliged to pay its shovel
operator, a foreman, and watchman, all of whom were kept on the job during the
period in question, although no actual work was done by either of them, except
the watchman in carrying out his duties. The shovel operator was paid at the
rate of $43.75 per week, or the sum of $350.00 for the period during which
there was no work on the project. Likewise the foreman was paid $156.75, and
the watchman the sum of $200.00 for the same period. Work was again stopped on
the project from September 1 to October 4 by orders of the state road
commission, and so far as the evidence reveals, through no fault of the
claimant, during which time the claimant company again had an outlay of $509.75
to the employees that the claimant company was obliged to employ and pay,
although no work was being done for the period in question. Another ?shutdown?
took place on or about November 19, 1937, and no work was resumed until some
months later, in the year 1938. During all of this time the climant company
maintains that it was obliged to keep equipment on the project, as it was
expecting from day to day, to be ordered to continue the work and it would be
necessary, of course, to have the equipment ready upon such orders being issued
by the state road commission. With certain exceptions, as hereinafter pointed
out, we feel that the evidence sustains the contention of the claimant that the
three different periods during which work was stopped were through no fault of
the contractor, and were for periods of time during which weather conditions
would be most favorable to the prosecution of the work, and, therefore, most
helpful to the claimant in carrying on the project.
The state maintains that the delays were caused through no fault of the state
road commission, but, rather, by the floods and the consequent slides, over
which the state road commission had no control, and for which it should not be
held responsible; in other words, that the interference with the
W. VA.]
REPORTS STATE COURT OF CLAIMS 3
work was caused by an act of God.
However, an examination of the record shows that the state road commission
realized that if the project, as planned, was carried out, it would likely be
subject to future floods and inundations, and, so, concluded to make changes
which would avoid such conditions or situations.
Since the evidence further sustains the contention that claimant was not to
blame in any way for the said periods during which it was not allowed to carry
on the work, it would seem that claimant would be entitled to some compensation
for the damages sustained by it through no fault of its own. The state insists
that the employees in question who were kept on the project during the several
so-called ?shutdowns? were not entitled to any compensation, and the claimant,
having voluntarily made the said payments for the wages in question, is not
entitled to recover the same. Claimant, however, contends that the watchman was
absolutely necessary in taking care and watching over the equipment left on the
project, and we agree with this proposition. We also feel that the evidence
sustains the contention of the claimant company that the shovel operator and
foreman, being called upon to do special work, could not easily be replaced,
and that they were being maintained on the payroll of the claimant company
owing to the fact that it would have been difficult for the company to replace
them or to obtain the services of other men when the work resumed. We also
agree with this proposition, and under the circumstances, feel that the
claimant company is entitled to the return of the outlay paid in wages and
salaries for these men, and amounting in the aggregate to $1216.50.
As herein indicated, the claimant company was obliged to keep certain equipment
on the project during the time of the cessation of operations, and claims that
it is entitled to a reasonable rental value for this equipment so remaining
idle during the ?shutdowns? in question. The state, on the other hand,
maintains that some of the equipment, if not all, could have
-been moved to other jobs or projects that the claimant company was then
carrying on, and that, therefore, the company
6 REPORTS
STATE COURT OF CLAIMS [W. VA.
is not entitled to any reimbursement
for the equipment that remained idle during the said ?shutdown? periods. It can
fairly well be assumed, as shown by the record (p. 46) that the claimant
company was not in a position to move the equipment or a goodly portion of it
from the project in question, and therefore have the benefit of its use, since
the claimant company was expecting from day to day to return to work on this
project, and this contention is not denied by the state. It is therefore our
judgment that the claimant company is entitled to a reasonable rental value for
certain of its equipment that was kept on the project, and which could not be
used, through no fault of the claimant company, but through the changes of
plans made by the state road commission, and which brought about the delays in
question. However, in view of the fact, as shown by the record (p. 71-72) no
rentals were paid by the claimant company during the periods that the work was
shut down, the company could not be entitled to the aniount usually paid as a
rental value, especially so in view of the fact that the evidence tends to show
that some of this equipment could have been moved and was moved to other
projects and used by the claimant during the periods that the work had ceased
on the project in question. The claimant company maintains that it is entitled
to approximately $10,000.00 for these rental values, but we are also of the
opinion that under all the circumstances, this is excessive, and that the
amount of $2500.00, as reflected by the rental value of the idle equipment,
would be fair and just to all parties, and we make the finding accordingly.
Under alt the evidence of the case there is but one further question which we
feel is entitled to our consideration, so far as an award to the claimant
company is concerned, and that is the matter of extra work or special work on
the ditches that the road commission ordered constructed for the purpose of
diverting the water coming from the hillside embankments and keeping the
excavations and project from being further injured or damaged. The project had
already been seriously interfered with, as well as damaged by floods of the
Ohio river, and the engineers of the road commission were rightfully tak
W. VA.]
REPORTS STATE COURT OF CLAIMS 7
ing every means to protect the project
from further invasion by water from the hillsides and seeking to divert the
same so that the project, when completed, would be permanent in its nature and
not require work from time to time in making repairs by reason of the
collection of the water from the hillside adjacent to the project. As herein
indicated, for this purpose, additional ditches were constructed and we feel
that the construction of these ditches could not have been and were not
contemplated in any way by the contract in question, which contention, of
course, is supported by the location of the ditches and the fact that they were
not contemplated by the parties at the time that the contract was entered into.
The work on these ditches was extremely difficult and unusual, as compared with
the other work on the project. It seems that the contracting company was
required to do more work to complete the ditches than under ordinary
circumstances, and had trouble in getting equipment to a place where the
ditches could be excavated to some advantage and profit. The claimant maintains
that it was put to both extra trouble and extra expense (record p. 77) in
constructing the said ditches. The claimant maintains that it is entitled to an
extra charge for the construction of said ditches at the rate of twenty cents a
yard extra, and that 17,300 cubic yards were involved in the additional
excavations, and that the claimant company should be paid an additional
$3463.41 for the said additional work. We feel that this is a just claim and
should be allowed.
Under all the evidence in the case, as submitted, we feel that the claimant
contractor is not entitled to any additional compensation for separating the
rock from the earth in one of the items filed, but we are of the opinion that
this was part of the contract contemplated by the parties, and that the
evidence further tends to show that it was usual and necessary in carrying out
the work in question, and consequently, must have been contemplated by the
claimant when entering into the contract in question.
. Under all the circumstances, then, we are of the
opinion that the claimant is entitled to an award of $7179.91, made up
8 REPORTS STATE COURT OF CLAIMS [W. VA.
of the three several.items, to wit:
$1216.50 for payments made to employees required on the project during the
?shutdown,? the sum of $2500.00, as a fair rental value for the equipment in
question, and the further sum of $3463.41 for extra compensation in the
construction of the special ditches, making a total of seven thousand one
hundred seventy-nine dollars and ninety-one cents ($7179.91), and an award is
made accordingly.
(No. 146?Claimant awarded $35.00.)
JOHN S. SMITH, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed December 17, 1942
Where it appears that the damages to
claimant?s truck were the result of a head on collision of claimant?s truck
with a state road truck driven by a state road commission employee on duty
which could have been avoided by said state road commission employee, by the
exercise of reasonable care and caution, an award will be made to compensate
claimant for the damages sustained.
Appearances:
Dayton R. Stemp1e, Esq., for claimant;
Eston B. Steph.e?nscm, Esq., special assistant to the attorney general, for
the state.
WALTER M. ELSWICK, JUDGE.
On the 20th day of February 1942,
William Bohan was operating claimant?s truck on a state road leading from route
250 to the 4-H camp in Barbour county, West Virginia.
W. VA.]
REPORTS STATE COURT OF CLAIMS 9
The truck was loaded with lime,
and when pulling a grade the driver noticed a state road truck coming in the
opposite direction and pulled claimant?s truck over on his right and stopped.
The state road truck, driven by Lee Cross, collided head on into claimant?s
truck. Cross was on duty at the time and in the employment of the state road
commission.
It appears from the evidence that the paved surface of the road at the point of
the collision was about 14 feet wide; that with the berm, the road was about 18
to 20 feet wide. It also appears from statements of Cross, made at the time of
the collision and in his report of the collision to the road commission, that
his brakes were out of order. The road at the time was dry, and the collision
occurred in daylight of the afternoon. The driver of the state road truck
testified that he saw the claimant?s truck 80 feet away as it rounded a curve.
As a result of the collision, the radiator on claimant?s truck had five leaks,
and were of such nature that a new one was required to replace it at an
exchange price of $35.00. Claimant also claimed a loss of two gallons of
Prestone at a cost of $5.25. The bumper to claimant?s truck was also bent. It
was a 1940 Dodge truck purchased in 1940 which had been in hauling use since
that year.
From all the evidence in the case, we are of the opinion that the collision
could have been avoided by the state road commission?s truck driver, and from
the evidence and stipulations of claimant?s attorney and the attorney general,
we are of the opinion that claimant is entitled to an award of thirty-five
dollars ($35.00). An award will be made for said sum and an order entered
accordingly.
10 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 82?Claim denied.)
CONSOLIDATION COAL COMPANY,
a foreign corporation, Petitioner,
V.
STATE (STATE AUDITOR), Respondent
Opinion filed December 18, 1942
A claim which has been barred by a
statute of limitations for a period of more than five years
prior to the reenactment of chapter 14, article 2 of the 1931 code,
creating the court of claims which was of such nature that it could have and
should have been presented to the circuit court of Kanawha county for auditing
and adjusting and its action reported by the auditor to the Legislature under a
proceeding then provided for by statute, held not revived, and an award denied,
when petitioner has not been prevented or restricted from prosecuting such
claim under the procedure provided prior to the time such claim became barred
under the statute.
Appearances:
Tusca Morris, Esq., for the petitioner;
Eston B. Stephenson, Esq., special assistant to the Attorney General for the
state.
WALTER M. ELSWICK, JUDGE. -
The petitioner, Consolidation Coal
Company, a Delaware corporation, and the successor to the Consolidation Coal
Company, a Maryland corporation, which latter corporation was authorized to do
business in the state of West Virginia from the year 1909 to the year 1935,
inclusive, presented its petition for a refund of $3844.64, representing a
claim for overpaid corporation license taxes by the said Maryland corporation,
and which petitioner alleges were overpaid by reason of the fact that the state
auditors of the state of West Virginia during the period in question, namely,
for the years 1917 to 1929, inclusive, required payment of corporation license
taxes on
W. VA.]
REPORTS STATE COURT OF CLAIMS 11
the basis of the authorized capital stock of the said Maryland corporation,
when in fact the said corporation should have paid a license tax only on its
issued and outstanding capital stock, represented by its property owned and
used in the state of West Virginia.
From the record it appears that by section 130 of chapter 3 of the acts of the
Legislature of West Virginia, second extraordinary session, 1915, and the
reenactment thereof by section 130 of chapter 102 of the acts of the
Legislature of West Virginia, regular and extraordinary sessions, 1919, the
said Consolidation Coal Company, a Maryland corporation, was required by the
state auditors for the years 1917 to 1929, both inclusive, to pay its capital
stock license tax on the basis of its authorized capital stock rather than on
the basis of its issued and outstanding capital stock.
The state contends, among other grounds of defense assigned, that the
petitioner is barred by laches and the statute of limitations, from recovering
the aforesaid amount of overpaid taxes, and it is therefore encumbent upon us
to determine this question. If its claim is barred by the statute of
limitations then the court of claims would be without authority to recommend an
award.
On November 5, 1929, the Supreme Court of Appeals of West Virginia, in the case
of State v. Azel
Meadows Realt?y Crmpany, 108 W. Va.
118, 150 S. E. 378, declared said section 130 of chapter 3 of the said acts of
1915, and said section 130 of chapter 102 of the said acts of 1919 (sections
126 and 130 of chapter 32 of the code of 1923) in violation of the fourteenth
amendment to the Federal Constitution as between foreign corporations. The gist
of the decision insofar as it pertains to petitioner?s claim was stated in syllabus 2 thereof as
follows:
?Sections 126 and 130, chapter 32, code, imposing upon a foreign corporation a
yearly license tax for the privilege of doing business and holding property in
the state is in violation of the 14th amendment of the Federal Constitution as
between foreign corpora-
12 REPORTS
STATE COURT OF CLAIMS [W. VA.
tions, if and when said license tax is
computed according to the proportion of authorized capital stock which is
represented by its property owned and used in this state?
This decision, in declaring sections 126 and 130 of chapter 32 of the 1923 code
unconstitutional and illegal between foreign corporations, in effect declared
the same provisions illegal and unconstitutional under section 130 of chapter 3
of the said acts of 1915. The first case involving the question of the
unconstitutionality of acts of like kind was decided by the Supreme Court of
the United States in the case of Air-Wa.y
Electric Appliance Corporation v. Day, Treasurer of the State of Ohio, 266 U. 5. 71, wherein the court held:
?The Ohio act, having no tendency to produce equality, and being of such
character that there is no reasonable presumption that substantial equality
will result from its operation, violates the equal protection clause of the
Fourteenth Amendment.?
This case was decided on October 20, 1924, and on January 19, 1925, the general
attorney for the Consolidation Coal Company, addressed a letter to the then
state auditor calling his attention to this court decision.
Section 21, article 2, chapter 14 of the present code, Michie?s code section
1147 (16), chapter 20, section 21 acts of 1941, provides:
?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 adoptian of this article, the limitaton of this section shall run from the
effective date of this article:
Provided, however That no such claim as shall liave arisen prior to the
effective date of this article shall be barred by any limitation of time
imposed by any other statwtory provisions if the claimant shall prove
W. VA.]
REPORTS STATE COURT OF CLAIMS 13
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.? (Italics supplied.)
By chapter 12, article 3, section 3, of the code of 1931; Michie?s code,
section 1021, which was section 9, chapter 17 of the code of 1923, it was
provided:
?No claim shall be allowed by the
auditor after five years from the time when it might by law have been presented
for payment. No petition shall be
received in either branch of the Legislature claiming a sum of money, or
praying the settlement of unliquidated accounts, unless it be accompanied with
a certificate of disallowance by the auditor, or by the officer, board, or
person whose order or requisition was necessary to authorize payment thereof,
stating the reason why it was rejected. Nor
shall a petition be presented to the Legislature for the payment of any claim
against the state which might have been asserted under the provisions of
article two, chapter fourteen of this Code, unless it be accompanied by a copy
of the record of the proceedings of the proper court upon such claim.? (Italics
supplied.)
By chapter 14, article 2, sections 1 and 5 of the code, prior to the amendment
of 1941, it was provided:
SECTION 1. ?Any person having a pecuniary claim against the State, which the
auditor has disallowed in whole or in part, may apply by petition to the
circuit court of the county in which the seat of government is, to have such
claim audited and adjusted.?
SEC. 5. ?No such petition as is mentioned in section one of this article shall
be presented or filed, and no such suit as is mentioned in the next preceding
section shall be brought after five years from the time the claim of the
petitioner or plaintiff might have been presented or asserted. . .
Neither the petitioner nor its predecessor
applied by petition to the circuit court of Kanawha county to have its claim
14 REPORTS
STATE COURT OF CLAIMS [W. VA.
audited and adjusted before or after the
decision in the case of State v. Azel
Meadows Realty Company,
supra.
Chapter 14, article 2, section 3, of
the code of West Virginia of 1931, provided for the following procedure when
such petition was filed:
?The court shall ascertain and enter of record what sum, if any, is due to the
petitioner upon the claim mentioned in the petition and shall certify its
decision to the auditor whether the claim, or any part thereof, be allowed or
not; and, if such claim or any part of it be allowed, the auditor shall report the same to the
legislature at its next session. But
no such claim shall be paid until an appropriation shall be made therefor by
the legislature.? (Italics supplied.)
There is not any attempt on the part of the petitioner to show that it was
prevented or restricted from filing its petition in the circuit court and
having its claim presented by the auditor to the Legislature as said section 3
of article 2, chapter 14 of the 1931 code required. This section made it the
duty of the auditor to so present the claim if such action had been taken. The
auditor had refused to pay the claim and a remedy was afforded the petitioner
by the procedure then provided for presenting the claim to the Legislature. The
petitioner was advised by the auditor that legislative action was necessary
before he could make refund (record pp. 21 and 40.) Therefore, petitioner was
not misled or prevented from taking the required procedure for submitting the
claim within the prescribed period of five years to the circuit court to be
then reported by the auditor to the Legislature.
The petitioner contends that it was without legal authority to compel the state
auditor to certify its claim to the board of public works and that it was at
the mercy of the state auditor, and that even if the state auditor and the
board of public works had honored the refund, the Legislature might have turned
it down and refused an appropriation therefor; that the remedy provided for under
section 9 of chapter 17,
W. VA.] REPORTS STATE COURT OF CLAIMS 15
of the code of 1923 was incomplete and inadequate, but we are of the opinion
that the remedy provided under said section 9 of chapter 17 was not exclusive,
but that the claim could have been presented under chapter 37 of Barnes code of
1923, chapter 14, article 2 of the code of 1931, which provided that the
auditor ?shall report? such action by the circuit court to the Legislature.
The petitioner also contends that the circuit court was not such a tribunal
that could pass upon the constitutionality or the unconstitutionality of this
tax law, under sections 1 and 5 of chapter 37 of the code of 1923, chapter 14,
article 2 of the code of 1931; that the terms of these sections of the statute
did not confer jurisdiction on the circuit court to determine the
constitutionality of the law in respect to the taxes being audited by that
court. We are of the opinion that while it may be true that the circuit court
did not have jurisdiction to pass upon the constitutionality of the assessment,
neither would the court of claims have this right, but the only opportunity
which our Supreme Court had to pass upon its constitutionality of the statute
was at the time it rendered the decision in the case of State v. Azel Meadows ReaZty Company, supra. This
was November 5, 1929. The decision in this case would be the only authority
which the court of claims has for the unconstitutionality of the law. The court
of claims is a special instrumentality of the Legislature and the Legislature
does not declare its own acts unconstitutional. The circuit court of Kanawha
county would have had the same decision before it from November 5, 1929, which
the court
? of claims now has. The basis on which petitioner now files its claim is that
the statute was declared unconstitutional by our Supreme Court on November 5,
1929 in the Azel Meadows Realty
Company case. The taxes had been paid
before this decision was rendered which the Kanawha circuit court would have
had as authority for its action.
Section 21, article 2, chapter 14 of the present code, Michie?s code 1147 (16)
does not state that the petitioner must have had an adequate remedy in law or
equity prior to the creation
16 REPORTS
STATE COURT OF CLAIMS [W. VA.
of the court of claims which statute
creating same repealed the former provisions of article 2 of chapter 14. It is
true that in the case of Standard Oil
Company of New Jersey V.
Fox, 6 F. Supp. 494, the court had to deal with the question
of whether or not the plaintiff had an adequate remedy at law, which, if
existing would have denied the plaintiff in that case relief by injunction. In
our opinion, the court would necessarily have to hold the same today as it held
in that case, and grant injunctive relief against an unconstitutional statute
in view of the provisions of section 4, article 2, chapter 14 of the present
statute, referring to the court of claims, Michie?s code cum. supp. which
provides that:
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. .
.
Section 12, article 2 of chapter 14,
Michie?s code cum. supp. 1147(7) provides:
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 in the case of Standard Oil Company of New Jersey v. Fox, supra,
in dealing with the subject of whether
or not the plaintiff had a sufficient remedy at law to deprive it of relief by
injunction states that the former statute (chapter 14, article 2) was doubtful
and ambiguous and made the remedy at law in question debatable and uncertain
for the reason that the claim could not be paid until an appropriation was made
therefor by the Legislature. The statute prior to the act of 1941 did not
specify that a determination made by the circuit court should not be subjected
to appeal or to review and did not expressly state that no liability shall be
imposed
W. VA.]
REPORTS STATE COURT OF CLAIMS ? 17
upon the state or any of its agencies
by a determination of the circuit court approving and auditing a claim, but
which was so held by the court in its reasoning as a grounds for injunctive
relief. Such limitations are expressly set forth in the 1941 act which leaves
to the courts of the state a right to enjoin the enforcement of an
unconstitutional statute by injunction due to the lack of an adequate remedy
provided for in a court of law.
The right of petitioner to file its petition with the circuit court of Kanawha
county certainly vested as to all of its claim on November 5, 1929 with the
decision of the court in the case of State
v. Azel Meadows Realty Company. If
its petition had been filed with the circuit court promptly the state auditor
would have been required under the statute to report the court?s action to the
Legislature at its next session which was in 1931. It would appear that by
following the five year limitation of the statute that the claim in its
entirety was barred for presentation to the Legislature by the statute of
limitations in 1936. It being a pecuniary claim, that is to say, one relating
or pertaining to money, a proceeding was then provided for having it presented
to the Legislature. In view of the record of the case and the statute, a
majority of the court are of the opinion that petitioner?s claim could have
been presented to the Legislature upon the finding of the circuit court of
Kanawha county at any time from November 5, 1929 through 1934-1936. This was
not done. The statute of limitations certainly had run on the claim by the year
1936.
It does not appear from the record that any facts were presented to the court
of claims which could not have been presented to the circuit court of Kanawha
county. When we consider the object and purpose of the statute which repealed
the former five sections of article 2, chapter 14, and enacted in their place
the present twenty-six sections we cannot conceive that the Legislature
intended to revive claims which had already been barred by a statute of
limitations which were laims of such nature that the Legislature had provided a
procedure for having them presented to it for an appropriation.
18 REPORTS
STATE COURT OF CLAIMS [W. VA.
The purpose of the present law as set
forth in section 1 of the statute is to provide a method for the consideration
of claims which cannot be determined in a court of law or equity. A method had
existed for the hearing and presentation of the claim in question before the
circuit court of Kanawha county. The claim had been barred from consideration
by the Legislature by a general statute at least 5 years prior to the passage
of the 1941 statute. For the reasons herein stated a majority of the court are
of the opinion that an award should be denied and an order will be entered
accordingly.
Judge Schuck dissents and will file a dissenting opinion setting forth his
views.
CHARLES J. SCHUCK. JuDGE, dissenting.
The majority opinion denying relief to the claimant company is based entirely
on the proposition that the claimant is barred by the statute of limitations,
on the ground that the claim could have or should have been presented to the
circuit court of Kanawha county for audit and adjustment within a period of
five years prior to the enactment of the act creating the court of claims. I
assume that all other questions involved are from the very nature of the opinion
resolved in the favor of the claimant company.
Under the statute creating the state court of claims the following provision
seems to be the only restriction or limitation placed upon a petitioner to bar
his claim from consideration by this court:
hat no such claim as shall have arisen prior to the effective date of this
article shall be barred by any liniitation of time imposed by any other
statutory provision if the claimant shall prove to the satisfaction of the
court that he ha been prevented or restricted from presenting or prosecuting
such claim for good cause, or by any other statutory restriction or
limitation.?
W. VA.]
REPORTS STATE COURT OF CLAIMS 19
The question now arises as to whether or not, under the portion of the act just
quoted, petitioner has shown to the satisfaction of the court that it put forth
every effort in prosecuting its claim and that it was not guilty of any laches
or negligence so far as the delay of its presentation was concerned.
The majority opinion relies entirely on chapter 12, article 3, section 3 of the
code (Michie?s code of 1931, section 1021), which was section 9, chapter 17 of
the code of 1923, and which article is to the effect that no claim shall be
allowed by the auditor after five years from the time when by law it might have
been presented for payment. Chapter 14, article 2, sections 1 and 5 of the
code, prior to the amendment of 1941, prescribed that anyone having a pecuniary
claim against the state which has been disallowed by the auditor shall present
the same to the circuit court of the county in which the seat of government is,
to have the claim audited and adjusted, and then provides further, in effect,
that no suit shall be allowed unless presented within five years from the time
that the claim may have been asserted.
The West Virginia courts have never passed on the statutes in question
sufficiently to give a well-defined interpretation of the meaning and scope of
the provisions thereof, and in the case of the Standard Oil Company of New Jersey V. Fox, reported in 6 F Supp. 494, and affirmed by the
Supreme Court of the United States, the court held, when considering the
statutes in question, that they were not free from doubt and ambiguity, and
that the claimant did not have a complete remedy at law by virtue of the
provisions of the said statutes and that, therefore, it could not be deprived
of its right to enforce its claim by reason of the doubt and ambiguity that
existed with reference to the said statutes. The court further held in the said
case that the West Virginia statutes had never been made clear by the decisions
of the West Virginia courts, and that the act in question was merely a
statutory proceeding for the auditing of a claim against the state.
. If this conclusion is correct, then, under the
circumstances, the circuit court of Kanawha county would simply be going
20 REPORTS
STATE COURT OF CLAIMS [W. VA.
through a process of bookkeeping to
ascertain the amount that was due, if any, to the claimant company, with
admittedly no right to enforce its decree or judgment in this regard. The
circuit court of Kanawha county had no right to determine the constitutionality
or unconstitutionality of the acts under which the several auditors sought to
enforce the payment of the tax, and had, in my judgment, no power whatever to
enforce any decree, order, finding, or judgment that might have been made,
favorable to the claimant. There is no denial that the claimant was pressing
its claim, as shown by the testimony in this case, in every possible way, and
by all manner of means, and that the position assumed by the several auditors
was so arbitrary as to give the claimant little satisfaction in the effort it
was putting forth to obtain the refund.
Assuming that the circuit court of Kanawha county had made a finding for the
claimant, from which finding no appeal could be taken it is still not clear,
under the interpretation of our West Virginia statutes, as to whether any
remedy would have existed by which the claimant could have availed itself in the
attempt to obtain the refund in question.
It is urged that if the claim had been submitted to the said circuit court of
Kanawha county and an award made, that the auditor would then have been obliged
to have presented the matter to the next session of the Legislature for its
consideration, and this, in my judgment, is all that could have been done under
the law as it was during the period in question. Let us assume that this method
would have been carried out and the Legislature would have refused to make an
appropriation. Would that fact, under all the existing circumstances, have
prevented this court from giving further consideration to the claim in
question? I do not think so. We have considered other claims which have
heretofore been adversely treated by the Legislature to which they were
submitted, and have made awards to be submitted to the next session of the
Legislature for consideration. This has all been done under our idea and
interpretation of the phrase ?equity
W. VA.]
REPORTS STATE COURT OF CLAIMS 21
and good conscience? as set forth in the statute creating this court and in
consideration of the testimony supporting and sustaining an award.
The acts
heretofore quoted, being vague and
ambiguous, as held by our highest court, the provisions thereof should not now
be used to bar a claimant who so far as the testimony shows made every effort
to have the several auditors ?see the light? and refund the amount of taxes
improperly and illegally collected.
For myself, I am of the opinion and I believe a proper construction of the act
creating the court of claims, with reference to the barring of claims in this
court, means that no limitation is placed on the prosecution of a claim where
it is shown unqualifiedly, as in this case, that a petitioner had done
everything possible within a reasonable period of time, considered in the light
of all the circumstances, to obtain redress and to have some remedy for a tax
illegally assessed and illegally collected. The state collected the tax in
question and used the amount for its own purposes. That it was collected
wrongfully and without warrant of law there is now no question, and to allow
the state to appropriate the excess amount and to sanction the holding and
appropriation thereof on a mere technicality is, in my judgment, wrong and
improper.
By the more recent decisions of courts throughout the country, we seem to be
getting away from the position heretofore maintained, that where taxes are
wrongfully paid by an individual, and no claim is made for the same within a
required period, that the taxpayer is barred from recovery. The broader view
seems to be that if the taxpayers put forth every effort to reclaim the
improper payment, short of actually bringing suit in law or in equity, that the
state is morally bound to repay, on the theory that justice must be done and
that the mere technicality will not deprive the taxpayer of this right unless
it is shown that he was wanton and flagrant in the matter of delay.
22 REPORTS
STATE COURT OF CLAIMS {W. VA.
Under the very language of the statute
heretofore quoted with referQnce to barring any claim, it seems to me that its
very language implies that considerable latitude must be allowed the claimant
and that unless he has wholly failed in prosecuting his claim, he should not be
barred from a proper presentation and hearing in this court. I repeat, under
the circumstances, and in view of the evidence showing the determined effort on
the part of the claimant to obtain redress from time to time and the effort to have
his claim paid, all of which is not denied in any manner by the state; and
further, in view of the fact that, in my judgment, the circuit court of Kanawha
county did not have jurisdiction to determine the constitutionality of the act
under which the payments were made, and seemingly could not have enforced any
finding with reference to the amount in question, so far as the auditor was
concerned, that the claimant did everything possible to maintain his claim and
cannot therefore be charged with being guilty of laches or be barred by any
statute of limitations in conflict with the only limitation prescribed in the
act creating this court for the consideration and presentation of a claim
before it.
W. VA.]
REPORTS STATE COURT OF CLAIMS 23
(No. 192?Claimant awarded $500.00.)
WILLIAM BRAID, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed December 18, 1942
When it appears from the evidence that
the state road commission has made an entry upon prcperty leased, equipped and
used for a golf course, and in surveying places stakes in such proximity to the
holes on said course and removes sod to the extent that it may not be used in
its customary manner, before the right of the tenant to possession of such
leased premises is terminated, and such tenant is shown to have sustained
damages in consequence of such entry and work of the state road commission, an
award will be made in favor of the tenant for the loss of profits suffered by
him.
William Herbert Beiclier, Esq., for claimant,
Arden Trickett, state right of way agent for state road commission for
respondent.
ROBERT L. BLAND, JUDGE.
By agreement in writing bearing date
on the third day of March 1934, the Chesapeake and Ohio Railway Company leased
to William Braid, the claimant, a parcel of land at St. Albans, in Kanawha
county, West Virginia, containing
53.74 acres, more or less, to be used as a golf course. Said lease was from
year to year, with a clause therein providing that either party thereto should
have the right to terminate the same at any time before the date fixed therein
for the termination of said lease upon giving to the other party ninety days
written notice of the intention so to do.
. Mr. Braid took possession of the property immediately
after the execution of the lease. A part of the leased property was converted
into a golf course containing nine holes. In order
24 REPORTS
STATE COURT OF CLAIMS {W. VA.
to make the property suitable for the course it was necessary to do a great
deal of work in grubbing and clearing the land which had grown up in brush and
trees. To do this work and properly equip the course for use necessitated the
expenditure of about five thousand dollars. Claimant built a club house on the
land, equipped with hot and cold water and showers, costing about a thousand
dollars. He also constructed a garage and made other substantial improvements
from year to year thereon. From the year 1934 to June 1942, Mr. Braid maintained
said leased property as a golf course and built up a lucrative business in the
operation of said land as such course.
On the 26th of May 1942, claimant?s lessor, the Chesapeake and Ohio Railway
Company, notified him that it desired to terminate said lease agreement of
March 3, 1934, ninety days days from June 1, 1942, or as of August 31, 1942, in
accordance with the paragraph four thereof. He was further advised that such
action was taken as a portion of the property was required by the state.
It thus appears that claimant was entitled to the possession and use of the
leased property until and including the 3lst day of August 1942. However,
according to the testimony of Mr. Braid upon the hearing of his claim, the
state road commission made an entry upon the property as early as August 1941.
It did certain surveying on the land and placed stakes on the golf course. When
interrogated as to when such stakes were placed on the course Mr. Braid
testified: ?Well, I think the first of them was placed about a year ago. They
came down there surveying the first of August and then they kept up nearly all
winter.? There is no contradiction of this statement found in the record. It
appears that about five of the nine holes of the course were affected by these stakes,
and it was impossible for claimant to mow the grass on account of the stakes.
In July 1942, the road commission moved thousands of yards of dirt with a steam
shovel in the neighborhood of hole No. 4 for the purpose of building a road
through the land. This dirt was removed from that portion of the land used by
claimant as a golf course. Hole No. 4 was entirely
W. VA.]
REPORTS STATE COURT OF CLAIMS 25
destroyed. In addition to digging dirt at hole NO. 4 and
driving stakes down through five holes of the course, practically all of the
sod on hole No. 7 was cut away. This, according to claimant, was done
about June 1942. The removal of sod from the course was continued untill August
1942. It appears from the evidence that the road commission removed as much as
fifteen thousand feet of sod from the course. The sod was removed from the golf
course at different times and some of it was taken to the state police
barracks.
Claimant contends that by reason of the entry of the road commission upon the
premises and the work done by it thereon he has been damaged at the very least
in the sum of $3500.00, and asserts his claim for that amount. It is shown that
his gross income for the year 1940 was $1969.65. For the year 1941 his gross
income amounted to $2,178.60. For the year 1942 his gross income was only
$83.40. For the year 1940 claimant?s approximate profit from the operation of
the golf course was $1200.00; for the year 1941, $1500.00, and for the year
1942 he lost $250.00.
Respondent resists the allowance of an award in favor of claimant and moves the
dismissal of his claim. It argues that clalimant?s petition alleges the taking
of private property for public use without just compensation being paid
therefor, and, therefore, the court of claims does not have jurisdiction in the
premises. It directs attention to article 5 of the Constitution of the United
States and article 3, section 9, of the Constitution of West Virginia,
providing that private property shall not be taken or damaged for public use
without just compensation. It relies upon Hardy v. Simpsoii., 116
W. Va. 440, and Riggs v. State Road
Comm4sgicmer, 120 W. Va. 298, and
maintains that the claim in question is controlled by said cases.
If it could be shown that claimant would have a remedy in a court of law for
redress for the damages which the record shows that he has sustained, the court
of claims would not ?shave jurisdiction of the claim, since subsection 7,
section 14, chapter 20, acts of the Legislature of 1941, excludes from
26 REPORTS STATE
COURT OF CLAIMS [W. VA.
the jurisdiction of the court any
proceeding that may be maintained on behalf of the claimant in the courts of
the state. We do not think, however, that the claim asserted is controlled by
the cases cited by respondent. Neither do we think that claimant has a remedy
in the courts of the state. Respondent?s entry upon the golf course was made
during the time that claimant was entitled to the possession of the property.
it is true that claimant?s lease was to terminate and end August 31, 1942, but
until that time claimant was entitled to the possession and use of the leased
premises. Claimant?s lease was personalty, not realty. It was not subject to
condemnation. It was the entry of the road commission on the course premises and
work done therein to the detriment of claimant before his right to the
possession of the land ended that gave him the right to maintain his claim in
this court, since he had no other remedy to pursue. It is reasonably clear from
the evidence that claimant was deprived of profits that he might and would have
earned from the unmolested operation of his golf course for the months of
April, May, June, July and August in the year 1942. Considering the gross
receipts yielded by the golf course for the years 1941 and 1942
and deducting the expenses incurred in those years, claimant would in all
probability have earned a net profit of $100.00 per month during said five
months had it not been for the change done to the course by the road
commission. We think the record sustains this assumption. Of course an award
should not be made on the basis of speculative profits, but in the instant case
there is enough evidence in the record to warrant the finding that claimant?s
business would have yielded him a net profit of $100.00 per month from April to
September.
The motion to dismiss the claim must be overruled.
Under all the facts and circumstances disclosed by the record we feel that the
claimant has established his right to an award of five hundred dollars
($500.00), and an order will be entered accordingly.
W.VA.J REPORTS
STATE COURT OF CLAIMS 27
(No. 166?Claim denied.)
JAMES E. TACEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
OpinIon filed Jenua.ry 15, 1943
When claimant fails to show by the
evidence that injuries received in a fall from an approach to a bridge on the
highway were caused by lack of due care on the part of the state road
commission, and it appears that he failed to exercise due care for his own
safety to avoid the accident, an award will be denied.
Appearances:
David A. McKee, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
WALTER M. ELSWICK, JUDGE.
The claimant sustained personal
injuries when he fell over an embankment at the approach of a bridge over
Wheeling creek at Elm Grove in Ohio county, West Virginia, about 4 o?clock p? M., on Sunday
the 20th day of August 1939. From his testimony it appears that he had left his
home at about one o?clock on that afternoon and spent the time sitting around
on the street watching boys and people walking up and down the street until
about four o?clock of that day. He then started to go across the bridge to
visit relatives at Security, and upon approaching the bridge, an automobile drove
near to him. He then stepped backward and fell through an opening between the
bridge beam and an iron fencing over an embankment about twenty feet deep. He
testified that in his opinion the automobile was traveling about 25 to 30 miles
per hour. The road approached the bridge at an angle and it appears that this
opening between the steel fence along the embankment and the bridge beam was at
or near the apex of the angle.
28 REPORTS
STATE COURT OF CLAIMS [W. VA.
From the testimony of other
witnesses it appears that this opening or space between the bridge and the
metal fence was from 15 inches to 24 inches in width. It also appears that the
rod connecting same had been broken for a week or longer prior to the time that
claimant fell, but there was no evidence offered that its condition had been
reported to the road commission, or was of such nature that its agents or
employees should have known of its existence by the exercise of reasonable
diligence. Claimant testified that he had frequently crossed the bridge and
knew that automobiles frequently struck the metal railing and that it was thus
frequently broken.
From the evidence it further appears that claimant was taken to the Wheeling
hospital, where he remained for examination and treatment two days. An x-ray
examination showed that there was a fracture involving the transverse
processess of the fourth and fifth lumbar vertebrae on the left side. After
leaving the hospital, claimant was confined to his bed for a period of about
eight weeks. While in the hospital, he was also treated for a small laceration
of the skin on the scalp.
It appears that prior to the accident claimant had been employed as a coal
loader by Valley Camp Coal Company, and received a separation notice from the
coal company on November 20, 1939, showing that he was separated from
employment on that date, the same stating that he was ?laid off because no work
was available.? Claimant then made application for and received unemployment
compensation from the imemployment compensation commission of West Virginia for
a period of 28 weeks. In his application to secure such compensation, claimant
stated: ?I am unemployed and have registered for work. I am able to work and
available for work. I last worked on 11/20/39. My regular occupation is coal
mining. I lost my job because of lack of work. I received no dismissal wages.?
Although the fall itself would indicate the possibility of some bodily injury
by reason of the depth and abrupt decline
W. VA.]
REPORTS STATE COURT OF CLAIMS 29
of the embankment, however, in order to establish a cause or reason for the
claimant to have to lay straight on his back for a period of eight weeks as a
result of his injury, it was necessary to supply medical testimony with
reference to his examination and treatment at the Wheeling hospital on the
evening of the injury. In the absence of the attending physicians who were in
the armed services of our country at the time of the hearing it was stipulated
and agreed by and between claimant, by counsel, and the attorney general for
the state to submit as to the physical injuries of claimant the history and
records from the Wheeling hospital. This history
and record shows his systems review, as follows: ?In the emergency room the
patient was very confused and delirious. He was also intoxicated.?
The claimant testified that he had not been drinking any intoxicants on the day
of his mishap. His brother-in-law also testified that he talked with him a few
minutes before and did not observe any evidence of drinking. However, can we
say that we are in better position to judge from this evidence under all the
circumstances and evidence in the case that the claimant was sober, than his
attending physician who examined and treated him in the emergency room of the
hospital immediately or soon after he fell from the embankment? This accident
happened in broad daylight and at a place where claimant knew that automobiles
frequently swung around the curve or angle in the approach to the bridge. He
knew that automobiles frequently broke the rod fastening the fence to the
bridge. There was no evidence that the particular automobile was being driven
in a reckless manner.
From all the evidence in the case, we are of the opinion that claimant could
have avoided the accident with the exercise of due care for his own safety. The
state is not an insurer, and the evidence fails to reveal that the claimant
sustained his injuries by reason of the lack of due diligence on the part of
the respondent, the state road commission. Ve, therefore, deny an award and an
order will be entered accordingly.
30 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 198?Claimants awarded $1,262.50.)
ROBERT DORNON, an infant, by FREDA M. DORNON,
his guardian, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flIed January 15, 1943
Where the testimony shows that an
operator of a state road commission grader was negligent in operating the said
grader, and by reason of the said negligence a boy twelve years of age
was severely injured, an agreed award of $1262.50 will be sanctioned and
authorized by this court.
Appearances:
Oliver D. Kessel, Esq., for the claimant;
Eston
B. Stephenson, Esq., special assistant Attorney General for the state.
CHARLES J. SCHUCK, JUDGE.
On or about the 27th day of May 1942,
Robert Dornon, the claimant, an infant of twelve years of age, together with
several other boys, was following a grader operated by a state road commission employee
in and about the town of North Ravenswood, in Jackson county, and engaged in
play in the vicinity where the grading work was being carried on and done by
the employees of the state road commission. The driver of the said grader was
aware of the presence of the children playing on the street where the work was
being done, and while being followed by some four or five boys, including the
claimant, the operator of the grader reached a street intersection, and in
backing or turning the said grader, seemingly without notice to the claimant
and the other boys who were
W.VA.] REPORTS
STATE COURT OF CLAIMS 31
following it or playing nearby, struck the claimant, knocked him down, and part
of the grader passed over the claimant?s body. Claimant was severely injured,
sustaining a fracture of the pelvic bone in two places, as well as a fracture
of his arm, and was confined in the hospital for approximately two weeks, after
which he was returned home, where he was obliged to remain in bed for some
seven weeks more.
By stipulation, it is agreed by the state road commission, represented by the
assistant attorney general, and counsel for the claimant that the sum of one
thousand two hundred and sixty-two dollars and fifty cent ($1262.50) is a
proper and just amount in full settlement of the claim, and an award is made
accordingly.
The said amount so awarded to be divided as follows: $1,- 000.00 to Freda M.
Dornon, as the guardian of the said Robert Dornon, an infant; $108.75 to Dr. J.
H. Donovan, for medical services; $148.75 to Dr. C. R. Kessel, for medical
services; and $5.00 to the said Freda M. Dornon, expended for arn- bulance
service.
(No. 201?Claim denied.)
MILDRED MATTIS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Janua.ry 15, 1943
Opinion on rehearing filed October 28, 1943
A case in which the claimant?s negligence was of such a nature and degree as to
bar any recovery, notwithstanding the serious injuries she sustained in the accident.
.4.
Appearances:
32 REPORTS STATE
COURT OF CLAIMS [W. VA.
Messrs. Ambler, McCiuer & Ambler
(James S. McCiuer, Esq., and Fred L. Davis, Esq.,)
and William Bruce Hoff, Esq., of Parkersburg and Emmett Abel, Esq.,
of McConnelsville, Ohio, for the claimant;
Eston B. Stephenson, Esq., assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
On the 11th day of October 1941, the
claimant, a resident of McConnelsville, Ohio, became a passenger with one
Louise Abel, of the same place, in an automobile owned by the father of the
said Louise Abel, and later the two ladies were joined by one Jack Henniger at
Beverly, Ohio, and Gordon Lockhart, and between twelve-thirty and one o?clock
on that night, the four persons started in the said automobile from Beverly,
Ohio, to Marietta, Ohio, and later went to Parkers- burg, West Virginia, the
said claimant Mildred Mattis riding in the front seat with Lockhart, who was
driving the car. It appears from the evdence that the said four persons were
simply out for a ride, were somewhat unacquainted with Parkersburg, and had
reached the said city between two- thirty and three o?clock on the morning of
October 12; that in some manner not fully explained by the evidence, except
that they were then hunting for a restaurant or place to eat, they eventually
got to the outskirts of Parkersburg and while traveling on East street at and
near the railroad viaduct crossing said street and near the bridge over the
Little Kanawha river, the machine in question, while being driven by the said
Lockhart, collided with one of the piers or pillars on the said viaduct,
causing serious damages to the claimant and the wrecking of the automobile in
which they were then passengers.
Claimant contends that the accident was caused by the condition of said East
street; that the said street was in bad repair; that the streetcar tracks
thereon were separated from the traveling lane by an elevation of cement work
or barrier
W. VA.]
REPORTS STATE COURT OF CLAIMS 33
near the said viaduct which was highly
dangerous to any automobiists using the highway in question, and that although
driving at a moderate speed, the said automobile, in passing off the side
street onto the said East street, and around or back of another automobile
parked near the intersection of Jeanette and East streets, apparently struck a
rut in the said street, causing the machine to become and be beyond the control
of the driver and bringing about the collision in question.
Claimant maintains that at the time of the collision or just shortly before,
the car was being driven at a moderate rate of speed, to wit, twenty-five or
thirty miles per hour (record p. 96). However, the witness Stemple, who was the
automobile repairman, testified (record p. 152) that ?The front end of the car
was hit about the center, the motor and steering wheel was driven back into the
front seat, the front seat was tore loose and drove up against the dash, the
seats were all tore loose, the drive shaft had bent the jumbo housing back
until it knocked the gas tank off.? The same witness testifying further says,
as to the speed of the car at the time of the collision, ?I would say not less
than thirty miles an hour, approximate1 maybe 40-45.? That the car was driven
at a high rate of speed, in fact at an excessive rate, is evidenced by the
extent of the injuries which left the car almost beyond repair and a hopeless
wreck so far as rebuilding it was concerned, the testimony being that the car
would require repairs to the extent of $490.00 to be put in the condition it
was previous to the time of the accident.
The lights on the viaduct were undoubtedly burning, as testified to by the
witness Baker (record p. 156) who was employed in a garage near the place of
the accident and was on duty at the time it took place, and was at the scene
shortly afterward and noticed the red lights in question burning. He referred
specifically to the red lights as being on the pillars of the viaduct. This
witness also testifies (record p. 156) that the accident took place about
three-thirty in the morning and that the locality where the accident took place
is
34 REPORTS
STATE COURT OF CLAIMS [W. VA.
one of the suburbs in the outlying
districts of Parkersburg. The testimony further shows that the said red or
warning lights could be seen at a distance of approximately 185 feet when
entering East street from the nearest cross street to the said viaduct, and for
over 400 feet when entering East street from the other cross street beyond and
parallel to Jeanette street. The evidence also shows that the weather was good
and that there was no interference with visibility.
Under all the circumstances, notwithstanding the serious injuries to the
claimant, we cannot say that the state is liable for the accident in question
or for the damages which the claimant has sustained. In the first place, the
state is not an absolute insurer to those using the highway. They still have a
duty incumbent upon them to use such care as is necessary under all the
attendant circumstances to prevent injuries to themselves. Seemingly ample
lights were fixed on the viaduct in question to give warning of the presence
and location of the said viaduct and its supporting pillars; and these lights
could be seen at least 185 feet away from the viaduct, assuming that the
claimant and those riding with her in the machine had passed onto East street
from the nearest intersecting street, namely Jeanette. If they did not pass
onto East street from Jeanette street, then they could have seen the lights if
they had been watching and had been careful on a strange highway, in a strange
city, and in an outlying district, at least 400 feet away from the viaduct. The
evidence also shows that the said viaduct was lighted underneath, seemingly
with ample lights. Are we justified in assuming that the claimant and her
companions were seeking a place to obtain food at three or three-thirty o?clock
on the morning of the accident, when the very fact that they had passed through
the heart of Parkersburg, as testified to by them, would have afforded ample
opportunity for them to have obtained food, and in fact, with more likelihood
of having their wants fulfilled than by driving into the out? skirts of the
city of Parkersburg? The reason given may or may not have been the true one
that prompted the journey to East street. The evidence does not disclose that
the claim-
W. VA.)
REPORTS STATE COURT OF CLAIMS 35
ant protested in any manner to the
driver?s handling of the car, nor does it appear that she or the other
occupants of the automobile observed the lights on the viaduct when entering
East street shortly before the accident took place. If the automobile had been
driven with the necessary and required care and caution when entering East
street, it could in our opinion, have been brought to a stop before colliding
with the viaduct. It may be true, as the testimony shows, that the street in
question was not in the best of repair, but we feel that this fact was not the
proximate cause of the accident or the injuries to the claimant.
Our conclusion is that the proximate cause of the injuries was the highly
negligent manner in which the car was being operated just previous to and at
the time of the accident, and the failure on the part of all of the occupants
of the car, including the claimant, to exercise that degree of care necessary under
the circumstances for her protection and safety. The negligence of the driver
was, under the circumstances, her negligence, and consequently, their combined
acts constituted the proximate cause of the accident of which she now
complains. Giving full consideration to the testimony, and appreciating the
fact that the claimant has been severely injured, we cannot, however, find that
the state or the state road commission was at fault, and therefore deny the
claim.
Under the foregoing decision it is unnecessary, of course, to give
consideration to the plea of want of jurisdiction heretofore filed by the
state.
CflARLES J. SCHUCK, JUDGE, upon petition for rehearing.
At a former term of this court, claimant was denied an award, and subsequently
her attorneys filed their petition for a rehearing, urging that the court allow
them to submit further briefs and be heard in oral argument in support of the
matters contained in the said petition.
The court granted the request set forth in the petition, treated the whole
matter as upon rehearing, received addi
36 REPORTS
STATE COURT OF CLAIMS [W.
VA.
tion?l and further briefs from both
claimant and respondent, and heard further arguments, and the matters involved
were again submitted to the court for its further consideration and
determination.
We have very carefully again considered all the testimony of this case in
connection with the additional briefs ified and the arguments submitted, and
while it may be that reasonable men may differ as to the facts, we are
convinced that the accident in question was occasioned by the negligent
operation of the automboile in which complainant was riding at the time, and
which negligence was the proximate cause of the accident to complainant; we
are, therefore, constrained to follow our previous decision and again deny an
award.
(No. 167, 168?Claimants awarded $250.00, $350.00.)
TESSIE GEIMER, Claimant
V.
STATE ROAD COMMISSION, Respondent.
M. N. GEIMER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opimon
filed January 15, 1943
Where a claimant is injured on the
highway by the faulty or negligent operation of a snowplow at the hands of a
state road commission employee, and the claimant himself is free from any
negligence, an award will be made in his favor.
Appearances:
Linn B. Farrell, Esq., for the claimants;
W. VA.] REPORTS
STATE COURT OF CLAIMS 37
Estcm
B. Steph.enson, Esq., assistant attorney general, for the state.
CHARLES J. SCHUCK, JUDGE.
On March 8, 1941, while claimants were
traveling along route 50 at Wolf Summit in Harrison county, West Virginia, in
an Oldsmobile automobile, a snowplow being driven by a state road commission
employee collided with the claimants? automobile, causing injuries to the
claimant Tessie Geimer and to the automobile, owned by M. N. Geimer. There were
several inches of snow on the highway which was being removed by the snowplow
in question. At the place where the accident happened there was a railroad
crossing which, however, as the testimony shows, was covered by snow and not
easily seen by the operator of the snowplow.
The testimony tends to show that the said operator was using the plow so that
the blade thereof was very close to the surface of the highway, and while he no
doubt intended to raise it when he came to the railroad intersection in
question, he failed to do so and by reason thereof, the snowplow struck the
railroad crossing, was thrown across the highway and direct1r in the path of
claimants? oncoming automobile. The snowplow could be seen by the claimants for
a considerable distance, but the evidence shows that claimant M. N. Gelmer
operated his car within the speed limit and was on the right side of the
highway, considering the direction in which he was traveling, and therefore,
not guilty of any negligence. On the other hand, the evidence shows that the
operator of the snowplow was an experienced driver who had never before had an
accident and was seemingly a trusted employee in the operation of trucks and
snowplows so far as his employment by the road commission was concerned.
The operator admits (record p. 175) that it was snowing on the evening of the
accident, which happened somewhat after four o?clock in the afternoon; that
there were three or four inches of packed snow on the road, and that he had
38 REPORTS
STATE COURT OF CLAIMS [W. VA.
slowed up where he thought the
railroad crossing was located. He further stated (record p. 175), ?. . .but I guess I didn?t slow up in time . . . hit the crossing, slid, and came together just as Mr.
Geimer was passing or starting to.? (Record p. 176). The operator also admits
that he knew of the location of the railroad crossing and had passed there many
times, and that the crossing was a good crossing and one of the smoothest in
the county. (Record p. 177).
Considering the condition of the weather, the location of the railroad
crossing, and the work in which the operator was engaged, it, of course, became
his duty to take all necessary precautions when he reached the railroad
crossing, in order that he might not collide with or inflict injuries to any
persons using the opposite side of the highway. Under all of the attendant
circumstances, it would seem that he should have stopped his snowplow before
reaching the railroad crossing in order that he might not collide with
claimants? oncoming automobile, which he could plainly see at a distance before
the said crossing was reached. Not having taken the necessary precautions, and
having caused the collision by the operation of the snowplow without any fault
on the part of the claimants, he, of course, was guilty of such negligence as,
in our judgment, was the proximate cause of the accident.
Claimants? automobile was considerably damaged, and claimant, M. N. Geimer,
testified, (record p. 16) that it would require $395.56 to make the necessary
repairs. It was a 1940 model and had been driven by the claimant M. N. Geimer
for over a year previous to the time of the accident. Considering the age of
the car and its previous operation, and applying the rule that the property
damage in such cases is the difference between the value of the car imcediately
before and after the accident, we feel that the sum of three hundred and fifty
dollars ($350.00) is proper and just for damages to the automobile in question,
and we make an award accordingly. The testimony does not show any
W. VA.]
REPORTS STATE COURT OF CLAIMS 39
injuries to the claimant M. N. Geimer personally, and he is making no claim for
any in this matter.
The question then presented for the further consideration of the court is the
damages to which the claimant Tessie Geimer may be entitled by reason of
injuries to her.
By her testimony, she claims that she sustained severe head injuries; that she
has been highly nervous since the accident; and that she has been unable to
attend to her work as a housewife and also as one who helped her husband
operate a certain barbecue stand or business located near Salem in Harrison
county. The testimony further reveals that several years previous to the
accident the claimant Tessie Geimer had had an accident in the city of
Pittsburgh, Pennsylvania, having fallen on an icy pavement and sustained
fractures of the tenth dorsal vertebra and of the coccyx. She was confined in a
hospital by reason of the said accident, and was obliged to wear a cast and
afterward a brace for more than a year after the time of the accident. On
another occasion previous to the accident for which the claim is made here, she
was also obliged to undergo an operation for the removal of a cyst on one of her
ovaries.
Undoubtedly the accident in Pittsburgh as well as the ovary operation had their
effects upon her nervous system and impaired her ability to do her work as a
housewife and a helper to her husband to a very considerable degree. The
witness Williams (record p.p. 126-30), who was a witness offered by the
claimants, testified that in November 1940, she, Mrs. Geimer, seemed rundown,
nervous, and her ?back was aching?; and in answer to a question propounded to
him with reference to her condition (record p. 132) said, ?She was hardly able
to do anything.? This, as indicated, was in the year 1940, several months
before the accident in question happened to her, and the witness Williams is
quite positive about the month and time in which he noticed her condition.
Another witness, Katherine Garner, testified that she had worked with the
claimant Tessie Geimer at what
40 REPORTS
STATE COURT OF CLAIMS [W. VA.
was known as the Log Cabin Inn on
route 50 for approximately two years, or from 1938 to 1940, sometime before
this accident happened. This witness testified (record p. 167) that the
claimant complained all the time; and that she complained about her back and
being nervous; and that she complained often of this condition. This witness
also testified that claimant was nervous. All of which seem to indicate that
previous to the time of the accident for which she now seeks damages, she was
in a highly nervous state and unable to perform the work which she had
theretofore been doing.
The court had all the witnesses before it, noticed their actions and demeanors
and we are inclined to give full value to the testimony of the witnesses just
referred to; and while perhaps the accident on the highway occasioned by the
collision with the snowplow would, of course, not be conducive to helping her
physical condition, yet, so far as we know, the injuries not being serious,
have not contributed very much to bringing about her present physical
condition. There are no aggravating circumstances so far as the operator?s
degree of negligence may have been concerned, and therefore, no damages as any
punishment should be allowed.
Considering all the facts and the circumstances surrounding the happening of
the accident, the previous physical condlition of the claimant Tessie Geimer,
and the nature and extent of the injuries inflicted by the accident complained
of, we feel that the sum of two hundred and fifty dollars ($250.00) is an ample
amount to compensate her for the damages caused by the collision with the
snowplow, and we recommend an award accordingly.
W. VA.]
REPORTS STATE COURT OF CLAIMS 41
(No. 140?Claim denied.)
BOYD ADKINS, Claimant,
V.
STATE (STATE AUDITOR), Respondent,
Opinion filed January 25, 1943
Where a commissioner in chancery to
whom school land suits were referred for the usual accounting
required in such suits, failed to avail himself of the remedy afforded
commissioners in chancery for payment of services performed for the court
in such suits, by filing his certificate, under oath, showing the number of
hours that he was actually and necessarily employed in such matters, to enable
the chancellor to fix his fee based upon such services performed, before the
funds available for its payment are disbursed, as prescribed by law in such
cases, but has pursued another method not authorized by law, and received
substantial fees under such method without complying with the requirements of
the statute, there was no liability of the state to pay additional fees by
reason of the acts abolishing the office of school land commissioner and thus
preventing his collection of additional fees under the method so pursued at
variance with the terms of the statute.
Appearances:
J. Floyd Harrison, Esq., for the claimant, and clainnant in
person;
Eston B. Stephenson, Esq., special assistant to the Attorney General, and Hugh. N. M?il1s, chief clerk, auditor?s department, for the state.
WALTER M. ELSWICK, JuDGL
Claimant, Boyd Adkins, ified his claim
in this court seeking an award of $7,490.00 for fees alleged to be due him as a
commissioner in chancery in certain school land suits formerly pending in the
circuit court of Wayne county, West Virginia.
42 REPORTS
STATE COURT OF CLAIMS [W. VA.
From the record in this case, it
appears that the circuit court of Wayne county, West Virginia, in certain
school land suits therein pending entered orders of reference to the claimant
as a commissioner in chancery on March 15, 1930 and July 10, 1930 to take
accounts in said causes and to report to the court his findings as directed by
said orders of reference. It also appears that said claimant filed various
reports in said chancery causes with the court as directed. From these reports,
it would appear from the numbering of the tracts that a total of 1203 tracts of
land were proceeded against in said chancery causes. It also appears from the
record that said corrmiissioner in chancery made reports to the court on 749
tracts of land so proceeded against.
Adequate funds were in the hands of the school land commissioner to pay
claimant?s claim, as appears from the record, at the time that he filed said
reports but no claim was made or order entered by the court allowing him a fee
based upon the number of hours of service performed by him. Certain fees were
allowed and paid him, however, as hereinafter shown.
Court order, entered July 14, 1931 (stipulation NO. 1)
provided:
?That where the commissioner of school lands has caused a tract or tracts to be
referred to a commissioner in chancery and a report is had as required by law
that there shall be taxed as a part of the costs such fees for the commissioner
in chancery as are now allowed in other chancery causes.?
Barnes? code of West Virginia chapter 105, section 7, pertaining to sale of
lands for school funds, provided:
?All suits brought and prosecuted under the provisions of this chapter, shall
be commenced as provided in chapter one hundred and twenty-four of the code,
and proceeded in, heard and determined in the same maimer, and in all respects
as other suits in chancery are brought, prosecuted and proceeded in, and shall
be subject to the same rules of chancery practice
W. VA.]
REPORTS STATE COURT OF CLAIMS
43
as other suits in chancery in the
state courts of this state, except as herein otherwise provided. In all cases
where an order of publication is issued, there shall be therein set out the
number of tracts in which non-residents are interested as owners or claimants,
with a general description as to location and quantity of each.?
Barnes? code chapter 137, section 5, pertaining to fees allowed to
commissioners in chancery (in effect at the time that the orders of reference
to claimant were entered) provided:
?For any service, such as the court of which he is commissioner may from time
to time prescribe
not exceeding one dollar where less than an hour is employed, and if more than
an hour be employed, not exceeding the rate of one dollar for each hour, or in
lieu thereof, twenty-five cents per hundred words, as the commissioner may
elect. A commissioner returning a report shall annex thereto a certificate,
under oath, that he was actually and necessarily employed for a number of
hours, to be stated therein, in performing the services for which the fees
stated at the foot thereof are charged. Until such certificate is made, no such
fees shall be allowed or paid. A commissioner shall not be compelled to make
out or return a report until his fees therefor be paid or security given him to
pay so much as may be adjudged right by the court to whom the report is to be
returned, or if it be a circuit court, by the judge thereof in vacation, unless
the court or judge see cause to order it to be made out and returned without such
payment or security, and shall so order.?
Chapter 59, article 1, section 8 of the code of 1931 was substantially the same
in effect.
Barnes? code chapter 105, section 13, pertaining to payment of costs in a
school land suit, provided:
?The cost of every such suit shall be ascertained and taxed by the clerk as in
other chancery cases,
and shall be paid out of the proceeds of the sales of
44 REPORTS
STATE COURT OF CLAIMS [W. VA.
said real estate, and not otherwise, to the several persons entitled thereto,
if sufficient for the purpose; but if such proceeds are not sufficient to pay
the whole of such costs and commissions and the expenses aforesaid of the
commissioner of school lands, the same shall be paid therefrom to the several
persons entitled thereto pro rata.?
There is not any evidence in the record to indicate the number of hours that
claimant was actually and necessarily employed as commissioner in chancery in
the discharge of his duties as such under the orders of reference coimnitted to
him in these school land suits. The claimant alleges in his petition ?That the
law under which said causes were referred to the petitioner provided for the
payment of a fee of $10.00 for each tract reported by your petitioner to be
paid when the tracts were sold by the commissioner of school lands, or redeemed
by the owner.?
We do not know of any law to that effect and none is cited in the brief by
counsel for claimant. An order was entered by the said court in vacation April
6, 1942 reciting that a fee of ten dollars ($10.00) was allowed claimant for
each tract reported on by him, which was redeemed by the taxpayer, said fee of
ten dollars ($10.00) being taxed as a part of the costs and paid by the
taxpayers, but this order fails to show that the statute had been complied with
or that a fee had been fixed or sought by claimant commensurate with hours of
service performed prior to the distribution of all funds in the hands of the
school land commissioner.
We do find from the record that the following sums of money were paid to the
claimant, as commissioner in chancery in these school land suits under methods
at variance with the terms of the statute, namely:
(1) An order was entered by the court June 3, 1930, allowing the claimant a fee
of two hundred and fifty dollars, ($250.00) as commissioner in chancery ?for
services in looking up the records and making reports in this cause of the im
W. VA.]
REPORTS STATE COURT OF CLAIMS 45
proper tracts hereinbefore mentioned.? (Audit, commissioner of school lands, Wayne
county, October 1, 1931, P. 10, stipulation NO. 12).
(2) An order was entered by the court October 13, 1930, allowing the claimant a
fee of seven hundred sixty-two dollars and fifty cents ($762.50) as
commissioner in chancery ?for 305 dismissals and for work done in school land
matters.? (Id.).
(3) An order was entered by the court
December 18, 1930, allowing the claimant a fee of two hundred and twenty-five
dollars, ($225.00) as commissioner in chancery, and Pearly Newman for ?working
up 380 dismissals and other work done at the request of M. J. Ferguson,
commissioner of school lands and J. T. Lambert, attorney for the state.? (I&).
The foregoing allowances were paid to
the claimant out of school land funds. (Id.
under disbursements P. 44).
(4) It appears from the record (audit 1931, stipulation NO. 12, p. 15,
and audit 1939, stipulation No. 13, p. 10) that fees aggregating five thousand five
hundred and seventy five dollars, ($5.575.00) were assessed and paid to
claimant as commissioner in chancery in said causes on redemptions at the rate
of ten dollars ($10.00) for each tract of land redeemed regardless of the fact
that the redemption orders state that the defendant ?appeared generally and
waived process and service of process thereof and proceedings at rules and
moved the court to ifie said bill and answer and hear this cause thereon and
ascertain without reference to a commissioner the amount to be paid in
redemption of said land.?
(5) Fees totaling one thousand four hundred and seventy dollars ($1470.00) were
paid to claimant as commissioner in chancery in said causes out of school land
funds from July 1931 through December 12, 1936 (audit Wayne county
cornnissioner of school lands, 1939 stipulation NO. 13, p.p.
49-58, summary p. 60).
46 REPORTS
STATE COURT OF CLAIMS [W. VA.
By order entered by said court in said causes August 17, 1938, the court
directed payment of three hundred and ten dollars ($310.00) to Boyd Adkins as
commissioner in chancery for services rendered prior to the ?Act of the
extraordinary session, 1933, affecting school land matter.? This sum was
ordered paid out of school land funds from 62 tracts of lands redeemed prior to
sale reported by the school land commi.ssioner (audit 1939 stipulation No. 13
p.p. 7 and 11) although the school land commissioner had previously been
released and discharged from his bond by order of the court entered December
31, 1936 (stipulation No. 7). It would appear that said sum of three hundred
and ten dollars ($310.00) had been paid to claimant out of school land funds
November 16. 1934 after all of his reports as commissioner had been filed (1939
audit, p. 57).
It appears from the said audit of the school land commissioner of January 9,
1939, stipulation No. 13, p. 58 that detailed expenses such as stamps amounting
to fifteen dollars ($15.00) had been paid out of the school land funds to
claimant.
The school land commissioner made a report showing disbursement of all funds in
his hands and was released of his bond by order entered December 31, 1936.
Disbursements were made to claimant through December 14, 1934 with adequate
funds left to pay claimant?s claim if said court had determined that the fee
was proper. (Audit 1939, p. 58). The office of school land commissioner was
abolished by acts of 1933.
We find that claimant is not entitled to an award by this court for the
following reasons, to wit:
(1) That the record does not show the number of hours that claimant was
actually and necessarily employed as cornmissioner in chancery in said suits or
that he complied with Barnes? code, chapter 137, section 5; code of 1931,
chapter 59,
W. VA.]
REPORTS STATE COURT OF CLAIMS 47
article 1, section 8 by filing the
required certificate duly verified to enable him to receive the fees paid him
or that for which he claims; no such fee was claimed as was provided by statute
and none fixed by the court to enable claimant to hold a lien on the lands or
proceeds of redemptions;
(2) That a commissioner acts as an assistant to the trial judge and his pay was
determined by the statute in these cases as in other chancery suits and not
contingent upon the outcome of the suits; claimant elected to accept the fees
paid to him without complying with the law pertaining to the payment of
compensation to commissioners in chancery for such services performed and we
are not in position to say that he has not been adequately paid for all hours
of services performed as such commissioner;
(3) That even though such claimant might have been entitled to share in the
portion of the funds which were paid to the state, exclusive of the funds paid
over to the county and municipalities, this court would not be in position from
the record to make an accounting as to what fees paid to claimant were proper
or improper; or, in event that such portion of said sums so paid to the state
were insufficient to pay claimant and other claimants of costs, this court
would not be in position to direct payment from the proceeds of sales to the
several persons entitled thereto pro rata, as was directed to be done by
Barnes? code, chapter 105, section 13; code 1931, chapter 37, article 3,
section 25, and not otherwise;
(4) An adequate remedy was afforded the claimant in the courts of the state
which was not pursued nor sought by the claimant.
An award is denied.
48 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 165?Claimant awarded $5,500.00.)
JAMES CAIN & COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed Jann.sry 26, 1943
Where a contract for road
improvement is interfered with or delayed by the
action of the state road commission, through no fault of the contractor, and
the contractor thereby suffers loss by not being able to use his equipment or part thereof, and, in consequence, said equipment remains idle during the
period of the delay, then the contractor is entitled to a reasonable rental value as
damages for said equipment so idle during the period of the delay or
interference. Reaffirming Keeley
Construction Company v. State Road Cosn2nission, 1 Ct. Claims
(W. Va.) 168.
Appearances:
Byron B. Ran4olph, Esq., and Joh.n A. Cain, Esq.,
for the claimant;
Arden Trickett, Esq., state right-of-way agent, state road commission,
and Eston B. Ste phenson, Esq., special assistant Attorney General, for the
state.
CHARLES J. SCHUCK, JuDGE.
The claimant company on or about the
16th day of April 1930, entered into a contract with the state road commission
for the excavation and grading of a certain road and project in Greenbrier
county and known as project NO. 2023. The project contemplated the grading and draining
of about 12,880 lineal feet, some concrete work, the construction of a small
bridge, provision for certain fills and borrow excavations and
classified and unclassified excavations of considerable proportions. The larger
portion of the borrow was to be
W. VA.] REPORTS STATE COURT OF CLAIMS 49
taken from hillsides near Caidwell and belonging to the Chesapeake and Ohio
Railroad company. Work was begun under the contract on or about the latter part
of April 1930, the claimant having theretofore moved certain equipment on the
project or job. The claimant continued its work, although interrupted several
times on account of disputes between the railroad company and the road
commission, until the late fall and winter months, and, finally, on or about
February 20, 1931, work was stopped by reason of the said disputes and not
resumed for approximately six months, during which time some of the equipment
of claimant remained idle on the job and for the rental value of which the
claimant principally bases its claim.
Claimant also maintains that this work was stopped by reason of an injunction
order on complaint of the Chesapeake and Ohio Railroad but the evidence on this
point is not decisive; however, there can be no question that the claimant and
the state are in agreement that the work was eventually stopped by order of the
state road commission. Subsequently, and before work was resumed, the state
road commission relet to another concern certain portions of the work theretofore
embraced in the contract entered into with the claimant, and the claimant
maintains that this action was a further interference with the performance of
its contract with the road commission.
It seems that the chief controversy between the railroad company and the state
road commission was the construction of a certain ten foot square concrete
viaduct, to be erected along the line of the project and under one of the
principal fills to be made along the route of the project. It was nearly six
months before the said company and the state road commission arrived at a
settlement and work again resumed. These delays were caused not through any
fault of the claimant company but by reason of the action of the state road
commission in not having made a settlement with the railroad company concerning
the matters in dispute previous to the time that the contract in question was
entered into.
50 REPORTS
STATE COURT OF CLAIMS [W. VA.
The contract, as first entered into with the claimant, did not contemplate the
culvert in question, but contemplated merely the construction and erection of
certain pipe under the fill, which was not sufficient, however, so far as the
railroad company was concerned, and to which construction the said company
would not agree.
Under all circumstances and testimony, then, we are driven to the conclusion
that the claimant company was not at fault and undoubtedly suffered losses, not
such as are referred to or contemplated by the terms and provisions of the
contract, since it was prevented from doing work at the very season of the year
when work could have been carried on with some degree of profit and to the
advantage of the claimant company, which it had the right to assume at the time
the contract was entered into. The question, however, presents itself as to the
measure or amount of damages.
A careful analysis of the testimony of the engineer, Worthington, shows that in
most respects the contractor received payment for approximately the grading and
drainage as set forth in the contract. It is true that while the contract
contemplated 26,000 yards of borrow the final estimate showed 18,272; however,
the contractor undoubtedly benefited by the overhaul, which contemplated in the
first instance but 8,645 yards, and the contractor was finally paid for 140,708
yards, so that in these respects the final estimates balance quite well with
the estimates as set forth in the original contract and specifications. We come
then to the proposition of the rental value that may be due the contractor by
reason of the delay of interferences with the work as hereinbefore set forth,
and in this respect there is a marked difference between the testimony
submitted by the claimant and that of the engineer Worthington. Among other
matters, the claimant maintains that it is entitled to a rental of $300.00 per
month for the period in question for each of six trucks, but we believe, taking
all the testimony into consideration, that these trucks were easily removable
from the project to another which the claimant company had in the same section
W. VA.)
REPORTS STATE COURT OF CLAIMS 51
of the state, if found necessary, and could be returned to the project under
consideration on very short notice, and that, therefore, the claimant would not
be entitled to the amount asked for with reference to this item. The witness
Worthington also testified that the shovel in question for which the claimant
asks a thousand dollars per month was not on the project after the beginning of
March of the year in question, and this testimony seems to be supported by the
claimant, (record p. 160) the witness Tom Cain stating that the equipment in
question could have been used on a Monroe county job which was being prosecuted
at the time of this delay, and which was in an adjacent county, and that one
shovel, seemingly the gas shovel in question here, was used on the Monroe
county project.
Considering the evidence as a whole, and bearing in mind the equipment used and
the period of time it was probably idle and could not be used elsewhere, we are
of the opinion that the sum of fifty-five hundred dollars ($5500.00) would be a
fair award to the claimant as damages for the interference with its contract
and the delay caused by the controversy between the aforesaid railroad company
and the state road commission, and we find in the said amount accordirigly.
52 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 218-S?Claimant awarded $75.79.)
JIM GORE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 27, 1943
CHARLES J. SCHUCK, JuDGE.
The claimant, Jim Gore, seeks
reimbursement in the sum of $75.79, which amount represents the damages for
repairs to claimant?s car injured on the 22nd day of November 1942, by a
collision with state road commission truck No. 430-4 (center line truck).
The state road truck has an overall with of 10? 2?, and seemed to have extended
considerably over the center line of the road at the time of its approach to
claimant?s car. By reason of the extension over said center line it collided
with and inflicted the injuries to claimant?s car as herein set forth.
An investigation by the state road commission places the blame for the accident
on the driver of the state road truck. The state road commission does not
contest the claimant?s right to an award for the aforesaid amount, but concurs
in the claim for that amount; the claim is approved by the special assistant to
the attorney general as one that should be paid. We have considered the claim
upon the record submitted and are of the opinion that ii should be entered as
an approved claim and an award in the sum of seventy-five dollars and
seventy-nine cents ($75.79) is made accordingly.
W. VA.)
REPORTS STATE COURT OF CLAIMS 53
(No. 219-S??Claimant awarded
$7.60.)
E. U. ASHENHART, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Onion fIled January 27, 1943
CHARLES J. SCHUCK, JuDGE.
This claim is in the amount of $7.60
as damages for injuries to the complainant?s automobile when it struck a
protruding steel rail on Main street in Clarksburg, West Virginia, December 5.
1942, in the nighttime of said day, the said steel rail having been removed in
connection with the removal project of the state road commission then being
carried on at the time and place indicated. The record reveals that the steel
rail in question was for some reason allowed to protrude out of line and over
and upon the line used for automobile traffic. From the record, the claimant
was not at fault and the rail in question should not have been allowed to
protrude over the said traffic lane.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the allowance of the claim for the amount in
question; the claim is also approved by the special assistant to the attorney
general. After consideration of the record as submitted we are of the opinion
that it should be entered as an approved claim, and an award of seven dollars
and sixty cents ($7.60). is made accordingly.
54 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 220-S-?Claimant awarded
$103.35.)
EFFIE LILLY, Claimant,
V.
STATE ROAD COMMISSION, Respondent
Qpnzon
filed Jznuary 27, 1943
CHARLES J. SCHUCK, JuDGE.
On the 12th day of December 1942,
while claimant was driving her car over and along what is known as the Elgood
road near Pettry in Mercer county, and while proceeding up a grade on said road
she observed state road truck #1030-33 approaching her on the opposite
side of the said road. The road was somewhat icy and covered with snow and from
the record it appears that the claimant stopped her car on the right side of
the road, but as the said state truck approached her, evidently being driven
near the middle of the road, it collided with her automobile causing the damage
in question.
The state road commission, after an investigation of the accident, does not
contest the claimant?s right to an award for the amount claimed, to wit,
$103.35, but concurs in the claim for that amount; the claim is also approved
by the special assistant to the attorney general as one that should be paid.
After consideration of the case upon the record submitted, we are of the
opinion that it should be entered as an approved claim and an award is made
accordingly in the sum of one hundred three dollars and thirty-five cents
($103.35).
W. VA]
REPORTS STATE COURT OF CLAIMS 55
(No. 221-S-?Claimant awarded
$22.97.)
J. S. BOBBITr, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
flied January 27, 1943
CHARLES J. SCHUCK, JuDGE.
On November 12, 1942, while driving his automobile
over and upon Scott street in the town of Princeton, West Virginia, claimant?s
car was struck by state road commission truck #1030-5, as the said state road
truck was about to be backed into the state road garage located at and near the
point of the collision. It was a four-lane road, and it seems that the claimant
was proceeding along what is known as the third lane of the said road and in
backing into the said garage the said state road truck for some reason swung
over and protruded on the said third lane and thereby collided with claimant?s
car and inflicting the damages complained of. So far as the record reveals
there was no notice to the claimant from the operator of the said state road
truck that he was about to swing the said truck over and upon the said lane
then being used and traveled upon by the said claimant.
After investigation the state road commission does not contest the claimant?s
right to an award in the amount of $22.97, but concurs in the payment of the
same; the claim is likewise approved for payment by the assistant to the
attorney general.
Considering the case upon the record as submitted we are of the opinion that it
should be entered as an approved .?laim and an award in the amount of
twenty-two dollars and ninety-seven cents ($22.97) is accordingly made.
56 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 211-S?Claimant awarded $12.00.)
JONES CORNETT COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 29, 1943
ROBERT L. BLAND, JUDGE.
It appears from the record of
this claim that about five o?clock i.
M. on September 17, 1942, state road
commission truck NO. 1030-82, ran into and collided with a Dodge pickup
truck, bearing West Virginia license No. s46-59, owned by the claimant. The accident
occurred on Riverside Drive, Welch, West Virginia, and was caused by defective
brakes on the road commission truck. Claimant?s vehicle was standing in
traffic. The road commission truck was being driven at a speed of between
fifteen and twenty miles an hour. When the driver attempted to apply brakes he
was unable to stop the truck. For the damage done to claimant?s truck it seeks
an award of $12.00.
The state road commission concurs in the claim. The assistant to the attorney
general approves the claim as one that should be paid. We are also of the
opinion, from the facts shown by the record, that it should be approved.
We, therefore, award to the claimant, Jones Cornett Company, the sum of twelve
dollars ($12.00).
W. VA.]
REPORTS STATE COURT OF CLAIMS 57
(No. 210-S?Claimant awarded $53.61.)
W. R. KEYSER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 29, 1943
ROBERT L. BLAND, JUDGE.
The record of this claim was prepared
by the state road commission and filed with the clerk of this court on November
13, 1942. The claim is for $53.61, and grows out of an automobile accident
which occurred on Riverside Drive, Welch, West Virginia, on September 17, 1942.
On that day claimant?s Chevrolet automobile, bearing West Virginia license
number 9-461, was standing still in traffic when state road commission truck
No. 1030-82 ran into it, causing damages to the extent of the claim as shown by
an itemized statement of Center Chevrolet Sales Company, of Welch, made a part
of the record. It appears that failure of brakes on the road commission truck
to work was responsible for the accident. The claimant was in no way at fault.
The road commission recommended the payment of the claim. The assistant
attorney general, having examined the claim, approves its payment.
Upon the showing made by the record, which has been considered informally by
the court, we are of opinion that an award should be made for the claim.
An award of fifty-three dollars and sixty-one cents ($53.61) is, therefore, now
made in favor of claimant W. R. Keyser.
58 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 215-S?Claimant awarded $141.00.)
THE PEERLESS MILLING COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed January 29, 1943
ROBERT L. BLAND, JUDGE.
On July 28, 1942, a truck of claimant, loaded with
merchandise, broke through a state controlled wooden bridge on secondary road
53-4 in Wirt county, West Virginia. Merchandise shown to be of the value of
$62.19 was lost. The truck was damaged to such extent that it required $78.81
to repair
it. The sum of $141.00 is claimed for the loss of merchandise and damage to the
truck. The claim is supported by itemized statement filed with the record. The
accident was caused by the defective condition of the bridge.
The state road commission recommends the payment of the claim arid the
assistant to the attorney general approves its payment.
An award is now made in favor of the claimant, The Peerless Milling Company,
for the sum of one hundred and forty-one
dollars ($141.00).
W. VA.]
REPORTS STATE COURT OF CLAIMS 59
(No. 216-S??Claimant awarded $250.00.)
THE JOE M. BOLBY COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinio?n. filed Febrwiry 2, 1943
ROBERT L. BLAND, JUDGE.
The claim involved in this case is the
sum of $250.00. The state road commission recommends its payment. The assistant
to the attorney general approves the claim as one that should be paid. It is
considered informally by the court upon the record made and filed by the road
commission with the clerk. From this record it appears that in October 1941,
claimant, the Joe M. Bolby Company, constructed a float for the road commission
of West Virginia to be used in the Mountan State Forest Festival at Elkins,
West Virginia, which was held in that year. The building of said float had been
previously authorized and directed by the road commission at the price of
$250.00. It was used on the occasion of the festival. Subsequently the road
commission transmitted an invoice for the contract price to the auditor and
requested him to issue his warrant therefor. The auditor refused to honor this
invoice, and the claim has not been paid. Strictly and technically the auditor
was right in his action in the premises. However, the state received the
benefit of the advertisement, and it is within the power of the Legislature to
make an appropriation for the amount of the claim. The claim was contracted for
a public purpose. In view of the advertisement which the state received on the
occasion of the festival, the concurrence in the claim by the state agency
concerned and the approval of the payment of the claim by the special assistant
to the attorney general, we recommend to the Legislature the advimbility of
making an appropriation in favor of claimant, The Joe M. Bofly Company for the
said sum
60 REPORTS
STATE COURT OF CLAIMS [W. VA.
of two hundred and fifty dollars
($250.00) in full settlement of the claim.
(No. 235-S?Claimant awarded $11.00.)
PARK PONTIAC, INC., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 2, 1943
ROBERT L. BLAND, JuDGE.
The claim in this case is informally
considered by the court upon a record thereof made by the state road commission
and filed with the clerk on January 2, 1943. This record is not as full and
complete as it might and should have been prepared, but from it we are able to
ascertain and find that about 3:30 o?clock on the afternoon of October 29,
1942, a school bus was being driven on a highway in South Malden, Kanawha
county, West Virginia. State road commission truck No. 130-18,
operated by one Lynn Dyer, and a private car owned and driven by one John
Henderson, of Marmet, West Virginia, were following the school bus. Both the
state truck and private car attempted, at the same time, to pass the school
bus, with the result that a collision occurred and the front and rear fenders
of the Henderson vehicle were damaged and repaired by claimant, Park Pontine,
Inc., of 228 Dickinson street, Charleston, West Virginia. For making said
repairs the claimant filed a claim in the amount of $11.00 with the road
commission. The report of the accident made to the road commission by Burl S.
Sawyers, maintenance assistant, stated that the Henderson car struck the road
truck and absolved the road commission from responsibility. The road
commission?s investigation of the circumstances of the accident, however, shows
that the ?state truck was definitely at fault.? The department therefore
W. VA.]
REPORTS STATE COURT OF CLAIMS 61
recommends the payment of the claim.
The assistant to the attorney general has approved the claim as one that should
be paid.
In view of said concurrence in and approval of said claim and the finding made
by the investigation made by the road commission that the driver of the state
truck was at fault in the premises, we award the claimant, Park Pontiac, Inc.,
the sum of eleven dollars ($11.00).
(No. 236-S??Claimant awarded $31.42.)
DAYTON BOLYARD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 2, 1943
ROBERT L. BLAND, JuDGE.
This is a claim in the amount of
$31.42. The payment thereof is recommended by the state road commission. Its
payment is approved by the special assistant to the attorney general. it is
submitted to and considered by the court of claims under section 17 of the
court act. The record was prepared by the road commission.
On December 4, 1942,, about 5: 00 o?clock p M., on the Terra Alta-Aurora Pike, in Preston county, West
Virginia, state road commission truck No. 430-143, operated by Clifford Myers,
an employee of the road commission, was backed into a one-half ton truck owned
by claimant, which was parked at the time. The estimated damage done to the
truck is shown to be the amout of the claim. There is no excuse for the act of
negligence exhibited by the record.
An award is made in favor of claimant, Dayton Bolyard, for thirty-one dollars
and forty-two cents ($31.42).
62 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 237-S??Claimant awarded $13.77.)
W. P. HOOVER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Febr?twry 2, 1943
ROBERT L. BLAND, JUDGE.
The record of this claim, prepared by
the state road commission, was filed with the clerk on January 8, 1943, and now
considered informally by the court, discloses that on December 8, 1942,
employees of the state road commission were engaged in spreading cinders on the
slippery pavement of state route No. 250, near Mannington, Marion county, West Virgina.
About 2: 00 o?clock in the ?afternoon of that day claimant was driving his 1933
Plymouth automobile on the highway and when it reached the place in the road
where the state road commission employees were working and was passing the
cinder truck, the workman spreading the cinders, not having observed his
approach, threw a shovel of cinders against, and broke the windshield of, his
car. The Main Street Garage, of Mannington, furnished and installed a new
windshield, for $13.77, the amount of the claim.
The road commission recommends the payment of the claim, arid the assistant to
the attorney general approves the claim as one that should be paid.
We are of opinion to, and do now, award to the claimant, W. P. Hoover, the sum
of thirteen dollars and seventy-seven cents ($13.77).
W. VA.]
REPORTS STATE COURT OF CLAIMS 63
(No. 238-5-?Claimant awarded $200.00.)
R. H. EDWARDS, M. D., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 2, 1943
ROBERT L. BLAND, JuDGE.
The claim involved in this case grows
out of a collision between state road commission truck No. 1025-9,
with a snow shovel attached thereto, operated by Raymond Akers, an employee of
the state road commission, and a Chevrolet automobile, bearing West Virginia
license No. 81-348, owned and driven by claimant, R. H. Edwards, M. D. The
accident occurred at approximately 10: 00 o?clock on the morning of January 13,
1941, on U. S. route No. 52, within the eastern corporate limits of the city of
Welch, in McDowell county, West Virginia. The road truck was traveling west.
Claimant?s car was traveling east. There was a thin coat of ice and snow on the
north side of the pavement of the highway which extended out on the pavement
between three and four feet to the center of the road at the place where the
collision took place. There is some conflict in the record as to responsibility
for the collision, but from all the facts set forth therein we are of opinion
that claimant was free from fault and that the occurrence was due to the manner
in which the road truck was operated.
Claimant says that he encountered a long state road truck with the shovel
projecting in front several feet to the right side, with double wheels on the
rear, in the act of negotiating a curve in the highway. It was at once apparent
to him that the truck was taking up part of his side of the road, which fact
made it impossible for him to pass the truck. He applied brakes and at the same
time pulled the car all the way over to the cement shoulder, and gripped the
steering
64 REPORTS
STATE COURT OF CLAIMS [W. VA.
wheel tightly to protect himself. He succeeded in getting past the front wheel
of the truck but there was not space enough between the cement shoulder and the
rear wheel for the truck to allow him to pass. The front wheel of his vehicle
was caught by the rear wheel of the truck and his car was knocked out of the
road up on the bank. Claimant?s automobile was badly damaged. It is shown by an
itemized estimate made by the McBride-Hurd Motor Company, of Welch, made a part
of the record, that the car was damaged to such extent that it would require
the sum of $312.06 to pay for necessary repairs.
After ?the collision claimant?s automobile and the road truck remained at the
place of the accident until an investigation was made by M. M. Davis, Jr., a
constable of Browns creek district of McDowell county. He arrived at the scene
a few minutes after the accident happened near a curve in the highway. He
states that it was very clear that claimant?s car was over on his side of the
road as far as he could get. It was against the curb, and the rear of the car
had skidded over the curb and against the embankment. The state road commission
truck had collided with the front end of claimant?s car to the right of the
center of the highway in the direction that claimant was traveling. Mr. Davis?
investigation showed that the road commission truck was responsible for the
collision.
The road commission agreed with claimant upon a settlement of his claim for
$200.00, subject to the approval of the court of claims. The claim is approved
by the attorney general.
From the showing made by the record, prepared by the state road commission and
filed with the clerk January 8, 1943, we are of opinion that a settlement of
the claim for said sum would be fair, and advantageous to the state.
We, therefore, award to the claimant, R. H. Edwards, M.D., the sum
of two hundred dollars ($200.00) in full settlement of his said claim, subject
to the approval of the Legislature.
W.VA.] REPORTS
STATE COURT OF CLAIMS 65
(No. 242-S?Claimant awarded $27.88.)
W. E. ARNOLD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed Februory 8, 1943
CHARLES J. SCHUCK, JUDGE.
On October 3, 1942, claimant was
driving his automobile over and upon a state highway near Montgomery, West
Virginia; he was being followed by state road truck 930-59, operated and driven
by one J. L. Dean, Jr., a state road employee. For some reason not set forth in
the record, claimant stopped his car and the said state road truck so driven
and operated as aforesaid, crashed into the rear of the claimant?s truck,
causing damages to the extent of $27.88. No fault or negligence is found on the
part of the claimant; in fact, the record reveals that the driver of the state
truck admitted he, the state truck driver, was at fault.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of twenty-seven dollars and eighty-eight cents
($27.88).
66 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 243-S?Claimant awarded $9.50.)
NICHOLAS RACIOPPI, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Februciry 8, 1943
CHARLES J. SCHUCK, JuDGE.
On April 22, 1942, while claimant?s
automobile was parked on a highway in the city of Morgantown, West Virginia,
state road truck 430-41 ran into and collided with the said automobile, causing
damages to the extent of $9.50. The record reveals that there was no negligence
on the part of the claimant and that his car was parked on the said highway as
herein stated.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of nine dollars and fifty cents ($9.50).
W. VA.]
REPORTS STATE COURT OF CLAIMS 67
(No. 244-S?Claimant awarded $38.40.)
OLA WOODS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 8,
1943
CHARLES J. SCHUCK, JUDGE.
On December 31, 1942, claimant?s car was
parked off the highway in Charleston, West Virginia, and state road grader
134-76, being then operated by a state road employee, collided with claimant?s
car, causing damages to the extent of $38.40 to the claimant. It appears from
the record, as submitted, that the drag link on the state road grader became
loose or unfastened, making it impossible to properly steer the grader, and
thereby causing the accident in question. No fault or negligence is imputed to
the claimant.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of thirty eight dollars and forty cents
($38.40).
68 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 245-S-?Claimant awarded $5.86.)
GEORGE SThICKLAND, Claimant,
V.
STATE ROAD COMMISSION, Respondent
Opinkn filed February 8, 1943
CHARLES J. SCHUCK, JuDGE.
On December 8, 1942, claimant?s car
was injured by being struck by prison labor truck p30-15, which seemingly backed
into claimant?s car while it was stopped near the approach to a bridge on the
Rocky Ford road near Ashton, West Virginia. While it is not stated definitely,
yet the record seems to indicate that the state truck in question was backed
into claimant?s car while the latter automobile was immediately to the rear of
the said truck and standing still. In backing up without notice to the claimant
the state truck collided and inflicted the damages as set forth.
The state road commissoin does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of fifty-three dollars and eighty-six cents
($53.86).
W. VA.]
REPORTS STATE COURT OF CLAIMS 69
(No. 246-S?-Claimant awarded $92.00.)
HARPOLD BROS., Claimant,
V.
STATE ROAD COMMISSION, Respondent
Opinion filed Febriuiry 8, 1943
CHARLES J. SCHUCK, JUDGE.
During the month of June 1942, the
state road commission, by its employees, was engaged in hauling gravel through
the town of Ravenswood, West Virginia, and while said hauling was being carried
on, one of the trucks so operated spilled about a bushel of gravel on the
highway near the front of the store or business operated by the claimants.
Seemingly, so far as the record reveals, no attention was paid to the gravel so
spilled and deposited upon the highway, nor was any effort made by the
employees of the state road commission to clean the highway by reason of the
said gravel having been spilled or deposited thereon. One of the trucks of the
state road commission, shortly after the spilling of the gravel, as aforesaid,
ran into the same and caused one of the stone or gravel to be thrown or cast
through the plate glass window of the cl!aimants? store or business building,
causing damages to the extent of $92.00, after all salvage value had been
considered.
The state road commission does not contest the claimants? right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingjy in the sum of ninety-two dollars ($92.00).
70 REPORTS
STATE COURT OF CLAIMS 1W. VA.
(No. 203?Claimant awarded $2,500.00.)
FLEET BAILEY, Claimant,
V.
STATE CONSERVATION COMMISSION,
Respondent.
Opiniou filed February 8, 1943
One who is summoned or drafted by a
state forester to assist in fighting a forest fire is entitled to all
reasonable protection when complying with the said summons, and if injured
while being transported to the scene of the fire, through no negligence of his
own, and in an automobile not under his controI then, under the circumstances,
he is entitled to an award.
Appearances:
Herman D. Rollins, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant attorney general
for the state.
CHARLES J. SCHUCK, JUDGE.
Fleet Bailey, the complainant, now a
young man of twenty- eight years of age, and living at Oceana, Wyoming county,
was on the 19th day of April 1937 summoned by a state forester, one Will
Kennedy, to assist in fighting a forest fire in that particular part of our
state. Claimant and others who were likewise summoned and expected to help in
subduing the said fire, were being transported to the place of the fire in an
automobile hired by the said forester, Kennedy, and driven by one Darrell Lamb:
the said driver, the forester, and claimant riding in the front seat of the
said car. While nearing the town of Baileysville on the way to the scene of the
fire, and as the party was ascending a grade near a slight curve, an oncoming
car approaching in the opposite direction, for some reason not definitely
disclosed by the evidence, caused the driver of the car in which claimant was
riding to sud
W. VA.]
REPORTS STATE COURT OF CLAIMS 71
denly turn the automobile to the right
and by so doing, drove the car over the edge of the embankment, causing it to
fall over the same and down a declivity of several hundred feet. The claimant
was so seriously injured that he was confined in the hospital at Welch for a
period of twelve days, afterward being removed to his father?s home, where he
remained in bed for ten months before he was able to walk. After this time he
obtained work in a garage, but has been unable to do any heavy work or to lift
any weight such as he had been able to do before his accident. The injuries to
his spine and back, as testified to by two eminent physicians, are permanent.
Both physicians agree that he will always be fifty per cent disabled and that
he will never fully recover from the injuries that he received by reason of the
accident in question. No negligence can be imputed to the claimant. He was
obliged to accompany the state forester under penalty of being guilty of a
misdemeanor for his refusal to respond to the demand of the forester, and under
the circumstances, is, in our opinion, in a much different position than one
who is riding in an automobile of his own notion or as an invited guest. Before
the injuries in question he was earning approximately four dollars per day. He
has heretofore been paid by reason of an act of the Legislature at the rate of
$30.00 per month.
Considering all the evidence, the nature and character of his injuries, the
fact that he was obliged to accompany the state forester when asked to do so
for the purpose of fighting the forest fire in question, and the fact that he
is permanently injured and will be, in the opinion of both physicians,
permanently disabled and incapacitated, we feel that an award of two thousand
five hundred dollars ($2500.00) should be made to the claimant and recommend
that the Legislature make an appropriation in the aforesaid amount accordingly.
72 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 212?Claimant awarded $3,000.00.)
RAY M. SWISHER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Febr?uary 8, 1943
Where a state road commission employee
is injured by reason of defective equipment, through no fault of his own, and
is in no manner connected with the operation of the said equipment, then an
award will be made to him as a matter of compensation for the injuries
received. This accident happened before the employees of the road commission
were placed under the provisions of the workmen?s compensation act, and
therefore an award is made in accordance with the following decision.
Appearances:
The Claimant appears in his own behalf;
Estan B. Stephenson, Esq., special assistant Attorney General for the state.
CHARLES J. SCHUCK, JUDGE.
Ray M. Swisher, the claimant, was
injured on or about the 24th day of November 1936, while working for the state
road commission rebuilding a bridge in Hampshire county, at and near Romney,
and which bridge crossed the south branch of the Potomac river at the place
indicated. From the evidence, it appears that claimant was doing rough
carpenter work, as well as performing the work of a laborer, and that during
the course of the reconstruction of the bridge in question it became necessary
to load certain steel beams which were then lying at the edge of the said
stream nearby, and to transport them up the bank to the place where the said
bridge was located and was being repaired. One load of the
W. VA.]
REPORTS STATE COURT OF CLAIMS 73
said beams had already been hauled and
delivered to the appointed place, and during the course of the reloading of the
truck, the accident in question happened. Some five or six
steel beams had already been loaded upon the truck that was being used for
transporting them, when the chain on the truck, fastened to the hoist, broke
and allowed the beams in question to fall over and upon the claimant, severely
and permanently injuring him. The claimant had no connection with the operation
of the truck, and seemingly knew nothing of the apparatus or the equipment used
in connection with hauling and transporting the said steel beams.
Under the circumstances, of course, he could not be charged with any negligence
and from the evidence adduced, it is reasonable to make the deduction that the
chain which broke was too light and not strong enough to carry the load of the
weight of the beams that were being transported to the bridge. As stated, the
claimant had no control over the operation of the truck or its equipment, and
was at the time performing the work of a laborer in connection with other
employees.
That he was permanently injured, there can be no question. He was confined to a
hospital for forty-two days and has not worked since the time of the accident.
The Legislature of 1939 made an appropriation of $30.00 per month for his
benefit, which has been paid. The Legislature of the 1941 session made an
appropriation of $46.00 per month, which appropriation will expire July next.
He is forty-nine years of age and at the present time, in addition to the help
received as indicated, he receives some help from his sister, as well as from
his son, who is in the armed forces of our country at the present time. He has
a daughter seventeen years of age. His injuries consisted of a fractured and
crushed vertebra, necessitating, besides the hospital treatment, the adjustment
of a cast covering the greater portion of his body, which he was obliged to
wear for some months afterward. He still becomes dizzy, cannot stoop without
pain, and has been unable to?do any work whatsoever since the time of the
accident, over six years ago.
74 REPORTS
STATE COURT OF CLAIMS {W.VA.
Under all the circumstances and facts in this
case, and finding that the claimant could not be charged with any
negligence whatever, we feel that an award of three thousand dollars
(S3000.O0), payable to him in a lump or full sum, would be equitable and just,
and therefore we make an award accordingly.
(No. 240-S?Claim denied.)
E. J. THOMPSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed Febi-uary 8, 1943
ROBERT L. BLAND, JuDGE.
Section 17 of the court of claims act, authorizing the determination of claims
against the state under the shortened procedure provision of the statute,
stipulates that 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. It further provides that the record shall be filed
with the clerk and that the court shall consider the claim informally upon the
record submitted. In pursuance of this section the state road commission
prepared the record of the above captioned claim and filed it with the clerk on
January 11, 1943. The claim is for $182.00. The state road commission concurs
in its payment and assigns as reason for such payment that it would be ?more
economical to pay than to defend,? and that it ?desires to save wear on tires
in transportation of witnesses. Some of the witnesses are nonresidents and
cannot be compelled to attend.? The approval of the claim for payment by the
assistant attorney
W. VA.]
REPORTS STATE COURT OF CLAIMS 75
general is as follows: ?This report
seems ?to indicate that the state cannot adequately defend this claim under
regular procedure.? It does not thus appear that the claim in question has been
approved by the attorney general as one that, in view of the purposes of the
statute, should be paid.
From our examination of the record we are not prepared to agree with the state
road commission that the claim should be paid. In this connection we are
constrained to observe that state agencies should be exceedingly careful before
concurring in the payment of claims against the state that are not to be heard
by the court under the regular procedure prescribed by the court act and that
are to be considered only informally upon the record prepared and filed by such
agency. Before any such concurrence or approval for payment it should be very
clear from the record filed that the claim asserted against the state is
possessed of merit and should, under all of the facts and circumstances
disclosed by the record, be ascertained by the court to be an approved claim
and an award made therefor.
The claim grows out of an accident in which state road commission truck No.
530-98, operated by Fred Belt, was involved with a school bus operated by an
employee of claimant E. J. Thompson, of Cumberland, Maryland, on u. s. highway NO. 220, near
Creasaptown, Maryland, on May 14, 1942. It appears from a report made to J. H.
Feingold, chief clerk of the state road commission, by L. R. Taylor, district
engineer, under date of January 7, 1943, that the records and reports of the
accident do not show liability or fault in any manner on the part of the state
road commission. Mr. Taylor expressed the opinion that it would be more
economical and advisable to settle the claim of Mr. Thompson than to make
defense thereto, and for that reason recommended the approval for payment of
the claim under consideration. He stated that to defend the claim in the court
of claims it would be necessary to ?induce several employees of the Western
Maryland ?Railway Company, residents of Maryland, to go to Charleston in
addition to some of our employees. Loss of time, transpor
76 REPORTS
STATE COURT OF CLAIMS [W. VA.
tation, and lodging of witnesses would
amount to more than the claim.?
It appears from the record that the accident occurred about eight o?clock in
the morning. A Western Maryland Railroad truck was driving on the highway. It
was followed by a school bus, seemingly owned by claimant E. J. Thompson. As
the school bus approached the Western Maryland Railroad truck it swerved to the
left of the truck ahead of it and attempted to pass it, but being unable to do
so swerved to the right of the truck and to prevent colloding with the Western
Maryland Railroad truck came to an abrupt stop. Almost instantaneously the
state road commission truck crashed into the rear of the school bus. As a
result of the collision the school bus was damaged and it is shown by the
record that claimant paid $182.00, the amount for which his claim is filed, for
the purpose of repairing the bus. At the time the accident occurred the school
bus was transporting twenty-five pupils to the Creasaptown school. All of these
pupils suffered injuries to some extent. Two of them were sent to a hospital
for treatment. Each of these pupils could assert a claim against the state of
West Virginia if the state road commission truck were shown to be responsible
for the ac?dent.
We are of opinion from the showing made by the record prepared by the state
road commission and filed with the clerk that the state road commission truck
was not responsible for the accident and that it was not at fault in any way.
We are further of opinion that the driver of the school bus was negligent in
attempting to pass the Western Maryland Railroad truck and in stopping the
school bus abruptly at the time when it was inevitable that the road truck and
the school bus must of necessity collide. The driver of the school bus gave no
sign or indication of his purpose to swerve from the left to the right of the
Western Maryland Railroad truck or to bring his bus to a sudden and unexpected
stop immediately in front of the road truck. The driver of the road commission
truck had no warning and no opportunity to avoid the collision. The
responsibility for the accident rests with the manner
W. VA)
REPORTS STATE COURT OF CLAIMS 77
in which the school bus was operated.
We find that the claim of Mr. Thompson is not one for which the state of West
Virginia should respond to him in damages.
It might oftentimes appear to the state road commission that it would be more
economical to make settlement of a claim asserted against the state on account
of the alleged negligence of the road commission than to defend against such
claim. The court of claims, however, cannot look with favor upon or sanction
such settlements. We have no power to make awards except for claims shown to be
meritorious and for which in view of the purpose of the statute creating the
court of claims recommendations should be made to the Legislature for
appropriations. The state has power to interpose any legal or equitable defense
that it may see fit to make against an unjust claim filed against it or any of
its agencies, and it is its duty to make such defense.
The court of claims cannot be bound by any settlement proposed to be made by
any agency of the state unless such proposed settlement is shown to be
warranted by the record of the claim.
The claim in question, being an improper claim against the state of West
Virginia, is now denied and dismissed and an order will be made accordingly.
?4.
78 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 147?Claimant awarded $250.00.)
HUGH B. PROUDFOOT, Clthmant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Febrnary 8, 1943
Where private property not taken
for public use but damaged by blasting in the course of grading, draining and
hard-surfacing with a rock base of a public road an award may be made for such damage.
Dayton R. Stemple, Esq., and D.
D. Stemple, Esq., for claimant;
Eston B. Stephenson, assistant Attorney General, for respondent.
ROBERT L. BLAND, JuDGE.
In this. case claimant Hugh B.
Proudfoot represents that he is the fee simple owner of a tract of farm land in
Union district, Barbour county, West Virginia, containing 125 acres, improved
by fences, orchards, dwelling house, outbuildings, and a spring. He says that
in the year 1939 the state road commission of West Virginia undertook to
sponsor a road project in Barbour county, West Virginia, known as project
6101-3, for the grading, draining and hard-surfacing with a rock base of a
public road, locally known as the Indian Fork road, from a point near the Lower
Indian Fork schoolhouse to a point near the Upper Indian Fork school and that
the construction and work incident to the building of said road was shortly
thereafter undertaken by the works progress administration, under the direction
and supervision of the state road commission of West Virginia, and that said
road was constructed and builded through his land. He contends that at the time
of the construction of said road he had a fine spring of water, constructed
similar to a reservoir, by a split rock and cement wall, about three feet wide
and five feet long, and
W. VA.]
REPORTS STATE COURT OF CLAIMS 79
twenty inches deep, so constructed, as
he maintains, that no surface water could enter the spring.
Claimant?s land abuts on both sides of the Indian Fork road. Above the road and
on the northern or upper side thereof, on a steep knoll or cliff unsuitable for
farm cultivation, he maintains a hog pen and hog lot. This hog lot is very much
higher than the road. The spring in question is located approximately forty
feet southwest of the Indian Fork road and about twenty-three feet lower in
elevation than the road. On the lower or southern side of the road is an eight
room dwelling house occupied by claimant and his family. The spring is between
forty and fifty feet east of the residence. The land slopes from the road in
the direction of the residence and spring. The spring is built at a low point
on this slope. The water flows into the spring from the right hand corner as
one enters the spring house. It is the contention of claimant that the source
of the water that supplies this spring is on the hog lot far above the roadway.
Claimant alleges in his petition that the state road commission, in
constructing said road, through said works progress administration and its
employees, made a cut in the land between said spring of water and the hog
house and hog lot for a depth of about five feet, and that in making said cut
it had to remove a part of the strata of rock which underlies the land of
claimant, and is over and above the underground stream furnishing water to said
spring, and that in making said cut and in removing a part of the said strata
of rock the road commission, through its agents, drilled into said rock strata
and put off large shots of dynamite or other explosives far below the road bed,
and thereby cracked the underlying strata of rock and caused it to gape apart
and permit surface water from the road ditch and the road bed, from the hog pen
and hog lot to enter into said cracks and crevices so created in said strata of
rock and thereby flow into his spring of water, and that on each occasion when it
rains the water in said spring becomes contaminated, filthy, muddy and wholly
unfit for human consumption.
80 REPORTS STATE
COURT OF CLAIMS [W. VA.
As a result of the alleged action of
the road commission in the grading and shooting of the strata of rock on said
road claimant says that he has been damaged and suffered loss to the amount of
$1000.00, for which sum his claim is asserted.
The assistant attorney general has filed a plea denying all liability on the
part of the state to respond in damages to the claimant.
The claim was heard and investigated at a continuance of the October term of
this court held at Clarksburg, West Virginia, at which time the members of the
court visited the road in question and made an examination of the spring
alleged to have been damaged by reason of the road work.
It appears that about the time that work commenced on the project and when it
was apparent that blasting would be done in order to remove the rock from a
hump in the road, claimant expressed fear that injury might be done to his
spring, if shooting were done. This was before there had been any shooting of
the rock. At a point in the road where the hump existed the rock extended the
entire width of the road. It was deemed necessary by the state road commission
to remove this hump and for that purpose to blast the rock. Holes were drilled
in this rock formation from two to five feet in depth. These holes were drilled
from four to six feet apart. Deposits of dynamite were then used and the rock
blasted from the right of way. Claimant contends that this blasting loosened
the rock and allowed the water from the hog lot and road right of way to run
into the spring. He testified that in his judgment enough of this rock could
have been removed with picks. The gist of his complaint is that the road
commission was negligent in the manner of removing the hump from the road right
of way, and that such negligence damaged his spring.
Upon the laying out of a highway the public acquires not only the right of way,
but also the powers and privileges incident to that right, among which is the
right to keep the highway in proper repair. To accomplish this purpose the
proper
W. VA.]
REPORTS STATE COURT OF CLAIMS 81
officers may do any act in the highway that is necessary or proper to make and
keep the way safe and convenient for the public travel. They may raise or lower
the surface, dig up the earth, cut down trees, and use the earth, stone and
gravel within the limits of the highway in a reasonable and proper manner. 37
Cyc. 204.
Was the work done in a reasonable and proper manner in this case? Claimant
contends that it was not. He maintains that the holes in the road were drilled
to an unnecessary depth. The proof offered upon the hearing would appear to
support his position. Before any drilling was done claimant called attention to
the location of his spring and to the danger that might result from blasting
the rock in the road. The road commission had notice of the location of the
spring of water and its proximity to the road. It was charged with the duty of
using reasonable care and diligence to avoid damaging the spring. While it is
true that the road commission in building, constructing and repairing highways
of the state is vested with certain judgment and discretion it cannot disregard
the rights of abutting property landowners. The evidence shows that heavy
deposits of dynamite were placed in numerous holes drilled in the highway at an
exceeding and apparently unnecessary depth and blasted at the same time. After
this blasting had been done the water in the spring became disturbed and muddy.
Three or four gallons of water stood in the ditch on the roadside. Claimant
informed employees of the road commission that the water in the spring was
coming from the water in the ditch on the roadside. Workmen on the road project
suggested to claimant that he and they should go to the road, stir up the water
in the ditch and see what effect it would have on the water in the spring. They
did so. In a short time they went to the spring and found the water beginning
to become muddy. The evidence shows that within twenty or twenty-five minutes
after a hard rain the water in the spring becomes muddy and unfit for use for
about two days. This condition occurs whenever there is a snow or hard rain. On
June 14, 1942, after a hard rain C. R. Sigley who owns a farm adjoining the
land of claimant went to the spring
82 REPORTS
STATE COURT OF CLAIMS [W. VA.
and obtained a bottle of water, which
he sealed and which was exhibited to the court upon the hearing of the case.
This water showed a heavy deposit of sediment.
We are forced to conclude from all of the evidence in the case that the spring
in question was damaged in consequence of the work done on the highway.
According to this evidence, not refuted by the state in any way, the work of
blasting the rock fron the road right of way was negligently conducted. In
consequence of this negligence claimant is shown by the evidence to have
sustained damage. It is true that from the year 1939 until the hearing of the
claim claimant and his f amily have used the water from the spring for drinking
and household purposes, but always after a rain or snow the family suffers
inconvenience and deprivation from the use of the water.
Giving due effect to all of the evidence and a personal examination of the
spring by the members of the court, we are of opinion that the claimant has
established a case entitling him to a small award.
We therefore award to claimant, Hugh B. Proudfoot, in full settlement of all damages
sustained or suffered by him by reason of the matters and things in his
petition mentioned and set forth and as disclosed by the record the sum of two
hundred and fifty dollars ($250.00).
W. VA.]
REPORTS STATE COURT OF CLAIMS 83
(No. 224-S?Claimant awarded $720.00.)
ALICE E. McCLUNG, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinwn filed February 9, 1943
WALTER M. ELSWICK, JUDGE.
This claim was submitted under the
shortened procedure prescribed by section 17, of chapter 20 of the acts 1941,
by the state road commission. From the record submitted it appears that John
McClung received a fatal injury as a result of being struck on his leg by a
snowplow. He was injured while on duty as an employee of district 9 of the
state road commission, at Lewisburg. West Virginia. He had opened the garage
door to let the snowplow in the garage and as the truck and snowplow entered
the garage he was struck on the leg by the snowplow blade. He sustained the
injuries on January 25, 1936. was admitted to the Greenbrier Valley hospital at
Ronceverte. West Virginia on February 3, 1936, and died on February 9, 1936.
When admitted to the hospital his leg had abscessed at the place of the injury.
At the time of the injury he was sixty years of age, and left surviving him his
widow, Alice E. McClung. By acts of the Legislature of 1937, under general
appropriation, the sum of $1456.75 was appropriated to John McClung, to be paid
from the state road fund, under caption ?To pay claims against the state road
commission resulting from personal injury . . . this
amount appropriated for remainder of fiscal year ending June 30, 1937, and to
remain in effect until claims are paid.? By acts of 1939 the sum
of $730.00 was appropriated to Alice E. McClung, his ,widow, under the caption
?To pay claims against the state road commission resulting from personal
injury .
. . this amount is appropriated for the
remainder of fiscal year end-
84 REPORTS
STATE COURT OF CLAIMS [W. VA.
ing June 30, 1939 and to remain in effect until June 30, 1940.? By acts of 1941
an appropriation was made to Alice E. Mc- Clung for the sum of $720.00 under a
similar caption.
At the time of the injury causing death the state road commission was not a subscriber
to the workmen?s compensation fund. It would appear from the record submitted
and general appropriation acts of the Legislature that although the road
commission was not contributing to the workmen?s compensation fund, it was the
intent and policy of the Legislature to provide for benefits by appropriations
for the purpose to the widow of the deceased equivalent to those provided for
by chapter 23, article 4, section 10(d) of the code, Michie?s code section
2535, which reads as follows:
?(ci) If the deceased employee leaves a dependent widow or
invalid widower, the payment shall be thirty dollars per month until death or
remarriage of such widow or widower, . .
The claim as submitted by the road
commission is for compensation to the widow of the decedent at $30.00 per month
from January 1, 1943, to January 1, 1945, or $720.00. The claim is approved for
payment under the shortened procedure by the assistant to the attorney general.
In view of the policy and intent shown by the Legislature in providing for
compensation to dependents in such cases, the recommendations of the department
involved, and the approval of the attorney general?s office, we recommend an
award of seven hundred twenty dollars ($720.00), and an order will be entered
accordingly.
W. VA.]
REPORTS STATE COURT OF CLAIMS 85
(No. 225-S??Claimant awarded $840.00.)
LOTTIE SKELTON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinkrn filed Febrwiry 9, 1943
WALTER M. ELSWICK, JuDGE.
This claim was submitted to the court
by the state road commission under the shortened procedure, section 17 of the
act. The commission requests that an appropriation be made to continue payments
of compensation to Mrs. Lottie Skelton, widow, and Ann Skelton, infant daughter
of George Skelton, deceased.
The claim upon the record presented was heard informally by the court as
required by law. It appears from this record that George Skelton was fatally
injured while in the course of his employment with the state road commission on
the new highway just outside of the city limits of Princeton, in Mercer county,
West Virginia. At the time of the injury he had been sent to start a compressor
in use on the highway, and was struck by a Ford coupe, owned and driVen by C.
D. McIntosh of Bluefield, West Virginia. He received a fracture of the skull on
left side, and died as a result of the injury on October 17, 1935.
The deceased was 35 years of age at the time of his death. He was survived by
his widow, Lottie Skelton, and Ann Skelton, a daughter, who will be 14 years of
age February 8, 1943. At the time of the injury the state road commission was
not a subscriber to the workmen?s compensation fund.
It appears from the record and acts of the Legislature that the following sums
have been appropriated and paid by the state road commission, to wit, acts of
1937 ?to pay claims
86 REPORTS
STATE COURT OF CLAIMS [W. VA.
against the state road commission
esulting from personal injury . . . this
amount appropriated for remainder of fiscal year ending June 30, 1937, and to
remain in effect until claims are paid . . . Mrs.
Geo. Skelton $1200.62.? Acts of 1939 ?to pay claims against the state road
commission resulting from personal injury . . . this
amount is appropriated for the remainder of fiscal year ending June 30, 1939,
and to remain in effect until June 30, 1940 . . . to
be paid from the state road fund . . . Mrs.
Lottie Skelton $1347.50.? Acts of 1941 ?to pay claims against the state road
commission resulting from personal injury . . . this
amount is appropriated for the remainder of fiscal year ending June 30, 1941,
and to remain in effect until June 30, 1942 . . . to
be paid from the state road fund . . . Mrs.
Lottie Skelton $840.00.?
It appears from the record and said general appropriation acts of the Legislature,
that although the road commission was not contributing to the workmen?s
compensation fund at the time of the injury causing death, it was the intent
and policy of the Legislature to provide for benefits by appropriations for the
purpose, to the widow and child of the deceased equivalent to those in effect
as prescribed by chapter 23, article 4, section 10 (d) of the
Code, Michie?s code section 2535, which reads as follows: -
?(ci) If the deceased employee leaves a
dependent widow or invalid widower, the payment shall be thirty dollars per
month until death or remarriage of such widow or widower, and in addition five
dollars per month for each child under sixteen years of age, to be paid until
such child reaches such age, or, if an invalid child, to continue as long as
such child remains an invalid. . . .?
The claim as submitted by the road
commission is for compensation to the said Lottie Skelton, as widow, at $30.00
per month from January 1, 1943 to January 1, 1945, or $720.00 and for
compensation to said infant child, Marjorie Ann Skelton, at $5.00 per month,
from January 1, 1943 to January 1, 1945, or $120.00, making a total award of
$840.00 recommended.
W. VA.]
REPORTS STATE COURT OF CLAIMS 87
The claim is approved for payment
under the shortened procedure by the assistant to the attorney general.
In view of the policy and intent shown by the Legislature i providing for
compensation to dependents in such cases, the recommendations of the department
involved and the approval of the attorney general?s office, we recommend such
an award, in the sum of eight hundred and forty dollars
($840.00).
(No. 226-S?Claimant awarded $53.00.)
HELEN CLAYTON DECK, Guardian for WILLIAM
CLAYTON WHITE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 9, 1943
WALTER M. ELSWICK, JUDGE.
This claim was submitted upon the
record by the state road commission under the shortened procedure prescribed by
section 17 of chapter 20 of the acts of 1941. From the record it appears that
William White was killed on March 26, 1935, while driving a loaded truck for
the state road commission during the course of his employment. He stopped the
truck to back up to dump and stalled the engine. He then lost control of the
truck which went through a guardrail and over a steep bank, 1023 feet from the
point at which he started backing. The speed of the truck was estimated at 5
miles per hour when it went over the bank. NG mechanical defects were apparent
after accident
88 REPORTS
STATE COURT OF CLAIMS [W. VA.
At the time of decedent?s death the
state road commission was not a subscriber to the workmen?s compensation
commission. The decedent, William White, left surviving him a son, William
Clayton White, who was under sixteen years of age, but who will arrive at the
age of 16 on the 9th day of June 1943.
Appropriations were made by the Legislature in the nature of compensation to
the infant child of the deceased employee as follows: By appropriations act of
1937, the sum of $600.00 for the then ensuing biennium; by appropriations act
of 1939, the sum of $240.00, for the then ensuing biennium, and by
appropriations act of 1941, the sum of $240.00.
The claim as submitted is for the sum of $53.00, representing compensation for
5 months at $10.00 per month, and 9 days at 33-1/3 cents per day as
compensation to be continued until said William Clayton White arrives at the
age of sixteen. This recommendation is made since the state road commission did
not carry workmen?s compensation at the time of the fatal injury.
In view of the policy and intent shown by the Legislature by said
appropriations made, the recommendations of the department concerned and the
approval for payment by the special assistant to the attorney general, we
recommend an award of $53.00 payable to Helen Clayton Deck, guardian for
William Clayton White.
W. VA.]
REPORTS STATE COURT OF CLAIMS 89
(No. 227-S-?Claimant awarded $240.00 for two infant children)
EFFIE SAVAGE PRATT?, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 9, 1943
WALTER M. ELSWICK, JUDGE.
This claim was submitted on the record
by the state road commission under the shortened procedure prescribed by
section 17 of chapter 20 of the acts of 1941. From the record it appears that
Theodore Savage met his death while on duty as an employee of the state road
commission on route No. 60, Huntington-Barboursville road. At the time he
received his fatal injuries he was carrying a red flag and was standing at some
point on the westbound traffic lane. A short time before, he was seen by the
tractor driver facing east and waving the flag at a Chevrolet coupe which was
approaching from the east. A tractor-grader was turning around in the road and
had reached a position at about right angles to the center line and had all of
the 20 foot concrete pavement blocked. There was room for westbound traffic to
go around the rear of the grader on the earth shoulder which was approximately
10 feet wide at that point. The decedent was stationed at about 15 feet east of
the grader. After flagging the Chevrolet coupe, he was seen by a driver of a
road grader facing west with his back turned to the approaching coupe. The
grader driver saw that the approaching coupe was approaching too rapidly and
was then too close to Savage to stop. He shouted to Savage to stop, but it was
then too late and the car struck him and then traveled the emaining 15 feet and
crashed into the grader. Theodore Savage was killed instantly. He was
thirty-five years of age at the time of his death.
The decedent left a widow, Mrs. Effie Savage, and two infant children under
sixteen years of age. At the time he
90 REPORTS
STATE COURT OF CLAIMS {W. VA.
sustained said fatal injuries the
state road commission was not a subscriber to the workmen?s compensation fund.
By acts of the Legislature of 1937, general appropriations bill, an
apjropriation of $1370.00 was made as compensation to said widow and infant
children for the then ensuing biennium. By acts of the Legislature of 1939
general appropriations bill, the sum of $960.00 was appropriated as
compensation to said widow and infant children for the then ensuing biennium.
By acts of the Legislature of 1941 general appropriations bill the sum of
$360.00 was appropriated as compensation to said infant children. The widow
remarried in 1939, and reimbursed the accounting division of the state road
commission in the sum of $720.00.
It appears from the record and said general appropriation acts of the
Legislature that although the road commission was not contributing to the
workmen?s compensation fund at the time of the injury causing death it was the
intent and policy of the Legislature to provide for benefits by appropriations
for the purpose to the widow and infant children of the deceased equivalent to
those in effect as prescribed by chapter 23, article 4, section 10 (ci) of the code, Michie?s code section 2535, which reads as
follows:
?(ci)
If the deceased employee leaves a
dependent widow or invalid widower, the payment shall be thirty dollars per
month until death or remarriage of such widow or widower, and in addition five
dollars per month for each child under sixteen years of age, to be paid until
such child reaches such age, or, if an invalid child to continue as long as
such child remains an invalid: . .
The claim as submitted by the road
commission is for compensation to said two infant children of the deceased
employee, whose names are Charles Layman Savage and Lois Elaine Savage, at the
rate of $5.00 per month for each child from January 1, 1943 to December 31,
1944, or a total of $240.00.
In view of the policy and intent shown by the Legislature in providing for
compensation to dependents in such cases,
W. VA.]
REPORTS STATE COURT OF CLAIMS 91
the recommendations of the department
involved and the approval of the attorney general?s office, we recommend an
award to said infant children in monthly payments of $5.00 to each, from
January 1, 1943 to December 31, 1944, respectively.
(No. 230-S?Claimant awarded $35.00.)
BESSIE A. PIGOTI?, Claimant,
V.
STATE ROAD COMIVHSSION, Respondent.
Opinion filed February 9, 1943
WALTER M. ELSWICK, JUDGE.
This claim was submitted by the state
road commission under the shortened procedure prescribed by section 17, chapter
20, of the acts of 1941.
From the record submitted it appears that on November 27, 1942, the left front
wheel of the state road commission truck became locked, causing the bumper of
the truck to strike claimant?s car. As a result claimant?s Studebaker car was
damaged, as follows: Left rear fender smashed, taillight bracket broken, left
rear wheel bent and left bumper brace broken. The costs of repairing claimant?s
car amounted to the sum of $35.00 as shown by itemized statement of Gillis
Motor Company.
It appears that the claimant was not at fault and that the collision occurred
by reason of the state road truck being out of repair. The state 4ruck was not
insured. Payment of the claim is recommended by the road commission and
approved by an assistant to the attorney general. From the record and
recommendations we make an award to claimant for thirty-five dollars ($35.00).
92 REPORTS
STATE COURT OF CLAIMS [W.ITA.
(No. 231-S?Claimant awarded $50.00.)
M. B. LINDSEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Februa.ry 9, 1943
WALTER M. ELSWICK, JUDGE.
This claim was submitted under the
shortened procedure by the state road commission. From the record it appears
that on November 17, 1942, a truck owned by the state road commission and
driven by one of its employees collided with claimant?s Reo pickup truck at the
east end of a one-way bridge nea? Lex, West Virginia. It appears that the road
employee misjudged the distance from the bridge when seeing claimant?s truck
traveling on the bridge. He did not reduce the speed of the state truck or cut
to his side of the road. As the claimant?s truck was clearing the bridge on its
side of the road the state truck struck claimant?s pickup truck, seriously
damaging the left front fender, and cut a small hole in left front tire. The
claimant was not at fault. The costs of repairs to the claimant?s truck by
reason of the collision amounted to the sum of $50.00. The road commission
recommends payment of the claim, which recommendation is approved by the
assistant to the attorney general. From the record and recommendations we make
an ward to the claimant of fifty dollars ($50.00).
W. VAJ REPORTS
STATE COURT OF CLAIMS 93
(No. 195?Claim denied.)
FLOYD SWIGER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
fIled February 9, 1943
The state is not liable for medical
and surgical expenses incurred by the father of a child seven years of age who
suffered personal injuries as the result of an unavoidable accident when he
suddenly emerged from between two parked automobiles and started to cross a
state highway in front of an approaching state road commission truck, and was
knocked down and run over.
Linn B. Fer-rell, Esq., for claimant;
Eston
B. Stephenson, Esq., assistant Attorney General, for respondent.
ROBERT L. BLAND, JUDGE.
On the 16th day of March 1933, Floyd
Swiger, Jr., a child of claimant, aged seven years, was run over and severely
injured by state road commission truck No.
430-1, on east Main street, in the
city of Salem, Harrison county, West Virginia, being a part of U. S. route No. 50. The
accident occurred about eight o?clock in the morning near the store of Troy E.
Davis, and a short distance from Harden school, but outside of the school zone
limits. The boy?s parents resided over the Davis store. The boy entered the
store and purchased some candy. He then left the store and went out into the
street where two automobiles were parked. He stood between these cars and
waited until a state road commission truck, traveling westward, had passed. He
thereupon attempted to quickly cross the street or highway, when he was struck,
knocked down and run over by a second state road commis
94 REPORTS
STATE COURT OF CLAIMS [W. VA.
sion truck, operated by one Harry
Richards, which was following the truck that had passed the child. The youth
had failed to observe the approach of the second truck.
After the accident Dr. Edward Davis, of Salem, was called and administered
emergency treatment. The boy was subsequently removed to the St. Mary?s
hospital in Clarksburg, where he was given medical and surgical care and
attention. Claimant, father of the child, seeks an award for the reasonable
expenses incurred by him in the treatment and care of his son. The record shows
that he has incurred expenses amounting in the aggregate to $321.40.
The only eye witness of the accident to testify in support of the claim was one
Parley Sparks. Giving full weight and credit to his evidence it clearly appears
therefrom that the accident was unavoidable. We cannot find from such evidence
that there was negligence on the part of the driver of the state road
commission truck. This driver testified that he did not see the boy until he
darted from between the two parked cars in front of his truck. The accident
could not have been avoided.
Under the facts disclosed by the record we cannot find the claim to be one that
should be paid under the provisions of the court of claims act.
An award, therefore, is denied, and the claim dismissed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 95
(No. 232-S?Assignee of claimant awarded $252.25.)
VALLEY MOTOR SALES, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 9, 1943
CHARLES J. SCHUCK, JuDGE.
On July 2, 1942, state road commission
truck No. 138-27 crashed into the rear of the automobile of one 0. L. Harvey,
of Henshaw, West Virginia, while the said automobile was stopped on the highway
near Cabin Creek, in Kanawha county, seriously injuring the automobile in
question and causing damages in the amount of $252.25. From the record as
submitted for our consideration the accident was caused by wet brakes on the
truck and which by reason of their condition failed to hold and operate
properly thereby causing the truck to crash into the automobile of said Harvey,
as herein stated.
The state road commission agrees to an award in the amount of the said damages
and this action is concurred in and approved by the assistant attorney general.
The then owner of the automobile, 0. L. Harvey, has since transferred and
assigned all of his rights and interest in any award to the Valley Motor Sales
Company of Charleston, West Virginia, as shown by a copy of the assignment
filed in the record before this court.
We, therefore, are of the opinion that an award should be made and recommend accordingly
that an award of two hundred fifty-two dollars and twenty-five cents ($252.25)
be made to the Valley Motor Sales Company of Charleston, West Virginia, as the
assignee of the said 0. L. Harvey.
96 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 205?Claim
denied.)
EARL SWARTZWELDER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Febriwry 9, 1943
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.
Appearances:
Claimant, Earl Swartzwelder, in his own right;
Eston B. Stephenson, Esq., assistant Attorney General, for the state.
WALTER M. ELSWICK, JuIXE.
This claim is made against the state
road commission for ?4000 cubic yards of stone gotten from the Kingwood quarry
at 5 cents per cubic yard and applied on purchase order of February 26, 1940 . . . $200.00.? The foregoing quotation is taken from
claimant?s statement to the state road commission under date of December 12,
1940. This purchase order or agreement dated February 26, 1940, was signed by
claimant and Burr Simpson, the then state road commissioner, and is filed and
made a part of the record on this claim. It provided that the quantity was ?not
to exceed 8000 cubic yards? and that the agreement ?shall be in force until
January 1, 1941, or until the completion and acceptance by the state of project
NO.
39-M-cw-1.?
W. VA.]
REPORTS STATE COURT OF CLAIMS 97
From the evidence it appears that three agreements were executed by claimant
and the road commission. The first one was dated December 5, 1938, for
an amount of stone not to exceed 4000 cubic yards. Under this agreement the
road commission took and paid claimant for 3920 cubic yards. The second
agreement was dated July 24, 1939 for an amount of stone not to exceed 6000
cubic yards. Under this agreement the road commission took and paid claimant
for 5000 cubic yards (record pp. 48, 51 and 55). Payment for all of this stone
had been made by the following checks, to wit: (1) check dated July 17, 1939
for $196.00; (2) check dated September 12, 1939 for $150.00, and (3) check
dated December 27, 1939 for $100.00.
The third agreement upon which claimant bases his claim carries the date of
February 26, 1940, in the caption thereof, and bears witness before the
signatures thereon April 29, 1940. A check was drawn to claimant under date of
April 26, 1940 for $50.00 in payment of 1000 cubic yards of stone. The endorsement
shows that the same was paid May 3, 1940. Claimant says that after this check
was paid and said last mentioned agreement was signed, Bert Gibson, the county
road supervisor, advised him that the road commission had obtained stone from
the quarry for which the commission would owe him something like $230.00. Mr.
Gibson died in June 1940, soon after the purported conversation with claimant.
No evidence of other witnesses was offered by claimant as proof that the rock
was obtained by the commission, and it would appear that the road commission?s
office did not have any record of the stone having been obtained. Claimant
contends that some of the stone was obtained in the latter part of 1939 and the
early part of 1940 ?all during the winter months? (record pp. 6 and 7). This
agreement refers to road project No. 39-M-cw-1, which would indicate that the
stone was to be used on same. Claimant made no effort to keep a record of the
stone taken from the quarry by the road commission or by others. No evidence is
offered to show that the road commission obtained more stone for this or other
projects than was paid for. The evidence shows payment of $73.85
98 REPORTS
STATE COURT OF CLAIMS [W. VA.
to claimant on November 22, 1940 and
$89.45 on July 10, 1941, under the purchase agreement.
We are of the opinion that the evidence does not justify making an award to
claimant, and that the only evidence offered in support of the validity of the
claim was the testimony of claimant that the county road supervisor had told
him that the road commission owed him the money claimed. The county road
supervisor is dead and such testimony would not be sufficient to justify an
award. There is not any record or memorandum to support claimant?s contention.
On the contrary a check for $50.00 was cashed for claimant on May 3, 1940,
which was dated April 26, 1940, and no doubt delivered when the last purchase
contract was executed by claimant. The presumption is that this check was in
payment of the stone obtained prior to the time that this agreement was
executed. Certainly if other stone had been obtained during that period which
was not included in this check the claimant had all the month of May after the
contract was signed and before the supervisor?s death to have secured a
memorandum or statement from the supervisor to the contrary. For the foregoing
reasons an award is denied.
W. VA.]
REPORTS STATE COURT OF CLAIMS 99
(No. 248-S??Claimant awarded $22.50.)
BESSE D. ARNErr, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 10, 1943
CHARLES J. SCHUCK, JUDGE.
On May 27, 1941, while claimant was
driving her car along and over the Buckhannon-Clarksburg pike the said car
collided with what is known as an iron marker used by the state road commission
to protect the wet center line, and which marker had beeh misplaced and in a
position where it could cause damage to any oncoming car on the said highway.
The damage to the cai1 in question consisted of the destruction of a tire and
tube, amounting to $22.50. The record shows that the district engineer in
charge of the highway in question admits that the marker was placed in a wrong
position or place on the highway, and caused the accident in question. The
claim was concurred in by the state road commission and approved by the special
assistant attorney general as one that should be paid.
From the record as submitted we are therefore of the opinion that the claim is
one that should be allowed, and we make an award accordingly in favor of the
claimant, Besse D. Arnett, in the said amount of twenty-two dollars and fifty
cents
($22.50).
100 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 249-S?Claimant awarded $10.00.)
W. L. STILES, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Februa.ry 10, 1943
CHARLES J. SCHUCK, JuDGE.
While claimant?s car was following
state road commission truck #630-67, at and on what is known as project No. 184-c, Lu
Marshall county, West Virginia, it seems that the said truck stopped, and as
the car of claimant started to pull out and pass said state road truck the
truck started to back without notice to claimant, and by such action on the
part of the operator of the state road commission truck it collided with
claimant?s car causing damage in the sum of $10.00.
The accident happened January 4, 1943, at about 9:45 A. M. The
record reveals that the accident was caused by the negligence of the state
truck driver, and the state road commission recommends that the claim be
approved for payment, which action is concurred in by the special assistant to
the attorney general.
We are therefore of the opinion that from the record as submitted an award of
ten dollars ($10.00) should be made to the claimant, W. L. Stiles, and such
recommendation is made accordingly to the Legislature.
W. VA.)
REPORTS STATE COURT OF CLAIMS 101
(No. 234-S?-Claimant awarded $520.)
M. G. LUDE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 10, 1943
WALTER M. ELSWICK, JuDGE.
This claim is submitted under the
shortened procedure, with the recommendation of the state road commission that
the claim should be paid.
From the record submitted it appears that on August 17, 1942, a state road
commission shovel was pulling rails when a bolt flew off and hit a glass in the
door of claimant?s car breaking same. Claimant?s car was parked in front of a
garage opposite to where the shovel was working, at Washington street between
Truslow and Court streets, in the city of Charleston. The costs of replacing
the glass amounted to the sum of $5.20. From the investigation made by the road
commission it was found that claimant was not at fault and that the costs of
replacing the glass should be paid by the state. Payment of the claim is
approved by a special assistant to the attorney general.
From the record we are of the opinion that an award should be made, and
recommend an award of five dollars and twenty cents ($5.20).
102 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 233-S-?Claimant awarded $110.04.)
PRITCHARD MOTOR CAR COMPANY, and
WILLIE MORRIS, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opiniin filed Februory 10, 1943
WALTER M. ELSWICK, JUDGE.
This claim was submitted to the court
under the shortened procedure, with the recommendation of the state road
commission that the claim should be paid.
From the record it appears that a state road commission truck was used to haul
creek gravel for use on the Cabin Creek road. On July 2, 1942, the truck had
just pulled out of the creek with wet brake linings onto the highway. There was
a line of cars parked on the railroad crossing, and while driving past them the
state truck driver applied the brakes with no effect, which resulted in his
crashing into a car owned by one 0. L. Harvey, driving Mr. Harvey?s car into
the car owned by claimant, Willie Morris. The front and back ends of the car
were mashed in and a tire was ruined. The necessary repairs on the car amounted
to a cost of $110.04. Investigation of the road commission shows that the
damages were caused due to the wet brakes and that the state should pay the
costs of the repairs to claimant?s car. From the record it appears that
Pritchard Motor Company, of Charleston, West Virginia, made the repairs upon
said car. A special assistant of the attorney general approves payment of the
claim.
From the record we are of the opinion
that the claim should be paid and make an award to Pritchard Motor Company and Willie Morris
in the sum of one hundred ten dollars and
four cents ($110.04).
W. VA.]
REPORTS STATE COURT OF CLAIMS 103
(No. 247-S?-Claimant awarded $10.97.)
B. S. STREITON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 10, 1943
WALTER M. ELSWICK, JUDGE.
This claim was filed by the state road
commission under the shortened procedure. From the record submitted, it appears
that the state truck came out of a side road, pulling a toolbox and swerved
around and struck a car driven by a Mr. Saunders coming from the opposite
direction. The toolbox scraped the side of his car and the Saunders car then
struck the car owred by the claimant, B. S. Stretton. The costs of making the
repairs to the claimant?s car amounted to the sum of $10.97. It appears that
the truck driver was at fault. The road commission recommends payment of the
costs of repairs to claimant which payment is approved by the attorney general.
We recommend an award to claimant in the sum of ten dollars and ninety-seven
cents ($10.97).
104 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 180. 181?Claims denied.)
ARLIE LEWIS ARBOGAST. Claimant,
V.
STATE ROAD COMMISSION, Respondent.
HOWARD ARBOGAST. Claimant,
V.
STATE ROAD COMMISSION. Respondent.
Qpmioi
t?c Fett-ari 11), 1943
Under the cut creating
the cou -
f caims negligene on the part of the
state agency irwoved must he fully shown b?foie an award will be made.
W. Holt Woodciell. Esq.. for claimants:
Eston B. Slephensoit. Esq..
assistant Attorney General, for the state.
ROBERT L. BLAND. JUDGE.
rnese two casey were heard upon art agreed stipulation of facts, from which it
appears that claimant, Arlie Lewis Arhogash in company with two other persons,
was driving an automobile owned by his brother. claimant Howard Arbogast, about
9:31) (j
clock P. M. on the 14th day of March 1942,
eastward over state route No. 33. in Randolph county, West Virginia.
ahou seven miles from the city of Elkiris. As the car was proceeding around a
curve along the Cheat rivir, a large str,ne or bould?r, estimated to weigh 1500
pounds rolled into the highway. without warning, almost immediately in front of
the car. from the left side nil above the highway, and collided with the left front side of
thi? autumniobi le w}jih? both were in motion. A5 a result of the impact the
car V/OS precipitated over th? ?rnbankmnc?ni to 1Fi? right side f tbi? high?
W. VA.]
REPORTS STATE COURT OF CLAIMS 105
way, a distance of about two hundred feet. It turned over many
times and came to rest in the bed of the Cheat river.
In consequence of the accident the automobile was totally destroyed.
The stone or boulder apparently became dislodged from its position on the road
right-of-way on account of a recent thawing of the earth which had formerly
supported it.
Claimant Arlie Lewis Arbogast was thrown from the automobile with such force
that he became unconscious. It is shown that he suffered painful injuries. He
was taken to the Davis Memorial hospital at Elkins, where he received medical
attention. He incurred hospital bills and expenses amounting to $28.60. As a result of the accident he lost three days?
employment at $5.05 per day, amounting to $15.15. An overcoat of the value of
$25.00 which was in the car when the accident occurred was damaged and rendered
valueless.
It is shown that the fair market value of the automobile of claimant Howard
Arbogast was $300.00.
The amount of all losses and damages sustained by claimants is $368.75.
It appears from the evidence adduced before the court that the employees of the
state road commission had patrolled and maintained the particular section of
the highway where the accident occurred, with due regard for the likelihood or
possibility of slips and slides resulting from the freezing and thawing of the
ground in the particular section of the highway, in the same manner and with
the same degree of care exercised in patrolling and maintaining all sections of
state highway in Randolph county.
It is also disclosed by the record that at the time of the accident there were
?falling rocks? signs properly located at each end of the through cut at the
scene of the accident.
106 REPORTS
STATE COURT OF CLAIMS [W. VA.
It is shown that the temperature in
the vicinity of the accident on March 13, 1942, showed a low temperature of 37?
from five to seven o?clock A. M., and a high temperature of 67? from two to
three o?clock p
M. on the same day. The evidence also
shows that the temperature in the vicinity of the accident on the day of its
occurrence was a high of 64? from five o?clock to six o?clock p M., and that there were light rains during the evening
of said day.
In claim NO. 49, Sarah E. Moore v. State Road
Commission, 1 Ct. Claims (W. Va.) 93,
we stated in the opinion that the mere fact of injury received on a state
highway raises no presumption of negligence on the part of the state road
commission. In the same case, following our holding in re claim
NO. 5, Ruth Miller v. State Board
of Control, 1 Ct. Claims (W. Va.) 97,
we held:
?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.?
In re claim No. 133, Ada
Harless v. State Road Commissiom, 1 Ct. Claims (W. Va.) 241, we held that where the
evidence seems to indicate and tends to show that the state road commission was
not negligent in maintaining a certain bridge
and that the said state road commission exercised reasonable care in
maintaining and controlling said bridge
an award would be refused.
In re claim No. 179, R.
L. James v. State Road Commission, 1 Ct. Claims (W. Va,) 343, we held:
?The court of claims will not make an award in a case where the evidence shows
that the state road commission has used reasonable care and diligence in the
maintenance of a state controlled highway on which claimant wrecked his motor
vehicle by colliding with a large stone or boulder that had become dislodged
from a cliff or hillside and fallen on said highway the night preceding or
early morning of such accident, and in which it further appears from the
W. VA. REPORTS STATE COURT OF CLAIMS 107
evidence that the employees of the state road commission had no knowledge of
the likelihood of such happening.?
In re clai.ms No. 188 and No. 189, Fred Harvey v.
State Road Commission and Rosa Ha.rveij
v. Stite Road Commission, 1 Ct.
Claims (W. Va.) 345, we held:
?Where it appears from the evidence that the employees of the state road
commission had no knowledge of a large stone and slide falling from the
mountainside onto the highway due to its recent occurrence and had no previous
warning of the likelihood of its falling from making their routine examinations
of the highway, the state not being a guarantor of the safety of travelers on
its roads and highways will not be held liable for personal injuries or property
damages suffered by claimants when their motor vehicle runs into uch stone.?
In re claim No. 117, L. C. Clark V. State
Road Commission, 1 Ct. Claims (W. Va.)
230, we held as follows:
?The fact that a stone or rock falls from the mountainside adjacent to a public
road or highway, striking and wrecking a passing automobile, does not of itself
constitute negligence on the part of the state road CommisSion. The state or
its agency, the state road commission, iiot being a guarantor of the safety of
travelers on its roads and highways, must either have notice of the dangerous
condition and position of such stone or rock on the banks along the highway, or
have known of it by the proper examination of the highway at the place where
the accident happened, and have failed to take the necessary steps to remove
the rock, and thus prevent an accident, before the state or its agency, the
state road commission. becomes liable.?
We do not think that the facts disclosed by the record establish the right of
the claimants, or either of them, to an award.
Awards are, therefore, denied, and the claims dismissed.
108 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 223?Claimant awarded $1,248.00.)
JACOB F. BENNETT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Febrwery 10, 1.943
Where a state road commission employee
is injured by reason of a dynamite explosion, through no fault of his own, and
from the evidence it appears that he was using a mixed case of dynamite, and
from all probability from the evidence a stick of dynamite had an explosive cap
in it, setting off the explosion, then an award will be made to him as a method
of compensation for the injuries received. The injuries were received before
the employees of the road commission were placed under the provisions of the workmen?s
compensation act, and an award is made in accordance with the following
decision.
Appearances:
The Claimant appears in his own behalf;
Eaton B. Stephenson, Esq., assistant Attorney General, for the state.
WALTER M. ELSWICK, JUDGE.
Claimant, Jacob F, Bennett, was
permanently injured by a dynamite explosion while working for the state road
commission in Nicholas county, West Virginia, on March 20, 1934. A hole
fourteen feet deep had been drilled on the day before the accident. The
claimant was assisting one Walter Humphries in loading the hole with dynamite.
They began loading about two o?clock in the afternoon, and had placed about
fifty sticki of dynamite in the hole. The hole was about half full of water and
from all the evidence it would appear that it was not a hot hole. Neither does
it appear that there could have been a live spark. The explosion went off
without warning, and the only conclusion that can be drawn from the evidence is
that the last stick of dynamite dropped in the hole
W. VA.]
REPORTS STATE COURT OF CLAIMS 109
happened to have a cap in it. From the
evidence it appears that the claimant was using a mixed case of dynamite. They
were using ?forty? dynamite, and while loading the particular hole claimant
found a ?sixty? stick of dynamite and laid it on the bank above the hole. A
battery was used to set off the blast. It would appear that claimant had had
considerable experience in handling dynamite and that he was not in any way at
fault. From the report of the then county road supervisor it appears that
claimant was receiving 55 cents per hour, although claimant testified that he
believed that he was receiving either 73 or 83 cents per hour. At the time of
the explosion he was forty-eight years of age, married, and the father of five
children, whose ages are from twenty to twenty- seven.
Claimant received as a result of said explosion the following injuries:
Abrasions of the left side of his face and eye, conjunctiva hemorrhaged,
abrasions of the left arm and right leg; midway between the ankle and knee a
cut about one and one-half inches long exposing the bone; abrasion of the left
thigh. Both eardrums were perforated, the left ear entirely gone. He suffered
with constant headaches and vertigo when in a recumbent position. He was
discharged from the Mountain State hospital on March 28, 1934, but upon being
readmitted to the hospital June 9, 1934, showed no improvement in his
condition. He still had considerable blankness of mind at times. Examination
showed a very well developed but undernourished adult. There was then a groove
of the right frontal region of the forehead, suggesting a fracture. On October
1, 1934 he was readmitted to the hospital with complaint of burning sensation
in his forehead, dull headache in back of head and numbness of legs below the
knee. At this time the attending physicians were of the opinion that claimant
had a post-traumatic concussion of the brain resulting from the dynamite
explosion which is very similar to shell shock.
From the certification of Dr. Eugene S. Brown, the attending physician of
claimant, under date of December 28, 1942,
110 REPORTS
STATE COURT OF CLAIMS [W. VA.
it appears that he has been attending
the claimant for the past several years for the disability resulting from the
said dynamite explosion. He says that he does not attempt to enu- merate the
various technical descriptions of various symptoms, but that they remain
unchanged so far as he has been able to determine; namely extreme nervousness,
inability to remember, plan, manage or in any measure take care of himself or
manage his affairs; hearing and eyesight both very poor and a general muscular
atrophy and malnutrition of system generally which is apparently a result of
permanent nervous system damage.
By the general appropriations act of the Legislature of 1935 appropriations
were made as follows: ?To pay claim of Jake Bennett, employee injured while in
employ of state road commission:
For remainder of year ending June 30, 1935,
including hospital $1,137.00
For year ending June 30, 1936 642.00
For year ending June 30, 1937 312.00
Total -
- $2,091.00?
By general appropriations act of the Legislature of 1937 an appropriation was
made, to be paid from the state road fund. of $1416.02, to Jacob F. Bennett for
claim resulting in his personal injury. By general appropriations act of 1939
the sum of $1248.00 was appropriated to Jacob F. Bennett. The same amount was
appropriated to him by general appropriations act of 1941. Each of the
foregoing appropriations were made for the then ensuing bieniums; that is to
say, for the period of time from the fiscal year of the date of each act, until
the end of the fiscal year preceding each session of the Legislature.
From the evidence in this case it appears that the claimant was without fault
and no negligence is attributed to him. It does appear that he had been
furnished a mixed case of dyna
W. VA.]
REPORTS STATE COURT OF CLAIMS 111
mite and that by all probability it contained a stick of dynamite containing an
explosive cap. It appears that it was a case of such nature as to have
justified an award, by reason of carelessness or negligence of his superiors.
The state road commission was not a subscriber to the workmen?s compensation
fund at the time claimant was injured. It has been the apparent policy of the
Legislature to award compensation to claimant in the nature of payments similar
to those payable by the workmen?s compensation commission. The claimant in this
case has expressed his desire to receive compensation in this manner rather
than to receive a lump sum award. His reason for this is prompted by his
inability to attend to any business affairs due to deranged mental condition
caused by the explosion.
Claim is filed for $1248.00 in the nature of compensation for disability for
the biennium of 1943-1945.
In view of the evidence in this case, the apparent policy and intent of the
Legislature, and the expressed desire of claimant to have compensation paid in
such manner as heretofore paid, we recommend an award of twelve hundred and
forty-eight dollars ($1248.00), payable to the claimant monthly, at the rate of
$52.00 per month, for the ensuing biennium of 1943 and 1945.
112 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 158?Claim denied.)
F. M. Miller, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 12. 1943
Where a tenant rents property with
full knowledge that it is to be taken for road improvement purposes by the
state, and where by the provisions of his lease he is entitled to but a
thirty-day notice to vacate, and is given more than the said period to remove
his business after the purchase of the property by the state, he is not
entitled to any damages, and an award will be refused.
Appearances:
Claude
Smith, Esq., for the claimant;
Arden Trickett, Esq., state right-of-way agent, state road commission,
for the state.
CHARLES J. SCHUCK, JuDGE.
The claimant, 1?. lvi. Miller, was engaged in the restaurant business in South
Charleston, Kanawha county, West Virginia, in a building owned by one S. T.
McClellan, and operating under a lease from the said McClellan, dated the 26th
day of August 1941. Claimant maintains that this lease was for a period of
three years, beginning from the 1st day of September 1941, and the rent payable
at the rate of $50.00 per month. Considering the lease as a whole, and
considering further that it was urban property that was being leased, it
appears to us that the claimant had but a lease from month to month, and could
be required o give up the premises on a thirty-day notice.
It appears from the evidence that at the time this lease was executed, both the
lessor and the claimant knew of con-
VT VA.]
REPORTS STATE COURT OF CLAIMS 113
templated improvements, by virtue of
which the state, through the state road commission, was to take over the ground
and property upon which the building in question was located, for the purpose
of constructing a new highway and viaduct at the place in question and found
necessary by reason of the demands made upon the industrial plants in that
particular section, as well as a desire to change the right-of-way of the
Chesapeake and Ohio Railroad Company.
The lease itself contains a provision to the effect that if the lessor is
deprived of the ownership of the building by ?due process of law? the lessee
shall have no action against him for any breach of the rental contract. This
provision was made in contemplation of the improvement referred to herein, and
by reason of contracts that had already been made by the officials and agents
of the state road commission, indicating a taking over or purchase of the
property in question.
The claimant himself admits, (record p. 24) that he knew of the commission?s
intention to take over this property as early as the spring of 1941, which
would be at least several months before the lease in question was entered into
between him and the lessor, McClellan. From the testimony, it appears that
after the purchase of the property had been made from the lessor by the state
road commission, the lessor was given a period of thirty days within whicl to
remove the buildings that were located on the property and that it was at the
end of a period of about sixty days that the buildings were ultimately removed.
The property was sold by the lessor by deed dated the 25th day of May 1942, and
not taken by any condemnation proceedings. Under these circumstances, is the
claimant entitled to any remuneration by reason of the purchase of the property
under the conditions herein detailed?
One item of his clait is that he could not use the personal property such as
stools, cooking utensile, etc. in his new business. Under no circumstances
could this be an item that could be maintained as against the state road
commission by reason of its purchase, since the change to the new building
114 REPORTS
STATE COiJIT OF CLAIMS [W. VA.
in which claimant?s business is now
located, together with its appointments and fixtures, was entirely the choice
of the claimant and could not enter into any consideration so far as an element
of damages would be concerned.
We are also of the opinion that, in view of the fact that the claimant had at
least thirty days within which to close his business after the purchase of the
property by the state road commission and that it was approximately sixty days
before the buildings were removed, that he had sufficient constructive notice
of the purchase of the property by the state road commission, and that he knew
all about the transaction and the purpose for which the property was being
purchased; that even under the provisions of his lease he would not have been
entitled to a longer notice, if the same had been formally given, and having
knowledge from before the time he leased the property that it was to be taken
over for road improvement purposes, that he cannot now claim any damage against
the state road commission by reason of the purchase of the property in
question. He does not stand in the position of an innocent tenant whose
enjoyment of a lease is interfered with by condemnation of the property that he
occupied as such tenant, without due notice and compensation, but, on the other
hand, had at least constructive notice of the sale of the property and the
purpose for which it was to be used in the future. Under all the circumstances
and evidence in the case, we are of the opinion that he was not deprived of any
property rights by reason of any action at law or by reason of the purchase of
the property, and therefore refuse an award
W. VA.]
REPORTS STATE COURT OF CLAIMS 115
(No. 251-S??Claimant awarded $9.00.)
J. D. GANDEE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
O2inion filed July 14, 1943
G. H. A. KUNST, JUDGE.
Top of claimant?s truck was damaged by
rock from blasting operations of respondent at Kelly Hill, Kanawha county, on
December 7, 1942. The amount of claim is $9.00, cost of repair.
Respondent recommends and the attorney general approves payment.
An award of nine dollars ($9.00) is made to claimant.
(No. 254-S?Claimant awarded $7.14.)
LUTHER McMILLON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 14,
1943
G. H. A. KUNST, JUDGE.
Claim is for damage to claimant?s car,
caused by respondent?s truck being out of control by reason of ice on road,
December
? 5, 1942, and striking car on road at Lashmeet, Mercer
county. The amount of claim is $7.14, cost of repair.
Respondent recommendsi and attorney general approves its payment.
An award of seven dollars and fourteen cents ($7.14) is made to claimant.
116 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 255-S-?Claimant awarded $2.54.)
E. R. NORRIS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 14, 1943
G. H. A. KUNST, JUDGE.
Claimant?s car was damaged when he
backed car into streetcar rails negligently left by employees of respondent in
claimant?s private driveway at Glendale, Marshall county, on December 19, 1942.
The amount of claim is $2.54, payment of which is recommended by respondent,
and approved by the attorney general.
An award of two dollars and fifty-four cents ($2.54) is made to claimant.
(No. 256-S?Claimant awarded $38.83.)
HUBERT HAGER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 14, 1943
G. H. A. KUNST, JUDGE.
Respondent?s truck crossed center line
of road and collided. with claimant?s truck on state route 80, at Greenville,
in Logan county, on October 10, 1942, and caused damage claimed, $38.83. This
was the cost of repair, 25% of cost of repair
W. VA.]
REPORTS STATE COURT OF CLAIMS 117
having been deducted for damaged
condition of truck previous to collision.
Respondent recommends and the attorney general approves payment of claim.
An award of thirty-eight dollars and eighty-three cents ($38.83) is made to
claimant.
(No. 261-S?Claimant awarded $43.00.)
PEARL FITZWATER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
O?pinkn fIled July 14, 1943
G. H. A. KUNST, JUDGE.
Car of claimant was damaged by an insecurely
fastened wheel-barrow falling from respondent?s truck and striking it. The
accident happened under Reed underpass in Kanawha county, April 20, 1942. The
amount of claim is $43.00, actual cost of repair.
Respondent recommends and the attorney general approves its payment.
An award of forty-three dollars ($43.00) is made to claimant.
118 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 262-S?Claimant awarded
$30.75.)
TYLER COUNTY AUTO SALES, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 14, 1943
ROBERT L. BLAND, JUDGE.
From the record in this case it
appears that on the afternoon of February 22, 1943, Robert Johnson, truck
driver for the state road commission of Tyler county, was driving state road
truck No. 630-65, working on route 18, project 3314, two miles
southeast of Sistersville. The said Johnson was dumping a load of mud to fill a
break in the side of the highway that had recently settled due to wet weather,
and in order to dump this load of mud where it was needed it was necessary to
place the truck crosswise of the highway, using the greater half of this
section of roadway. To empty the truck bed Johnson found it necessary to jerk
the truck forward to loosen the sticky mud that clings to the bottom of the
truck bed. While this was being done, Hugh Cooper, state road commission
flagman, directed Owen, the driver of the Chrysler car, to pass the state road
truck. In so doing the state truck moved slightly forward catching the left
rear fender on the Chrysler car causing damages thereto.
The record of the claim under consideration was prepared by respondent and
filed with the clerk on the 1st day of April 1943. The road commission
recommends the payment of the claim. It is approved by the attorney general as
one that should be paid. In our judgment the state road commission was
responsible for the accident and for the damages sustained by claimant. The sum
of $30.75 was actually incurred by claimant in the repair of his motor vehicle
as shown by an itemized statement made a part of the record.
We, therefore, award to claimant, Tyler County Auto Sales, the sum of thirty
dollars and seventy-five cents ($30.75).
W. VA.]
REPORTS STATE COURT OF CLAIMS 119
(No. 265-S?Claimants awarded $623.16.)
GRISSELL FUNERAL HOME, and
ELMER SCHWEIZER, Cliaimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 14, 1943
ROBERT L. BLAND, JUDGE.
The claim embraced in this proceeding arises out of a highway accident which
occurred on route 2, project 184-c, approximately two miles south of
Moundsville in Marshalil county, West Virginia, on Friday morning, March 12,
1943. It appears from the record prepared by respondent and filed with the
clerk on April 10, 1943, that on the said morning of March 12, at about 11: 00,
a crew of Marshall county state road commission employees was clearing the
ditch along route No. 2, working truck shovel No. 625-3 for loading truck No.
630-67. When engaged in such work it is necessary to maintain one-way traffic
through the men-working zone, always using a flagman to instruct traffic.
George Ruckman, driving truck No. 630-67, had returned to the working zone from
unloading his truck at the waste pit and stopped the truck headed toward the
ditch on the left side of the highway 110 feet south of the shovel, waiting for
an opportunity to turn the truck to be reloaded. Roy Myers, another truck
driver, driving truck 630-81, following Ruckman a short distance behind, passed
and stopped his truck also on the left side of the road and at this particular
moment both state road trucks were stopped. An ambulance, driven by Elwood
Grissell, of Moundsville, traveling south at a moderate rate of speed was given
the all clear signal to drive on through the men-working zone by the flagman,
Charles Weidebush. Suddenly, without orders, Ruckman backed his truck in front
120 REPORTS
STATE COURT OF CLAIMS [W. VA.
of the ambulance causing the claimant, Grissel, to run into the truck and
damage the ambulance to an itemized amount of $623.16. The flagman, Weidebush,
states that Ruckman was parked at the side of the road with the truck doors and
windows closed and did not look to him for any signal, as is customary for
drivers to do, and backed the truck in front of the ambulance while he and Paul
Bungard, a shovel operator, were shouting to him to stop the truck.
As a result of the accident the ambulance was very badly damaged and the
claimant, Grissell Funeral Home incurred liability in the sum of $623.16 for
materials furnished and work and labor done in repairing the vehicle.
It does not appear from the record that claimant, Grissell Funeral Home, has
made settlement with claimant Elmer Schweizer for this amount.
The state road commission recommends an award in favor of the two claimants for
the said sum of $623.16. The attorney general approves this payment as one
which in contemplation of the court act should be paid. Our examination of the
record convinces us that the claim asserted is just and meritorious and
entitled to an award.
We, therefore, award to claimant, Grissell Funeral Home and claimant Elmer E.
Schweizer, jointly, the sum of six hundred twenty-three dollars and sixteen
cents ($623.16).
W. VA.)
REPORTS STATE COURT OF CLAIMS 121
(No. 266-S?Claimant awarded $60.59.)
W. V. WEBB, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled July 14, 1943
ROBERT L. BLAND, JUDGE.
The record of this claim, prepared by
the state road commission and filed in the court of claims on the 12th day of
April 1943, shows that a Dodge automobile owned by claimant,
W. V. Webb, of Williamson, West Virginia, was seriously damaged on the 8th day
of March 1943, on U. S. route No. 52, in the city of Williamson, Mingo county, West
Virginia. On that day claimant?s car was parked on West Fourth avenue in said
city of Williamson, when a state owned truck ran into it and caused the damage
complained of. It appears from the record that it required the sum of $60.59 to
repair the machine. The report made to the state road commission concerning the
accident clearly indicates that it was the direct result of negligence on the
part of respondent.
Respondent has recommended the payment of the claim as filed and the attorney
general has approved the same as one which should be paid. We are of opinion,
upon the showing made by this record, that the claim is just and one which the
state as a sovereign commonwealth should in equity and good conscience
discharge and pay. An award is therefore made in favor of claimant, W. V. Webb,
for the said sum of sixty dollars and fifty-nine cents ($60.59.)
122 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 267-S?-Claimant awarded $25.00.)
C. P. WHITE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 14, 1943
ROBERT L. BLAND, JUDGE.
A claim made against the state road
commission by C. P. White in the sum of $25.00, for damages sustained to his
automobile on route 19-21 in Raleigh county, on December 21, 1942, when his
motor vehicle was run into and seriously injured by a state owned vehicle, was
adjusted by compromise settlement, subject to the approval and ratification of
this court. The record of the claim was prepared by respondent and filed on
April 13, 1943. It appears from this record that the compromise sum agreed upon
is fair and reasonable, and, under all the circumstances disclosed by the
record, a fair settlement.
The state road commission recommends payment of this claim and the attorney
general approves the same as one that should be paid. We therefore award to the
claimant, C. P. White, the said sum of twenty-five dollars ($25.00).
W. VA.]
REPORTS STATE COURT OF CLAIMS
123
(No. 268-S?Claimant awarded $49.47.)
A. G. REIMER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 14, 1943
ROBERT L. BLAND, JUDGE.
The claim involved in this action is
the result of the negligence of the driver of a state owned motor vehicle. The
accident occurred on the 6th day of April 1943 on U. s. route
#60 at Fudges creek, Cabell county, West Virginia. It is shown that while a
case tractor of the state road commission .was being towed to a garage for
repairs to its steering gear, the radius rod came loose and dropped to the hard
surface of the highway, causing the tractor to veer to left where it sideswiped
the passing car owned by claimant. The record shows that the operator of the
state vehicle was at fault and that the accident was the direct result of respondent?s
negligence in the management of the vehicle. A verifying invoice, made a part
of the record, shows that the claimant incurred liability in the sum of $49.47
for the necessary repirs to his car.
The state road commission, after an investigation of the circumstances
attending the accident recommends the payment to the claimant; the attorney
general approves it as one that should be paid. From our examination of the
record, which was prepared by respondent and filed in this court on the 21st
day of April 1943, we are of opinion that the claim is just and should be paid.
An award is therefore now made in favor of claimant, A. G. Reimer, in the said
sum of forty-nine dollars and forty-seven cents ($49.47).
124 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 270-S?Claimant awarded
$20.25.)
KENTUCKY-WEST VIRGINIA JUNK COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opin?,n
flIed July 14, 1943
CHARLES J. SCHUCK, JuDGE.
Claimant, the Kentucky-West Virginia
Junk Company, of Williamson, West Virginia, seeks reimbursement in the sum of
$20.25, which amout it claims as damages for an injury to its truck occasioned
by the negligence of the driver of state road truck #230-97, in the city of
Williamson, Mingo county, on January 25, 1943. The damages in question were
paid by the claimant, and were occasioned by the state road truck swinging too
widely over the center line of the road on which the accident happened and
thereby causing a collision with claimant?s oncoming truck.
The state road commission does not contest the claimant?s right to an award for
the said amount but concurs in the claim for that amount, and the claim is
approved by a special assistant to the attoruey general as one that should be
paid. We have carefully considered the case upon the record as submitted and
are of the opinion that it should be entered as an approved claim and an award
is made accordingly in the sum of twenty dollars and twenty-five cents
($20.25).
W. VA.]
REPORTS STATE COURT OF CLAIMS 125
(No. 274-S?Claimant awarded $120.98.)
KATIE H. LEGG, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied July 14, 1943
CHARLES J. SCHUCK, JUDGE.
Claimant, Katie H. Legg, of Quinwood,
West Virginia, seeks reimbursement in the sum of $120.98 as damages to her car,
caused by state road truck #930-75 pulling out in front of claimant?s car
without proper notice to the claimant, the accident having happened on u. s.
route NO. 60 near Alta, Greerbrier county, on March 18, 1943. The
state maintenance engineer in a communication to the state road commission on
May 27, 1943, accepts responsibility for the amount in question on the part of
the state road commission, and states that the accident was caused by the
negligence of the state road employees in charge of the state road truck in
question.
The state road commission does not contest claimant?s right to an award for the
said amount but concurs in the claim for that amount, and the claim is approved
by the special assistant to the attorney general as one that should be paid. We
have carefully considered the case upon the record as submitted and are of the
opinion that it should be entered as an approved claim and an award is made
accordingly in the sum of one hundred twenty dollars and ninety-eight cents
($120.98) in full settlement.
126 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 276-S-?Claimant awarded $32.40.)
Q. EDWARD MYER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 14, 1943
CHARLES J. SCHUCK, JUDGE.
Claimant, Q. Edward Myer, of Philippi, West Virginia, seeks reimbursement in the sum
of $32.40 as damages to his auto.. mobile occasioned by a collision with state
road truck No. 730-72, on route No.
119, near what is known as Flatwoods
Quarry, said collision having taken place on the 23rd day of March 1943. It
appears; from the record that while claimant had used the road in question on
previous occasions, yet at all such times a flagman, employed by the state road
commission, was placed to take care of traffic passing the quarry in question,
at and about the time that state road trucks were either entering or leaving
the said quarry. At this particular time no flagman was on duty. From the
record it is shown that the state road truck swung or pulled over to the left of
the center white line in an endeavor to make a right turn into the said quarry,
and in so doing collided with claimant?s automobile causing the damages in
question.
The state road commission does not contest the claimant?s right to an award for
the said amount but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case on the record as submitted and are
of the opinion that it should be entered as an approved claim and accordingly
an award is made in the amount of thirty-two dollars arid forty cents ($32.40)
in full settlement.
W. VA.]
REPORTS STATE COURT OF CLAIMS 127
(No. 277-S?Claimant awarded $8.57.)
MINERVA L. SIBBALD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Optnion filed July 14, 1943
CHARLES J. SCHUCK, JUDGE.
The claimant, Minerva L. Sibbald, of
Elkins, West Virginia, seeks reimbursement in the sum of $8.57 for damages to
her car occasioned by the failure of the state road commission?s maintenance
crew to remove rocks which had been allowed to collect on a graded road in
Randolph county, West Virginia, and which happened on the 1st day of December
1942. The road in question was a secondary road that had been graded by the
maintenance crew of the respondent, and which crew, as stated, had failed to
remove rock and other material and causing the injuries to claimant?s
automobile in question.
The state road commission does not contest the claimant?s right to an award for
the said amount but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record as submitted and
are of opinion that it should be entered as an approved claim and an award is
made accordingly in the sum of eight dollars fifty-seven cents ($8.57) in full
settlement.
128 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 278-S?-Claimants awarded $50.00.)
OTTO L. MEYERS, and IONA MYERS, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed JuIp 14,
1943
CHARLES J. SCHUCK, JUDGE.
Claimant, Otto L. Meyers and his daughter lona Meyers, of 471 Spruce street,
Morgantown, West Virginia, seek reimbursement in the sum of $50.00 for personal
injuries to the said daughter, lona Meyers, now approaching her twenty- second
birthday, and occasioned by defective flooring on a bridge crossing the
Monongahela river at Morgantown, West Virginia, and maintained by the state
road commission. It appears from the record that the said lona Meyers at the
time of the accident, namely August 13, 1939, was eighteen years of age, and
was injured by being thrown to the floor of the said bridge, by the said
defective wooden flooring, through no fault of her own.
The state road commission does not contest the claimant?s right to an award for
the said amount, as a compromise settlement, for the injuries to the said lona
Meyers, but concurs in the claim for that amount, and the claim is approved by
the special assistant to the attorney general as one that should be paid. We
have carefully considered the case upon the record submitted and are of the
opinion that it should be entered as an approved claim and an award is made
accordingly in the sum of fifty dollars ($50.00), in full settlement, to the
said claimant Otto L. Meyers as the father of the said claimant lona Meyers,
and to the said lona Meyers in her own right as well.
We further find that before payment is made of the amount in question to the
claimants, or either of them, that a full
W. VA.j REPORTS
STATE COURT OF CLAIMS 129
release should be signed and executed to the state road commission on the part
of both claimants, releasing the state, and especially so the state road
commission, from any other claim for damages by reason of the said occurrence.
(No. 279-S?Claimant awarded $40.00.)
F. J. SPRAGG, Claimant,
STATE ROAD COMMISSION, Respondent.
Opinion flIed July 14, 1943
CHARLES J. SCHUCK, JUDGE.
Claimant, F. J. Spragg, of Littleton, West Virginia, seeks reimbursement in the
sum of $40.00 which amount is claimed as damages to claimant?s car occasioned
by state road truck #300-703 negligently colliding therewith and causing the
damages in question. The accident happened on March 7, 1943. Claimant?s truck
was parked along the highway, route
250, near Kingmont in Marion county, West Virginia, and while so parked, the
state road truck in question, not being securely locked, drifted back and
struck and collided with the left side of claimant?s automobile, causing the
damages which occasioned the outlay of the amount in question.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted and are
of the opinion that it should be entered as an approved claim and an award is
made accordingly in the sum of forty dollars ($40.00) in full settlement
130 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 229?Claim denied.)
IVY FRAZIER, Executrix of the estate of
U. M. FRAZIER, deceased, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
opinion flied July 22, 1943
Upon a claim for wrongful death
where no workmen?s compensation was carried by the department concerned at the
time of the death, when it appears from the evidence that the death was due to
natural causes and not to any injury or other cause incident to the course of
decedent?s employment, an award will be denied.
Appearances:
Linn Mapel Branncm, Esq., for the claimant;
Estcrn B. Stephenson, Esq., special assistant to the Attorney General,
for the state.
WALTER M. ELSWICK, JUDGE.
The evidence taken on this claim
reveals that U. M. Frazier, while employed by the board of control at Weston
state hospital, Weston, West Virginia, died on the twenty-sixth day of February
1935. It also appears that at that time the board of control was not a
subscriber to the West Virginia workmen?s compensation fund. Letters of
administration were issued to Ivy Frazier, widow of U. M. Frazier, by the clerk
of the county court of Lewis county, West Virginia, on January 26, 1943. The decedent
had been emplbyed as an attendant at said hospital for a period of about
twenty-four years prior to his death.
W.VA.J REPORTS
STATE COURT OF CLAIMS 131
From the evidence it further appears
that on the morning of the twenty-fifth day of February 1935, the decedent U.
M. Frazier had walked from his home in Weston to said hospital, a distance of
about three-fourths of a mile (record p.p. 122- 124); that he left home about
six o?clock and that it would take about twenty minutes to walk from his home to
the hospital (record p.p. 121-122). He had arrived at the hospital and reported
for work as an attendant in ward No. 8 at about six thirty o?clock (record p.p.
75 and 96) when one of the patients by the name of John Charney started a
disturbance by swearing and threatening to strike the attendant Frazier. At
this time another attendant Otis Saunders reported for duty on the ward and he
together with Ray Morrison an attendant helped Frazier place Charney in a
strong room. Said Morrison occupied a room about 75 feet away from Charney and
Frazier when he heard Charney swearing (record p.p. 59, 97) at which time the
door to his room was open. John Charney was a small man weighing about 124 lbs.
and a little over 5 feet 1/4 inches tall, and Frazier was a man weighing around
175 to 180 lbs. and was about 5 feet 9 inches tall. Chamey was an epileptic
patient. He was unruly and resented being corrected. (Record p.p. 72, 110).
There were from fifty to sixty patients in ward No. 8 (record p.p. 9, 38), with
three day attendants, namely, said U. M. Frazier, Otis Saunders, and Worthy
Carson (record p. 36). At seven o?clock from twenty-five to thirty patients
were taken to breakfast from the said ward No. 8 to the dining room by the
attendants Otis Saunders and Worthy Carson, during which time U. M. Frazier was
left in charge of the ward. (Record p. 38). After all patients were served
breakfast, Otis Saunders and U. M. Frazier started to shave the patients at
about eight o?clock. At that time U. M. Frazier stated that he was getting sick
and then went to his room and lay down on his bed (record p.p. 40, 98). Later
Dr. Bobes a hospital physician was called to treat him and advised that he
should be left in his room and not moved (record p. 8). Dr. Bobes was serving
in the armed forces of our country at the time of the hearing.
132 REPORTS
STATE COURT OF CLAIMS [W. VA.
At the hearing there was testimony introduced to the effect that the decedent,
Frazier, stated that on the evening before his death that he had been attacked
by and had had a scuffle with the patient John Charney while the other two
attendants of the ward were out to take patients to the dining room. The
witness Worthy Carson also testified that Charney was taken to the strong room
after patients had been served breakfast. The purported statements of decedent
were casual in nature and would not under the circumstances come within the
exceptions to the hearsay rule excluding such testimony. However, we have the
testimony of Carson, Saunders and Morrison, the only persons present when
Charney was placed in the strong room, to the effect that Frazier made no
statement to them that he had had any attack by or scuffle with Charney (record
p.p. 41, 61, 97). None of them noticed any disarrangement of his clothing or marks
on his body, although a torn tie was exhibited in evidence by Mrs. Frazier as
having been torn in a scuffle by the patient Charney. The witnesses Saunders
and Morrison were positive in their testimony that Charney was placed in the
strong room before the patients were served breakfast. The witness Morrison
asked Frazier if he had gotten injured when placing Charney in the strong room,
and he answered that he hadn?t, but that he was suffering from indigestion;
that he was accustomed to such spells, (record p.p. 51, 63, 79, 88, 89). He
never mentioned any scuffle to either Morrison or Saunders at any time (record
p.p. 78, 99). There was a clear view from Morrison?s room to where Charney and
Frazier were at ward NO. 8 (record p.p. 66, 86, 97), and Morrison testified that
Charney had not made an attack upon Frazier (record p. 61). Morrison was not an
employee of the hospital at the time of the hearing.
No repo.rt of any accident was ever made to the hospital staff or to the board
of control, and no claim was made for any neg1ect or default of the board of
control or of its officers and employees as to the cause of the decedent?s
death until the filing of this claim.
W. VA.] REPORTS STATE COURT OF CLAIMS 133
The death certificate of U. M. Frazier
filed at the vital statistics office states that the decedent died from angina
pectons, coronary occlusion.
On the morning before his death U. M. Frazier was suffering pain. He was
vomiting ?corruption, and blood in with it.? (Record p. 55). Dr. D. P. Kessler
was called after Mr. Frazier?s death. He found ?his whole frame seemed to be
flushed, a great deal of flushing, his face and chest.? (Record p.p. 33, 34).
Dr. Kessler had made a casual observation or examination of Mr. Frazier a short
time prior to his death and at that time failed to detect any heart condition
requiring treatment. (Record p p. 28, 29). He made no notation of his findings
and testified from meniory only. He did not make a urinalysis and did not make
an examination with a cardiograph. No post-mortem examination was taken.
In view of all of the evidence in the record we are therefore confronted with
the question as to whether U. M. Frazier died from natural causes or from
causes incident to his employment. We are of the opinion from the evidence that
his death was not duo to any cause incident to his employment but was due to a
heart condition. We therefore deny an award.
134 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 208?Claimant awarded $1,500.00.)
LON E. UPTON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July
22, 1943
1. When the state road commission
by the act of 1933 assumed control and authority over the primary and secondary
roads of the state, the duty was imposed upon it to guard all dangerous places
on the public roads and bridges by suitable railings or barriers, so as to
render the said roads and bridges reasonably safe for travel thereon by day or
by night.
2. Where the claimant is charged with contributory negligence which from the
evidence presenta a mixed question of law and fact, and on which reasonable
minds may differ, the question of such negUgence will be considered in
determining whether or not an award should be made, and if made, the amount
thereof.
Appearances:
D. D. Stem pie, Esq., and Dayton
R. Stem.pe, Esq., for the
Claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General for the
state.
WALTER M. ELSWICK, JutoE.
From the evidence submitted it appears that on the night of September 29, 1941,
the claimant, Lon E. Upton, while walking on the Ford Run road in Barbour
county, West Virginia, stepped off the upper edge of a bridge or culvert
spanning a stream known as Ford Run, and fell into the bed of the stream. The
stream bed consisted of a rock bottom and the stream was practically dry at the
time. Claimant fell about seven and one-half feet from the top of the bridge
covering to the stream bottom.
W. VA.]
REPORTS STATE COURT OF CLAIMS 135
It further appears from the evidence that
when this bridge or culvert structure was first built that there was a side
wall or curb extending up about 16 to 18 inches on each side. This bridge was
originally constructed by the county court of Barbour county, West Virginia.
After the state road commission took charge of the road under the act of 1933 a
fill was made by filling in between these curb walls leaving the sides of the
bridge or culvert leveled off with the traveled portion of the structure
(record p.p. 79, 80). The bridge or culvert was built on a skew with 28? feet
between head walls, that being the length of the structure inside the head
walls. (Record p. 81). It was placed a few feet up stream out of alignment with
the road and there is a curve in the roadway where the bridge or culvert
crossed the stream. (Record p.p. 11, 83). The opening under the culvert was
five feet wide by five feet high. The bridge or culvert in question was about
350 to 400 feet from the intersection of said Ford Run road and the Morgantown
or Beverly pike. Claimant resided about 300 yards from the bridge site and had
traveled over the same a number of times in the daytime.
On the night in question claimant left his home at about eight to eight-thirty
in the evening and went to the home of Guy House who resided on the bank of the
road about 100 feet straight up from the road. With the path leading from the
road to the house of Guy House on which claimant traveled it was a distance of
about 175 to 200 feet. It was necessary for claimant to travel over the bridge
or culvert to go to and from the home of Guy House. (Record p. 15). Claimant
had gone to employ House to cut his corn. When he left home it was beginning to
get dark. While at the home of House, it began to rain and continued to rain
after he started to return to his home about ten o?clock in the evening.
(Record p. 16). By that time it was so dark claimant could not see the road.
The rainwater had overflowed a small culvert above the bridge and this overflow
of water had washed cinders and gravel on the pavement of the road between the
House residence and the bridge in question (record p. 17).
136 REPORTS STATE COURT OF CLAIMS [W. VA.
From the end of the said path at the road it was a distance of about 25
feet to the bridge (record p. 19).
Claimant had no light and had followed the path leading from Guy House?s
residence down the road and then proceeded down the road to the bridge and
while on the bridge couldn?t see either the bridge or the road. Trees were
standing on the road right of way opposite the bridge. He then thought he was
too far to the right and stepped to his left off into the stream bed. We find
from the evidence that claimant was taking all reasonable and necessary
precautions that his duties as a traveler on the road in question required of
him.
During the hearing the respondent offered testimony to the effect that the
structure in question was classified by the road commission as a culvert and
not a bridge and apparently relied upon this as a defense to the claim filed.
From this testimony it would appear that a bridge is classified as a structure
across a stream with the floor flush with the roadbed, and a culvert is built
lower down with a fill on top of it to bring it up to level with the roadbed.
From all the evidence in this case we are of the opinion that regardless of
what the structure and roadbed is called the structure, whether it be a bridge
or a ?u.ivert, was dangerous and such as would likely be the cause of the
mishap in question. We are of the opinion that after the filling in of the
curbs or side wall of the structure as originally made, that a curbing, railing
or some other device should have been erected as a warning or a protection to
pedestrians traveling as claimant found himself in this case. This was the duty
of the state road commission when repairing or taking over the road under the
act of 1933. See claim NO. 31, Hershberger
v. Road Comnission, 1
Ct. Claims (W. Va.) 52.
As a result of the fall claimant sustained a broken leg and arm. He was
confined at the Davis Memorial hospital at Elkins, West Virginia, for a period
of four months and two dnys before his leg was placed in a cast, and two weeks
after
W. VA.]
REPORTS STATE COURT OF CLAIMS 137
the cast was set. He later remained in
said hospital for a period of 13 days (record p.p. 24, 25). He was still using
crutches at the time of the hearing, and his leg where broken has abscessed and
is still a running sore. Pieces of bone have worked out of the abscessed spot.
Claimant has been advised by the attending physicians of said hospital that
they believe it best now to amputate his leg. (Record p.p. 25, 26). Claimant
has apparently suffered considerable pain and will no doubt be unable to do any
work for quite some time. He had worked on the farm and in the coal mines. He
had no skilled trade and received very little education, not having completed
more than the second or third grade when leaving school.
The statement of Dr. Benjamin I. Golden who attended claimant filed in the case
as an exhibit, and under an agreed stipulation by counsel for claimant and the
assistant to the attorney general for the state, is as follows:
?The above patient was admitted to the Davis Memorial hospital for the first
tire on September 29th, 1941. On admission, he was suffering from a severely
lacerated lower lip; fracture of the left wrist; laceration of the left thumb;
compound fracture involving the distal one-third of the left femur and knee
joint, with approximately one inch of the shaft of the femur protruding through
the skin. The fractured fragments showed marked comminution.
?The patient stated that the cause of this accilent was due to falling from a
bridge while he was enroute home. He stated it was very dark, the bridge had no
side rails, and he fell off of it.
?Following the injury, massive infection developed and at the present time, he
has an active osteomyelitis. On our examination a month ago, we recommended
amputation at the mid-thigh. The condition from which he is now suffering is
entirely the result of the accident. He has been admitted to the hospital
repeatedly since the original admission because of localized abscess formation
and on three or more occasions we have operated in an effort to clean up the
infection, and have failed.?
138 REPORTS
STATE COURT OF CLAIMS [W. VA.
From all the evidence in the case we
are of the opinion that the condition of the bridge was such as would create a
liability and justify an award, and from all the evidence we are of an opinion
that an award of fifteen hundred dollars ($1500.00) would be fair and just. An
order will be so entered by a majority of the court, accordingly.
Judge Bland dissents and will file an opinion setting forth his reasons.
ROBERT L. BLAND, JUDGE, dissenting.
As I read and interpret the record in this case there should be no award in
favor of the claimant. If for no other reason, contributory negligence on his
part would preclude and bar an award.
The Supreme Court of West Virginia has held that the state road commission is a
direct governmental agency of the state, and as such is not subject to an
action for tort. Mcthone v. Road
Commission, 99 W. Va. 397. In the
opinion in that case Judge Hatcher says:
?By virtue of section 35, article 6 of the Constitution, an individual has no
right of action against the state. He has no greater right against an agency of
the state to which it has delegated performance of cetrain of its duties. The
State Road Commission is such an agency. Therefore, the plaintiff herein cannot
maintain his action against this Commission. The law in relation thereto is
thoroughly established by the decisions of this court in Bctrber Admx. v.
Spencer State Hospital, 95 W. Va. 463, in Miller v. State Board of Agriculture, 46 W. Va. 192, in Gordon v. State Board of
Control, 85 W. Va. 739, and in Miller Supply Co.
v. State Bord of Coiitrol, 72
W. Va. 524.?
Chapter twenty of the acts of the Legislature of 1941, creating the court of
claims, does not increase or enlarge the liability of the state. There is no
statute making the state liable for the accident sustained by claimant.
W. VA.]
REPORTS STATE COURT OF CLAIMS 139
It is not conceived that it was the
purpose of the Legislature in creating the court of claims to attempt to
nullify or hold for naught the constitutional immunity of the state from suit
or to abrogate or supersede the decisions of the Supreme Court based upon and
giving effect to such constitutional inhibition.
From time to time claims arise against the state which as a sovereign
commonwealth it should, in equity and good conscience, discharge and pay. They
may properly be denominated moral obligations of the state. It was for the
purpose of adjudicating and taking care of claims of this character that the
court of claims was created. The Legislature contemplated that all such claims
should be thoroughly investigated and when they were made to appear to be just
and proper awards should be made therefor. The disposition of each claim should
depend upon its individual merits. Such claims were presented in large numbers
to the Legislature at each session, and few were ever given an adequate
consideration on account of the unavoidable pressure of legislative duties. The
court of claims is intended to relieve the Legis-. lature of the burden imposed
upon it by the filing of such claims. Its duty is to act in both an
investigating and advisory capacity. It is to be presumed that when three
members of the court have made thorough investigation of such claim and are in
accord with respect to the disposition that should be made thereof the
Legislature would be in a position to act intelligently in relation thereto,
but where the determination of a claim is not unanimous the court act expressly
provides that such fact shall be brought to the attention of the Legislature by
a dissenting statement or opinion.
In the instant case I think the syllabus
is too broad and imposes a duty and
obligation on the part of the state road commission unwarranted by general law.
140 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 152, 153, 154, 155, 156, 157?Claimants awarded $3,500.00 each.)
J. P. BURGESS, C. J. JONES, E. W. LIVELY, ROY H.
ADKINS, EDWARD D. BURNETI?E and JOE
SURBER, administrators, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flIed July 22, 1943
Opinion on rehearing filed February 16, 1943
1. When the state road commission by the act of 1933
assumed control and authority over the primary roads of the state, the duty was
imposed upon it to guard all dangerous places on the public roads and bridges
by suitable railings or barriers, so as to render the said roads and bridges
reasonably safe for travel thereon by day or by night.
2. Where the claimant is charged with contributory negligence which from the
evidence presents a mixed question of law and fact, and on which reasonable
minds may differ, the question of such negligence will be considered in
determining whether or not an award should be made, and, if made, the amount
thereof.
Appearances:
Myron R. Renick, Esq., and T.
C. Townsend, Esq., for the claimants;
Eston B. Stephenson, Esq., special assistant Attorney General, for the
state.
CHARLES J. SCHUCK, JUDGE.
The claimant, J. P. Burgess,
administrator of the estate of Edward Sinclair Burgess, deceased, together with
five other administrators of the estates of Esther Jones, Ruth Ann Lively, Roy
Herber Adkins, Jr., Edward D. Burnette, Jr., and Mar-
W. VA.]
REPORTS STATE COURT OF CLAIMS
141
guerette Francis Surber, respectively,
bring their several claims against the state road commission for damages
resulting from the deaths of the aforesaid Edward Sinclair Burgess, Esther
Jones, Ruth Ann Lively, Roy Herbert Adkins, Jr., Edward D. Burnette, Jr., and
Marguerette Francis Surber, occasioned by the automobile in which the said six
persons were riding being driven or precipitated over a high embankment
adjacent to primary road or route No. 61 at and near Deepwater, in Fayette
county, West Virginia, on the night of January 26, 1941. All of the said six
persons, so far as the record reveals, were instantly killed in the said
accident. Each claim is brought in the amount of $10,000.00 and as the facts
and circumstances surrounding the happening of the accident are identical, so
far as the individual claims are concerned, the court combined them and heard
all of the testimony at one hearing, and the claims are now so considered, one
opinion only being necessary and governing the disposition of all the said
claims or actions.
The testimony shows that the accident happened on the night of January 26,
1941, at approximately 10:45 o?clock; it was a dark, misty night, with limited
vision, and while not a fog, yet weather conditions were such as to make it
difficult to keep the windshield of an automobile clean and free so as to have
an unimpaired vision while driving. The road in question reaches from a point
near the Kanawha river about six or seven miles from the town of Montgomery, up
the mountainside in the direction of Oak Hill; is steep, and at the place of
the accident thereof, when traveling toward Oak Hill, has a very high,
dangerous and quite precipitous embankment or fall, approximately ninety feet
high. It was over this embankment that the automobile in question was driven,
falling the entire distance down the side thereof and landing on the railroad
tracks below. There were no barriers or railings constructed along the highway
at the point in question where the accident took place, nor were there any
markers or signs posted along the road to warn persons of its condiiton nor of
the nearby embankment; nor was there any white line on the highway to indicate
its center or its
142 REPORTS
STATE COURT OF CLAIMS [W. VA.
possible width, by which an
automobilist could or may have been guided.
The claimants maintain that the state road commission was negligent in failing
to provide guards or barriers, as the place where the accident happened was
very dangerous; and that the commission was further negligent in not having
proper warning signs and in not having the highway marked and lined as a
further security to the travering public.
The state resists the claims on the ground (a) that the state road commission
was not bound to erect guardrails or barriers and (b) that the occupants of the
automobile were guilty of contributory negligence and therefore the
representatives of their several estates barred from any recovery.
In addition to the testimony taken by the court, the members thereof, after the
said hearing was closed, realizing the importance of the claims and the
questions involved, personally visited the scene of the accident arid were
thereby afforded a better opportunity for the consideration of the testimony in
its application to the various questions raised by the claimants and by the
state.
Considering first the legal question offered by the state as to whether or not
the road commission was obliged to erect barriers or guardrails, this court had
held on several occasions that:
?When the state road commission by the act of 1933 assumed control and
authority over the primary and secondary roads of the state, the duty was
imposed upon it to guard all dangerous places on the public roads and bridges
by suitable railings or barriers, so as to render the said roads and bridges
reasonably safe for travel thereon by day or by night.? Fry v. Commission,
1 Ct. Claims (W. Va.) 48; Hershbarger
v. Commission, 1 Ct. Clims (W.
Va.) 52.
In both of these cited claims substantial awards were made and subsequently
honored and confirmed by the Legislature
W. VA.]
REPORTS STATE COURT OF CLAIMS 143
(1943) and ordered paid. In the case
of Wells v. County
Court of Mwrion County, 85
W. Va. 663, 102 S. E. 472, it was held:
?The law imposes upon a county court or other public authority in maintaining
public roads and bridges, the duty to so guard all dangerous places by suitable
railings or barriers as to render them reasonably safe for travel thereon by
day or night.?
We can percieve no reason for changing the rule or holding laid down in the
cited cases when we come to consider the instant cllaims, assuming, of course,
that the place of the accident was highly dangerous as hereafter pointed out, and
consequently feel that we need not give further consideration to the matter of
whether the road commission had a duty to erect guardrails and barriers when
necessary and when required for the safety of the traveling public.
Was the place where the accident happened dangerous and did it require the
erection and construction of suitable guard- rails and barriers? We are of the
opinion that it was, and that guardrails and barriers ought to have been
erected or installed on the highway. The testimony shows the road to be steep,
approximately eighteen feet wide from the mountainside to the embankment or
cliff across the highway; that there was .a reverse or ?5? curve at the point
of the accident, (record p. 37); that the paved part of the road was fourteen feet
wide (record p. 42), with a berm of three feet (record p. 43). Beyond the
paving and on the side of the road where the accident happened the berm
narrowed as one approached the point in the road where the automobile went over
the cliff, graduating from a width of approximately six and one- half feet to
three feet in width, and this fact of itself, in our opinion, presented a
hazard to one using the road, and especially so on a dark, misty night, and as
there were no lines indicating the center line of the paved portion of the
highway, as well as no warning signs or markers of any kind, the hazard became
doubly dangerous when considered in connection with the attendant conditions
existing at the time. Coupled with these facts was the further fact, highly
144 REPORTS
STATE COURT OF CLAIMS {W. VA.
important in our judgment, of the
reverse curve which existed at the point of the accident, and the very nature
of which added to the danger and made an accident highly probably even to one
acquainted with these conditions and exercising the degree of care required of
a traveler on the road in question at the time and place of the accident.
Undoubtedly the commission or the state road authorities in charge of this
highway considered it dangerous, as preparations had evidently been made some
time before the accident to erect barriers or railings thereon. The
uncontradicted testimony reveals (record p. 31) that wire in rolls, seemingly
of the kind used for barrier purposes, had been left or deposited on the highway
at or near the point of the accident for a long period of time prior to January
1941. The wire was not used until after the accident happened; its use before
the accident may have saved the lives of these young people and rendered the
road safe for travel; the authorities would have at least complied with the
rule making the road reasonably safe for travel both by day or night. Added to
all these facts was our own view of the highway and attendant conditions which
forced us to the conclusion that the road was dangerous and one that required
guardrails or barriers to render it reasonably safe for the traveling public.
We repeat, it was a primary road and much traveled.
The state maintains that decedents were guilty of contributory negligence; that
they had driven over the road earlier in the day while on the way to Montgomery
and therefore must have been acquainted with existing conditions. However, it
must be noted that when on the way to Montgomery they must have been driving on
the side of the road against the mountain or hifiside and may or may not have
noticed the danger incident to using the road when traveling in the opposite
direction. Whether they, or any of them, had ever used the road before is not
definitely shown. it is admitted by stipulation that the decedents had not been
drinking, and so far as we are able to determine from the testimony were not
guilty of reckless or careless driving. Visibility must necessarily have been
bad, considering the weather conditions,
W. VA.]
REPORTS STATE COURT OF CLAIMS 145
and while the driver of the automobile could perhaps see some distance ahead,
the question of the effect on the happening of the accident by the presence of
the reverse or offset curve is all important and may or could, under alt the
circun-istances, have confused any driver, even though he was reasonably
careful, and thus have caused the automobile to leave the highway at the place
as shown in the testimony.
With the absence of barriers, markers, lines or warnings of any kind we may
reasonably well be confused as to whether or not there was contributory
negligence sufficient to bar an award, and the minds of men may reasonably
differ on these matters after a mature consideration of all? the testimony and
facts as presented. Under these circumstances, considering all the facts, we
are of the opinion that an award of $3500.00 should be made in the instant
claim, and consequently a similar award of $3500.00 in each of the other five
claims, and recommend that an appropriation accordingly be made by the
Legislature and the amounts in question be paid to the several claimants
respectively, upon the execution of a full and comp1ete release to the state
and the state road commission for all damages occasioned by reason of the
accident in question.
An award is therefore made in the sum of thirty-five hundred dollars ($3500.00)
to each of the aforesaid claimants, in accordance with the majority opinion.
Judge Bland dissents and will file a dissenting opinion.
ROBERT L. BLAND, JUDGE, dissenting.
Since I do not concur in the above awards in the aggregate sum of $21,000.00 it
becomes my mandatory duty to state the reasons for my nonconcurrence. If it be
said that a dissent is but an ?idle gesture? I answer that it should not be so
treated when it deals with a proposed appaThng appropriation of the public
revenue. The requirement in the court act of a dissenting opinion is a wise
provision. It is intended to give notice to the Legislature that the members
146 REPORTS
STATE COURT OF CLAIMS [W. VA.
of the court who have investigated the
claim in question are not in agreement as to the proper recommendation to be
made for its disposition and thus afford the Legislature an opportunity to make
reexamination of the claim before making what might prove to be an improper
appropriation for its payment.
It is true that the Legislature of 1943 paid slight heed to the arduous work of
the court of claims?its special instrumentality?but ratified and approved,
apparently without examination or scrutiny, awards totaling more than one
hundred thousand dollars, except in the ease of two clims for indemnity on
account of alleged negligence of county school board officials, which had later
been disapproved by majority members of the court. Seemingly it should be the
duty of the Legislature to carefully scrutinize and examine all awards made by
the court of claims?however carefully and painstakingly they may have been
made?before making appropriations for their payment. The record of each claim
considered by the court, including all documents, papers, briefs, transcripts
of testimony and other materials, are preserved by the clerk and are made
available to the Legislature or any committee thereof for the reexamination of
the claim. (Court act, section 24). It is the court?s duty to make thorough
investigation of claims asserted against the state and make recommendations
concerning them. These recommendations are not conclusive. The responsibility
for making appropriations rests with the Legislature. Our awards do not have the
effect of judgments obtained in courts of law. They are merely recommendations,
after careful investigation and study, subject to ratification or rejection by
the Legislature.
There is a limitation upon the right and power of the Legislature to make appropriations
for payment of the public funds of the state.
The Legislature is without power to levy taxes or appropriate public revenues
for purely private purposes, but it has power to make an appropriation to a
private person in
W. VA.]
REPORTS STATE COURT OF CLAIMS 147
discharge of a moral obligation of the
state, and an appropriation for such purpose is for a public, and not a
private, purpose. Woodall v. Darst, 71 W. Va. 350
I do not believe that the claims in the instant cases are founded on justice or
supported by moral obligation, or that the state is responsible for the
unfortunate and pathetic mishap which resulted in the six deaths for which the
awards are made by majority members of the court. I do not see the picture of
the accident in the light in which it is reflected by the majority opinion.
The theory on which these claims are prosecuted is alleged negligence on the
part of the state road commission in failing to have necessary warning signs of
danger on the highway.
The proof offered in support of the claims fails to show that the said highway
on which the fatal accident happened was not reasonably safe for travel thereon
by day or by night. On the contrary the evidence conclusivelly shows, I think,
that the road at the time of said accident was safe for those who comply with
the law and use reasonable precautions.
The accident occurred on a mountainside in the nighttime. There was no eye
witness to it. The exact cause of the accident is highly problematic and
conjectural. No one can say just how it happened, but certain deductions may
reasonably be made from circumstances attending it.
As is disclosed by the record, the occupants of the automobile, ranging in age
from sixteen to twenty-one or twenty- two years, were returning from Montgomery
to Oak Hill. Up about six or seven miles the road follows the river, then makes
a sharp left-hand turn and proceeds over a mountain. On the right of this curve
there was a steep embankment. This first curve was successfully negotiated.
However, there was another small turn after the main turn was passed. Claimants
148 REPORTS
STATE COURT OF CLAIMS {W. VA.
contend that this little turn, which they describe as a ?double S? curve, was
lower in elevation than the rest of the road. It was at this point that the
automobile was precipitated over the embankment, resulting in the death of afl
six occupants of the vehicle.
It is contended that the condition of the road at the point of this last
mentioned curve was responsible for the accident. I am not prepared to concede
this to be a fact.
The accident happened about 10:45 o?clock on the night of January 26, 1941.. It
is shown that there was no guardrail, curve sign or road marking of any kind at
or near the point where the fatal automobile left the road.
After the occurrence of the accident trooper J. M. Ballengee, a member of the
department of public safety, made an investigation of the accident and an
examination of the highway at and near the point where it occurred. From
information given by him to A. L. McMillion, assistant maintenance engineer,
district one of the state road commission, the latter
caused a further investigation and survey to be made under his direction and
supervision. A plat or map showing this actual survey was introduced in evidence
upon the hearing of the claims.
Trooper Balilengee testffied on behalf of the claimants and Mr. McMillion was
introduced and testified as a witness on behalf of the state. The testimony of
trooper Ballengee was not of material aid in determining the cause of the
accident. He testified very clearly as to the point where the automobile was
precipitated over the embankment. He gave it as his opinion that the automobile
was driven straight over the embankment at the point of a small curve and that
the road dips slightly right at that particular place ?not very much, but there
was a slight clip in the road there.? He stated the width of the road at that
point to be eighteen feet. He further stated that cars could get over the road
all right at the point of the accident.
W. VA.]
REPORTS STATE COURT OF CLAIMS 149
Trooper Ballengee testified that he
made examination of the tire marks found on the highway and that the tread of
the tires was well defined. He stated that the tire marks started at a certain
point ?and angled off into this small curve.? He located on a photograph the
point on the road from which the tire mark started before angling off into the
small curve where the vehicle went over the embankment and identffied such
point by placing his initials on the picture. From the same information
communicated by him to engineer McMillion the latter caused a survey of these
tire marks to be made and delineated on a plat. This plat shows the path of the
outside wheels of the automobile as pointed out by trooper Ballengee. It
further shows that the automobile left the paved portion of the highway on the
embankment side of the road and ran on the berm for a distance of twenty feet
when the car turned over the embankment at the point where the small curve started
to reverse. It may be that the driver of the car lost control of the wheel at
the point twenty feet distant from this small curve where it left the paved
portion of the road and ran on the berm until it went over the embankment at
the small curve. The survey shows that at the point where the car left the
outer edge of the road the pavement was fourteen feet in width and the berm at
that point on the embankment side of the road was six and a half feet in width,
while on the mountainside the berm was approximately three feet in width. Thus
it is made clear that the automobile started to leave the highway at a point
where it was twenty-three and one-half feet wide. After rounding the first
large curve where the road leaves the river the automobile traveled a distance
of fifty-two feet to the point where it started to leave the road at which
point it was twenty-three and one-half feet in width. It is shown that the road
had an average grade of seven per cent and was of sufficient width to enable
automobiles to travel thereon in safety. There was no occasion for a warning
sign of danger to be placed at or near the point where the car started to leave
the paved portion of the road. So far as the evidence discloses the highway was
in good condition. Naturally any road that traverses a mountainside is
150 REPORTS
STATE COURT OF CLAIMS {W. VA.
attended by more or less danger.
Persons using such a road are charged with the duty of exercising care and
caution.
In re claim NO. 13, Rachel C.
La?imbert, Admx. v. State Road Commission, 1 Ct. Claims (W. Va.) 186, we held:
?Where the evidence in the case shows the highway on which the accident
happened was improved and eighteen feet wide, with no obstruction and no defect
in the highway, and the claimant?s decedent was killed by reason of the car in
which he was riding leaving the said highway and striking a depression or hole
in the berm, then there is no cause of action against the state road commission
and the claim will be denied and dismissed.?
In re claim No. 118, Marguerite
Smith v. State Ro&l Commission, 1 Ct. Claims (W. Va.) 258, we held:
?When an adult woman of good intelligence, while driving her husband?s
automobile on a state highway passes a hole on one side of said highway caused
by a break or slip on the rock base of said highway, which hole she could or
should have seen by the use of ordinary care, and on the same day, in the
daytime thereof, while driving said automobile in the opposite direction drives
it into said hole and the said automobile is precipitated over an embankment
and she sustains personal injuries in consequence of said accident, she will be
held to be guilty of contributory negligence barring a claim for an award for
dam- ages occasioned by said accident.?
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. Moore v. Road
Commission, 1 Ct. Claims (W. Va.) 93; Mifler v. Road Commission, 1 Ct. Claims (W. Va.) 97.
I do not see that claimants have established a case of negligence on the part
of the state road commission entitling them to awards. It appears from the
evidence that the highway on which the accident happened was an improved
primary
W. VA.J REPORTS
STATE COURT OF CLAIMS 151
road of good grade and in generally good condition It is shown that it was
extensively used and it does not appear that an accident had theretofore
occurred thereon. Too much emphasis, I think, is placed upon the alleged
defective condition of the road at the particular point where the automobile
went over the embankment and it is not proved to my satisfaction that the
condition of the road at that point was the proximate cause of the accident. On
the contrary, I believe that the loss of control of the automobile by the
driver thereof when the machine left the road where it was twenty-three and
one-half feet in width was responsible for the accident. I think, moreover,
that the occupants of the car were guilty of contributory negligence. Since
they were returning from Montgomery to Oak Hill, it would seem that they had
previously traveled the road from Oak Hill to Montgomery. It is not shown that
the road was actually out of repair at the immediate point where the car went
over the embankment. The fact that the road at the particular point where the
automobile went over the embankment sloped more, that is that the elevation was
turning more to the right side of the road, does not establish negligence on
the part of the road commission in maintaining the road at that point. It was
proper for the curve to have the elevation in that direction. The road sloped
in the direction of the embankment in order to accommodate traffic. As very
clearly indicated by engineer Mc- Million, the elevation of any curve is
supposed to have a supere!evation so as to make it easy for the traffic in the
curve. The condition of the slope or elevation in the curve at the point where
the automobile went over the embankment was in line with engineering
principles. All curves are elevated.
The absence of warning signs of danger on this mountainside road does not
establish negligence on the part of the state road commission warranting or
justifying the awards made in these cases. The very fact that the road was on a
mountainside was sufficient to put the occupants of the car on notice and cause
them to use care and caution as they proceeded thereon. Weather conditions also
rendered it expedient for them to pay particular attention to the road. The
152 REPORTS
STATE COURT OF CLAIMS [W. VA.
fact that a roll of wire had been
placed alongside of the highway is not significant or a circumstance tending to
show negligence. It frequently happens that wire and other equipment for use in
road repair and maintenance are placed at intervals on the roadside for
purposes of convenient access and use. A white line on the road is only
intended to indicate the side of the road to be used and the presence of a
white line on the road in question would not have prevented the accident under
the circumstances disclosed by the evidence. I know of no obligation that rests
upon the road commission to build and maintain retaining walls on mountainside
roads. Such policy would be prohibitive. All that the state is required to do,
in my opinion, is to make roads reasonably safe for public use and that seems
to have been done on route 61. The state road commission is vested with certain
discretion as to when and where it will make repairs on a state controlled
highway.
As observed by Judge El1.swick in the opinion in re claim NO. 12, Harper v. Road Co?inmission, 1 Ct. Claims (W. Va.) 12, ?The State is not an insurer as to the
condition of its roads.? And, as we have heretofore stated, ?The mere fact of
injury received on a state highway raises no presumption of negligence on the
part of the state road commission.?
While it is true that since our determination of claim No. 17, Charles Golden Fry v. State Road Commission, 1 Ct. Claims (W. Va.) 48, the court of claims has held:
?1. When the state road commission by the act of 1933 assumed control and
authority over the primary and secondary roads of the state, the duty was
imposed upon it to guard all dangerous places on the public roads and bridges
by suitable railings or barriers, so as to render the said roads and bridges
reasonably safe for travel thereon by day or by night.
?2. When the claimant is charged with contributory negligence which from the
evidence presents a mixed question of law and fact, and on which reasonable
minds may differ, the question of such negli
W. VA.]
REPORTS STATE COURT OF CLAIMS 153
gence will be considered in
determining whether or not an award should be made, and, if made, the amount
thereof.?
I am of opinion that such holding should be disapproved and reversed. We based
our opinion in that and subsequent cases on Wells v. County Court, 85
W. Va. 663, 102 S. E. 472, in which it was held:
?The law imposes upon a county court or other public authority in maintaining
public roads and bridges, the duty to so guard all dangerous places by suitable
railings or barriers as to render them reasonably safe for travel thereon by
day or by night.?
Such holding of the Appellate Court in that case was based upon an existing
statute imposing liability upon county courts. Acts of the first extraordinary
session of the Legislature of 1933 imposes no such liability on the state road
commission. Section 35, article 6 of the constitution forbids the enactment of
such a statute. The state road commission of West Virginia is a direct
governmental agency of the state, and as such is not subject to an action for
tort. Mahone v. State Road
Commission, 99 W. Va. 397, 129 S. E.
320. A state cannot be sued without its consent, and is immune from suability
for torts of its agents and officials. Wilson
v. State Highway Commissioner, (Va.)
43 S. E. (2d Ed.) 746. The immunity of a state from liability for torts of its
servants and agents rests on public policy. Id. The state cannot waive its
contitutional immunity from suit. Chapter 20 of the acts of the Legislature of
1941, creating the court of claims made no change in this fundamental law. The
jurisdiction conferred by the act upon the court of claims to consider 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, does not increase or
enlarge the liability of the state, but merely provides a forum wherein claims
against the state may be adjudicated. This was so held by court of claims of
the state of Illinois in construing a statute almost identical with our court
of claims act.
154 REPORTS
STATE COURT OF CLAIMS [W. VA.
The express purpose of the court act
is to provide a simple and expeditious method for the consideration of claims
against the state that, because of the provisions of section 35, article 6 of
the constitution of the state, and of statutory restrictions, inhibitions or
limitations cannot be determined in a court of law or equity. The
constitutional immunity of the state from suit should at all times be borne in
mind. The court is not invested with and does not exercise the judicial power
of the state in the sense of article VIII of the constitution of the state. Its
duties are limited to the investigation of claims filed against the state which
cannot be maintained in courts of law or equity and recommending the
disposition thereof to the Legislature. The court is, therefore, distinctly an
investigating and advisory commission. It deals only with claims against the
state which as a sovereign commonwealth it should in equity and good conscience
discharge and pay. It was not the intention of the Legislature, I think, that
the court of claims should make awards except in cases where claims should be
ascertained to be just and proper within the contemplation and meaning of the
court act. And in the application of this statute it should be the obligation
of the court to consider its objects and purposes, ?and the condition of
affairs which Ted to its enactment, so as to effectuate rather than destroy the
spirit and force of the law ?which the Legislature intended to enact.?
I do not believe that the claims are claims for which awards should be made. I
do not think that the awards made are just and proper or that the court of
claims had authority to make them. The claims are not shown to be supported by
either legal or equitable obligation. They grew out of an unfortunate
automobile accident. Such an accident is liable to occur at any time on any
road when three boys and three girls, filled with the exuberance and gayety of
youth, while riding in an automobile fail to observe necessary care and
precaution for their safety.
I would deny the awards and dismiss the claims.
CHARLES J. SCHUCK, JUDGE, upon petition for rehearing.
W. VA.] REPORTS
STATE COURT OF CLAIMS 155
A majority of the court having
heretofore decided that the several claims presented in the above entitled
matter should be allowed, and an award of $3500.00 having been made in each
instance, the state, through the attorney general?s office, filed its petition
and brief for a rehearing of the cases, which said rehearing was granted and
the facts in connection with the cases again argued, briefs submitted and the
matter again placed in the hands of the court for its determination.
Giving full credit to the very able brief filed by the state and considering
fully the law as outlined in the several cases submitted in the state?s brief,
a majority of the court are still of the opinion and so hold that an award
should be made in favor of the claimants On consideration of the case of
WesseLs v. Stevens County (Washington)
188 Pacific, page 490, which is
particularly relied upon by the state, we find that the court in its decision
uses this very significant language in its headnote quoted in the respondent?s
brief:
?A County was not negligent in not maintaining a warning sign or barrier at a
100 degree curve
the curve not presenting any extraordnar?y
condit on or unusual hazard; . . .? (italics supplied.)
The majority of the court maintains, as set forth in our previous opinion, that
the reverse or S curve involved in the instant claims, presented in our opinion
an extraordiiuz.ry conciitkm and an unusual
hazard and that protection should have
been afforded under the circumstances to a driver or user of the road in
question. This was not done, notwithstanding the hazardous condition; no
markers were present on the road, no barriers or posts had been erected to
properly protect a driver or pedestrian from accident at this particularly hazardous
point.
We are, therefore, of the opinion that as the particular place where the
accident happened was one of unusual hazard, and again considering the
condition of the weather on the night of the accident and all the attendant
circumstances, that the
156 REPORTS STATE COURT OF CLAIMS [W. VA.
claimants are entitled to recovery. The
majority of the court reaffirm their
previous opinion and allowance, to wit, thirtyfive hundred dollars 3500.00) in
each case.
ROBERT L BLAND, Ju. dissenting.
Upon the rehearing of these claims I again find myself to be at variance
with my coliea cues. The
opinion of the majority members of the court leaves undisturbed
the far-reaching rule laid down in the original majority opinion, namely:
?When the state rcad commission
by the act of 1933 assumed control and authority over the
primary and secondary roads of the state, the duty was imposed cn it to card a dangerous places on the public
roads and bridges by sintab:e railings
or barriers, so as
render the said roads and bridges
reasonably safe cr travel thereon by
day or by night,?
I cannot subscribe to that proosition I know of no statute in West Virginia
that imposes such duty upon the state
road corr,.rr,is.sicr., The sae rDad commission is a
legislative corpora::on established as a part of the government of the state. I: is. indeed. one
of the principal governmental agencies
of the state. If such a duty as the
maioritv members maintain exists upon the part of the road commission it would necessarily follow
that there should be some remedy to enforce the performance of such dun?. No
action for actual defects in highways could be maintained at common law except as given by statute.
We must at all times bear in mind that section 35 of article Vi of the constitution of
West Virginia declares:
?The state of West Virginia shall never he made defendant in any court of law or equity.?
The Legislature may impose upon the state
liability for the acts of its agents if it i no prohibited by the constitution
from doing 5rj.
26 R. C. L. fi6.
W. VA.] REPORTS
STATE COURT OF CLAIMS 157
In 25 Ruling Case Law, at section 50, page 413, we read:
?The immunity of a state from suit is absolute and unqualified, and the
constitutional provision securing it is not to be construed as to place the
state within the reach of the process of the court.?
In Kinnare, Ad,nr. v. The City o
Chicago, et at., 171 III. 332, at p.
335, it is observed:
?The State acts in its sovereign capacity and does not submit its action to the
jurisdiction of courts and is not liable for the torts of or negligeno of its
agents, .
. .?
Mr. Justic Miller, in the case of Gibbons v. United States, 8
Wall 269, at p. 274, says:
?No government has ever held itself liable to individuals for the misfeasance,
laches or unauthorized exercise of power by its officers and agents.?
And Judge Story says, in his work on Agency,
section 319:
?. .
. the government . . . does not undertake to guarantee to any persons the
fidelity of any of the officers or agents whom it employs; since that would
involve it, in all its operations, in endless embarrassments, and difficulties,
and losses, which would be subversive of the public interests; . .?
It has been declared that the state
government cannot be made amenable to judicial process, except by her own
consent.
In maintaining the road on which the deaths occurred the state road commission
is acting within its governmental powers and engaged in the exercise of a
governmental function.
The attorney general argues that the original majority opinion is not supported
by the law, but is out of line with public policy and the law in the state of
West Virginia. He maintains that it has never seriously been contended in West
Vir
158 REPORTS
STATE COURT OF CLAIMS [W. VA.
ginia, previously, that the state road
commission has a duty to place barriers or guardrails alongside the paved
portion of our highways located, as they are, in hilly or mountainous terrain
and containing literally hundreds of sharp and winding curves. He further contends
that there is no liability of the nature sought to be enforced in this
proceeding against the state road commission, and that the court of claims is
not authorized to make an award founded on claims such as are sought to be
enforced in these cases. I think, therefore, that his very able brief is
entitled to be seriously considered. He cites code, 14-2-1, as amended by
chapter 20, acts of the Legislature of 1941, which section reads:
?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 of
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.?
He calls our attention to section 12 of said article 2, relating to the general
powers of the court, the first sentence of which is a repetition or restatement
of the declared purpose for the creation of the court, reading as follows:
?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.? (Italics supplied.)
I have been inclined for some time to think that where no liability exists upon
which the state could be sued at law or in equity, if it were suable, the court
of claims has no jurisdiction to make an award. This is the holding of the
illinois court of claims. The statute creating the court of claims of Illinois
and the statute creating the court of claims of West Virginia are very similar.
W. VA.] REPORTS
STATE COURT OF CLAIMS 159
No action on behalf of the claimants in these cases could be maintained against
the state in its regular courts in view of the constitutional immunity of the
state from suit and the state?s inherent exemption from liability as a
sovereign commonwealth. The state is not liable for accidents occurring on its
highways. There is no duty imposed by statute on the road commission to guard
all dangerous places on the public roads and bridges by suitable railings or
barriers. In Mcthone v. State Road
Commission, 99 W. Va. 397, it is held:
?The State Road Commission of West Virginia is a direct governmental agency of
the State, and as such is not subject to an action for tort.?
And in the opinion in Clayton v. County Court, 96 W. Va.
333, it is said:
?. .
. The liability of the county court was
purely statutory, created by the statute, and otherwise would not exist. At
common law the county courts would not have been liable. Parsons v. County Court, 92
W. Va. 495. .
.
There is, according to my view, no legal
or equitable obligation of the state to pay the claims for which these awards
have been made.
Chapter 20 of the acts of the Legislature of 1941, creating the court of
claims, was introduced in and passed by the Legislature as,
?AN ACT to amend article two, chapter fourteen of the code of West Virginia,
one thousand nine hundred thirty-one as amended, by repealing . . . section three, article three, chapter twelve, thereof,
all relating to claims and proceedings against the state, its officers and
agencies.?
In 59 Corpus Juris, page 282, under the title of ?Claims against State,? it is
said:
160 REPORTS
STATE COURT OF CLAIMS [W. VA.
?A claim against the state is a demand
by some one other than the state, against it for money or property.?
Corpus Juris further says:
??A legal claim? against the state is one recognized or authorized by the law
of the state, or which might be enforced at law if the state were a private
corporation.
?Within the meaning of statutory or constitutional provisions relating to their
presentation and allowances,?
continues this excellent authority,
?the term ?claims against the state? refers to ?a legal claim?, a claim as of
right, and generally it is further limited to claims arising out of contract,
where the relation of debtor and creditor exists.?
I do not think that the awards are based upon claims which the state as a
sovereign commonwealth should discharge and pay. It was never within the
contemplation of the Legislature, in creating the court of claims and giving it
jurisdiction to consider claims ex contractu and ex delicto, to make the state
liable in damages for accidents occurring upon mountainous highways on which
guardrails and barriers had not been erected. The court act authorizes us to
consider actions ex contractu and ex delicto, but imposes no liability against
the state where none would exist independently of the act. At most this act
provides a remedy for the consideration of actions recognized at common law or
against the sovereign or created by statute. It creates no cause of action. It
provides a remedy for existing causes but imposes no new liability. It does not
waive any defense.
In Wessels v. Stevens
County, 110 Wash. 196; 188 Pac. 490,
cited by the attorney general, the Supreme Court of the state of Washington
held:
W. VA.]
REPORTS STATE COURT OF CLAIMS 161
?A county was not negligent in not maintaining
a warning sign or barrier at a 100
degree curve in
a 14-foot highway beiow which was a deep canon,
the curve not presenting any extraordinary condition or unusual hazard; there
being hundreds of just
such curves upon the highways of the state.?
I quote as follows from the opinion in that case:
?The accident, which caused the death of the deceased, occurred on what is
known as the hill road between Spokane and Colville. It was a good gravel road,
and one of the principal thoroughfares between these two cities. On the evening
of January 5, 1918, the deceased was traveling over the highway in an
automobile driven by one Loyal Clark. At the point where the accident occurred
the road makes a sharp or abrupt curve around the brow of the hill. Below the
road at this point is a valley or canon several hundred feet wide. The decline
to the valley below is precipitous. The turn is described as a 100 degree
curve. The roadway at this point was approximately 14 feet wide. The accident
occurred about 6 o?clock in the evening; it being then dark. The deceased was
riding in the front seat with the driver of the car. As the automobile was
rounding the curve it passed outside of the outer beaten track to the brink of
the decline and rolled down the hill. The deceased went down the hill with the
car, and sustained the injuries from which he died a few days later. The lights
on the automobile were good, and focused upon the road about 40 feet in front
of the car. It was traveling 8 or 10 miles pr hour at the time and could be
stopped at that speed within its length. The road approaching the brow of the
hill, over which the automobile passed just prior to the accident, was
practically level and straight.
?[11 The negligence alleged was the failure to have any warning sign or barrier
at the curve. It is the dmitted rule that a county is reauired to keep its
highways in a reasonably safe condition for ordinary travel. The evidence shows
that a large number of automobiles passed over this road every week. There is
no map or drawing in the record showing the exact situation, but there are a
number of pho
162 REPORTS
STATE COURT OF CLAIMS [W. VA.
tographs, by which, taken in
connection with the testimony, the condition of the road and the curve are made
reasonably apparent. One of these photographs, referred to as ?Exhibit 5,?
shows the highway at the curve, the point of the hill on the upper side, and a
man standing at the brink of the decline looking over the valley. The evidence
shows that the point where the man is standing is where the automobile went
over. At this point the distance between the outside traveled track of the
roadway and the place where the man is standing is a number of feet. The
appellant admits that if this were a hillside road, there would be no cause of
action.
?[2] Whether the county was negligent in not maintaining a warning sign or
barrier depends upon whether the road at the curve presented an extraordinary
condition or unusual hazard. There are probably hundreds of just such curves
upon the highways of this state, and if it
were held that the county failed in
the performance of its duty by not having a warning sign or barrier here, the
same would be true of every other similar situation.
?In Leber v. King
County, 69 Wash. 134, 124 Pac. 397, 42
L. R. A. (N. S.) 267, it is said:
??Here we have a road graded and in repair, 15 feet wide, which is wide enough
for all ordinary travel unless it be in the populous centers of the state. We
think it will require no argument to make plain the fact that here there was no
extraordinary condition or unusual hazard of the road. A similar condition is
to be found upon practically every mile of hill road in the state. The same
hazard may be encountered a thousand times in every county of the state. Roads
must be built and traveled, and to hold that the public cannot open their
highways until they are prepared to fence their roads with barriers strong
enough to hold a team and wagon when coming in violent contact with them, the
condition being the ordinary condition of the country, would be to put a burden
upon the public that it could not hear. It would prohibit the building of new
roads and tend to the financial ruin of the counties undertaking to maintain
the old ones. The unusual danger noticed by the books
W VA I HFI?CiItTS STA?lE (J(UJtT (jF CLAIMS 1G3
a danger in the highviay itself. It may become a
q uestiori for the jury. Sur:h was the cr,ndition in the
Ned case-. jNeel v. Kitj
Cowr.t?j. 53 Wash. 490, 102
Pac. 3%. 1
?It is true- the- accident in that case
happened upon a hillside road, but the principle is applicable to the present
case, because there was no unusual danger or extraordinary hazard at this curve
as compared with othe-r sirnslar curve-s. The case of Beo.ch v. Sc?
attIc, 85 Wash. 379. 148 Pac. is riot controlling. There the accident
happened in a thickly populated city, at the end of a paved
street. which was crossed by a gulch. The automobile went down the street and
into the gulch. The incandescent light on a pole nearby tended to obscure the
gulch and give it the appearance of the continuation of the street in an
unpaved condition.?
Because I believe that the adherence of the majority members upon rehearing to
the rule announced in the s-yUoJrus of the original majority opinion to he
wrong, and am of opinion that it is an incorrect statement of the aw and that
such holding is contrary to public policy. I now respectfuiy record this
dissent.
164 REPORTS
STATE COURT OF CLAIMS Lw. VA.
(No. 217?Claim denied.)
JAMES
R. BROCKUS, Claimant,
V.
DEPARTMENT OF PUBLIC SAFETY,
Respondent.
Opinwn filed Julij 29, 1943
When it appears from the evidence upon
the hearing of a claim flied by a former member of the department of public
safety who had been granted an indefinite leave of absence, without pay,
privilege or prerogative, for salary alleged to be due him for the unexpired
term of his said enlistment, that such claimant had very defective hearing,
failing sight, very bad hemorrhoids, a broken arch in the left foot, and was
not physically qualified to serve in the department of public safety, and
performed no duties or served any part of the last year of the term of his
enlistment, and that such disabilities did not arise from and were not incident
to his service in the department of public safety, the court of claims will not
make recommendation to the Legislature for an appropriation for the payment of
such claimed salary.
Megrs. Lee,
Blessing & Steed (R. Dennis Steed), for the claimant;
Estcyn B. Stephenson, Esq., special assistant attorney general, for the
state.
ROBERT L. BLAND, JUDGE.
In 1934 Colonel P. D. Shingleton was
superintendent of the department of public safety of West Virginia. On the
tenth of August of that year claimant, James R. Brockus, enlisted as a member
of the dpartment for a term of two years. He had previously served as a member
of the department under several successive prior enlistments since 1920 when he
retired from the United States Army. Upon said last mentioned enlistment, as
was the case on former enlistments, he was appointed captain of a company or
platoon. His salary
W. VA.] REPORTS
STATE COURT OF CLAIMS 165
as such officer was fixed by statute at $2400.00 per year. After taking the
oath and executing the bond prescribed by law, claimant entered upon the
discharge of his official duties and served under and by virtue of his said
enlistment and appointment until August 9, 1935, when Colonel Shingleton,
superintendent of the department, made and entered an order granting him an
indefinite leave of absence, without pay, privilege or prerogrative, a copy of
which was duly transmitted to him. Thereafter, to wit, on August 10, 1936, the
date of the expiration of the term for which claimant had enlisted as
aforesaid, superintendent Shingleton made and entered a further order, a copy
of which was duly served upon claimant, discharging him as a member of the
department of public safety by reason of the expiration of his enlistment.
No part of the salary for the second year of the term of claimant?s enlistment
was paid to him. By his claim in this proceeding he seeks to recover salary for
said year. Such payment is resisted by the department of public safety. Various
questions were raised upon the hearing, but in our judgment the claim is not
one for which an award should be made by the court of claims. After the
indefinite leave of absence above mentioned had been made, and notice thereof
given to claimant, he addressed a letter to the superintendent of the
department of public safety, under date of August 10, 1935, in which he said:
?Your order placing me on indefinite leave, without pay, received this morning.
This appears to be an unusual method of eliminating an officer from the
department. If my services have been unsatisfactory, or if I have committed an
offense to justify such action, it would appear that the correct way to go about
the matter would? be to discharge me outright.?
We are constrained to agree with this proposition. To say the least the
circumstances attending the dismissal of claimant from service in the
department were irregular and contrary to the course prescribed by statute. The
superintendent of the department of public safety is vested by statute with au
166
REPORTS STATE COURT OF CLAIMS [W. VA.
thority to suspend a member of the
department for the good of the service. Article 2, section 19 of chapter 15 of
the code provides that the superintendent may suspend or remove from the
service any member of the department of public safety for any of the following
causes, to wit: Refusing to obey the order of his superior officers; neglect of
duty; drunkenness; immorality; inefficiency; abuse of his authority;
interfering with the lawful right of any person; participation in political
primaries, conventions or elections, or any other cause that may in the opinion
of the superintendent be necessaxy for
the good of the service.
It does not appear from the record,
however, that any formal charges were preferred against claimant, although when
asked ?Did you at any time during such period of enlistment and appointment
receive any notice from the superintendent of any charges made or filed against
you, written or oral?? he replied: ?There was charges filed but as to the date
I do not recall just at this time.? Claimant expressed the opinion that such
charges were preferred and that he had knowledge of them. When interrogated as
to what they charged he answered ?They stipulated certain immoral acts and
other offenses committed back in 1921 or 22.? He further stated that it was
possible that such charges were preferred in the summer of 1935. He observed:
?I recall the superintendent visiting Fairmont, and he showed me these charges
filed by a former lieutenant, and as to the date I am not sure of that, it
might have been after this enlistment in 1934.? In any event there was no
hearing afforded claimant upon any charges in the manner prescribed by the
above cited statute. Presumably, from the facts disclosed by the record the
superintendent of the department was of opinion that claimant should be
relieved for ?the good of the service.? This is made more apparent by the
circumstances hereinafter detailed. In his letter of August 10, 1934, addressed
to superintendent Shingleton, hereinbefore mentioned, claimant said: ?Having
been advised that I was to leave the department on August 10, after eighteen
years service, I made application for disability retirement on July 22, 1935,
under the act of March 9, 1935.? It thus appears that
W. VA.]
REPORTS STATE COURT OF CLAIMS 167
as early as July 2.2, 1935, prior to
the above mentioned order granting him an indefinite leave of absence, without
pay, claimant knew that he was to retire from the service on the said tenth of
August 1935. On July 17, 1935, Superintendent Shingleton had notified claimant
that he had been given a leave of absence for fifteen days, and had directed
him to turn over to Lieutenant Skeen command of Company A, and all uniforms and
equipment issued. By special order NO. 35, made on August 1, 1935, claimant was granted a
further leave of absence of nine days from August 2, 1935 until August 10,
1935.
After claimant had made application for disability retirement his case was
considered by a board of commissioners, composed of Honorable Harold A. Ritz
and Honorable John L. Hatfield. Claimant appeared before the board and made
this statement: ?I had a physical examination on July 12, 1935, and such
examination showed I had hemorrhoids, broken arch in left foot and deafness in
left ear.? Further physical examination of claimant was ordered by the board.
It was made by Dr. Schoolfield, of Charleston, West Virginia. This examination
revealed that claimant had very defective hearing, failing sight and very bad
hemorrhoids, and was in no condition to serve in the department of public
safety. This physician certified to the board of commissioners that to the best
of his judgment and belief claimant was not physically qualified for service in
the department. The said board refused claimant?s application for disability
retirement, finding that the physical disability of claimant was not service
connected.
We are impressed by the thought that notwithstanding the various questions
presented by the record in support of chumant?s contention, and in opposition
thereto, that a member of the department ascertained to be physically unfit for
service therein should not be continued in such service. This conviction in the
mind of superintendent Shingleton was evidently responsible for the first leave
of absence of fifteen days,
168 REPORTS
STATE COURT OF CLAIMS [W. VA.
the extension thereof for a period of nine days, and the indefinite leave without
pay.
Upon the whole record, as we view it, claimant was not physically qualified to
render service in the department of public safety for the second year of his
last enlistment therein. We cannot, therefore, recommend to the Legislature an
appropriation for the payment of the salary claimed by him for that year, and
an order will be entered by a majority of the court dismissing the claim.
W. VA.1
REPORTS STATE COURT OF CLAIMS 169
(No. 269?Claimant awarded $62.50.)
EARL NULL, Claimant,
V.
BOARD OF CONTROL, Respondent.
Opinion fIled July 29, 1943
When, upon the hearing of a claim
filed by a former employee of a state department, it is disclosed by the record
that it is the policy of such state department to allow employees who have been
in the service of th state for more than one year an annual vacation with pay,
an award will be made in accordance with such policy.
Appearances:
Claimant, Earl Null, in his own right;
Eston B. Stephenson, Esq., special assistant attorney general, for the state.
G. H. A. KUNST, JUDGE.
Claimant asks for an award of the sum
of $62.50. The evidence presented to the court established the fact that
claimant was employed as a guard at the West Virginia penitentiary from
February 1, 1934 until March 8, 1943, and received no pay for two weeks?
vacation during the year 1943, earned during the year 1942, which, at his
salary of $125.00 per month, prorated, entitled him to the sum of $62.50. In
our opinion the case is controlled by the opinion of this court rendered in the
case of Max G. Lynth v. State Board
of Control, case No. 191, in which an
award was made. Liability of the state to pay this claim is admitted by
respondent and its payment approved by the attorney general.
An award of sixty-two dollars and fifty cents ($62.50) is made to claimant.
170 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 275?Claimant awarded $62.50.)
RAY ARBOGAST, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Gp?inion
filed July 29, 1943
When upon the hearing of a claim filed
by a former employee of a state department, it is disclosed by the record
that it is the policy of such state department to allow employees who have been
in the service of the state for more than one year an annual vacation with pay,
an award will be made in accordance with such policy.
Appearances:
Claimant, Ray Arbogast, in his own right;
Eston
B. Stephenson, Esq., special assistant attorney general, for the
state.
G. H. A. KUNST, JUDGE.
Claimant asks an award of the sum of
$62.50. This claim, No. 275, and claim No.
269, Earl Null, claimant, were
heard together, the same facts and the same question were involved; the same
evidence was presented, the same admission was made by the respondent and the
same approval given by the attorney general, and the court is of the opinion
that this case is likewise controlled by the opinion of this court rendered in
the case of Max G. Liynch v. State
Board of Control, case
NO. 191.
Therefore, an award of sixty-two dollars and fifty cents ($62.50) is made to
claimant.
W. VA.] REPORTS
STATE COURT OF CLAIMS 171
(No. 250?Claimant awarded $22.50.)
ELIZABETH DIXIE, Claimant,
V.
BUILDING & GROUNDS DEPARTMENT,
Respondent.
Opivion
filed July 29, 194C)
When a state department fails to avail
itself of the mandiatory provisions of the workmen?s compensation act, and
subsequent to the effective date of the said act an employee of the said
department ?s injured while so employed, under circumstances which would have
entitled her to compensation had the said department complied with the act in
question, then an award will be recommended in an amount to reasonably cover
the damages occasioned by her injuries.
Appearances:
Claimant, Elizabeth Dirie, in her own behalf;
Esto?n B. Ste pheuson, Esq., special assistant attorney general, for the
state.
CHARLES J. SCHUCK, JUDGE.
The claimant, while employed as an
elevator operator in the capitol building, was hurt some time in February 1940,
by having her thumb cut in the sliding doors of the elevator, thereby suffering
the injuries in question and obliging her to incur medical and hospital
expenses in the amount of the claim, namely $22.50. The building and grounds
department which had supervision of the operation of the elevator in question
had not at the time of claimant?s injury availed itself of the provisions of
the workmen?s compensation act previously passed and adopted in 1937, and by
the provisions of which act it became mandatory upon the said department to
subscribe to and comply with the provisions of the act in question.
172 REPORTS
STATE COURT OF CLAIMS [W. VA.
If this had been done, the claimant
would, undoubtedly, have been paid and reimbursed from the compensation fund
accordingly.
In accordance with the thought and tenor of the decision as heretofore
expressed by our Court of Appeals in the case of Archibald v. Warkmen?s Compensation Commission, 77 W. Va. at page 450, the question of claimant?s alleged
negligence or carelessness is not material or pertinent to our decision. The
department involved should have availed itself of the provisions of the law and
if it had done so the claimant, under the testimony as submitted, would have
been entitled to compensation.
Considering the fact that claimant was deprived of her right to any
compensation for the injuries received by the department?s failure to comply
with the provisions of section 2511 (Michie?s code) of the workmen?s
compensation act, we feel that she is entitled to an award at the hands of this
court and an award in the sum of twenty-two dollars and fifty cents ($22.50) is
hereby made accordingly.
W. VA.] REPORTS
STATE COURT OF CLAIMS 173
(No. 280?Claimant awarded $43.31.)
FIRESTONE TIRE & RUBBER COMPANY, Claimant,
V.
STATE CONSERVATION COMMISSION,
Respondent.
Opinion filed July 30, 1943
An award will be made by this court to
a claimant for the payment of an unpaid debt regularly incurred by a state
government agency, when presented after the biennium has passed in which such
claim should have been paid.
Appearances:
Wm. H. Duval, for the claimant;
Eston B. Stephenson, Esq., special assistant attorney general, for the
state.
G. H. A. KUNST, JUDGE.
Claimant asks for an award of the sum
of $43.31 in payment for five tires and two tubes shipped to said respondent
from claimant?s store in Charleston, West Virginia, upon regular purchase
orders Nos. sp 1264 and sr? 1430, which were delivered to said store
on August 27, 1940 and January 15, 1941 respectively. Statement for said tires
and tubes was not received by said respondent until in May 1943, at which time
the excess of its biennial appropriation for the biennium ending June 30, 1941
had reverted to the general revenue fund and consequently there were no funds
legally available for its payment.
Evidence proving this claim having been presented to the court, and allowance
of the award recommended by respondent, and approved by the attorney general,
an award is accordingly made to respondent for the sum of forty-three dollars
and thirty-one cents ($43.31).
171
1tF?I?Ol?I?S S?l?A?I?l t?OUlCI? 0!? (?I AIMS I W VA.
I,
No. t;-! (?laitnait
Is dd $3991 )
(F()I(N S. fl:SSl?I?I? & SON. Claimants,
V.
STATE ROAD COMMISSION, Respondent.
ion filed J0i, :;o, itti.
VbIiCii .IZC lit 5 ot I hi? sI .t ti? road
colilin iss iot I i tigaged iii
spreading cm? dets on a state highway,
to promote the safety and public use thereof under icy and slippery
weather conditions, negligently place and leave large and heavy
clinkers with such cinders, and one of said clinkers is dislodged
liv passing traffic and cast with such force against a plate giass
window in the store of merchants whose place of business abuts on said
highway and breaks such plate glass window, an award will he made for
the cost of replacing it.
A.
E. Bassitt, for claimants;
Eston
B. Stephenson. Esq., special assistant attorney general, for the
state.
ROBERT L. BLAND, JUDGE.
Claimants conduct a general mercantile
business in the town of St. Albans. Kanawha county, West Virginia, through
which state route xo.
60 extends, and is there known and called
Main street. Their place of business is just adjacent to the highway. Their
show window extends back approximately nine feet from the curb. In this window
there was a large plate glass, about six and one-half feet high, and seven feet
wide. On the seventh of January 1943, a passing automobile caused a clinker,
about the size of a hen egg, to become dislodged from cinders previously spread
upon the highway, and cast with force against said plate glass window. The
glass was demolished and had to be replaced at a cost of $39.91. Claimants
contend that the accident was due to the negligence of state road commission
agents and employees in the performance of work on the highway. The evidence
shows that shortly
W. VA.]
REPORTS STATE COURT OF CLAIMS 175
before the occurrence of the accident
the highway was icy and slippery, and in order to promote the safety and public
use of the road, employees of the state road commission spread cinders on the
road. In these cinders were a number of large, heavy clinkers, which were not
removed and remained there after the road had been cleared. Just below the show
window was found one of these clinkers, which was exhibited to the court. It is
obvious that a clinker broke the plate glass, and that it was placed on the highway
by agents of respondent.
An award is, therefore, made in favor of claimants, George S. Bassitt &
Son, in the sum of thirty-nine dollars and ninety- one cents ($39.91).
(No. 258?Advisory opinion.)
AMERICAN INSURANCE AGENCY, a corporation claimant,
V.
STATE CONSERVATION COMMISSION at the
relation of
EDGAR B. SIMS, Auditor, Respondent.
Opinion filed August 2, 1943
Advisory opinion by CHARLES J.
SCHUCK, JUDGE.
To the Auclitor of the State of West
Virginia:
Some time ago you submitted to this
court for an advisory opinion the following proposition, together with an
inquiry as to whether or not you, as auditor, could legally honor for payment
the invoice therewith attached, namely:
?The attached invoice in the amount of $895.06, from the American Insurance
Agency, Inc., to the Conser
176 REPORTS STATE COURT OF
CLAIMS [W. VA.
vation Commission of the State of West
Virginia, is a yearly premium for public liability and property damage
insurance on a fleet of automobiles owned by the Conservation Commission. The
insurance policy, No. UNS 463856 A, is enclosed so you may readily determine
the extent of the coverage.
?Can the Auditor pay this invoice as representing a claim against the State??
We have given the matter very careful consideration and examined the
authorities submitted by counsel representing various state departments, as
well as the conclusion heretofore reached? by the attorney general?s office, by
Honorable Ira J. Partlow, acting attorney general, on the same subject matter,
and set forth in a communication to you dated July 7, 1943.
We appreciate fully that the conservation department, as a matter of practical
business, may have felt justified in contracting for the insurance in question,
and yet we are constrained to hold that only where legislative authority is
expressly authorized or given, or clearly implied, can a department contract a
legal obligation for which the state, through its proper channels, should or
must pay. We have considered the reasoning of the cases submitted in the
memorandum of the acting purchasing agent, and while it would seem that these
authorities justify the department in question in contracting for certain kinds
of insurance, yet a careful reading of the decision of our own Supreme Court in
the case of Board of Education of the County of Raliegh. v. Commercial
Casualty Company. 116 W. Va. 503, lays
down the unqualified rule that unless authority is expressly authorized by
statute or can be justified within the clear and plain implications of the
statute dealing with the subject matter, that there is no authority giving to
the departments the right to contract for the insurance involved in the invoice
heretofore transmitted to your department or office for approval. Of course, no
such authority is given in any statute either to the department in question nor
yet to the other departments.
W. VA.] REPORTS
STATE COURT OF CLAIMS 177
We are, therefore, constrained to follow the opinion heretofore rendtred to
your office by the acting attorney general, and herein referred to, and to hold
that in the absence of statutory authority authorizing the carrying by the
department in question of the public liability insurance referred to that the
contract with the said insurance company was without authority or warrant of
law, and, consequently, presents a claim not enforceable.
The invoice concerned is herewith returned to your office.
(No. 25?Claim denied.)
S. E. NEESE Claimant,
V.
STATE CONSERVATION COMMISSION,
Respondent.
Opinon filed August 27, 1943
Where it appears from the evidence
that claimant a former employee of the state, failed to present his claim as a
set off or credit in his settlement made with the state, at a time when he was
heavily in debt to the state for funds misappropriated and wrongfully used by
him, it will be presumed that such claim presented some time later to this
court was without merit and an award will be denied.
Appearances:
S. E. Neese, the claimant, in person;
Esto?n B. Stepheizson, Esq., special assistant attorney general, for the
state.
CHARLES J. SCHUCK, JUDGE.
178 REPORTS
STATE COURT OF CLAIMS [W. VA.
The claimant, S. E. Neese, was
employed by the state conservation commission as superintendent of Watoga Park
in 1937 which employment ceased in September 1941, at which time it was
discovered that there were irregularities in the accounts of said claimant
which were afterward settled by his payment to the state of approximately
$2000.00 the amount which the state claimed due it at the time of his
dismissal.
The record reveals that claimant?s services were unsatisfactory; that amounts
were withheld by him obtained from rentals and privileges in the park which
properly belonged to the state and which had not been accounted for by him at
the time.
The claim that is presented to us for our consideration contains items of
payment for services to workmen in the park which the claimant alleges that he
was obliged to personally pay, as the appropriation to the state department in
question had been exhausted at the time, as well as other items of expressage
and personal items for food which he claims that he was obliged to expend
during his incumbency as such superintendent. The claim embodies items arising
from February 29, 1940, to August 15, 1941. The claimant was dismissed as the
park superintendent in September 1941. The settlement with the state department
involved took place some ten months after his dismissal, the amount in question
to be exact, being $2117.07. The claimant failed to present any part of the
claim as now presented here, to the department at the time negotiations for a
settlement with it were pending, which fact of itself is quite unusual, but
which the claimant seeks to justify on the grounds that he had been informed by
one Wilson, a district superintendent, that there were no funds available for
the payment of the wages and the other items which he, the claimant, maintained
that he had paid.
Whether the foregoing statements be true or not, the claimant himself would not
have been barred from presenting these items at the time of settlement with the
state, when, as the
W. VA.]
REPORTS STATE COURT OF CLAIMS 179
testimony shows, he was driven to dire
means to make good the amount claimed from him by the state conservation
department, the fact being that this amount was eventually paid partly by a
cashier?s check and, so far as we are able to ascertain, the balance in cash
later. We cannot understand why claimant did not under the circumstances insist
on being given credit for his alleged payments, and we feel that his failure so
to do necessarily militates against him in the consideration of the merits of
the claim now before us. As heretofore indicated, he maintains that there was
no appropriation made for the payment of these items, but yet the
uncontradicted testimony reveals that the appropriation made for the biennium
had not been exhausted at the time in question, and the items could have been
paid out of the funds then available from the appropriation made for the state
conservation commission. Furthermore, it is also important to note that the men
to whom he claims to have made payment at the time when funds were not
available were, during all this period, on the payroll of the department and
drawing their wages and salaries throughout the greater portion of the period
both before and after the time of his dismissal. All of which tends to show
that there is no merit in the claimant?s position that the funds had been
exhausted, so far as the appropriation to the department in question was
concerned.
Considering, therefore, all the testimony as submitted to us, we feel that the
claimant has failed to present a case entitling him to an award and we find
accordingly, namely, that an award will be denied.
180 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 271, 272, 273?Claims denied.)
B. F. MORTON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
W. E. SIZEMORE, as SIZEMORE BROS., assignee of
G. S. JOHNSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
A. B. & J. G. MULLINS, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion. filed August 27, 1943.
Opinion on rehearing
filed Jnly 10, 1944
1. Where a person deals with an agent,
it is his duty to ascertain the extent of the agency. He deals with him at his
own risk. The law presumes him to know the extent of the agent?s power; and, if
the agent exceeds his authority, the contract will not bind the principal, but
will bind the agent. Rosend.orf v. Poling, 48 W. Va. 621.
2. When upon the hearing of demands seeking awards for the price of lumber
claimed to have been purchased for the use of the state road commission by a
superintendent of a prison labor camp, the evidence shows that such lumber was
actually furnished to the state by another person who had been given purchase
orders therefor in the usual and customary manner in which such purchases were
made by the state, and had been paid in full for such lumber, awards will be
denied to such demandants.
S. W. Bryant, Esq., for the claimants;
Eston B. Stephenson, Esq., special assistant to the
attorney general, for the state.
W.VA. I
REPORTS STATE COURT OF CLAIMS 181
ROBERT L. BLAND, JurxE.
By agreement of counsel for claimants
and the special assistant attorney general these claims were heard together and
the matters arising upon them respectively will be considered in a single
opinion.
The claims are prosecuted in this court on the theory that in the year 1934 one
T. S. Ray, then superintendent of a
prison labor camp in Clay county, West
Virginia, purchased from claimants B. F. Morton, G. S. Johnson, assignor of
Sizemore Brothers, and A. B. & J. G. Mullins, certain lumber for the use
and benefit of the state road commission, that the state accepted and received
the benefit of said lumber and never made payment therefor, and that in equity and good conscience it
should make such payments. The state, on the other hand, takes the position
that the lumber for which awards are sought was sold to the
state, not by Morton, Johnson and Mullins, but by one N. Kinniston, to whom
payment in full was made for such lumber.
Claimant B. F. Morton seeks an award of S75.00, which amount he claims to be
the balance due on account of 10,000 feet of bridge flooring sold by him to the
road commission, at $20.00 per thousand feet. Claimant, W. E. Sizemore, as
Sizemore Bros., assignee of G. S. Johnson, seeks an award for 4363 feet of oak
lumber at $18.00 per thousand feet and 1894 feet of oak lumber at $2000 per
thousand feet. making a total of $116.41. Claimants A. B. & J. G. Mullins.
seek an award of $780.00, claimed to be the balance due them on account of
30,000 feet of oak lumber sold to the state at $20.00 per thousand feet. Each claimant also
seeks interest on the amount claimed to be due for which an award should be
made. Incrost, however, could not be allowed under the court act if awards were
made.
The sanw witnesses testified in support of each claim inso? as it was intended
to show that a contract between claim?
182 REPORTS
STATE COURT OF CLAIMS [W. VA.
ants and the state existed. We do not think, however, that such evidence
shows that T. S. Ray was acting on behalf of the state or that he had authority
to purchase said lumber and make the state liable for its payment. At most it
only appears from the record that Ray was superintendent of prison labor in
Clay county. There is not even a presumption that he was agent of the state to
purchase the lumber in question. There is no proof to show the existence of
such agency. The most careful and analytical consideration of the evidence
fails to show that claimants have established that T. S. Ray was the agent of
the state for the purpose of purchasing lumber, or that he did actually as such
alleged agent purchase said lumber, for which claimants seek awards, for the
state. One dealing with an agent of the state is bound to know the extent of
the authority of such agent. Where a person deals with an agent, it is his duty
to ascertain the extent of his agency. He deals with him at his own risk. The
law presumes him to know the extent of the agent?s power; and, if the agent
exceeds his authority, the contract will not bind the principal, but will bind
the agent. Rosenclo4 v. Poling, 48 W. Va. 621. The general rule is that one dealing
with an agent is bound at his peril to know the agent?s authority. Uniotown Grocery Company v. Dawsm, 68 W. Va. 322.
Claimants introduced J. M. Lorentz, who was maintenance superintendent for Clay
county in 1934, as a witnes in support of their claims. His testimony throws
much light upon the situation. He testified that G. S. Johnson, assignor of
Sizemore Bros., had an order from N. Kinniston; that Ray looked after her
business; that along about that time she did quite a lumber business with the
state, and that it was ?hard to beat her out of an order?; that the purchase
order for the lumber in question was from said N. Kinniston; that she paid
Johnson $20.00 per thousand and sold the lumber to the state for $30.00 per
thousand and that later she and Ray intermarried.
W. VA.] REPORTS
STATE COURT OF CLAIMS 183
When Claimant Morton claimed to have
contracted with Ray for the lumber the Kimiiston woman was with him.
(Transcript p. 11). Later when he was trying to get payment for the lumber he
found Ray and the Kinniston woman to? gether at Charleston. (Transcript, p.
12). She took part in the negotiations. (Transcript, p. 11). When Ray talked
with Morton about buying lumber ?there was a lady with him, when he was up
there a time or two.? (Transcript, p. 11). She was present when the order was
given for the lumber.
It is made clear from the evidence that a close relationship existed between
Ray and the Kinniston woman prior to their marriage, that they were frequently
together, and that in the case of the claim of B. F. Morton two separate
payments were made to him, not by the state road commission, but by the
personal check of said Ray, amounting in the aggregate to $150.00. We are
impressed by the thought that the association of Ray and the Kinniston woman
was of such a nature and character as to put claimants upon notice in their
dealings with them.
The evidence submitted in opposition to the claims shows conclusively that the
lumber for which the three claimants seek awards was sold by the said N.
Kinniston to the state and that she was paid in full therefor. As we view the
situation no question of fraud arises between the state and the claimants. If
any fraud were perpetrated it was by N. Kinniston. At the time that the lumber
was sold the statute expressly provided how bids should be submitted and
contracts entered into for the purchase of said lumber. This method seems to
have been observed by the Kinniston woman. She submitted her bids and received
purchase orders. She furnished the lumber to the state and was paid in full for
the contract price thereof. It is reasonably apparent that the lumber of
claimants was sold to the Kinniston woman and that she in turn sold it to the
state. She received from the State the price which it contracted to pay her for
said lumber, but failed to make settlement with those from whom she purchased
it.
184 REPORTS
STATE COURT OF CLAIMS EW. VA.
We see no reason, therefore, why the
state should pay twice for the same lumber.
The very purpose of the creation of the court of claims was to provide a method
for the careful investigation of claims asserted against the state to the end
that proper recommendation should be made to the Legislature concerning them.
If we should make awards in favor of these claimants for the amounts asked by
them we would establish a precedent that would ?lay down the bars? and afford
opportunity for all manner of claims to be filed in this court. We can extend
our sympathy to the claimants in the unfortunate predicament in which they find
themselves on account of the transaction which they had for the sale of their
lumber, but under the evidence offered in support of said claims we cannot see
that they are entitled to call upon the state for the payments which should
have been made by the Kinniston woman. The claimants should have been governed
by the law if they intended to sell their lumber to the state. They should have
submitted bids and received orders of purchase from the state. The evidence
does not show that the claimants, or either of them, made any inquiry for the purpose
of ascertaining whether or not Ray had authority to make purchase of lumber for
the state and bind the state for payment. The transaction in each case was
loosely and indifferently conducted.
Recommendations for the payment of public revenues are not properly to be
indiscriminately made. If the court of claims were to do so its usefulness as a
special instrumentality of the Legislature would soon be at an end.
Majority members of the court are of opinion that claimants did not, in fact,
sell their lumber to the state, that they have wholly failed to establish the
agency of Mr. Ray to purchase said lumber, and that the claims should be denied
and dismissed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 185
An order will, therefore, be made by a
majority of the court denying the three above captioned claims and dismissing
the same from the docket of the court.
Judge Schuck reserves the right to file a dissenting opinion.
CHARLES J. SCHUCK, JUDGE, dissenting.
Under the facts as shown by the record and as governed by the law, I find
myself in disagreement with the opinion rendered by the majority and feel that
to carry out the conclusion therein set forth would be a miscarriage of
justice.
A reading of the record reveals that Ray was the agent of the state road
commission and as such agent had the right to contract for lumber to be used in
the construction and maintenance of bridges along the state roads and highways
in Clay county. The state at no place in the record repudiates the relation
with Ray as its agent in the purchase of the lumber in question.
The majority opinion is based upon the proposition of law that one deals with
an agent at his own peril. This proposition in my judgment, has no application
whatever to the facts as shown in the hearing of these claims. Ray had the
right to make the contracts in question; he was not exceeding his authority in
making them; his agency has not been denied nor have his powers of contract
been disputed in any way so far as this record reveals. In fact, it was these
very contracts that he had made with these claimants, that brought about the
delivery of the lumber in question necessary to carry on the projects of road
improvement in which the state, through the state road commission, was then
engaged. These were executed contracts and the work of the agent, Ray, accepted by
the state and consequently binding upon it. The question here is plainly not what power did Ray possess, but rather did the state accept
and receive the benefit of the contracts made with these claimants. The law
which the majority
186 REPORTS
STATE COURT OF CLAIMS EW. VA.
seeks to impose in this matter
contemplates a case in which, by reason of the agent exceeding his authority,
no contract exists that will bind the principal. Such is the sum and subst ince
of the decision in Rosendorrf v. Pol1ing 48
W. Va. 621, and used as the basis for the majority opinion. There the agent
sought to make a contract beyond his powers which was repudiated by his
principal, and which repudiation was sustained by the court. That law is not
applicable to these claims. The agent Ray did not exceed his authority. He
had the right to make the contracts in question, as he did make them, and in
all justice and equity the state has the obligation to pay these claimants what
is fairly due them for the materials and the lumber they furnished and which
the state accepted and is using.
The majority opinion indicates that Ray was not acting on behalf of the state.
In the name of common sense for whom was he acting?wasn?t it by reason of his
acts that the state obtained the lumber, used it in the construction of the
bridges and roadways, and has been receiving the benefit of the material since
that time? It is not true that Ray was merely the superintendent of prison
labor in Clay county. He had full authority for contracting for the lumber
which was used on the bridges and roadways by the state road commission. These
facts are not denied and stand out boldly when one fairly reads the record as
made in the presentation of these claims.
I repeat, these were all executed contracts. Whatever was done by the agent was
accepted by the principal and therefore there is no application of the theory
that one deals with an agent at his own risk, and to now allow the state to
enjoy the benefits of these claimants? labor and material which they furnished,
without compensation is to my mind unwarranted and highly improper. The state
especially should not be allowed to have the benefit of an unjust and illegal
enrichment without paying for the material furnished. That there was fraud
perpetrated upon the state in these transactions, there can be no question, but
it was perpetrated ?not by these claim-
W. VA.]
REPORTS STATE COURT OF CLAIMS 187
ants, but
by the state?s own agent, Ray himself; and
we are well aware of the fact, that the fraud of the agent after obtaining the
contracts in question cannot be chargeable in any manner to innocent persons
with whom he contracted, but the damage, if any, must be borne by his
principal.
Whatever was done by Ray after obtaining these orders cannot affect the rights
of these claimants; and, by the way, since some question has been raised as to
whether or not these small sawmill owners who are here involved, strictly
complied with the law in the matter of submitting their offers to sell,
notwithstanding the fact that the material was accepted, and used, by the
state, let me say that in one instance, at least, as revealed by the testimony,
namely that of Mullen, a bid was submitted through the accredited agent, Ray
himself.
If after obtaining these bids and before the lumber was delivered, Ray planned
some fraud with Mrs. Kinniston, and raised the price of the lumber, it was a
fraud perpetrated upon the state by Ray himself, and as for these innocent
claimants they cannot be held liable, for, so far as the evidence is concerned
they had no connection whatsoever with such acts. The testimony reveals that
they dealt with Ray in making these contracts and no one else. The undisputed
testimony shows that Ray was the accredited agent of the state. The testimony
fails to show the slightest repudiation of Ray?s powers. The testimony shows
that these were executed contracts and not governed in any sense by the law sought
to be applied in the majority opinion.
The testimony further shows that this lumber was accepted by the state and has
been used during all that period for the benefit of its roads and in the
construction and maintenance of the bridges in question. The testimony shows
(Lorentz record p. 40) that Ray was the agent and was carrying on the work of
the road improvement in Clay county at the time.
188 REPORTS
STATE COURT OF CLAIMS [W. VA.
Considering all these circumstances
and facts and the law applicable, thereto, I would find that the claimants had
sustained their claims and were entitled to awards accordingly.
ROBERT L. BLAND, JuDGE, upon petition for rehearing.
After these claims had been denied and dismissed by majority members, and the
filing of a dissenting opinion by the presiding judge, claimants presented
their petition praying for a rehearing of the claims. Although this petition
tendered nothing more than slight ground for such rehearing, it was
nevertheless, granted. And now after careful reexamination of the original
record and due consideration of the record upon rehearing majority members of
the court find themselves unable to recommend to the Legislature the payment of
the claims involved in these cases.
As shown in the original majority opinion the claims are prosecuted upon the
theory that the lumber for which claimants seek awards was purchased by the
state of West Virginia by and through its agent, T. S. Ray. Upon the original
hearing and upon the rehearing the state contested the right of claimants to
awards. We fail to perceive where the state at any time recognized the alleged
agency of Ray. The claims have at all times been contested. We are unable to
find anything in the original record or the record on rehearing even tending to
establish that Ray was agent of the state vested with power and authority to
purchase the lumber for which these claims are made. The evidence does show
very clearly, however, that N. Kinniston had orders from the state for lumber
to be supplied by her. It further shows that she was paid for lumber which in
every respect corresponded with the lumber which claimants say was purchased by
Ray.
J. M. Lorentz who, at the time the lumber was furnished for which claimants
seek payment, was county maintenanea superintendent for Clay county, West
Virginia, was introduced as a witness on behalf of claimants. He stated that T.
S. Ray
W. VA.)
REPORTS STATE COURT OF CLAIMS 189
was acting superintendent of the prison
labor operating in Clay county. When asked if he knew anything about Ray having
purchased timber he answered in the affirmative; and when requested to tell
what he knew about the G. S. Johnson lumber, answered: ?Well, Mr. Johnson had
an order from?I presume it was from N. Kinniston, but I think Mr. Ray looked
after Miss Kinniston?s business, seemed to at least. . . .? Johnson was the assignor of Sizemore Brothers.
Claimant Morton said that N. Kinniston was present with Ray when he cotracted
for the Fale of his lumber. She and Ray discussed with him the bill of lumber
which they desired him to cut. She and Ray together were buying his lumber.
Transcript, pages 11 and 12. Ray made two payments on account of the purchase,
one of $50.00 and the other of $100.00, each by his personal check. The road
commission at no time recognized any obligation on its part to pay for any part
of the lumber embraced in these claims to any person other than N. Kinniston.
The conviction is inescapable that it was she who purchased the lumber for
which these awards are now asked to be made. Subsequently she and Ray
intermarried. At last account he was in Siberia and she had but recently
removed from Louisville, Kentucky, for parts unknown.
The record wholly fails to establish the agency of Ray to purchase lumber and
bind the state for its payment. At most he was but an employe or servant of the
state. His duties were those incident to the position of acting superintendent
of prison labor. Nowhere in the record does it appear that he had power or
authority to buy lumber for the road commission.
?Acts of a private agent may bind the principal where they are within the
apparent scope of his authority; but not so with a public officer, as the State
is bound only by authority actually vested in the officer, and his powers are
limited and defined by its law.? State
v. Chilton, 49 W. Va. 453.
19O REPORTS
STATE COURT OF CLAIMS [W.VA.
In the same case it is held:
?A state is not bound by the unauthorized acts of public officers. Their
misconduct is no estoppel against the state.?
How, therefore, could a mere employee or servant of the state bind it for the
payment of these claims? In the case of Daugherty
v. Board of Education, 86
W. Va. 522, it is held:
?One dealing with an officer or official body is bound to take knowledge of his
or its authority.?
The orders heretofore entered in these cases denying awards and dismissing the
claims are now ratified and confirmed by majority members of the court.
CHARLES J. SCHUCK, JUDGE, dissenting.
For the reasons heretofore assigned in my dissenting opinion and which reasons
I feel have been strengthened by the record upon rehearing, I woukl approve the
claims as filed, believing that to do otherwise is to work an injustice on
these claimants and deprive them of money rightfully due for the lumber
obtained by the state and used by it for its benefit.
W. VA.]
REPORTS STATE COURT OF CLAIMS 191
(No. 282-S?-Claimant awarded $114.69.)
G. H. GOFF, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled October 18, 1943
ROBERT L. BLAND, JUDGE.
The highway accident which is the
basis of this claim ocu.rred on March 27, 1943, at Borderland, on u. s. route
52, in Mingo county, West Virginia. About 9:20 o?clock A. M. on that
day a passenger bus traveling east on the highway stopped at a side road to
discharge passengers. Claimant G. H. Goff driving his Chevrolet coupe bearing
West Virginia license NO. 174-283, and traveling west, stopped to turn
into a side road, when a state road commission truck NO. 330-531,
operated by Clyde Weller, following about one hundred feet behind, ran into the
rear of claimant?s automobile, knocking it into the bus, which was about four
feet from the outer edge of the shoulder of the road. Claimant?s vehicle was,
in consequence of the collision, badly damaged, to repair which he was obliged
to and did pay the Economy Garage at Huntington, West Virginia, the sum of
$114.69, as shown by an itemized statement and affidavit made by H.
Steinbrecker, proprietor of the garage, and filed with the record herein. The
road commission concedes that its truck was obviouslr at fault and concurs in
the claim, which is approved by the special assistant to the attorney general
as a claim which, in view of the purposes of the court act, should be paid.
An award is, therefore, accordingly made in favor of claimant G. H. Goff for
the sum of one hundred fourteen dollars and sixty-nine cents, ($114.69) subject
to the approval and ratification by the Legislature.
192 REPORTS
STATE COURT OF CLAIMS EW. VA.
(No. 283-S?Claimants
awarded $117.12)
CATHERINE D. ELY and FARM BUREAU
MUTUAL AUTO
INSURANCE COMPANY, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 18, 1943
ROBERT L. BLAND, JUDGE.
The claim in this case is for the
amount of $117.12 and grows out of a highway accident.
On June 17, 1943, Leonard M. Ely was driving a Chevrolet coupe, bearing license
NO. 11-636, owned by claimant Catherine D. Ely, on West Virginia route NO. 7, in
Monongalia county, West Virginia. At Richard, state road commission truck NO. 43-092,
operated by Walter Maynard, entered upon said state route NO. 7 from a
side road and struck claimant?s car from the side, causing the damage and for
which the claim is made. From an itemized statement of the damage furnished by
Mc- Million Motors, Inc., it is shown that the amount of the claim, namely
$117.12, was required to make necessary repairs. Claimant?s car was covered by
a policy of property damage liability issued by Farm Bureau Mutual Auto
Insurance Company which is a co-claimant with the said Catherine
D. Ely.
The district road engineer approves the claim, the state road commission
concurs therein and the special assistant to the attorney general approves the
claim as one that, in view of the purposes of the court act, should be paid.
We have carefully considered the case upon the record submitted and are of the
opinion that it should be entered
W. VA.] REPORTS
STATE COURT OF CLAIMS 193
as an approved claim and an award is,
therefore, accordingly made in favor of the claimants, Catherine D. Ely and
Farm Bureau Mutual Auto Insurance Company, for said sum of one hundred
seventeen dollars and twelve cents ($117.12) in full satisfaction of all damages
sustained as a result of said accident.
(No. 284-S??Claimant awarded $29.84.)
LOGAN BAKING CORPORATION, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 18, 1943
G. H. A. KUNST, JUDGE.
On March 10, 1943, in the city of
Mann, Logan county, West Virginia, driver of respondent?s truck NO. 250-77, in
starting truck, negligently permitted it to back into claimant?s parked Ford
car, causing damages to same, which cost $29.84 to repair, for which claim is
made.
Respondent recommends and the attorney general approves its payment.
An award is made to claimant for twenty-nine doll!ars and eighty-four cents
($29.84).
194 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 286-S??Claimant awarded $59.53.)
G. B. VARNER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 18, 1943
G. H. A. KUNST, JUDGE.
Claimant?s one and one-half ton truck,
loaded with six tons of lime, broke through state bridge crossing French creek,
Pleasant county, West Virginia, May 27, 1943.
The accident was due to rotton bridge sills and there was no warning as to
condition of bridge and its carrying capacity.
Claim is for the cost of repairing truck and the value of the lime lost, which
amounted to $59.53.
Respondent recommends and the attorney general approves its payment.
An award of fifty-nine dollars and fifty-three cents ($59.53) is made to
claimant.
W. VA.]
REPORTS STATE COURT OF CLAIMS 195
(No. 287-S?Claimant awarded $7.65.)
H. L. RUDOLPH, Claimant,
V.
STATE ROAD COMMISSION, Respondent
Opinion flIed October 18, 1943
CHARLES J. SCHUCK, JUDGE.
On July 10, 1941 at Glendale in
Marshall county a state road commission truck, driven by an employee of the
state road commission, negligently collided with claimant?s automobile,
injuring the left rear fender of said automobile and causing damage to the
extent of $7.65.
Respondent recommends payment of this amount and the attorney general, through
his special assistant, concurs in the said recommendation.
We therefore make an award according1r to the said H. L. Rudolph in the amount
of seven dollars and sixty-five cents
($7.65).
196 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 288-S---Clajniant awarded $17.85.)
BERT ICE, Claimant,
V.
STATE ROAD COMMISSION, Respondent
OjAnioii. flied October 18, 1943
CHARLES J. SCHTJCK, JUDGE.
On May 8, 1943 near Wallace on route 20 in
Harrison county state road commission truck NO. p-30--175 while rounding a curve was
driven too far to the left, putting it on
the wrong side of the road, and
while so driven in said wrongful place, it collided with claimant?s
automobile, coming in the opposite direction, causing damages to the extent of
$17.85.
Respondent recommends the payment of this amount and
payment is approved by the attorney general.
Award is therefore made in favor
of the claimant, Bert Ice, in the sum
of seventeen dollars and
eighty-five cents ($17.85).
W. VA.]
REPORTS STATE COURT OF CLAIMS 197
(No. 289-S?Claimant awarded $8.00.)
RUBEN ROSE, Claimant,
V.
STATE ROAD COMMISSION, Respondent
Opiniom flIed October 18, 1943
CHARLES J. SCHUCK, JuDGE.
On the thirtieth day of June 1943,
while cleaning a ditch- line west of Panther Station in McDowell) county, a
state road grader- loosened the ground and embankment of the said road causing
a rock to roll down upon the premises and property of the claimant and
destroying a stand of honeybees then on the premises of the said claimant, and
owned by him. The damages or loss alleged is in the amount of $8.00.
Respondent recommends an award in the aforesaid amount and the attorney
general, through his special assistant, agrees to said recommendation.
Award is therefore made in the sum of eight dolisrs ($8.00) to be paid to the
claimant, Ruben Rose.
198 REPORTS STATE COURT OF CLAIMS
[W. VA.
(No. 139?Claim denied.)
0. D. LAMBERT, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion flied October 19, 1943
Unless the authorities in charge of the
boys? industrial school at Pruntytown are guilty of such negligence or breach
of duty as contributes directly to the escape of one of the boys, the state or
the board of control in charge of the school, cannot be held liable for a tort
committed by the boy while such escapee.
Appearances:
W. M. Watkins, Esq., for the
claimant;
Eston B. Stephenson, Esq., special assistant to the attorney general, for the
state.
CHARLES J. SCHUCK, JUDGE.
The claim in this matter presents a very novel as well as interesting question
involving the treatment of inmates in a reformatory and
the extent to which the state would be
liable, if at all, for the torts of an escapee from such reformatory. The
claimant was a resident of Taykr county, West Virginia, living in close
proximity to the boy?s reformatory at Pruntytown. On Sunday the eighth
day of March 1942, the claimant was attending services at the
Pruntytown Baptist Church and had traveled from his home to
the church in his automobile. During the
services the automobile was parked on
the church property and while so parked
was stolen by one Eugene Money, then a
lawfully committed inmate of the state industrial
school for boys and who had on the day in
question escaped from the said
institution and stolen claim-
W. VA.]
REPORTS STATE COURT OF CLAIMS 199
ant?s automobile. Money drove the said
automobile to Clay county, in West Virginia, and in so doing ruined the motor
in said car and causing it to be abandoned after which claimant was obliged to
pay for having the automobile returned to his home, all of which together with
the loss of the spare wheel and tire and the labor required in repairing the
car entailed an expense of $171.74, for which claim is made against the state
board of control.
On the afternoon of the day of his escape Money pretending to be ill was
allowed to remain in the dormitory where he had been sleeping, while the other
boys were taken to their evening meal. There were approximately eighty-five
boys kept in this dormitory at the time of the escape. The evidence shows that
the escape was made by Money?s tieing together certain bed sheets and passing
out of a window through a comparatively small opening, and dropping to the
ground approximately 35 feet below. The main door or gate leading to the
dormitory from the halls of the building us
question was securely locked and did not
afford any means of escape. One keeper or commander was in charge of the
dormitry at the time of the escape. Under these circumstances the question
presented here is whether or not those in charge of the school in question were
guilty of such negligence as would make the state liable for the tort committed
by Money and for the damages that followed his illegal and felonious act in
stealing the automobile in question. Money was afterward tried in the circuit
court of Taylor county for the felonious act of stealing and taking away the
car and upon his plea of guilty was subsequently committed to the state
penitentiary.
Were the authorities guilty of such negligence as to make the state liable in
damages for Money?s act?
Under the laws of our state, chapter 28, (Michie?s code section 2701), the
state board of control is given authority to make such rules and regulations
for the management and conduct of the industrial school together with the
instructions and discip
200 REPORTS
STATE COURT OF CLAIMS [W.VA
line dealing with the manner and
disposition of the boys of the school as may be deemed proper. In turn, of
course, the superintendent and attendants of the school combine to carry out
the instructions with reference to the management of the institution and the
boys confined therein, and no doubt seek to carry out those ideas which will
best bring about the reformation of the boys sent to or confined in the
institution in question. In fact the testimony shows that at the time the escape
in question took place the school was being operated in compliance with the
recommendations of the national bureau of child welfare; that two or three
inspections of the institution had been made by federal inspectors and
consultants previous to the time of the escape in question and that the
management of the school was following the recommendations that had been made
by such federal consultants and seeking to carry into effect the
recommendations which no doubt had for their purpose the ultimate reformation
of boys sent to the institution.
While the decisions concerned with the care, custody, and management of inmates
of this type are few so far as they relate to liability for the acts of
escapees are concerned, it would seem that unless the authorities directly
participated in the escape by a breach of duty apparent at the time, that
neither the state nor the department involved would be liable.
The testimony reveals that the officer in charge of the dormitory in question
relied on the statements of Money that he was ill and allowed him to retire to
his bed and miss his evening meal while the other boys were being taken to the
dining room. The only avenue of escape was that effected by Money himself. The
testimony reveals that no such escape had been effected from this particular
room at any time before, in the history of the school. The window in question
through which he escaped was small containing an opening of 12 by 24 inches; it
would hardly be expected that one of Money?s size, weighing about 145 pounds
would attempt an escape in the manner in which it was accomplished and
furthermore the window in question being located approximately 35 feet
W. VA.]
REPORTS STATE COURT OF CLAIMS - 201
above the ground would seemto make an
escape highly improbable. Under all the circumstances can it be maintained that
the officer in charge was guilty of a breach of duty and so negligent as to
make the state board of control liable for the tort that was committed by Money
after his escape. We do not think so. We have in mind, of course, that Money
had made several escapes before but not from the room in question and not at a
time when he was surrounded by the same restraining influence or conditions as
were present at the time that he effected his escape on the day in question.
No doubt there are many who feel that the same restraining instrumentalities
should be used at the state industrial school that may be used in our penal
institutions; that the window in question, or the windows generally, of the
dormitory should have been sufficiently barred to prevent such an escape and
that all necessary means should be employed to confine the boys to the
institution to which they were committed by reason of their acts, crimes, or
incorrigibility. However, it must be borne in mind that we are dealing with a
reformatory, an institution in which incorrigible boys are placed with the hope
that the application of the modern methods now employed will ultimately bring
about the necessary reformation and the restoration to good citizenship of the
boy or boys involved. Escapes will take place by reason of the more lenient
methods now employed as compared to the storner and more strict discipline used
in the past, but may it not be well argued that the methods which are now
sanetu)ned by all authorities have in the final analysis brought about greater
reformation and consequently are more benefinal to the state and nation as a
whole than those that were cmployed in the past and which perhaps may have
prevented, if still in use, the escape in question.
In KmLhns v. Fair decided October 20, 1942, by our State Court of Appeals
(W. Va.) 22 S. E. (2d) 455, the Court held:
?The warden of the State penitentiary is the lawful custodian of the convicts
therein confined under
202 REPORTS STATE
COURT OF CLAIMS [W.VA.
the direction of the Board of Control and is not personally liable for a tort
committed by a convict, unless he directly participated in its commission by a
breach of duty.?
The Kuhns case .supra arose by reason of a collision between the
plaintiff?s automobile and a prison truck being operated by a convict outside
the prison walls and while engaged in operating the said truck for the benefit
of the state. Applying the rule laid down in this case it would seem that
unless there is a direct breach of duty on the part of the authorities who are
in cbntrol of the convict no recovery can be had. Obviously the master and
servant rule does not apply.
Taking into consideration the circumstances and conditians surrounding the
commission of the offense being considered by us we fail to find such
negligence on the part of the superintendent or his attendants at the
institution as would justify our holding the state department involved guilty
of such negligence as would warrant the making of an award. We do not subscribe
to the rule that the state department involved can at all times escape
liability, but do insist that lack of reasonable care must be shown in each
instance and that the negligence must be so extreme as to be directly the cause
for the commission of the tort and thus place the responsibility squarely on
the shoulders of the authorities involved. We therefore refuse an award.
W. VAJ REPORTS
STATE COURT OF CLAIMS 203
(No. 228?Claimant awarded $35.00.)
MRS. ROBERT JOHNSON, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion flIed October
19, 1943
A case in which the claim is found
to be just and proper under the peculiar facts supporting it, and for which an
award will be made.
Claimant, Mrs. Robert Johnson, in her own behalf;
Eston B. Stephenson, Esq., special assistant to the attorney general, for the
state.
ROBERT L. BLAND, Juixs.
This case is submitted to and heard by the court upon an agreed stipulation of
facts.
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.
The warden of the penitentiary prepares for the state road commissioner a
monthly report which shows the names of not less than five hundred inmates of
the penitentiary who are suitable for road work. From said list the road
conunisshiner selects the number needed for road work. Supra, sec.
2.
204 REPORTS
STATE COURT OF CLAIMS [W. VA.
On May 27, 1942, there were a hundred
and seventy of these convicts at road camp NO. 76, Keyser, West Virginia.
On the night of that date, six of the prisoners escaped from the camp and made
their way into the state of Maryland. One of the men was apprehended at
Hagerstown in that state, three in Virginia, one in West Virginia, and one is serving
a term of imprisonment in the Ohio State penitentiary at Columbus. One of these
escaped convicts subsequently confessed to the burglary hereinafter mentioned.
Claimant resides at Pinto, Maryland, where she is postmistress and conducts a
grocery. On the same night that these prisoners effected their escape from the
West Virginia road camp, claimant?s said store was entered and burglarized.
Groceries, tobacco and candy were stolen. The front window was broken. To
reimburse her for the amount expended for repair of said window and for the
articles stolen, claimant seeks an award of $35.00.
It is shown by respondent that the road camp was an armod camp under the
surveillance of twenty guards. The facts show that at the time that the
prisoners escaped they were in the road camp jail, a small house prepared at
each road camp where prisoners are confined as punishment for infractions of
the rules. They obtained a hack saw blade and sawed their way out through the
roof of this jail. If the camp had in fact, as claimed, beeii ?well guarded? it
occurs to us that the escape could easily have been prevented by the twenty
guards on duty at the time of the escape.
Officers of the road camp visited claimant at her place of business in
Maryland, satisfied themselves of the justness of her claim, and assured her
that it WOUI(l be paid.
Upon due consi(leration of all of the facts of this case we are of opinion that
the claim iii question is just and proper and one which, under the
peculiar eircmnstances, should be paid. We deem it unnecessary to advert to the
general law
W. VA.]
REPORTS STATE COURT OF CLAIMS 205
respecting liability of a sovereign commonwealth for depredations committed by
its convicted felons. It is sufficient, however, to say that in our judgment
the claim in question is, under the peculiar facts supporting it, such a claim
as the Legislature contemplated should be paid by the state when it created the
court of claims.
An award will, therefore, be made in favor of the claimant for the said sum of
thirty-five dollars ($35.00) and an order will be made accordingly.
206 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 269?Claimant awarded $3000.00.)
FRANK T. MARSHALL, Claimant,
V.
STATE ROAD COMMISSION, Respondent
Opinion flIed November 17, 1943
A case in which the evidence shows
that the driver of a state road truck, owned and operated by the state, was
negligent in its operation, and which negligence caused the accident or
collision complained of and therefore made the state road commission liable in
damages for the injuries to claimant.
Appearances:
George S. Wallace, Esq., for the claimant;
Estcm B. Stephenson, Esq., special assistant to the attorney general, for
the state.
CHARLES J. SCHUCK, JUDGE.
Frank T. Marshall, the claimant,
engaged in the wholesale merchandise business, was severely, and perhaps
permanently, injured by a collision with a state owned and operated road truck,
while he was proceeding south toward the city of Huntington in his truck on
route No. 2, commonly known as the Ohio River Road. The accident
occurred on the eighth day of October 1942 at about 8:30 o?clock in the
morning, and at or about what is known as Clutts store, near Greenbottom in
Cabell county, West Virginia. The highway was dry, and while there seems to be
some question as to fog alTeeting visibility on different parts of the road, an
examination of the record fairly discloses that there was no fog to obstruct
the view of a driver going north or south on the highway at the time and place
of the accident. In fact, the driver of the state truck himself testified
(record p. 58) that there was no fog at the place of the accident at the time
of its happening. The
W. VA.]
REPORTS STATE COURT OF CLAIMS 207
testimony further shows that the highway
is practically level for a considerable distance both north and south of where
the collision took place. The witness Ellis, a state trooper, testified (record
p. 80) that one could see 200 or 300 feet ?or maybe further.? The state truck
was loaded with stone, and truck and load together made a weight of
approximately 5 tons, while claimant?s truck, together with his load, weighed
between 1? and 2 tons. The highway was 16 feet wide at the place of collision
and had a berm and accessible driveway on both sides thereof, varying in width
from 8 to 12 feet.
The claimant testified that he was driving at a lawful and reasonable rate of
speed; that the state truck, going in the opposite direction, and without any
apparent reason or warning to him, was driven to the left of the highway and
directly in front of claimant?s truck and so near to his own truck that it was
impossible to stop, thus causing the collision by which his truck was
demolished and causing as well the injuries to him of which he complains.
The tate truck driver disputes and contradicts this testimony and maintains
that claimant?s truck was driven on his (claimant?s) left side of the road and
directly in the path of the oncoming state truck.
Under all of these circumstances we are obliged to look for aid to the relative
position of the trucks immediately after the collision for an answer to the
question of which one of the drivers was negligent, and consequently whether or
not an award should be made.
The trooper in question, immediately upon his arrival at the scene of the
accident, noted the position of the trucks (which had as yet not been moved)
and has presented to this court what is known as state?s exhibit No. 1, showing
that the heavier state road truck was entirely off the highway to the left
thereof; in other words on the opposite side from which the state truck was
being driven at the time, and that it was
208 REPORTS STATE
COURT OF CLAIMS [W. VA.
facing south, whereas claimant?s truck was found to be on the highway on the
right or proper side and turned north, or likewise opposite in the direction
from which he was driving at the time. Taking into consideration the relative
situation of the vehicles, their relative weights, and the positions
immediately after the accident took place, it would appear that the state truck
was driven to the left of the road or the opposhe side from which it was
traveling at the time, and it would appear further that the state truck
driver?s natural inclination to avoid the collision would have been to drive to
his right, on which there was a sufficient berm and driveway, in attempting to
get out of the way of claimant?s car, if the latter car had been on the wrong
side of the road and traveling south on the left side instead of the right side
of the highway. These facts, considered in the light of the further fact that
there was no interference with the visibility of the drivers, and that the
state truck driver could see several hundred feet ahead, and that there was no
obstruction of any kind, constrain us to adopt the opinion that the state truck
driver was negligent and that his negligence caused the accident and the
injuries to the claimant of which he complains.
This conclusion is further sustained by the witness Gill who testifies that he
was sitting on the steps of the Clutts store at the time, watching the state
trucks drive by, and that these trucks were not very far apart, and that he
thought there was a state truck immediately ahead of the truck involved in the
collision, and that he ?imagines? there were more than two or three such trucks
ahead of the said state truck (record p. 103). If this testimony can be relied
on it would necessarily preclude the idea that the claimant could have driven
to his left side of the highway and been seen only 25 feet away for the first
time just previous to the collision. Gill was presented as a witness by the
state.
Having determined that the driver of the state truck was negligent, and that, consequently, the state is liable,
the question now presents itself as to how seriously the claimant was
WAJ REPORTS STATE
COURT OF CLAIMS 209
injured. Immediately after the collision
he was removed to the Huntington Memorial hospital, at Huntington, where he was
treated for his injuries by Dr. H. D. Hatfield. Dr. Hatfield testifies that at
the time claimant was admitted to the hospital on October 8, he had a
concussion of the brain and contusions of his entire body; that he was
complaining a great deal of pain in the abdomen, and that this pain perhaps had
been caused by tearing loose some adhesions from two previous operations,
claimant having been theretofore operated on for gall bladder trouble. It was
found further that claimant had a compound fracture of the left knee, and that
his condition was such that he could not be operated on for a period of two
weeks after his admission to the hospital; that his left leg is now about one
and a half inches smaller than his right limb; that he has not regained
muscular control of the said limb; that he has not been well since the accident
and has lost considerable weight; that he suffers continuously from nausea and
is not able to take food, and that thereby it is the doctor?s opinion that he
has been unable to rebuild his strength and regain his physical condition back
to the point where it was before he sustained his injuries and that in his
judgment the claimant has a permanent disability of his left limb, and that by
reason of the tearing loose of the adhesions, following his first and second
operations his stomach is not permitted to function properly and must be
emptied at times to relieve the pain and nauseous condition; that he was
confined in the hospital for approximately three weeks and that it took about
six months for the patella to heal and that in the opinion of the doctor it
will never again be normal. The claimant?s medical and hospital bills amount to
approximately $500.00. He is sixty-three years of age, and taking all of these
facts into consideration, together with the damages to his truck, we are of
opinion that an award of three thousand dollars ($3000.00) should be made, and
recommend the same to the Legislature accordingly.
210 REPORTS STATE
COURT OF CLAIMS EW. VA.
(No. 222?Claim denied)
NEW RIVER AND POCAHONTAS CONSOLIDATED COAL
COMPANY, a corporation, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 18, 1943
The state court of claims is without
authority to make an award reimbursing a coal company which had voluntarily
advanced money prior to May 16, 1933, the effective date of chapter 40 of the
acts of the first extraordinary session of the Legislature of 1933, for the
payment of labor, materials and supplies (used along with county funds) in the
construction of a county-district road in West Virginia, notwithstanding that
such county-district road for which such moneys were expended has since become
an integral part of the state system of highways; and a claim asserted against
the state for such reimbursement will be denied and dismmissed.
Koontz & Koo?n,tz, W. W. Goldsmith;
Ma.han, Bacon & White; and Howard B.
Lee, for claimant.
William S. Wysong, Attorney General, Ira J. Partlow, Assistant
Attorney General, and Eston B.
Stephenson, Assistant Attorney
General, for respondent.
ROBERT L. BLAND, JUDGE.
In this proceeding the New River and
Pocahontas Consolidated Coal Company, a corporation, has presented to this
court for consideration and adjudication a claim against the state for
$181,536.78. It is contended that the entire claim? with the exception of two
items thereof aggregating $2,206.04 representing two estimates for work done on
other roads? is for money paid for labor, materials and supplies (used along
with county funds) in constructing that part of what is now route No. 41, in
Fayette county, between Clifftop and Layland. Claimant admits that the labor
was done and the materials and supplies furnished during the calendar years
1927, 1928
W. VA.] REPORTS STATE COURT OF CLAIMS 211
and 1929, while county-district roads were still being built by county
courts and before they were transferred to the state road commission by
statute.
State route No. 41 is a hard-surfaced highway throughout its entire length, and
the only modern south highway crossing the Midland Trail between Rainelle on
the east and Gauley Bridge on the west, a distance of approximately fifty-five
miles. The route begins at Beckley, in Raleigh county, and runs through
Summersville to Craigsville, in Nicholas county. It connects at Beckley with
federal highways Nos. 19 and 21 and state routes Nos. 3 and 16, and crosses the
Midland Trail (federal highway No. 60) near Clifftop, in Fayette county. At
Summersville it connects with federal highway NO. 19 and state route No. 39.
At Craigsville it connects with state routes Nos. 20 and 43. Babcock State Park
and the Negro 4-H Camp are on this highway.
Claimant says that it expended its money in good faith and for the public good,
in the construction of that part of the road between Clifitop and Layland, and
that its claim, in equity and good conscience, should be discharged and paid by
the state.
The claim has been very carefully and resourcefully prepared and most ably
presented. Let us, therefore, examine the circumstances and conditions under
which it arises in order that we may understand more clearly why claimant
should have expended so large an amount of money in the construction of a
county-district road, exclusively under the supervision, control, construction
and maintenance of the county court of Fayette county. What reason or reasons
were responsible for the magnanimity and generosity of claimant in paying out
so vast a sum of money for the benefit and convenience of Fayette county when a
county court could not expend any money or incur any obligation or indebtedness
which was not expressly authorized by law to be expended or incurred? Code,
1923, chapter 28A, section 12. We quote from claimant?s petition as follows:
212 REPORTS
STATE COURT OF CLAIMS [W. VA.
?To understand the reasons why the
Coal Company thus advanced money to build a county-district road requires a
review of the road building history of Fayette County. For many years the
principal industry in Fayette County has been coal mining. In the development of
that industry, various branch line railroads were built into the coal fields
and numerous coal mines were opened along these branch lines. At substantially
all such mines, towns were built to house the coal mine employees. Some of
these towns were of considerable size, with hundreds of families. The only
means of ingress and egress to the majority of such towns, for both persons and
property, was by railroad. Service was infrequent on branch lines and movement
of persons, mail or property to or from the county seat or the State Capitol,
or elsewhere, required changes at junction points with attendant delays and
inconveniences. At about the same time, automobiles, buses and trucks became
the popular mode of travel and transportation. Citizens of isolated towns
demanded roads. As early as 1916, Fayette County embarked upon an ambitious
road building program. From time to time bond issues and succeeding bond issues
to the limit allowed by law were voted in all of the magisterial districts, but
the money was insufficient and the parts of roads built with it often ended in
wild country and for practical purposes were little, if any, better than no
roads at all. To complete the roads with funds available from annual levies
would have required many years. The need for roads was so great and the demands
there- for were so insistent, that some means to build them had to be found.
?With the knowledge and tacit approval of individual members of the County
Court, the County Road Engineer made private arrangements with banks, coal
companies and individuals to advance money needed to pay for road construction
work, whether done by jail labor or by contractors, upon assignments of
estimates, bills and invoices, arid to withhold presenting any claims to the
County Court until some future date. The money was to be advanced without
regard to whether the estimates, bills and invoices were or were not lawful
claims against the
W. VA.1 REPORTS
STATE COURT OF CLAIMS 213
County under Sec. 12, Chap. 28A, Code of 1923. The mo?ey advanced by the
Claimant was advanced pursuant to a preexisting understanding and arrangement
with the individual members of the County Court of Fayette County, but not
officially as a court. Such understanding and arrangement also contemplated
dedication by Claimant of rights of way over its lands free of charge.?
In 1924 the county court appointed one George H. Siems as county road engineer
and conferred upon him wide authority and extensive powers. By a subsequent
order the said Siems was constituted cx officio road supervisor of the county.
With the consent of the county court he was given authority to establish a
county system of maintenance for all roads within the county. He was given
supervision of convict labor for roads within the county and directed to use
such convict labor for the construction and maintenance of such roads as he
deemed necessary. In December 1925, said county road engineer submitted to the
county court a plan entitled ?Proposed County System of Roads.? This plan
prescribed two main county roads numbered, respectively, 1 and 2. Route No. 1
commenced at Deepwater by way of Page Mountain, Kincaid, Wriston to Oak Hill.
Route No. 2, otherwise known as New River Highway, began at the state highway
at Glen Jean via Thurmond, Stone Cliff, Quinnimont, Layland, Danese to the
Midland Trail at Clifftop.
The county court deeming the roads embraced in routes 1 and 2 as the most
important connecting roads in the county, the county road engineer was ordered
to make necessary alignment, earth work, structures and right of way surveys
and prepare necessary plans therefor; to acquire a forty foot unobstructed
right of way, with additional width to construct slopes for cuts and
embankments. It was provided that the said two routes comprising the main
system of roads in the county as prescribed by the plan submitted by the county
road engineer to the county court, should have a grade width of not less than
25 feet and a surface width of not less than 15 feet. The grade was not to
exceed 8 and the degree of
214 REPORTS
STATE COURT OF CLAIMS [W. VA.
curvature was not to be in excess of
45 degrees. All of this was done before state route NO. 41 had been officially
designated and when the construction and maintenance of county roads was
exclusively within the province of the county court of Fayette county Thus it
will be seen that at the time that claimant made its expenditures for which it
now seeks reimbursement the county-district road between Cliff top and Layland
had not been officially designated as any part of state route No. 41. This
section of road was not taken over by the state road commission until July 1,
1933, under chapter 40, acts extraordinary session of the Legislature of 1933.
Claimant admits in its petition that ?At the outset, it was definitely
understood that the monies so advanced would be in excess of the contractual
capacity of the county court, and therefore would not constitute any legal debt
or obligation of the county or of any magisterial district therein?; and,
further, that at the end of each month as the work progressed the county road
engineer ?prepared a statement showing the amounts that had accrued during the
month for wages of skilled labor and the cost of equipment, materials and
supplies. These statements were examined by the county court and approved, but
such approval was not in writing. Written approval by the county road engineer
was, however, placed on the statements at the direction of the county court and
signed by said engineer. The money to pay the amounts shown on the statements
was thereafter placed in the hands of the said county road engineer by New
River and Pocahontas Consolidated Coal Company and he disbursed it to the
several persons entitled to receive it.?
Claimant?s petition further avers:
?In January, 1927, New River and Pocahontas Consolidated Coal Company began to
buy estimates and
bills included in this claim. In June, 1927, it signed
a contract to build a portion of Route 41. In May,
1928, it signed a similar contract with another contractor. These contracts
were on the usual forms used
W. VA.] REPORTS STATE COURT OF CLAIMS 215
for county road contracts, the specifications for the work were prepared by
the County Road Engineer and the contracts were approved by the County Court
and the County Road Engineer and were actually signed in the office of the
Prosecuting Attorney in the presence of the members of the County Court, but
the county was not a formal party thereto. This practice was not confined to
the one instance. During the same period, other roads were constructed under
other contracts signed by other contractors and other coal companies. As stated
above, such other coal companies have been repaid what they advanced and New
River and Pocahontas Consolidated Coal Company is the only coal company that
has not been repaid. The contractors did their work under the supervision and
control of the County Road Engineer. All estimates were submitted to the County
Court and checked by the County Road Engineer and approved in writing by him at
the direction of the Court.?
It is plainly manifest upon its own showing that claimant was a party to an
understanding or arrangement with the county court and the county road engineer
that amounted to a total disregard of the statute restricting the expenditures
of the county?s money for road purposes to what was potentially available for
lawful disposition by the court. It expected to be reimbursed ultimately for
the amount of its expenditures by the county, not the state. In making the
expenditures in question it knew that the money might never be repaid. In
paying out its money it took a gambler?s chance upon its repayment. The claim
is not now and never was an obligation of the state. The state was not a party
to the arrangement under which the money was advanced. At the time of the
outlay of the money by claimant it was never anticipated that it should be
repaid by the state. It looked alone to the county to reimburse it as the
county had reimbursed other coal companies and banks which had advanced moneys
under the county?s plan for road building. Claimant cannot consistently invoke
the rule of equity and good conscience in this court. He who seeks equity must
do equity. Claimant was under no legal obligation to expend its money for the
building of this
216 REPORTS
STATE COURT OF CLAIMS [W. VA.
county-district road. In doing so it
was a mere volunteer. Equity follows the law. Apparently the idea of
reimbursement by the state never occurred to claimant until after the decision
of the Supreme Court of West Virginia in thecase of Love v. New River and Pocahcntas Consolidated Coal
Ccmipany, 119 W. Va. 222, 193 S. E.
59. That case involved certain county drafts held by claimant. The payment of
these drafts had been enjoined by the circuit court of Fayette county. While it
is true that upon the particular facts involved and showing made in the case
the appellate court reversed the decree of the lower court enjoining the
payment of the Harvel drafts and approved the action of the court in dissolving
the injunction against the payment of the Gentry drafts (all which drafts were
held and owned by claimant), no such drafts are involved in this proceeding. In
the opinion in the Love case, Judge Hatcher says:
?For several years prior to 1928, the county court had entertained an ambitious
road-building scheme, far beyond its current resources. In consummating this
scheme, the court had permitted several parties, including the Company, to
advance money for road building with the expectation that the court would make
repayments later whenever its resources should permit. The origin of this
arrangement is nebulous and at best it was only a gentlemen?s agreement. If such, it involved the levies of future years, and
its illegality under Code 1923, Chapter 28A, Section 12, is conceded by the
Company, and an unpaid balance of more than $185,000.00 advanced by it under
the arrangement is regarded as ?gone with the wind.??
Can it be said that upon the facts submitted to us in support of this claim for
$181,536.78, the state would be liable therefor, if suable, at law or in equity?
It is my personal view?but not now expressed as the judgment of the court? that
where no liability exists upon which the state can be sued, at law or in
equity, if it were suable, the court of claims has no jurisdiction to make an
award, except possibly in cases submitted under the ?shortened procedure?
provision of the
W. VA.]
REPORTS STATE COURT OF CLAIMS 217
court act wherein the state agency
involved concurs in the claim and it is approved by f he attorney
general as one that should be paid. The determination of that question,
however, is not essential to the disposition of the claim under consideration.
It appears from the record that at the time of the expenditure of its money
claimant owned a large acreage of coal and mineral land and operated mines in
close proximity to the Clifftop-Layland road. The distance between Clifftop
arid Layland is approximately twelve miles. The road extends through claimant?s
land for a distance of about three and one-half miles. Much of the work done
with claimant?s money was on its own land. Claimant had agreed to dedicate the
road right-of-way under the terms of the ?gentlemen?s agreement.? The section
of the road between Clifftop and Layland became a part of state route No. 41 in
1933, as above stated. Since that time the state has used the road in question
continuously as a part of state route No.
41. The statute made it the duty of
the county court to procure rights of way. The order of the county court cited
directed the county road engineer to obtain all necessary rights of way.
The attorney general has moved to dismiss the claim on the ground of want of
jurisdiction in the state court of claims to entertain the same and upon other
grounds unnecessary to be considered, in view of our determination of the claim.
One F. 0. Trump instituted an action of trespass on the case in the circuit
court of Jefferson county against the state road commission. He sought damages
claimed to have resulted from the alteration of the grade of a state highway in
that county. The circuit court sustained a demurrer to the plaintiff?s
declaration. Certain questions of law arising thereon were certified to the
Supreme Court. The case was decided there on November 26, 1935. It is reported
in 116 W. Va. 625, 182 S. E. 760. The fourth question certified reads:
218 REPORTS STATE COURT OF CLAIMS EW. VA.
?Is the State Road Commission liable
for the cost of acquiring rights of, way for a state road and damages to land
caused by its construction, repair, and maintenance thereof, acquired or
damaged prior to May 16, 1933??
The Supreme Court answered the question in the following syllabus:
?Prior to the effective date (May 16, 1933) of Chapter 40, acts of the First
Extraordinary Session of 1933, the right of action, under Code, 17-4-4, for
damages to land growing out of the construction, alteration, or repair of a
state road, arose, if at all, exclusiveiy against the county court of the
county in which the land lay.?
Judge Kenna, in delivering the opinion in that case, said:
?Going at once to the certified question which, in our opinion, disposes of the
case here, we find that the fourth question propounded is, in effect, whether
the State Road Commission is liable for the damages declared on incurred by the
plaintiff prior to the effective date of Chapter 40 of the Acts of the First
Extraordinary Session of the Legislature of 1933, sometimes referred to as the
secondary road law. It is not necessary, we believe, for us to decide, in this
case, whether the act last referred to effected a change in existing law with
reference to the right to sue the State Road Commission in an action of tort.
The right of action here, according to the question certified, arose prior to
the effective date of that act. Therefore, at the time the right of action
arose, under the authority of Kinney v. County
Cou,rt, 110 W. Va. 17, 156 S. E. 748,
and other West Virginia cases readily available, the right of action lay, if at
all, against the county court of Jefferson County exclusively. See, also, Hatcher v. County Court, 115
W. Va. 95; 174 S. E. 690. We, therefore, hold that the action of the Circuit
Court of Jefferson county in sustaining the demurrer to the plaintiff?s
declaration must be affirmed solely on this ground.?
W.VAJ REPORTS
STATE COURTOF CLAIMS 219
We are of opinion that the claim in question is controlled by the above
cited case.
We, therefore, hold that the state court of claims is without authority to make
an award reimbursing a coal company which had voluntarily advanced money prior
to May 16, 1933, the effective date of chapter 40 of the acts of the first
extraordinary session of the Legislature of 1933, for the payment of labor,
materials and supplies (used along with county funds) in the construction of a
county-district road in West Virginia, notwithstanding that such
county-district road for which such moneys were expended has since become an
integral part of the state system of highways; and a claim asserted against the
state for such reimbursement will be denied and dismissed.
To make an award in this case, if we had jurisdiction to do so, would create a
dangerous precedent. If the remaining fifty-four counties of the state should
adopt the same method of road building as shown in this case to have been
followed in Fayette county, and file like claims in this court for
reimbursement, such a course of procedure could easily result in the bankruptcy
of the state.
An award is denied and the claim dismissed.
220 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 172?Claim dismissed)
EDWARD UTZ, Claimant,
V.
THE BOARD OF EDUCATION OF THE COUNTY
OF
BROOKE, a corporation, Respondent.
Opinion filed December 13, 1943
This case is controlled by the
majority decision announced in the cases of Jess E. Miller v. The Board of Educatkm of Lewis County,
1 Ct Claims (W. Va.) 205 and Mary Dillon v.
The Board of Education of Summers
County, 1 Ct Claims (W. Va.) 366.
JcLmes R. Wilkin and HandIctn,
Garden & Matthews, for Claimant,
Eston B. Stephenson, assistant to the Attorney General, for the state.
ROBERT L. BLAND, JUDGE.
The above claim was filed with the
clerk of this court on September 1, 1942.
The petition alleges that claimant is the father and natural guardian of one
John Charles Utz, an infant of the age of approximately six years, and that
said John Charles Utz was seriously and permanently injured on the fourth day
of September 1941, on a public highway of Brooke county known as the
Follansbee-Eldersville road, while being transported in a school bus operated
by one Henry Clemens, an employee of and bus driver for the board of education
of Brooke county, West Virginia, from the school at Follansbee to his home
where he resided with claimant, his father. It is charged that such injuries
resulted from the negligent operation of said school bus, and that claimant has
been forced and obliged to expend, pay out and become obligated for the expenses
of
W. VA.]
REPORTS STATE COURT OF CLAIMS 221
hospital, surgical and medical
treatment and attendance of his said son, and as well also for medicines and
other expenses made necessary thereby, and that by reason of said injuries
claimant has been deprived and is reasonably certain to be deprived in the
future of the services, normal company and society of the said John Charles
Utz.
Claimant charges that the board of education of the county of Brooke is an
agency of the state of West Virginia, and that his claim is one which the
state, as a sovereign commonwealth, should, in equity and in good conscience
discharge and pay.
Claimant therefore seeks to maintain his claim against the state in the sum of
$10000.00.
A majority of the court determined that the court is without prima facie jurisdiction
to entertain said claim, declined to docket the same for hearing and dismissed
it. Before an opinion had been prepared setting forth the reasons for such
action on the part of majority members of the court a petition for rehearing
was filed, and a very able argument was made before the court in support of
said petition. Majority members of the court now find that the petition for
rehearing shows no reason warranting a change of their original opinion that
the court is without prima fctcie jurisdiction to entertain the claim.
The claim is not one against an administrative agency of the state government.
The case is controlled by the majority decision announced in the cases of Jess E. Miller v.
The Board of Education of Lewis
Ccmnty, 1 Ct. Claims (W. Va.) 205 and Mary
Dillon v. The Board of Education
of Sumqners County, 1 Ct. Claims (W.
Va.) 366.
A rehearing is denied.
222 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 173?Claim dismissed)
JOHN CHARLES UTZ, an infant, by Edward Utz, his next
friend, Claimant,
V.
THE BOARD OF EDUCATION OF THE COUNTY
OF
BROOKE, a corporation, Respondent.
Opinion fIled December 13, 1943
This case is controlled by the majority decision announced in the cases of Jess E. Miller v. The Board of Education of Lewis
County, 1 Ct Claims (W. Va.)
205 and Mary Dillon
v. The Board of
Education of Summers County, 1 Ct Claims (W. Va.)
366.
Jomes R. Wilkin and Hand2zn, Ga.rden & Matthews, for Claimant,
Estyn
B. Step1ensam, assistant to the Attorney General, for the state.
ROBERT L. BLAND, JUDGE.
The above claim was filed with the
clerk of this court on September 1, 1942.
The petition alleges that claimant, an infant of approximately six years, was
seriously and permanently injured on the fourth day of September 1941, on a
state controlled highway known as the Follansbee-Eldersville road, in Brooke
county, West Virginia, while being transported from the school at Follanshee to
his home, in a school bus operated by Henry Clemens, an employee of and school
bus driver for the board of education of said county of Brooke. It is charged
that such injuries were the direct and proximate result of the negligent
operation of said school bus, and that the claim is one which the state, as a
sovereign commonwealth, should in equity and in good conscience discharge and
pay.
W. VA.]
REPORTS STATE COURT OF CLAIMS 223
Claimant therefore seeks to maintain his
claim against the state in the sum of $20,000.00.
A majority of the court determined that the court is without prima facie jurisdiction
to entertain said claim, declined to docket the same for hearing and dismissed
it. Before an opinion had been prepared setting forth the reasons for such
action on the part of majority members of the court a petition for rehearing
was filed, and a very able argument was made before the court in support of
said petition. Majority members of the court now find that the petition for
rehearing shows no reason warranting a change of their original opinion that
the court is without prima facie jurisdiction to entertain the claim. The claim is not
one against an administrative agency of the state government. The case is
controlled by the majority cieci.ion announced in the cases of Jess E. MiILer v. The Board of Education of Lewis County, 1
Ct. Claims (W. Va.) 205 and Mary Dillon v. The Board
of Education of Summers County, 1 Ct Claims (W. Va.) 366.
A rehearing is denied.
224 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 174?Claim dismissed)
MARGARE?Il?A MARSH, Claimant,
V.
THE BOARD OF EDUCATION OF BROOKE
COUNTY,
a corporation, Respondent.
Opinion filed December 13,
1943
This case is controlled by the
majority decision announced in the cases
of Jess E. Miller v. The Board of
Education of Lewis County, 1 Ct Claims (W. Va.) 205 and Mary Dillon v. The Board of Education of Summers County, 1 Ct Claims
(W. Va.) 366.
Samuel Freifield and Handian,
Garden & Matthews, for Claimant,
Esto?n
B. Stephenson, assistant to the Attorney General, for the state.
ROBERT L. BLAND, JUDGE.
The above claim was filed with the
clerk of this court on September 1, 1942.
The petition alleges that claimant is the mother and natural guardian of one
Jack Marsh, an infant of the age of approximately seventeen years, and that
said Jack Marsh was seriously and permanently injured on the fourth day of
September 1941, on a public highway of Brooke county, known as the
Follansbee-Eldersville road, while being transported in a school bus operated
by one Henry Clemens, an employee of and bus driver for the board of education
of Brooke county, West Virginia, from the school at Follansbee to his home,
where he resided with claimant, his mother. It is charged that such injuries
resulted from the negligent operation of said school bus, and that claimant has
been forced and obliged to expend, pay out and become obligated for the
expenses of
W.VA.J REPORTS
STATE COURT OF CLAIMS 225
hospital, surgical and medical treatment and attendance of her said son, and as
well also for medicines aiid other expenses made necessary thereby, and that by
reason of said injuries claimant has been deprived and is reasonably certain to
be deprived in the future of the services, normal company and society of the
said Jack Marsh.
Claimant charges that the board of education of the county of Brooke is an
agency of the state of West Virginia, and that her claim is one whioh the
state, as a sovereign commonwealth, should, in equity Sand in good conscience
discharge and pay.
Claimant therefore seeks to maintain her claim against the state in the sum of
$10,000.00.
A majority of the court determined that the court is without prima facie jurisdiction
to entertain said claim, declined to docket the same for hearing and dismissed
it. Before an opinion had been prepared setting forth the reasons for such
action on the part of majority members of the court a petition for rehearing
was filed, and a very able argument was made before the court in support of
said petition. Majority members of the court now find that the petition for
rehearing shows no reason warranting a change of their original opinion that
the court is without prima
fade jurisdiction to entertain the claim.
The claim is not one against an administrative agency of the state government.
The case is controlled by the majority decision announced in the cases of Jess
E. Miller v. The Board of
Education of Lewis County, 1
Ct. Claims (W. Va.) 205, and Mary
Dillon v. The Board of Education of Swimmers County, 1
Ct. Claims (W. Va.) 366.
A rehearing is denied.
226 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 175?Claim dismissed)
JACK MARSH, an infant, by Margaretta Marsh, his next
friend, Claimant,
V.
THE BOARD OF EDUCATION OF BROOKE
COUNTY,
a corporation, Respondent.
Opinion fIled December 13, 1943
This case is controlled by the
majority decision announced in the cases of Jess E. Miller
v. The Board of Education of Lewis County, 1 Ct Claims (W. Va.) 205 and Mary Dillon
v. The Board of Education of Summers County, 1 Ct Claims (W. Va.) 366.
Sa.muel Fivlfteld and Handla.n,
Garden & Matthew?s, for
Claimant,
Eston
B. Steph.enson, assistant to the Attorney General, for
the state. -
ROBERT L. BLAND, Jus.
The above claim was filed with the clerk of this court on September 1, 1942.
The petition alleges that claimant, an infant of approxiniately seventeen
years, was seriously and permanently injured on the fourth day of September
1941, on a state controlled highway, known as the Follansbee-Eldersville road,
in Brooke county, West Virginia, while being transported from the school at
Follansbee to his home, in a school bus operated by Henry Clemens, an employee
of and school bus driver for the board of education of the said county of
Brooke. It is charged that such injuries were the direct and proximate result
of the negligent operation of said school bus, and that
W. VA.] REPORTS STATE COURT OF CLAIMS 227
the claim is one which the state, as a sovereign commonwealth, should, in
equity and in good conscience, discharge and pay.
Claimant therefore seeks to maintain his claim against the state in the sum of
$20,000.00.
A majority of the court determined that the court is without prima fcicie jurisdiction
to entertain said claim, declined to docket the same for hearing and dismissed
it. Before an opinion had been prepared setting forth the reasons for such
action on the part of the majority members of the court a petition for
rehearing was filed, and a very able argument was made before the court in
support of said petition. Majority members of the court now find that the
petition for rehearing shows no reason warranting a change of their original
opinion that the court is without prima faeie jurisdiction to entertain the claim. The claim is not
one against an administrative agency of the state government. The case is
controlled by the majority decision announced in the cases of Jess E. Miller v.
The Booircl of Educatkm of Lewis County, 1 Ct. Claims (W. Va.) 205, and Mai?y Dillon v.
The Board of Ediuccit?on of Summers County, 1 Ct. Claims (W. Va.) 366.
A rehearing is denied.
228 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 239?Claimant awarded $2568.03)
CHARLEY SARGENT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed December 14, 1943
1. When the evidence shpws that a
claimant who had been awarded a contract by the state for the construction of a
road project was required to place gravel on the road of greater thickness than
provided for by the specifications, an award will be made to cover the amount
due for such extra thickness.
2. When a controversy arises between a contractor for the consfruc? tion of a
state road project and the state road commission as to whether material used in
the gravel surfacing of a road shall be paid for by weight or on the number of
cubic yards of surfacing material, compacted by manipulation and traffic, in
place on the road, the method set forth in the specifications will prevail.
3. An award will be made in favor of a contractor for the construction of a
state road project for the outlay made by him in leasing scales to weigh gravel
material to be placed thereon, when he had reason to rely on the fact that a unit
of weight would be adopted by which to estimate the weight per cubic yard of
such gravel material.
Clcth,w.nt,
on his own behalf;
Arden Trickett, Esq., for respondent.
ROBERT L. BLAND, JuDGE.
On November 20, 1934, the state road
commission received sealed proposals for building and completing, according to
plans and specifications prepared therefor, a certain road in Tyler county,
West Virginia, known as project NO. 3389? .w.s.?828, being approximately 27,984 feet in
length. Claimant Charley Sargent was the successful bidder. He entered into a
contract with the state under date of November 28, 1934, for the completion of
the project in accordance with
W. VA.] REPORTS STATE COURT OF CLAIMS 229
the plans and specifications provided therefor. The work was to begin on or
before December 1, 1934, and be completed on or before June 1, 1935. It was
agreed that time should be of the essence of the contract. The work to be done
under the terms of the contract contemplated approximately 200 cubic yards of excavation
according to plans, including refilling, at $100 per cubic yard, 5000 cubic
yards of gravel bottom course, complete in place, at $4.10 per cubic yard, 5000
cubic yards of gravel top course, complete in place, at $410 per cubic yard,
800 lineal feet 8 inch perforated corrugated metal pipe underdrain, complete in
place, at .75 per lineal foot, 150 cubic yards loose stone for underdrains,
delivered in place at $2.00 per cubic yard and 28,228 lineal feet of prepared
subgrade and shoulders at .05 per lineal foot. Thus it will be seen that said
contract provided different items for different types of work.
The contractor agreed that he was fully informed as to all conditions affecting
the work to be done, as well as to the labor and materials to be furnished for
the completion of the contract, and that such information was received by
personal investigation and research and not wholly from the estimates of the
engineers, and that he would not make claim against the state by reason of
estimates, tests or representations theretofore made by any officer or agent of
the state.
It was provided that the work to be done under the contract should be performed
in accordance with the true intent and meaning of the plans and specifications,
made parts of the contract.
The project was accepted by the road commission and the contractor released
from further responsibility under the terms of the contract on November 25,
1935.
The full length of the road when completed was 27,295 lineal feet with a width
of 18 feet.
230
REPORTS STATE COURT OF CLAIMS [W. VA.
The final estimate shows that the road commission paid claimant $40,634.04 for work
done and performed by him under said contract.
On January 11, 1943, seven years, one month and sixteen days after the completion
of the project, said Sargent filed a claim in this court against the state for
additional compensation to which he insists he is entitled to be paid, and for
which he now seeks an award, on account of said road project in the principal
sum of $9,710.00, made up of the following items, to?wit:
1. Payment for 553.18 cubic yards of gravel at
$4.10 per cubic yard $2,368.OZ
2. Reimbursement for 6,605.35 tons of gravel at
.50 per ton .3,302.67
3. Reimbursement for the cost of erecting scales 300.00
4. Reimbursement for extra maintenance 3,840.00
Claimant also maintains that he is entitled to be paid interest at the rate of
6% annually on the above aggregate amounts from January 1, 1936.
We shall consider the amount claimed under the first item, namely, $2,368.03.
It may be stated, however, at this juncture that there is an error of $100.00
in the amount of this claim. It is apparent that 553.18 cubic yards at $4.10
per cubic yard would amount to $2,268.03 instead of the sum of $2,368.03 as
asserted by claimant.
The specifications provided that the yardage should be paid for on the number
of cubic yards of surface material, compacted by manipulation and traffic, in
place on the roa& It appears from the evidence that when claimant concluded
that he had placed a sufficient quantity of gravel on the top and bottom
courses to make six inches in thickness, when compacted, that the inspector on
the project disagreed with him
W.VA.IREPORTS STATE
COURT OF CLAIMS 231
and insisted that he should place still more and additional gravel thereon
which he accordingly did. Subsequently a core drill test disclosed that
claimant had not only placed the required six inches of thickness on the road
when compacted as required by the specifications but had in addition thereto
placed three-eighths inch on its entire width of eighteen feet and length of
27,295 lineal feet. These tests showed that claimant had actually placed 553.18
cubic yards on the road over and above the thickness of six inches required by
the specifications, and 553.18 cubic yards at $4.10 per cubic yard wcu1d amount
to $2,268.03.
L. B. White, assistant to the state construction engineer, one of whose duties
is to pass on final payments to contractors, and who is shown by the evidence
to have reviewed every final payment made by the state road commission since
1930, introduced as a witness on behalf of the state, testffied that claimant
was paid for 9,098.33 cubic yards, the actual planned thickness of the road at six
inches, and also 266.54 cubic yards additional which he said was on account of
the extra thickness, making a total of 9,364.84 cubic yards. At $4.10 per cubic
yard 9,364.84 cubic yards would amount to $38,395.85. Claimant admits having
been paid for 9,364.84 cubic yards, but he says that 266.84 cubic yards thereof
was for sand and extra gravel. He states that 123.22 yards represented sand
delivered to the job by him under authorization of H. McGraw, district
engineer, in a letter addressed to him under date of September 12, 1935, and
that 133.29 yards was for extra gravel used in widening places where the road
was over eighteen feet, in approaches coming into the road and at a point where
the subgrade was soft.
The final estimate shows that claimant was paid for the hottorn course the sum
of $18,651.60 and for the top course the sum of $19,744.25. These two payments
would include the actual planned thickness of six inches for the two courses,
and in addition thereto 266.84 cubic yards, the amount for which claimant says
he was paid for the additional sand delivered
232 REPORTS
STATE COURT OF CLAIMS EW. VA.
and extra gravel used in widening the
road, and approaches coming therein and in filling a soft place in the road.
Claimant says, however, that although he has been paid for the 266.84 cubic
yards aforesaid, he has received no payment whatever for the additional
thickness over and above the planned depth of six inches.
Mr. White explains the manner of payment as follows:
?Well, from the theoretical thickness, actual thickness called for in the
plans, we computed the yardage. Then we took the actual tonnage that Mr.
Sargent said he placed on the road after the controversy arose as to whether it
was actually six inches thick or not. That was taken from the records furnished
by the contractor. From those records I arrived at the actual weight, and
reduced it back to cubic yards, which made 266 cubic yards.? Assuming,
therefore, that it was the purpose of the road commission in paying the final
estimate to include therein compensation to claimant at the contract price for
the additional gravel placed by him on the road over and above the planned
thickness of six inches, it would appear from the testimony of Mr. White that
claimant was not really paid for the actual additional number of cubic yards of
gravel placed by him on the road. As a matter of fact he would only have been
paid for additional gravel at the rate of 266 cubic yards on a tonnage or
weight basis. Mr. White divided the actual tonnage furnished him by claimant as
having been placed on the road by 2,949.44. The actual quantity of gravel
placed on the road by claimant over and above the planned depth of six inches
amounted to 553.18 cubic yards. This difference in the two calculations is obvious.
The plans did not provide for payment by weight. Settlement was made with
claimant for the top and bottom courses, independently of the additional gravel
placed on the road above the thickness of six inches, on the basis called for
by the specifications. The specffications provided: ?If called for on the
plans, payment for both top and bottom courses shall be based on either
railroad weight or boat weight.? The specifications for the project did not
provide for such payment. The road commission paid
W.VAI - REPORTS STATE COURT OF CLAIMS 233
claimant on road bed measurement.
According to Mr. White?s testimony, in making settlement, both road bed and
weight measurements were used. From the testimony of Mr. White it ou1d appear
at most that claimant was only paid for 266 cubic
yards of thickness when he was entitled to be paid for 553.18 cubic yards. It
will be observed that there is a distinct conflict between the statement of Mr.
White and the statement of claimant. It would appear that claimant would be
entitled to be paid upon the basis of the additional cubic yards of thickness
placed by him on the road above six inches found by the core drill tests. Mr.
White further testified: ?Well, his yardage was computed on the actual planned
depths in place which would produce on both top and bottom courses a total of
9,098.33 cubic yards. Now in addition to that we have paid Mr. Sargent for
266.44 cubic yards over and above the planned depths.? Such payment, if made,
would not constitute settlement for 553.18 cubic yards according to road bed
measurement.
The testimony of claimant was very positive to the effect that he had
actually been paid for 266.84 cubic yards of gravel, for the placing of which
he had been duly authorized, but that such payment constituted no part of the
compensation to which he was entitled for additional thickness of gravel above
six inches. As above stated, he maintained that 123.22 yards was payment for
one purpose and 133.29 was in payment for other purposes. He said such
payments were made under the authorization of a letter written to him by H.
McGraw, district engineer. The letter in question reads in part as follows:
?Iii is will he your instruct ion and ant liorizat ion for placing
additional fine material iii the amount of 200 toils on those sect ions of your
project, as directed by our inspector, who will app ar oil time h lVlon(llv, Sel)teml)er 16.?? Claimant tes? ilied
t hat lie nail placed oil the project. 199.05 instead of 200
tuiis. ?I?his ;iti(lmorii,iil ion would not account for time entire
266 cubic yiinls placed by cliiniant ott the project, bitt it
234
REPORTS STATE COURT OF CLAIMS [W. VA.
does show a modification of the
specifications authorized by the district engineer. It does appear, however,
very clearly from the final estimate that claimant was paid for 266 cubic yards
of additional material, and that such additional payment corresponds
substantially with the number of cubic yards for which he claims he was
entitled to be paid under due authorization. He says that the entire quantity
was authorized. This would seem to be so, for otherwise the road commission
would not have paid that amount to him. He says also that the transaction was
fully discussed at a hearing before Mortimer Smith, chief engineer, attended by
himself, Mr. White, Mr. Blackwood, construction engineer, H. McGraw, district
engineer, and Mr. Dick. Since the payment was made to him his statements would
seem to find corroboration in the circumstances disclosed by the evidence.
Without modification the specifications would clearly control the basis of
payment, but it will hardly be questioned that a district engineer in charge of
construction would not have the right to make necessary modifications when the
exigency of the situation called therefor. We are of opinion, under all the
facts disclosed by the testimony, that claimant has not been paid for the
553.18 cubic yards of additional material placed upon the road above the
planned thickness of six inches, and that he is entitled to be paid therefor.
When the evidence shows that a claimant who had been awarded a contract by the
state for the construction of a road project was required to place gravel on
the road of greater thickness than provided for by the specifications, an award
will be made to cover the amount due for such extra thickness.
Items two and four may be properly considered together. By item two claimant
seeks reimbursement for 6,605.35 tons of gravel at .50 per ton in the sum of
$3,302.67. By item four he seeks reimbursement for extra maintenance in the sum
of $3,840.00. We are not impressed by the thought that either of these items is
entitled to serious consideration for allowance. Claimant seems to have had a
controversy with the
W. VA.]
REPORTS STATE COURT OF CLAIMS 235
road commission in respect to the type of
gravel to be placed upon the road project and for which he should be paid under
the terms of the contract. When the sample of gravel material intended to be
used by him was sent to the testing department at Morgantown for approval it
was rejected and he was required to use material provided for by numbers 5 and
8 prescribed by the standard specifications of the road commission and shown on
the plans, He says that he was therefore obliged to pay fifty cents more per
ton for the material he was required to use than the specifications called for.
He maintains that there is an error in the plans. He further says that before
the contract was let for the project the road commission contemplated the
construction of a black top road, but before it was actually awarded this plan
was changed and the contract was actually let for the construction of a traffic
bound gravel road, omitting the black top thereon. We do not perceive any
reason for misapprehension of the plain meaning of the plans. The claim for
extra maintenance cannot be seriously considered. The specifications and plans
call for acceptance of the contract when the gravel placed on the road was
properly compacted.
When a controversy arises between a contractor for the construction of a state
road project and the state road commission as to whether material used in the
gravel surfacing of a road shall be paid for by weight or on the number of
cubic yards of surfacing material, compacted by manipulation and traffic, in
place on the road, the method set forth in the specifications will prevail.
The item of $300.00 for erecting scales is seemingly possessed of merit. The
day before the contract was let claimant noticed that the plans did not state
how the gravel material was to be measured. He understood that under the
standard specifications gravel surfacing would be measured in the roadbed if
not otherwise mentioned on the plans or arrangements made to use weight
measure. He thereupon consulted W. 0. Wiles, who at the time was assistant
engineer in charge of
236 REPORTS STATE COURT OF CLAIMS [W. VA.
construction, and asked him how it was proposed to measure the gravel to be
used on the project. Claimant testified that he was informed by Mr. Wiles that
the material could not be accurately measured on the road, and that he believed
that the same figure would be used that had been used on two projects on route
18 in Doddridge county. That figure was 2870, that is 2870 pounds would
determine one cubic yard. Claimant says that with that information he submitted
his bid to do the work and was awarded the contract therefor. Harry McGraw,
district engineer, addressed a letter to claimant asking to be advised whether
in preparing his contract he had used a unit of weight by which to estimate the
weight per cubic yard of gravel material to be used on the project. Claimant
advised McGraw that he would use the above figure of 2870 and thereupon leased
scales to be used in weighing the gravel material that was to be placed on the
road. Claimant testified that the road commission kept a man at the scales all
the time for the purpose of verifying weights, and there is no contradiction of
such testimony found in the record. Although claimant was awarded the contract
for the completion of the project according to the plans and specifications
made therefor, we are constrained to conclude that in view of the
correspondence that was had between himself and Mr. McGraw he was entitled to
assume that it would be necessary to weigh the gravel material that was placed
on the road and is entitled to be reimbursed for his outlay on account of the
scales, notwithstanding the fact that final settlement was on a roadbed basis.
An award will be made in favor of a contractor for the construction of a state
road project for the outlay made by him in leasing scales to weigh gravel
material to be placed thereon, when he had reason to rely on the fact that a
unit of weight would be adopted by which to estimate the weight per cubic yard
of such gravel material.
No interest can be allowed on the award hereinafter made. The court act
expressly provides that interest shall not be
W. VA.l
REPORTS STATE COURT OF CLAIMS 237
allowed unless the claim is based upon a
contract which specif-. ically provides for the payment of interest.
Objection was made to claimant?s testimony as to what he was told by Mr. Wiles,
since the latter was dead at the time of the hearing. In its examination and
investigation of claims filed against the state, the court of claims is not
bound by the usual common law or statutory rules of evidence. The court is an
investigating body and 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.
This has been a troublesome case in which to make a determination. It has been
very carefully considered. The manner in which it was presented by claimant on
his own behalf without the assistance of counsel added to the labor of the
court. We believe, however, that the award hereinafter made is fair, reasonable
and just to both the claimant and the state.
For the reasons hereinbefore set out an award is made in favor of claimant
Charley Sargent for two thousand five hundred sixty-eight dollars and three
cents ($2,568.03), embracing an allowance of $2,268.03 for extra gravel placed
upon the road over and above its planned depth of six inches, and the sum of
$300.00 to cover the outlay of claimant in leasing scales for use on the
project.
238 REPORTS STATE
COURT OF CLAIMS EW. VA.
(No. 136?Claim denied)
MARY FORD, widow of M. J. FORD, deceased, WILLIAM
L. FORD, HELEN FORD, and ELEANOR VIRGINIA FORD,
heirs at law of M. J. FORD, deceased, Claimants,
V.
COUNTY COURT OF RANDOLPH COUNTY,
Respondent
O-pinwn
filed December 14, 1943
This court under section 14, chapter 20 of the acts of 1941, does not have
jurisdiction to consider a claim for refundment of an overpayment of taxes
erroneously assessed, continuing for a period of twenty-two years,
when an adequate remedy in the courts of the state has been disregarded yearly during such period.
Messrs. A. C. Schiffier, Leo
A. Coleman
and Fred H. Bunkman, for
claimants;
Eston
B. Stephenson, Esq., special assistant Attorney Gemera] for respondent.
G. K A. KUNST, Ju
This claim was submitted upon a stipulation that the allegations of the
petition of claimants together with the receipts for taxes paid should
constitute an agreed statement of facts for the consideration of the court.
These tax receipts show that for twenty-two years, from 1909 to 1930 inclusive,
the owner of land, under whom they claim, was erroneously assessed with one
hundred and sixty acres of land, situated in Roaring Creek district of Randolph
county, West Virginia, instead of one hundred acres, the correct acreage owned
by him and properly assessed in the year
1908.
W. VA.]
REPORTS STATE COURT OF CLAIMS 239
The overpayment of taxes for twenty-two
years, as shown by the pelition, amounts to $235.55, for which amount neither
the landowner nor claimants ever received any refund and for which amount an
award is asked.
The state constitution made it the landowner?s duty to have his land entered on
the land books of the county.
The law required him, each year, under oath, to correctly list his real estate
and truthfully answer, under penalty of forfeiture, the inquiries of the
assessor as to the correctness of his assessment for the current and previous
year.
Each year he was notified by his tax receipt of the error.
From 1909, each year, after reasonable notice, he had adequate and complete
remedy in an application to the board of review and equalization, and if taxes
had been paid, had same refunded, or relief from payment. If relief refused, he
could appeal to the circuit court and in proper case have its judgment reviewed
by the Supreme Court.
In 1911 an additional remedy by application to the county court was given him.
This enactment made possible an application for relief in the fall, when the
landowner paid his taxes and would be notified by his tax receipt of the error,
giving him thus additional time after the adjournment of the board of review
and equalization, and opportunity for relief there had been lost.
Fraud or other adventitious circumstances are not shown, whereby resort to such
remedies was prevented, and by his failure to do so, he waived his right to
relief and no other remedy was offered him.
The statutes and their interpretation by the Supreme Court have determined that
this and similar claims shall not be
240 REPORTS
STATE COURT OF CLAIMS [W. VA.
permitted to disturl the fiscal affairs of the state. West Vir-. ginia Na.tkal Bank v. Spencer, 71 W. \Ta. 678, 77 S. E. 270; Island Creek Fuel Co. v. Harshberger,
73 W. Va. 397, 80 S. E.
504.
Claimants stand in no better position than their ancestor, from whom this land
was inherited, and as adequate relief was offered him yearly, in the courts of
the state, during the entire period of this erroneous assessment, section 14,
chapter 20 of the acts of 1941, excludes consideration of this claim from this
court?s jurisdiction, and it is accordingly dismissed and an award refused.
ROBERT L. BLAND, Judge, concurring.
The state constitution makes it the mandatory duty of a landowner to have his
property entered on the land books and assessed for purposes of taxation. West
Virginia State Constitution, article XIII, sec. 6. This duty undoubtedly
requires a taxpayer not only to have his land assessed but as an incident
thereto to have it assessed correctly as to acreage when the exact acreage is
known. This constitutional duty exists not only for the benefit of the state to
insure the collection of its revenues but for the protection of the taxpayer as
well to prevent the forfeiture of untaxed real estate.
Even under the most liberal application of the doctrine of equity and good
conscience, one who has neglected a duty imposed by the constitution and has
failed to avail himself of an adequate remedy provided by law, year after year,
for twenty-two years, with the facts clearly before him at all times, cannot
now be heard to complain. Claimants are placed in no better position than their
ancestor so far as the equities
+he right of recovery is concerned.
W. VA.]
REPORTS STATE COURT OF CLAIMS 241
(No. 291 -S-?Claimant awarded $144.74)
F. M. SMITH, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Gpinion filed January 11, 1944
ROBERT L. BLAND, JUDGE.
This is an uncontested claim against
the state for $144.74,
growing out of an accident for which
the driver of a state road commission truck admits that he was responsible. The
head of the state agency concerned concurs in the claim, and its payment is
approved by the attorney general?s office.
From the record of the claim, made by the state road commission and flied with
the clerk of this court on September 15, 1943, it appears
that state road commission truck NO. 330-80, while being operated on the Belleville road, in
Wood county, West Virginia, on July 6, 1943, swung to the left diagonally
across said road in order to back and turn around, and in doing so collided
with claimant?s Oldsmobile automobile which had been following the state truck.
The result was that claimant?s vehicle was actually damaged to the extent of
$144.74 as shown by an itemized statement made by White Motor Sales, of
Parkersburg, filed with and made a part of the record.
W. H. Schimmel. district engineer, after investigating the circumstances
attending the accident, made a report to respondent to the effect that the
driver of the state truck was responsible for the occurrence of the accident.
In view of the road commission?s concurrence in the claim, the report of the
district engineer aforesaid as to responsibility for the damages for which an
award is sought, and the approval of the claim by the special assistant
attorney general as being
242 REPORTS
STATE COURT OF CLAIMS [W. VA.
a claim which within the meaning of
the court of claims act should be paid, an award is now made in favor of
claimant F. M. Smith for the said sum of one hundred forty-four dollars and
seventy-four cents ($144.74).
(No. 292-S?Claimant awarded $60.00)
L. D. RIAL, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flIed January 11, 1944
ROBERT L. BLAND, JUDGE.
The claim in this case is for the
value of a seven months? old thoroughbred Guernsey heifer calf. It is contended
by claimant that the animal was killed in blasting operations conducted by the
state road commission on state route 2, project 147-B, south of New
Martinsvil]Je, in Wetzel county, West Virginia, sometime during the week of
August 30-September 6, 1943. It appears from the record of the claim, prepared
by respondent and filed with the clerk on September 17, 1943, that during that
period employees of the state road commission used a qutnty of dynamite for
blasting purposes in the vicinity of claimant?s pasture land along the highway.
Claimant had five head of cattle on the land. On August thirtieth he gave salt
to these cattle and found them in good condition. When he returned on September
sixth to salt them he found the Guernsey heifer missing. It was of thoroughbred
stock and weighed approximately five hundred pounds. Upon investigation he
found the calf to be dead. It was lying approximately 188 feet east of the
place where the blasting had
W. VA.] REPORTS
STATE COURT OF CLAIMS 243
been done. Near the calf was a stone 1?? x 3? x 5?, weighing approximately two
pounds which had hair on it. There was also found other stone and concrete
pieces lying near the dead calf. Claimant fixes a value of $60.00 on the calf.
Joe Yoho, safety director, who made an investigation of the claim, in a report
to the road commission advised payment of the claim. The head of the department
concerned concurs in the claim. The special assistant to the attorney general
approves the claim as one which, within the meaning of the court act, should be
paid by the state.
The record shows that the calf was actually hit by a stone from the blasting on
the road.
In view of the showing made by the record, the concurrence in the claim by the
state road commissioner, and its approval for payment as a proper claim against
the state by the special assistant to the attorney general, an award is now
made in favor of claimant L. D. Rial for the sum of sixty dollars ($60.00), subject to the approval and ratification thereof by the Legislature.
244 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 293-S?Claimant awarded $52.59)
A. C. POLAND, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 11, 1944
ROBERT L. BLAND, JUDGE.
In this case claimant A. C. Poland
seeks an award of $52.59 to reimburse him for that amount paid for the repair
of his 1937 Chevrolet automobile after a collision between it and state road
truck No. 538-98, about two miles south of Fort Hill, in
Hampshire county, West Virginia, on the twenty-third day of June, 1943. The
record of the claim was prepared by the state road commission and filed with
the clerk on September 23, 1943. This record shows that the head of the
department concerned concurs in the claim and that the special assistant to the
attorney general approves it as one that should be paid by the state within the
meaning of the court act. It further appears from this record that state road
commission truck NO. 538-98, at the time engaged in work on the road, did
not perceive the approach of claimant?s vehicle, which was following it on the
road, and backed the truck into it, causing the damage for which an award is
sought.
In view of the showing made by the record, the concurrence in the claim by the
state road commissioner, and its approval for payment as a proper claim against
the state by the special assistant to the attorney general, an award is now
made in favor of claimant A. C. Poland for the sum of fifty-two dollars and
fifty-nine cents ($52.59), subject to the approval and ratification thereof by
the Legislature.
W.VA.1 REPORTS
STATE COURT OF CLAIMS 245
(No. 295-S?-Claimant awarded $71.02)
HUGH W. MAY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed JanwLry 11, 1944
ROBERT L. BLAND, JuxE.
From the record of this case prepared
by the state road commission and filed with the clerk September 29, 1943, it
appears that on August ,
1943, an accident occurred between state
road commission car A-29-1, driven by Sylvester Mazella, and an automobile
owned by claimant and driven by his wife, on Hale street, in the city of
Charleston, West Virginia, in which the latter?s vehicle was damaged to the
extent that repairs were obliged to be made thereon for which claimant paid, as
shown by itemized statement, filed with the record, the sum of $71.02. The
state road truck entered the line of traffic from the curb, where it was
parked, without warning. It is shown that claimant?s car was being carefully
driven and that the driver thereof had no opportunity to avoid the collision
which occurred.
The head of the department concerned concurs in the claim, and the special
assistant to the attorney general approves it as a claim against the state
which should be paid within the meaning and contemplation of the court act.
In view of the concurrence and approval aforesaid an award is now made in
favor of claimant Hugh W. May in the sum of seventy-one dollars and two cents
($71.02).
246 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 296-S?Claimant awarded $47.99)
MRS. S. E. BENNETT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion jUecl Jinuary 11, 1944
ROBERT L. BLAND, JtmoE.
In a collision between state road truck No. 430-94, operated by Clarence
Edwards, and a truck owned by claimant, on August 20, 1943, on secondary road
NO. 31 (Jarvisville road), in Harrison county, West Virginia, the latter?s
vehicle sustained damages to its left fender, left front head light, left front
grille and radiator. To reimburse her for such damages, claimed to have been
caused by the negligent operation of the state road commission truck, claimant
seeks an award of $47.99. The state road commissioner, the head of the
department concerned, concurs in the claim. The special assistant attorney
general approves the claim as one which, within the meaning of the court act,
should be paid by the state.
In view of the concurrence in the claim by the state road commission and its
approval for payment as herein shown, an award is now made in favor of claimant
Mrs. S. E. Bennett for the said sum of forty-seven dollars and ninety-nine
cents ($47.99), subject to the approval and ratification of the Legislature.
W. VA.] REPORTS
STATE COURT OF CLAIMS 247
(No. 297-S?Claimant awarded $139.95)
HELEN ROPER COULTER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opunion filed January 11, 1944
ROBERT L. BLAND, JUDGE.
This is a claim submitted to this
court by the state road commission under section 17 of the court act. It was
filed with the clerk on October 13, 1943. On March 24, 1941, employees of the
state road commission, while engaged in blasting operations on project
FA-111-2, u. s. route 340, near the home of claimant, in Jefferson county, West
Virginia, threw an ?exploder lead wire? across a power line, causing a short
circuit, which destroyed a Zenith Console radio in claimant?s home, of the
value of $139.95. After an investigation of the accident R. C. Quinn,
district road engineer, recommended to respondent the payment of the claim. Its
payment is also concurred in by respondent, and the claim is approved by the
special assistant to the attorney general as one which within the meaning of
the court act should be paid.
An award is now made in favor of claimant Helen Roper Coulter for the sum of
one hundred thirty-nine dollars and ninety-five cents ($139.95), subject to
approval and ratification by the Legislature.
248 REPORTS
STATE COURT OF CLAIMS [W.V.
(No. 300-S?Claimant awarded $71.66)
C. F. SHAFER, M. D., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 12, 1944
G. H. A. KUNST, JuIxE.
Claimant?s car, parked on Main street in Grafton, West Virginia, was struck by
state road tar distributing truck NO. 430-13 on June 30, 1943. The accident was caused by the
negligence of the truck driver.
The cost of repairs was S71.66, for which claim is made.
Respondent recommends and the attorney general approves its payment.
An award is made to claimant for seventy-one dollars and sixty-six cents
($71.66).
(No. 302-S?Claimant awarded $18.01)
L. B. HILL, Claimant
V.
STATE ROAD COMMISSION, Respondent.
Optnion filed January 12, 1944
G. H. A. KUNST, JurxE.
On August 7, 1943, while going up grade, in Morgantown, West Virginia,
claimant?s Studebaker car was struck by state
W. VA.]
REPORTS STATE COURT OF CLAIMS 249
road tar distributing truck, which drifted backward while emergency brake was
being operated to stop truck, after its motor
had stopped running. The amount of claim is $18.01, the actual cost of repair,
payment of which is recommended by respondent and approved by the attorney
general.
An award of eighteen dollars and one cent ($18.01) is made to claimant.
(No. 305-S?Claimant awarded $55.00)
THE SANITARY BAKING COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Januory 12, 1944
G. H. A. KUNST, JUDGE.
On October 2, 1943, at State Quarry, one mile south of Smithfield,
West Virginia, claimant?s bakery truck was struck in one-way traffic by prison
labor power shovel p-25-10, by reason of operator of shovel failing to receive
watchman?s signal of approaching car.
The claim is for S55.OO the cost of repair, payment of which is recommended by
respondent and approved by the attorney general.
An award of fifty-five dollars (S55.OO) is made to claimant.
250 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 306-S-?Claimant awarded $25.70)
ROBERT TOMLINSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opmion filed January 12, 1944
G. H. A. KUNST, JUDGE.
On September 27, 1943, at Glendale,
West Virginia, claimant?s Packard sedan was struck by prison labor truck NO. p30-116,
while passing through one-way traffic lane, due to negligence of flagman in
signalling, causing damage of $25.70 to car for which claim is made.
Respondent recommends and the attorney general approves its payment.
An award of twenty-five dollars and seventy cents ($25.70) is made to claimant.
(No. 307-S??Claimant awarded $356.63)
POCAHONTAS AMUSEMENT CORPORATION, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied January 12, 1944
G. H. A. KUNST, JUDGE.
Claimant?s porcelain marquee in front
of its theatre in Welch, West Virginia, on the twenty-ninth day of June 1943,
was,
W. VA.]
REPORTS STATE COURT OF CLAIMS 251
through the negligence of truck driver
of state road truck No. 1030-45, struck by concrete mixer in truck, which
extended eighteen inches from body of truck. The agreed compromise settlement
was for $356.63.
Respondent recommends and the attorney general approves its payment.
An award is made to claimant for the sum of three hundred fifty-six dollars and
sixty-three cents ($356.63).
(No. 308-S??Claimant awarded $9.20)
LEWIS STEWART, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opi?nwn fIled January 12, 1944
G. H, A. KUNST, JUDGE.
On September 28. 1943, on state road
project 147-B, Ofl noute 2, near New Martinsville, West Virginia,
claimant?s car was struck by road shovel 625-7, due to negligence of flagman in
permitting car to enter a one-way traffic zone and in not notifying shovel
operator of the approaching car. Cost of repairing car was $9.20, the amount of
the claim.
Respondent recommends and the attorney general approves its payment.
An award of nine dollars and twenty cents ($9.20) is made to claimant.
252 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 309-S?Claimant awarded $20.40)
C. B. SNAITH, and BOB ROGERS,
Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 12, 1944
CHARLES J. SCHUCK, JUDGE.
The record, as submitted, shows that
the two claimants were the owners of a certain taxicab or car parked on the
state highway one mile north of New Era in Jackson county, West Virginia. That
while so parked a state road grader, operated by the state road commission
hooked its grader blade into the door of the said taxicab damaging the said cab
in the amount of $20.40. It appears from the record to have been solely the
negligence of the operator of the state road truck that caused the damages in
question.
The state road commission does not contest the claimants? right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted and are
of the opinion that it should be entered as an approved claim and an award is
made accordingly in the sum of twenty dollars and forty cents ($20.40), but
that no payment should be made to claimants until the state road commission has
obtained a release from the said claimants, severally and jointly as the owners
of the said taxicab.
W. VA.]
REPORTS STATE COURT OF CLAIMS 253
(No. 312?S?Claimant awarded $153.87)
W. 0. STUTER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 12, 1944
CHARLES J. SCHUCK, JuDGE.
The record reveals that while claimant
was driving his car about one-half mile west of Smithfield, Wetzel county, West
Virginia, on state route 20, while the road was slippery a state road truck,
operated by the state road commission?s employee, skidded and slid across the
road into claimant?s automobile which he, the claimant, had driven into the
adjoining ditch in order to avoid the accident in question. The record reveals
that there was no ncgligence whatsoever on the part of claimant, but that the
driver of the state road truck was negligent considering the circumstances and
conditions under which the accident happened. The collision took place on the
fourteenth day of October, 1943. The record reveals that the claim is in the
amount of $153.87.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of one hundred fifty-three dollars and eighty-seven
cents
($153.87).
254 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 312?2-S?Claimant awarded $9.00)
DR. ALLEN M. DYER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed J(Lnury
12,
1944
CHARLES J. SCHUCK, JuixE.
This claim is in the amount of S9.OO for medical services rendered at the time
of the collision and accident as set forth in claim No. 312-S,
said medical services having been rendered to the occupants of the state road
truck injured at the time of the collision by the said state road truck and the
car of W. 0. Stuter, the claimant in the aforesaid companion claim, NO. 312-S, as
shown by the record thereof.
The state road commission does not contest the claimant?s right to an award for
the said amount, hut concurs in the claim for that amount, and the claim is approved
by the special assistant to the attorney general as one that should be paid. We
have carefully considered the case upon the record submitted, and are of the
opinion that it should he entered as an approved claim, and an award is
made accordingly in the sum of nine dollars ($9.00).
W. VA.] REPORTS
STATE COURT OF CLAIMS 255
(No. 313-S?Claimant awarded $98.94)
EDWARD L. WOLFE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied Jinuory 13, 1944
CHARLES J. SCHUCK, JUDGE.
On October 3, 1943, at Reader, Wetzel
county, West Virginia, claimant?s Pontiac automobile was injured by a state
road commission truck driven by a prisoner instructed to operate the same,
causing damages to claimant?s car in the am3unt of $98.94. From the record it appears
that claimant?s car was parked at or near what is known as camp NO. 80 at
Reader and thai the state road truck operated as aforesaid, carelessly arid
negligently backed into claimant?s car without any fault on his, clainant?s,
part causing the damages i-n question.
The state read commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to ihe attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and ai-e
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of ninety-eight dollars and ninety-four cents
($98.94).
256 REPORTS STATE
COURT OF CLAIMS 1W. VA.
(No. 31-S?Clajmant awarded $100.00)
MARYLAND NEW RIVER COAL COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 13, 1944
CHARLES J. SCHUCK, JUDGE.
This claim arises for damages caused
to a house and an electric transformer, as well as for labor replacing the
transformer; the said house and transformer were the property of the said
claimant and were located on what is known as secondary road No. 85-2 in
Fayette county, West Virginia. The record reveals that the properties in
question were injured by the manner of carrying on the blasting operations on
said secondary road No. 85-2 by the state road commission. The amount set forth
in the claim evidences a compromise settlement between the claimant and the
state road commission for the damages in question.
The state road commission therefore does not contest claimant?s right to an
award for the amount of $100.00, but concurs in the claim for that amount; and
the claim is approved by the special assistant to the attorney general as one
that should he paid. We have considered the case upon the record submitted and
are of the opinion that it should be entered as an approved claim and an award
is made accordingly in the sum of one hundred dollars ($100.00).
W.VA.l REPORTS
STATE COURT OF CLAIMS 257
(No. 318-S?-Claimant awarded $71.62)
GEORGE 1VL WEST, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January
13, 1944
CHARLES J. SCHUCK, JUDGE.
The
claimant, George M. West, while in the act
of delivering a load of sand, cement and sewer pipe was obliged to cross a wooden truss bridge on secondary road 20-27 in Harrison county, West Virginia, and while so
engaged, and while on the said bridge, it collapsed causing damages to the
claimant?s truck, as well as the material loaded thereon, at the time of
breaking through the bridge in question. There were no ?load limit?
signs posted on the bridge and no warning of any kind given to claimant that the
bridge in question would not support or sustain the load of the said truck and
materials thereon at the time. Damages are claimed in the amount of $71.62,
embracing not only the repair to the truck, but the loss of material as well;
in fact the claim was first presented for
a much larger amount but seemingly by
agreement has been reduced to a total of $71.62, From the record it would
appear that the claimant?s truck was licensed to carry the load it was carrying.
and no negligence can be imputed to him in this respect. The matter therefore
is reduced to the liability of the state for having a weak and insecure bridge
or the failure to post notices of the maximum load allowed on it at any time.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are of
the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of seventy-one dollars and sixty-two cents
($71.62).
258 REPORTS
STATE COURT OF CLAIMS LW. VA.
(No. 319-S?Claimant awarded $21.50)
E. L. STONE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 13, 1944
CHARLES J. SCHUCK, JuLxE.
The claimant, E. L. Stone, of
Wheeling, West Virginia, seeks reimbursement in the sum of $21.50, which amount
he was obliged to pay for repairs to his automobile, damaged by a state road
truck. The record, as submitted, reveals that claimant?s car was stopped,
waiting for a signal to pass through one-way traffic zone where the state road
commission employees were engaged in doing road work on state route No. 2 in
Wheeling, West Virginia. The accident occurred on October 28, 1943 and was
caused by the state road truck being negligently backed into the claimant?s car
causing the damages in question.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of twenty-one dollars and fifty cents ($21.50).
W. VA.]
REPORTS STATE COURT OF CLAIMS 259
(No. 320-S?Claimant awarded $23.16)
SHAKER SADD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 13, 1944
CHARLES J. SCHUCK, JuIE.
Claimant?s automobile was run into and damaged by a state road truck while the
former car was parked on North Kanawha street. Buckhannon, on the eighteenth
day of November 1943. The record reveals that the driver of the state road
truck was negligent, and he, himself, acknowledges his negligence in a written
statement filed in the record of the claim. The damages sustained amounted to
$23.16.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount, and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have, carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of twenty-three dollars and sixteen cents ($23.16).
260
REPORTS STATE COURT OF CLAIMS 1W. VA.
(No. 310?Advisory Opinion.)
DOUGAN, BRETZ & CALDWELL, agents
of AFYPNA CAS.UALTY & SURETY COMPANY, claimant; WEST VIRGINIA
BOARD OF CONTROL, petitioner.
V.
STATE OF WEST VIRGINIA, at the
relation of EDGAR B.
SIMS, Auditor, respondent.
Op.nion filed January 13, 1944
Advisory opinion by CHARLES J. SCHUCK,
JUDGE.
To the Board of Control of West
Virginia:
In connection with the above entitled
claim, the inquiry contained in the following question heretofore submitted in
re claim No. 258, American
Insurance Age?nc, is now submitted to
this court by the board of control of West Virginia, for an advisory opinion,
to-wit:
?Can the state properly pay insurance premiums on cars owned by the state,
inasmuch as there is a question as to whether any enforceable liability accrues
against the state in case of property damage or personal injury.?
While not appearing specifically in the body of the inquiry it nevertheless
contemplates the insurance protecting state employees against public liability
for acts arising in the course of their employment as such and resulting in
injuries to property or persons. This matter was heretofore submitted to this
court for an advisory opinion, and the court unanimously held in effect that,
in the absence of any authorization either specifically given by statute or by
implication, under the act
W. VA.]
REPORTS STATE COURT OF CLAIMS 261
creating the court of claims, the
court would be without authority to consider a claim of the nature now
presented and submitted in connection with the request for the court?s opinion.
As yet no authority whatever, of course, has been given by the Legislature to
any state department to contract for the insurance in question, and the only
other authority could be that by implication the power had been delegated to
the court of claims to allow and honor these insurance contracts.
We are of the opinion, after a very careful consideration of the act, creating
the court of claims, as well as its various provisions, that while allowing us
to consider certain claims arising ex
contra ctu and cx delicto it
does not expressly or by implication allow us to consider and honor claims for
the amounts of insurance premiums on policies issued for the sole purpose of
protecting state employees against public liability for property damage or
personal injuries arising through any negligent act on the part of said state
employees while so engaged.
We accordingly again hold that until the Legislature gives the authority to the
court of claims to consider and allow the claims in question that we would be
overreaching the powers as at present conferred on the court by allowing the
claim in question, and we further hold that the auditor is acting within his
rights in refusing to honor claims or warrants for such premiums.
262 REPORTS
STATE COURT OF CLAIMS IW. VA.
(No. 298?Claim denied)
ARTENIS G. MORTON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Op?Iios fried Januarij 28. 1944
An award will be refused where alleged
negligence of respondent is not proved, and when claimant, knowing the
conditions and existence of a danger, voluntarily and unnecessarily exposed
herself to it, when an ordinarily prudent person would not have incurred the
risk of injury, which such conduct involved.
Appearances:
Thomas S. Moore, for the claimant;
Eston
B. Stephenson, special assistant Attorney General for the state.
G. H. A. KUNST, JUDGE.
At about nine-thirty o?clock of the
morning of the tenth day of August 1943, claimant, Artenis G. Morton, aged
twenty- three, unmarried, was injured by falling through an opening in bridge
flooring of a bridge under the control and jurisdiction of the state road
commission, respondent herein. This bridge is located at Coal Fork, in Kanawha
county, West Virginia and crosses Campbell?s creek. She fell a distance of ten
or twelve feet to the creek bed, and for the injuries she sustained asks an
award of $4800.00. On one end of the bridge, which is herein called the county
road end, are residences, and on the other end are a store and the post office.
State road commission employees were, and had been for several weeks, engaged
in relaying the floor of this bridge, having removed the old flooring from the
county road end.
W.VA.i REPORTS STATE COURT OF CLAIMS 263
A walkway, consisting of three boards,
three inches thick by twelve inches wide, elevated about two and one-half feet
above the floor of the bridge, extended across the left side of the bridge,
which was eighty to eighty-five feet in length, for the convenience of pedestrians
to cross the bridge, many crossing each day. Barricades at both ends of the
roadway stopped vehicular traffic. The new flooring had been laid about twenty
feet from the county road end of the bridge. An open space about two and
one-half feet long was left uncovered, so that the walkway would not interfere
with the work of reflooring, and this opening was closed during the day by the
workmen upon the approach of pedestrians, by placing one end of a board twelve
inches wide, three inches thick, upon the new floor of the bridge and the other
end upon the walkway, thus covering the opening in the floor and the workmen
would hold the board while pedestrians walked this inclined board onto the
boardwalk.
When the flooring had been extended over the opening, the boardwalk was cut off
a sufficient length to permit the flooring work to be continued, and at night
the flooring was extended to cover the opening.
Miss Morton had crossed the bridge, going to the store, upon the inclined plank
and walkway and after about thirty minutes was returning, carrying a poke
filled with groceries; she was accompanied by her sister, a girl of eight years
of age, and Helen Wright, thirteen years of age. When they reached the opening
in the floor they found that the board crossing the opening was not in place.
Helen took the groceries and she and the other girl crossed by holding to the
side railing and walking a lower side railing and stepping off on the floor
without waiting for the board to be placed. Miss Morton attempted to cross
without the board and fell through the opening.
The pedestrians, who crossed this bridge over this walkway, were lawfully
there, and because of this fact the state road
264
REPORTS STATE COURT OF CLAIMS [W.VP
commission employees were keeping this walkway in a reasonably safe condition
and in so doing performing the duty imposed upon them and consequently not
guilty of negligence.
Miss Morton having crossed this bridge over this opening over this board and
walkway but a short time before, and, by the evidence of one witness, several
times previous, which she denied, saw and knew of this opening and the method
used to coverit and to cross it, and with the six workmen then on the bridge, distant
but a few feet, ready and willing to assist her, instead of waiting for the
board to be placed, instead of asking that it be replaced, instead of asking
for help or waiting until the opening was closed, she, knowing and appreciating
(or she should have known and appreciated) the existence of danger from which
injury might be reasonably anticipated, and not exercising the ordinary care of
a prudent person to avoid such injury, attempted to cross and by her voluntary
act in so exposing herself to such danger, was guilty of negligence from which
her injury resulted.
The court is of opinion that no award be made.
W. VA.l FIEPORTS
STATE COURT OF CLAIMS 265
(No. 314?Claimant awarded $750.00)
BEE LESTER, Claimant,
V.
STATE ROAD COMMISSION. Respondent.
Opinion filed Febraery 1, 1944
A compromise settlement made by the
state road commission of a claim filed against that state agency in the court
of claims for damages for personal injuries sustained by claimant when he was
struck by a disconnected wheel and axle from a one and one?half ton state truck
being towed from one point to another point on a state highway, subject to the
ratification and approval of the court of claims, will be approved and an award
made for the amount of such compromise settlement when the evidence offered
upon the hearing of the claim shows such settlement to have been proper and
advisable in the premises.
S. N. Fried berg, Esq.. for claimant;
Eston B. StepheNson. special assistant Attorney General for the
state.
ROBERT L. BLAND, JuDGE.
On the twenty-fourth of November 1943.
claimant Bee Lester, of Goodman, Mingo county, West Virginia, filed a petition
with the clerk of the court of claims wherein he alleged that on the 28th day
of October 1943, he was walking on the sidewalk adjacent and parallel with
route 52, in a westerly direction, at or near the intersection of Hill street
and West Third avenue, in West Williamson, West Virginia, between the hours of
one and two o?clock i?. M. of that day, and that a Chevrolet one and one-half ton
state road truck, in charge and under the control of John Soward, an employee
of the state road commission, was being pulled by another state road truck
driven by one John Nance, also an employee of the state road commission; that
said first mentioned truck so driven by said Soward, while hauling dirt, gravel,
rock and other substances
266
REPORTS STATE COURT OF CLAIMS [W. VA.
on the new road at the bottle neck on
West Third avenue, had broken an axle and was unable to proceed under its own
power and that at the direction of Clarence Hicks, foreman of maintenance for
respondent, said disabled truck, with said broken axle, was directed to be
towed to the state road garage in West Williamson. It is further averred that
just before said truck approached a point near where claimant was walking on
the sidewalk said trucks came around a steep curve and went down a steep grade
at a rate of speed in excess of fifteen miles an hour, and without due regard
for the safety and welfare of pedestrians, and without having control and care
of said trucks, the rear right dual wheels of the disabled truck came off the
said truck with its axle extended and ran wild down Third avenue upon the
sidewalk and struck claimant, inflicting serious and grievious injuries and
thereby causing him to sustain a fractured skull, concussion of the brain and
other contusions and lacerations in and about the body.
This case was placed upon the trial calendar of the present term for
investigation on the eighteenth of January 1944. After the state road
commission had made investigation of the accident, and the circumstances
attending it, it concluded that the claim in question was possessed of merit
and opened negotiations for its settlement by way of compromise adjustment. It
agreed to pay to claimant in full settlement of his injuries the sum of $750.00
subject to approval and ratification by this court. This amount claimant agreed
to accept.
On the said eighteenth day of January 1944, the case came on to be heard before
the court. Evidence was adduced supporting the allegations of claimant?s
petition and certain facts were stipulated.
It appears that state road commission truck NO. 230-57 had a broken axle
and it was deemed necessary to send it to the state garage at Williamson, a
distance of about one mile, to be repaired. State road commission truck NO. 230-84,
driven
W. VA.]
REPORTS STATE COURT OF CLAIMS 267
by John Nance, started to tow the
disabled truck to the garage. The condition of the weather was wet and cloudy
and visibility was poor. Claimant was walking on the sidewalk, in a westerly
direction, going towards Chattaroy and Huntington. He was accompanied by his
son who was pushing a cart on the right side of the highway. They had gone
around a curve and were descending an incline. Another boy was approaching from
the opposite direction. Just before he met claimant and his son the two state
road commission trucks came around this curve, traveling in the same direction
that claimant was proceeding. The little boy observed that the rear right dual
wheels of the disabled truck had become disconnected and were rolling wildly
along the highway. This fact was unknown to the road employees in charge of the
two trucks. The little boy saw the wheels
going up on the sidewalk and desiring to warn claimant of his danger yelled to
him to jump out of the way. At the same time he jumped out of the way and the
wheels missed him by a few inches. Claimant turned around to see what the boy
was yelling about and almost in that moment the axle from the wheels which were
moving very fast hit him, knocking him up in the air and he fell flat on the
pavement and the upper part of his body rolled over (in the grass. After
striking claimant the wheels continued to run on the highway and struck a car.
The road trucks did not stop until they proceeded to a point below Kazee?s
service station.
Claimant was found to be badly injured and was taken to the Williamson Memorial
hospital. On examination he was found to be in shock, with a large hematoma in
the left occipital area, with bleeding from the left ear. X-ray examination of
the skull showed a fracture of the left parietal region. There can be no doubt
about the fact that he was seriously injured and his hearing badly impaired. He
remained in the hospital until November 4, 1943, when he returned to his home
to further recuperate. It was manifestly an act of negligence to permit the
disabled truck to go upon the highway. In view of the condition in which it was
found to be the lives of all
268 REPORTS
STATE COURT OF CLAIMS [W. VA.
persons using the highway at the time
were in danger. Proper precautions for the safety of the traveling public were
not employed. By its willingness to settle claimant?s demand the road
commission has admitted its responsibility for the injuries which he received.
The compromise settlement is fully sustained by the agreed facts.
In claims o. 95, 120 and 121, Wayne
Danron and Calvert
Fire Insurance Company v. State Road Commission, Zillie
Damron v. State Road Commission and Rebecca Damron v.
Store Road Commission, 1 Ct Claims (W. Va.) 236, we held:
?When, pending the hearing and investigation of claims against the state, duly
filed in the court of claims and placed upon its trial calendar, all growing
out of the same facts, such claimants and the state agency concerned effect a
compromise adjustment and settlement of such claims, subject to the approval
and ratification of the court of claims, and evidence offered in support of such
claims and compromise settlement thereof shows the advisability and propriety
of such compromise settlement, awards will be made for the payment of such
claims in accordance with and pursuant to such agreed terms of settlement.?
The settlement made by the road commission with claimant will be ratified and
confirmed. All of the evidence discloses the wisdom and advisability of making
such settlement.
An award is therefore made in favor of claimant Bee Lester in the sum of seven
hundred and fifty dollars ($750.00), subject to ratification by the
Legislature.
W. VA.]
REPORTS STATE COURT OF CLAIMS 269
(No. 315?Claim denied)
E. E. McCLURE, Claimant,
V.
BOARD OF CONTROL and DEPARTMENT OF
BUILDING
AND GROUNDS, Respondents.
Opinion filed February 15, 1944
Choice of seveial safe ways of descent
from one floor of a building to another being available to claimant, an award
will not be granted where a dark stairway is chosen in preference to ways known
to be safe, and when an ordinarily prudent man would not have incurred the
uanger of injury known, or which could have been reasonably anticipated from
such choice, alleged negligence of respondents not having been shown.
Appearances:
Messrs. Lilly & Lilly (A. A. Lilly
Esq. and R. G. LiU?y Esq.)
for claimant;
Eston B. Ste ph&nson, special
assistant Attorney General for the state.
G. H. A. KUNST, JUDGE.
Claimant E. E. McClure of Charleston,
West Virginia, in the employ of said state as a proofreader, was sixty-seven
years of age, afflicted with rheumatism for the past nine years, and had his
right foot injured by the loss of the big toe; his ?eyesight all right. but not
seeing so well at night,? although he had used glasses for fifteen years, and
walked ?cith the aid of a rubber-tipped cane, He had been employed at every
session of the Legislature of the state for the past forty years. During the
session of the Legislature for the year 1943 and for the previous three or four
sessions his particular duty had been to proofread and correct the journal of
the House of Delegates each day and have it ready for the clerk to read
270 REPORTS
STATE COURT OF CLAIMS EW. VA.
when the session opened the next day.
He did this work in a small room on the second floor of the Capitol building,
numbered 224, beween the offices of the clerk of the House and the speaker of
the House.
In going down the dark stairway of the main unit of the building at about
four-thirty o?clock in the evening of the twelfth day of March 1943, which was
a rainy, cloudy day, he walked on the left hand side of the steps and held with
his left hand to the railing and used his cane in his right hand as a support.
He descended steps until he reached the newel post, which was located two steps
above, and sixteen inches from the bottom of the steps at a platform five feet
nine inches in width and from which there were five steps to the first floor.
These steps were of marble, fifteen inches in tread and with six inches rise.
When in his descent he reached the newel post on a different level from the platform
and the railing not extending farther, he thought he was at the end of the
stairway, and, stepping, he fell onto the platform below and across it, down
the five steps to the floor below, and sustained injuries for which he asks an
award of $15,000.00. He was found by a Charleston policeman who assisted him to
a cab and was taken to his home.
He alleges in his petition, that his fall was caused by negligence of
respondents? employees in not keeping the stairway in question properly
lighted, which lights would have shown the position of the newel post to be on
a different level from the platform and that the bannister was not extended to
the platform. In his statement that the stairway was dark, he is corroborated
by the testimony of the policeman, but both testified that a very small amount
of light came to the stairway from the large chandelier at the end of the
corridor, the only light which they both say was lighted, and that all other
lights above and near this stairway, and across the main corridor from it, were
not lighted.
W. VA.]
REPORTS STATE COURT OF CLAIMS 271
Evidence of the employees of respondent,
entrusted with the responsibility for the operation and care of the lights and
electrical equipment and lighting of the entire building, told of their
presence in the building, of their careful inspection of same, and patrol of
corridors and stairways their great efforts particularly directed to keep on
all lights because of the presence of the Legislature in the building; of
putting in new light bulbs all over the building before the session of the
Legislature commenced; that if electric light bulbs burned out on this
particular stairway and its vicinity, leaving it in darkness on this particular
occasion, that they were not notified of such fact and did not discover it and
had no knowledge of the fact then or at a later time, and that Mr. McClure?s
fall was not reported to them until long after; at the time this proceeding was
commenced, although Mr. McClure returned to the building and performed his work
the next day.
The court viewed the scene of accident and lights were made as nearly as
possible to conform to the statements of Mr. McClure and the policeman. The
court is of opinion that the stairway, although then dimly lighted, was not so
dark but that an ordinarily prudent person could have descended it with safety.
When Mr. McClure approached this stairway, having the warning of darkness,
which courts have held is ?nature?s own warning, to arouse the natural instinct
of self protection,? he had several choices of safe ways to descend to the
first floor or to return to the room he had left and telephone the custodian of
building and grounds of the unlighted condition of the stairway, and then to
wait until the official had had a reasonable time in which to remedy this
unlighted condition and when so remedied and with stairway properly lighted,
the other alleged condition of danger, the shortened railing and the difference
in level of newel post, would have been obviated; to use the safe stairway he
was accustomed to use; to use one of the safe self-operating elevators which he
had been shown how to use, or could easily have learned how, from posted
instructions.
272 REPORTS
STATE COURT OF CLAIMS [W. VA.
The court being of opinion that
respondents, not having had knowledge of this unlighted condition of the
stairway at such time, and not having had notice of same, nor having had
opportunity and reasonable time to remedy it. and no higher degree of care being
reuired for one impaired in physical capacity than for one in perfect physical
condition, such respondents were not guilty of negligence; that claimant
voluntarily exposed himself unnecessarily to a known and appreciated danger, or
in the exercise of ordinary care he should have known and appreciated it, and
where under the same, or similar circumstances, an ordinarily prudent person
would not have incurred the risk of injury which such conduct involved.
Wherefore an award is not granted.
W. VA.] REPORTS
STATE COURT OF CLAIMS
(No. 322?Claimant awarded $250.00)
R. CLARENCE PIERSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Febraarp 15, 1944
A case in which it is held that the
state was not responsible in damages for injuries to one of its road foremen
caused by a personal assault on him by one of his fellow employees; however, a
claim for which the amount of lost services is allowed.
Appearances:
E. L. Eakie, Esq. for the claimant;
Eston B. Ste p?henscm, Esq., special assistant Attorney General for the state.
CHARLES J. SCHUCK, JUDGE.
While acting as road foreman in Clay
county, West Virginia, for the state road commission, the claimant, Clarence
Pierson, was assaulted by one of his fellow workmen, being struck by a shovel in
the hands of said workman, the incident occuring on or about January 3, 1936. A
review of the testimony as submitted, indicates that the assault was made
without any justification whatsoever, and seemingly without any provocation. In
fact the only evidence is that the claimant, as foreman, had ordered the ditch
beside the road to be made a little deeper and had himself stepped into the
ditch to help with the work when he was assaulted by the workman, Howard Young.
Claimant?s injuries required both hospital and medical attention. In fact, he
could not resume his work for a period of approximately two months. In due
course of time, complainant brought an action in tort against his assailant and
recovered approximately $675.00, of which he, personally,
274 REPORTS STATE
COURT OF CLAIMS [W. VA.
has received $300.00. He lost two months? work amounting to $250.00.
Under all the circumstances as presented,
considering the fact that an attempt was made to show that the assailant was of
a vicious nature and had made other assaults, which contention in our opinion
was not supported by the testimony, we find that the state could not possibly
have forseen the likelihood oi the assault at the time that Young, the
assailant, was given the job with the road department and was engaged as
aforesaid. Neither the state, nor the state department involved, could in any
manner be held responsible for the personal actions of Young and, as stated,
could not contemplate or forsee that he would make an unprovoked assault upon the
road foreman. There is no evidence in this case to show that the state or
department in question, or any of its officials, knew anything about the
assailant?s disposition, nor as to any vicious nature or the probability of his
making an assault upon any of his fellow workmen.
We feel, therefore, that an award cannot be made for the injuries sustained;
however, since it has been the policy in the past, and was at the time of
claimant?s injury, of the state road department to pay workmen for loss of time
sustained by reason of injuries of any kind received while engaged in their
usual work, we feel that the amount that claimant would have received from the
state for services rendered during the period that he was unable to work should
be given him, and an award of two hundred and fifty ($250.00) dollars is
recommended accordingly.
W. VA.] REPORTS
STATE COURT OF CLAIMS 275
(No. 323?Claim denied)
J. W. HARTIGAN, M. D., Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion JiIeil February 15, 1944
L An award will not be made for the
value of surgical instruments belonging to the superintendent of a state
emergency hospital, misplaced or lost at a time when such superintendent was
responsible for the security and safekeeping of such instruments.
2. 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.
R. Dennis Steed, Esq., for claimant;
Ralph M. Hiner, assistant Attorney General, and Eston B. Ste phe?nson, special assistant Attorney General, for respondent.
ROBERT L. BLAND, JUDGE.
In this case claimant J. W. Hartigan,
M. D., of Morgan- town, West Virginia, seeks an award of $9,740.00 as
hereinafter more particularly set forth.
Testifying in support of the claim Dr. Hartigan said that on the night of April
15, 1941, His Excellency, the Honorable Matthew M. Neely, Governor of West
Virginia, communicated with him by telephone at his home in Morgantown and
stated that he wanted him to go to McKendree, in Fayette county, to be the
chief surgeon at. McKendree emergency hospital; that he went to Charleston on
the sixteenth of April, remaining over night in that city, and on the following
morning had conference with the Governor at his office in the Capitol, at which
time he announced his willingness to go to the hospital whenever the Governor
was ready to send him there. On the same day he was the luncheon guest of the
Governor
276 REPORTS
STATE COURT OF CLAIMS [W. VA.
at the Executive Mansion, where they
were joined by the Honorable Walter R. Thurmond, at that time president of the
board of control, which exercises supervision over certain state institutions.
Claimant further stated that at the direction of Governor Neely he was taken to
the McKendree institution by Mr. Thurmond, and at once entered upon the
discharge of his duties, and remained at the hospital for a period of six
months, during all of which time his name appeared on the pay roll of the
hospital as its superintendent, and that for his services in that capacity he
was paid the sum of $2000.00, the salary of the superintendent having been
fixed by the board of control at $4000.00 per annum.
Claimant admitted that after a service of six months at the hospital he was
relieved from further duty there by Governor Neely. In other words he was
dismissed by the Governor. This dismissal was in the form of a letter. After he
received this letter, which was delivered to him at his home in Morgantown, by
the sheriff of Monongalia county and a state trooper, he did not return to the
McKendree institution or render any further service there.
The claim now prosecuted by Dr. Hartigan is itemized as follows: Personal
surgical instruments lost at the hospital, $40.00; salary as chief surgeon for
six months from and after April 16, 1941, $1800.00; maintenance of wife at
hotel in city of Beckley, $900.00; salary as superintendent for twenty-one
months from October 16, 1941, $7,000.00.
Dr. Hartigan submitted his case on his own testimony. No corroborative evidence
was offered.
Mr. Thurmond, called as a witness on behalf of the board of control, testified
that at the time claimant went to the McKendree hospital he was president of
the board of control. He stated that on the twenty-eighth of March, 1941, he
notified Governor Neely that the McKendree hospital was without a
W. VA.] REPORTS
STATE COURT OF CLAIMS 277
superintendent. He further testified that on April 14, while he was making an
official visit to the girls? industrial home at Salem and remaining there over
night the Governor of the state called him about 9:00 o?clock and said: ?I have
decided to appoint our mutual friend, Dr. Hartigan, to the place at McKendree.?
He said that he met the Governor and Dr. Hartigan at the Executive Mansion
about 12:30 o?clock on April 16, and at the direction of the Governor took
claimant on that day to McKendree and installed him as superintendent of
McKendree emergency hospital. They arrived at the institution about 5:30 i. M. on that
day, just before dinner. Dr. Hartigan stated that the trip was made on the
morning of the seventeenth. There is a discrepancy in the two statements. Mr.
Thurmond said that he testified with reference to the record of the board of
control.
Governor Neely, also called as a witness on behalf of respondent, testified: ?I
am certain of what I asked him to go for. The capacity in which I asked him to
go there was that of superintendent. I had no authority, so far as I know, to
appoint him chief surgeon there or in any other hospital in the state.? .And he
stated that his recollection was that when he offered the position to Dr.
Hartigan he informed him that the superintendent?s salary was $4,000.00 a year.
Mr. Thurmond, while a member of the board of control, acquired particular
knowledge of and familiarized himself with the different institutions of the
state. He testified that the principal surgical institutions were the three
miners? hospitals, one located at Welch, one at McKendree, and one at Fairmont,
and that in each one of them the man who was superintendent did practically all
of the surgery and a tremendous amount of it. He said that no superintendent
was paid additional compensation as a surgeon. He further testified that there
was no one at these institutions designated as chief surgeon.
We think that it is clearly shown by the evidence that Dr. Hartigan was
appointed superintendent of McKendree emergency hospital, and that he was never
at any time designated
278 REPORTS
STATE COURT OF CLAIMS [W. VA.
as chief surgeon of that institution.
What work he did as surgeon there was incidental to his duties as
superintendent.
We have already stated that Dr. Hartigan remained at the hospital for a period
of six months in the capacity of superintendent and that for his services he
was paid $2000.00. But in his present claim he asks for $40.00 to compensate
him for certain surgical instruments belonging to him and taken to the hospital
when he went there but which were misplaced or lost. Concerning them claimant
testified: ?I couldn?t find these when I went after them.? When he took the
instruments to the hospital they were in his custody and under his control. An
award will not be made for the value of surgical instruments belonging to the
superintendent of a state emergency hospital, misplaced or lost at a time when
such superintendent was responsible for the security and safekeeping of such
instruments.
The claim for salary as chief surgeon for six months from and after April 16,
1941, amounting to $1800.00 cannot be sustamed. As disclosed by the evidence
Dr. Hartigan was not employed or engaged as chief surgeon and there was no
position or office at the institution designated or known as chief surgeon.
Claimant was paid as superintendent for that period the sum of $2,000.00. Nor
can we perceive any basis for an award for maintenance of claimant?s wife at a
hotel in the city of Beckley in the sum of $900.00. Claimant himself testified
that she was not at a hotel in Beckley during the six months period of his
incumbency as superintendent of the hospital. Mr. Thurmond testified that there
was no agreement that Mrs. Hartigan?s maintenance at such hotel would be paid
by the board of control. He told claimant that the living quarters at the
hospital (where Mrs. Hartigan could have remained if she wished to do so) were
not particularly commodious and expressed doubt whether Mrs. Hartigan would be
satisfied there. Claimant replied that it was not his intention to have his
wife with him during the time that he remained at the institution. During the
entire period of claimant?s stay at the
W. VA.]
REPORTS STATE COURT OF? CLAIMS 279
McKendree emergency hospital she
remained at her home in Morgantown.
Dr. Hartigan?s claim for salary as superintendent of the hospital for
twenty-one months from October 16, 1941, in the sum of $7,000.00, is without
merit. During that period he rendered no service to the institution. He was not
there. His tenure as superintendent had been terminated by the Governor. He
served in the capacity of superintendent for six months from April 16, 1941,
and his salary of $2,000.00 was paid to him. At the end of that period he was
removed as superintendent by the Governor. He served during the will and
pleasure of the Governor. No commission had been given him. The Governor had
the lawful right to remove him at any time. Chapter 6, article 6, section 4, of
the code of West Virginia, provides as follows:
?Any person who has been, or may hereafter be appointed by the governor to any
office or position of trust under the laws of this State, whether his tenure of
office is fixed by law or not, may be removed by the governor at his will and
pleasure. In removing such officer, appointee, or employee, it shall not be
necessary for the governor to assign any cause for such removal.?
The burden of proof to establish the correctness and merit of his claim rested
upon Dr. Hartigan. He has not met that burden. A 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.
We are of opinion that no award in this case can properly be allowed.
An award is, therefore, denied and the claim dismissed.
280 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 197?Claimant awarded $51.76)
JAMES M. FLETCHER, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opt nion filed February 16, 1944
For reasons set forth in the opinion,
an award is allowed in this claim and the case distinguished from the opinion
flied in La?nbert v. State Board
of Control, case No. 139.
Appearances:
W. Merle Watkins, Esq., for the claimant;
Eston B. Stepkenson, special assistant Attorney General for the state.
CHARLES J. SCHUCK, JUDGE.
The testimony in support of this claim
presents facts quite unusual and differing materially as to their weight and
importance from the facts and matters heretofore considered by this court in
several other claims of a somewhat similar nature and arising from the criminal
and tortious acts of escapees from the reformatory or industrial school for
boys at Pruntytown.
George Fetty, when a boy thirteen years of age, was committed to the industrial
school for boys, charged with the offense of breaking and entering and robbery.
He was committed in December 1936; he was paroled in December 1938, after
having been in the institution for approximately two years. He was returned for
a violation of the parole in February 1941, and was then approximately eighteen
years and eight months of age. Thereafter he escaped three times from the
institution, on August 30, 1941; December 21, 1941; and again on January 30,
1942. From this last escape he returned
W.VA.} REPORTS
STATE COURT OF CLAIMS 281
voluntarily and upon his promise seemingly to obey the rules and change his
conduct, he was again received, and while given no special privileges he was
under no special restraint and was given the ordinary supervision exercised
over all the boys, and allowed privileges including the use of the recreation
grounds at the same time and under the same conditions as the other boys
confined in the institution. It was while enjoying the privilege of being on
the recreation ground or center on Sunday afternoon, June 21, 1942, that he
made his fourth escape, and while such escapee stole the automobile of the
claimant and caused the damages thereto for which this claim is presented and
now under consideration by this court. Under these circumstances we are called
upon to decide whether or not an award should be made in favor of the claimant
in the amount of $51.76 as heretfore filed. The recreation ground from which the
last escape was made by Fetty is a large field or playground immediately
adjoining state route 68, and is unenclosed except for the ground banks or
slopes around approximately one-half or two-thirds of the tract.
In the claim of 0. D. Lambert v. Board of Control,
case NO. 139, we held in refusing an
award, that the authorities in charge of the industrial school must be guilty
of such negligence or breach of duty as would contribute directly to an escape
of one of the boys before an award could be made for damages resulting from the
criminal or tortious act of such escapee. In that case we also said (see
opinion last paragraph, page 5) ?we do not subscribe to the rule that the state
department involved can at all times escape liability, but do insist that the
lack of reasonable care must be shown in each instance, and that the negligence
must be so extreme as to be directly the cause for the commission of the tort .
Applying these conclusions to the facts
presented in the instant case we are of the opinion that the proper supervision
was not exercised over the custody of the boy in question; that the
circumstances surrounding his incarceration were such as to make him the object
of special restraint; that his record while an inmate of the institution was so
very bad that
282 REPORTS
STATE COURT OF CLAIMS [W. VA.
the authorities must have concluded
that he no longer could be the subject of reformation and that by giving him
the same rights and privileges as enjoyed by the other boys, and allowing him
to be on the unenc1oed recreation ground at the time and under the
circumstances presented, thus allowing another escape to be made by him, were
such acts as contributed to the commission of the tart, and for which the state department involved should be
held responsible.
Writers and authorities on juvenile delinquency indicate that there are
juveniles possessed of a nature so vicious, whether acquired by heredity or
environment, that reformation seems to be impossible, and that when a subject
of this kind or type is being dealt with experience has shown that the
authorities having custody of such juvenile must necessarily exercise a higher
degree of supervision in order to control the delinquent?s acts and prevent him
from being harmful to others. It is our opinion that Fetty falls in this class
and that accordingly a higher degree of supervision should have been exercised
by the authorities at Pruntytown than would be used or exercised in controlling
the actions of a less harmful or obedient inmate. Lack of discipline and
control in this case, in our opinion, was the cause of the escape and
consequently brought about the commission of the tort, namely the stealing of the automobile and the injuries
to it by the escapee in question. Under all of the circumstances, we favor an
award and accordingly recommend that the claimant, Fletcher, should be
compensated in the amount of fifty-one dollars and seventy-six cents ($51.76).
ROBERT L. BLAND, JUrXE, dissenting.
The amount of the award made by a majority of the court in this case is small,
but the principle involved is important.
The West Virginia industrial schoo? for boys is one of the penal institutions
of the state. In the conduct and maintenance of the institution the state is
engaged in the exercise of a
WVAJ REPORTS
STATE COURT OF CLAIMS 283
governmental function. The state is not liable, in the absence of a statute
making it so, to respond in damages for loss of property occasioned by the
wrongful conduct of an inmate of the school. There is no statute in West
Virginia making the state liable in damages for the claim upon which the award
is based.
(No. 294-S?Claimant awarded $74.45)
PRODUCERS GAS COMPANY, Claimant,
V.
STATE TAX COM1VHSSIONER, Respondent.
G. H. A. KUNST, Juix.
Opinion filed Febuarij 16, 1944
Claimant seeks a refund of $74.45,
which amount represen)a overpayment by it of its business and occupational
taxes for the years 1937 and 1938, as shown by investigation report of auditor
for that tax division. A request for refund of the excess tax was made by
claimant on its 1937 tax return and on its 1938 return, at the time each was
ified.
The state tax commissioner recommends and the attorney general approves the
payment of said amount. An award ie made to claimant for the sum of seventy-four
dollars and forty- five cents ($74.45).
284
REPORTS STATE COURT OF CLAIMS EW. VA.
(No. 328-S??Claimant awarded $4.59.)
CHARLES L. LITfLE, Claimant,
V.
STATE ROAD COMMISSION, Respondent,
Opinioii.
filed J1LIy 10, 1944
ROBERT L. BLAND, JUDGE.
On the morning of October 20, 1943, state road commission truck NO. 430-79,
operated by Emmett Dunlap, was trave1in north on a street in the town of
Bridgeport, in Harrison county, West Virginia, said street being a state
controlled highway. Claimant?s Plymouth automobile, bearing state license NO.
159-780, was following the state truck. The latter stopped suddenly and started
back, and in doing so struck claimant?s car, causing damage thereto, for which
a claim was filed in th. sum of $4.59. The record shows that the driver of the
state truck was responsible for the accident. The state road commissioner
having concurred in the claim, and the attorney general having approved the
same as a claim that, in vie?v of the purpose of the court act should be paid,
an award is now made in favor of claimant, Charles L. Little, for the said sum
of four dollars and fifty-nine cents ($459).
W. VA.] REPORTS
STATE COURT OF CLAIMS 285
(No. 330-S Claimant awarded $35.70.)
B. W. RIGGS FUNERAL HOME. Claimant,
V.
STATE ROAI) COMMISSION. Respondent.
Opiaion
fded Jnli1 10. 1944
ROBERT L. BLAND, JUDGE.
?rhe claim involved in this case was
submitted on January 25,
1944, under section 17 of the court
act, the record thereof having been prepared by respondent. It grows out of an
accident which occurred December 21, 1943 on a state highway. Harry R. Bell,
Jr., a safety director, states that the division of prison labor of the state
road commission was widening a small stretch of road in the city limits of
Glendale on route 2, in Marshal county, West Virginia. to conform with the
balance of the completed project, the normal road width being 44 feet and at
the place of the accident 36 feet, with ditches dug on each side of the road
for widening purposes, and that truckloads o slag had been dumped on the bed of
the road preparatory to being placed in the ditches. Work having been completed
for the day, bomb flares had been placed on the slag.
It is shown by the record that at approximately nine o?clock
P. M. Eston C.
Riggs was conveying a patient in claimant?s ambulance to a Wheeling hospital.
As he approached the road project, driving at about 40 miles an hour, oncoming
cars on the left blinded him and he quite naturally drove toward the right curb
of the road, where he struck the slag placed in the roadbed. As a result of the
collision the fenders, running board and both right wheels were damaged to the
extent that claimant was required to pay the sum of $35.70 for the necessary
repair of the ambulance.
286 REPORTS
STATE COURT OF CLAIMS [W. VA.
The driver of the ambulance and Eugene Roberts say there were no lights visible
on the slag. Respondent admits that the prison labor division of the road
commission was at fault for the occurrence of the accident.
The head of the department concerned, having concurred in the claim, and the
attorney general having approved it as a claim that, in view of the purpose of
the court act, should be paid, an award will be, and is now hereby made in
favor of claimant, B. W. Riggs Funeral Home, for thirty-five dollars and
seventy cents ($35.70).
(No. 331-S?-Claimant awarded $10.00.)
TERESA SCHMIDT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed July 10, 1944
ROBERT L. BLAND, JUDGE.
The record of the claim in this case was
prepared by the state road commission and filed in this court on February 9,
1944. The claim is in the sum of $10.00. The state road commissioner concurs in
it, and the attorney general approves it as one that, in view of the purpose of
the court act, should be paid.
It appears from the record that on October 28, 1943, when she stepped into an
open drop inlet on secondary road NO. 1, known as the Boggs Run road, in Marshall county,
West Virginia, approximately one mile east of the Boggs Run intersection road
and route NO. 2 at Benwood, and 1000 feet west of the Keller gasoline
filling station, and within 200 feet of
W. VA.] REPORTS
STATE COURT OF CLAIMS 287
her home, claimant sustained an injury to her right knee and suffered minor
skin abrasions of both extremities, on account of which she incurred liability
to pay a physician?s bill of $10.00 for
professional services rendered. Claimant was walking on the road enroute to her
home on Boggs Run. At the point where the accident occurred claimant met an
automobile and stepped to the left side of the road and into the open sewer
inlet which was filled with leaves, thus obscuring her vision and preventing
her from seeing the danger. This exposed inlet was upon the paved portion of
the highway and amounted to a dangerous trap unseen by a passerby.
In view of the concurrence in and approval of the claim as above stated, an
award is now made in favor of claimant, Teresa Schmidt, in the sum of ten
dollars ($10.00).
(No. 334-S??Claimant awarded $18.36.)
RALPH DOOLI?fl?LE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 10, 1944
G. H. A. KUNST, JuIxE.
On April 14, 1943. in Fairmont, West
Virginia, the driver of state road commission truck No. 430-32 by
negligence in driving collided with claimant?s Buick sedan, causing damage to
same which cost S18.36 to repair.
Respondent recommends and the attorney general approves payment of the above
amount for which claim is made.
An award is made to claimant for the sum of eighteen dollars and thirty-six
cents ($18.36).
288 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 335.-S?Claimant awarded $6.12.)
GRACE VAN HORN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 10, 1944
G. H. A. KUNST, JuDGE.
On October 25, 1943, state road
commission truck NO. 430-87, while going up hill on u. s. route 19-50 in
Clarksburg, West Virginia, ran out of gas and drifted back about ten feet
before driver could stop it, striking claimant?s car, causing damages costing
$6.12 to repair. Payment of claim made for this amount is recommended by
respondent and approved by the attorney general.
An award is made to claimant for the sum of six dollars and twelve cents
($6.12).
(No. 336-S?-Claimant awarded $60.00.)
C. E. BURGESS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 10, 1944
G. H. A. KUNST, JUDGE.
At 11:45 o?clock, p. M., on August 21, 1943, on a street in Charleston, West
Virginia, the driver of state road commission truck x-30-2, by negligence in
passing a taxicab, struck
W. VA.] REPORTS
STATE COURT OF CLAIMS 289
claimant?s parked car, causing damage to same, which cost $60.00 to repair.
Respondent recommends and the attorney general approves payment of the above
amount for which claim is made.
An award is made to claimant for the sum of sixty dollars
($60.00).
(No. 338-S?-Claimant awarded $80.24.)
THOMAS A. RATHBONE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinwn fIled July
10, 1944
G. H. A. KUNST, JUDGE.
On November 27, 1943, in Pine Grove,
Wetzel county, West Virginia, the driver of state road commission truck NO. p-30-73
negligently backed into a street, striking claimant?s approaching Plymouth car,
causing damage to same, which cost $80.24 to repair.
Respondent recommends and the attorney general approves payment of the above
amount for which claim is made.
An award is made to claimant for the sum of eighty dollars and twenty-four
cents ($80.24).
290
REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 301?Claim denied.)
DONALD GILL, an infant, by DOROTHY GILL, his mother
and next friend, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed July 11, 1944
An award will not be granted claimant,
asking damages against respondent for alleged negligence in the erection of an
insufficient and inadequate barrier, or safeguard on top of a wall
extending along a sidewalk under its jurisdiction, where an unattended child of
tender years had fallen from the barrier seventeen feet to the base of the wall
and sustained injuries, when the barrier is proven sufficient to meet the legal
requirements of ordinary care.
Appearances:
Carl B. Gal braith, Esq, for claimant;
Esto?n. B. Stephenson, Esq., and Ralph
M. Hiner, Esq., special assistants to
the attorney general, for respondent.
G. H. A. KUNST, JUDGE.
Near one o?clock on the afternoon of
July 8, 1943, Donald Gill, a child two years and ten months of age, fell from a
metal fence, or barrier, on one side of a sidewalk in the city of Wheeling, a
distance of about seventeen feet, on boards, rubbish and concrete blocks at the
base of a concrete wall and sustained serious injury, alleged to be the result
of negligence on the part of respondent in not having provided an adequate and
sufficient barrier, for which injury, an award for damages in the sum of
$50,000.00 is asked. This concrete wall extended along the sidewalk about the
frontage of a city lot, approximately fifteen feet in height, upon which had
been erected this metal fence, formed of two parallel
W. VA.]
REPORTS STATE COURT OF CLAIMS 291
horizontal pipes about two inches in
diameter, supported by upright pipes of like size, at intervals of seven feet,
sunk into the top of the concrete wall.
The sidewalk was along route No. 40, the national highway. The distance from the wall to
the first pipe was eighteen inches and the same distance between the pipes.
This fence had been erected by respondent as a barrier and protection from the
difference in level at the foot of the wall and the sidewalk and it and the
sidewalk and highway were under its control and jurisdiction.
The grandmother of the child, in whose care he was, had, at his request, given
him five cents to purchase candy at the store next door, on the same side of
the street and separated by a building from the lot fronted by the wall and
fence where the accident occurred.
Donald purchased an ice-cream cone, then joined two boys at the fence, who were
standing on the sidewalk watching the unloading of potatoes by four boys to
each car, from two freight cars, standing on a railroad track by the side of a
platform extending along what is called the High Grade Packing Company
building, which faced the street. He was sitting on the lower pipe of the
barrier eating his cone, when he fell. He was carried by Daniel Coffee, one of
the boys employed in unloading potatoes, to the platform apparently very
seriously injured and from there taken in an ambulance to the North Wheeling
hospital, where he was treated for a fractured skull, and there remained until
July nineteenth.
At the present time he suffers from head pains and is in a very nervous
condition. Dr. Warner testified that in his opinion, there had been partial
recovery and ?that the probability is that his symptoms will gradually clear up
over the period of a year or two.? Claimant introduced much evidence as to the
nature of the injury, and its treatment by the physicians.
292 REPORTS STATE COURT OF CLAIMS [W. VA.
He is now at the home of his grandfather and grandmother, with whom he and his
mother make their home, his father being with the armed forces. The mother is
employed in a packing plant; the grandfather is employed and the elderly
grandmother has the care of the home and is fully occupied with household
duties.
The allegation in claimant?s petition that the portion of the sidewalk where
this accident occurred was a playground is not established by the evidence,
children only casually playing there.
In providing a safeguard from danger of this particular place, reasonable and
ordinary care was required of respondent and the circumstances of such place
was applicable to the precaution which it was required to take. To relieve from
liability it was not necessary to make the premises ?child proof? by providing
all possible safeguards against the entry of children. Full duty is performed
when such safeguards are provided as will reasonably prevent injury to a child
of ordinary and normal habits of training; there is no liability for injury to
a child who has overcome such an obstacle and succeeded in reaching a place of
danger. 45 Corpus Juris S. 185, page 782.
The excavation protected by this wall and fence, constituted no hazard to an
adult or anyone sui jwris, only extraordinary inadvertence would subject them to
any danger; only a child of tender years not having attained an age and
experience where his actions would be governed by reason and knowledge could
have been in any danger.
In the opinion of the court, the hazards and dangers of the other side of the
walk next to and adjoining the great national highway, a street of the city,
with innumerable vehicles of every kind and description moving at very
considerable speed in both directions far overshadowed and exceeded the perils
W. VA.]
REPORTS STATE COURT OF CLAIMS
of the excavation wall, guarded by this
strong and secure barrier.
No law has been enacted requiring a barrier to be erected between this side of
the walk and the street as it is not contemplated that children of tender years
unattended will use the sidewalk as a playground or be subjected to any hazard
from proper use of same.
How unfortunate that this little boy was denied by necessary circumstances from
having the protection of his parents, whose watchfulness, care and attendance
in the exercise of their natural and legal duty would have prevented this most unfortunate
occurrence!
Lack of care in inadequacy and insufficiency of safeguard necessary to
establish negligence of respondent, not having been shown by the evidence, an
award cannot be made to claimant.
294
REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 337-S?Claimant awarded $100.00.)
LESTER BLAND, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled July 11, 1944
CHARLES J. SCHUCK, JuDGE.
Claimant, Lester Bland, seeks damages
in the amount of $100.00 by reason of injuries to his car or automobile
occasioned by a collision with state road truck #830-64, which accident
happened at Judy Gap, Pendleton county, West Virginia, on February 11, 1944,
and from the record as submitted it appears that respondent?s truck was
negligently operated and ran into claimant?s car near an intersection on us-33,
seriously damaging claimant?s car without any fault on his part.
The state road commission does not contest claimant?s right to an award, but
concurs in the sum of $100.00 and the claim is further approved by the special
assistant to the attorney general. After carefully considering the case upon
the record as submitted, we are of the opinion that it should be entered as an
approved claim and accordingly make an award in the sum of one hundred dollars
($100.00).
W. VA.]
REPORTS STATE COURT OF CLAIMS 295
(No. 342-S-?Claimant awarded $47.18.)
FRANK T. GREGG, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opiuon filed July 11, 1944
CHARLES J. SCHUCK, JUDGE.
Claimant, Frank T. Gregg, seeks reimbursement
in the sum of $47.18 for damages to claimant?s car occasioned by state road
truck 430-66 colliding therewith on route NO. 7 in Monongalia county, West Virginia. From the record as submitted it would seem
that the collision was caused by the negligence of the dnver of the state truck
and trailer. The accident occurred on July 8, 1943.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of forty-seven dollars and eighteen cents ($47.18).
296 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 343-S?Claimant awarded $117.75.)
CARL RENTSCHLER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinwn filed JuLy 11, 1944
CHARLES J. SCHUCK, JUDGE.
Claimant, Carl Rentschler, seeks to be
reimbursed in the sum of $117.75 as damages, occasioned by a collision between
a state road truck and an automobile owned and operated by the claimant. From
the record as submitted it is shown that the state road truck in question was
parked on state route NO. 2, Brooke county, West Virginia, at about 11:30 at
night on February 2, 1944, during the time of a heavy snowstorm. There were no
lights or warning signals of any kind on the truck and from the statement as
submitted by the claimant it was impossible to see the state road truck in
question. Under the circumstances it would seem that the operator of the state
road truck was negligent in not displaying proper warning signals, considering
the time of the night and the conditions under which the accident happened.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of one hundred seventeen dollars and seventy-five
cents ($117.75).
W. VA.] REPORTS
STATE COURT OF CLAIMS 297
(No. 344-S?.Claimant awarded $110.09.))
WILSIE JOHNSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July
11, 1944
CHARLES J. SCHUCK, JUDGE.
Claimant, Wilsie Johnson, asks
compensation in the amount of $110.09 for damages to a car, occasioned by route
NO. 73 near Boothville, in Marion county, West Virginia, being in bad repair
and causing damages in the amount aforesaid to the automobile of claimant. It
seems that the coal trucks passing over the highway in question cause it to
become out of repair and consequently making it dangerous and hazardous for use
of drivers of automobiles. The accident happened on February 19, 1944.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of one hundred ten dollars and nine cents
($110.09).
298 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 347-S?Claimant awarded $34.43.)
HELEN SMOCK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled July 11, 1944
CHARLES J. SCHUCK, JUDGE.
Claimant, Helen Smock, filed her claim
against the state road commission in the sum of $34.43 for damages caused to
her truck through the operation of a state-owned shovel operated and being used
in and near the Carolina mines in Marion county, West Virginia, on January 13,
1944. From the record it appears that while claimant?s truck was being loaded
the dipper of the shovel was carelessly operated and the back end of the shovel
struck the truck causing the damages in question.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of thirty-four dollars and forty-three cents
($34.43).
W. VA.]
REPORTS STATE COURT OF CLAIMS 299
(No. 348-S-?Claimant awarded $33.66.)
FLORENCE E. PETRY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinkrn
filed July 11, 1944
CHARLES J. SCHUCK, JUDGE.
Claimant, Florence E. Petry, seeks
reimbursement for damages in the amount of $33.66 caused by a collision between
claimant?s car and state car bearing license NO. 82 and operated by the
state. The accident took place on January 8, 1944 at Chelyan, Kanawha county,
West Virginia. The road was icy and the state car skidded from its driving lane
over and upon the left side of the road colliding with claimant?s car and
causing the damages in question.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon th record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of thirty-three dollars and sixty-six cents
($33.66).
300 REPORTS STATE
COURT OF CLAIMS EW. VA.
(No. 332-S?Claimant awarded $47.53.)
WILLIS LANTZ, Claimant,
V.
STATE ROAD COM1VIISSION, Respondent.
Opinion filed July 11, 1944
CHARLES J. SCHUCK, JUDGE.
Claimant, Willis Lantz, seeks
reimbursement for damages in the amount of $47.53, occasioned by injuries to
claimant?s reaper and caused by some employees of the state road commission
negligently allowing certain stakes, driven in the ground on claimant?s farm
and used in connection with a survey being made by the state road commission
and which stakes were not removed and allowed to protrude in such a manner as
to likely cause injury to any farm machinery used in harvesting the crop on
claimant?s farm. To have allowed the stakes in question to have remained or to
have failed to drive them into the ground without any part protruding
therefrom, was of itself negligent. The claimant seemingly without knowledge of
the presence of the stakes in question on his farm and premesis, went in, over
and upon the particular section in which the said stakes were allowed to remain
as aforesaid, to harvest his wheat crop with the use of a reaper and while so
engaged the said reaper came in contact with a stake or stakes protruding from
the ground as aforesaid and used in the survey theretofore made by the state
road commission and causing serious damage to the said reaper in th amount
claimed.
The state road commission does not contest the claimant?s right to an award and
the claim is further approved by the special assistant to the attorney general
as one that should be paid. After a careful consideration of the case upon the
record as submitted, we are of the opinion that it should be entered as an
approved claim and an award is made in the amount of forty-seven dollars and
fifty-three cents ($47.53).
W. VA.] REPORTS
STATE COURT OF CLAIMS 301
(No. 354-S?-Claimant awarded $39.96.)
HENRY L. HELDRETh and
UNITED STATES CASUALTY CO.,
Claimants,
V.
STATE ROAD COMIVIISSION, Respondent.
Opinion filed July 11, 1944
CHARLES J. SCHUCK, JUDGE.
The facts upon which claimant Henry L.
Heldreth?s demand is based are as follows: State road truck NO. 430-8?
while being operated on u. s. 19 and 50 on and about the 25th day of October,
1943, and while driving upgrade the driver attempted to change from second gear
to first gear, stalling the motor and causing the truck to drift backward;
another truck owned by the Consolidated Supply Company was following and the
driver of the second truck, seeking to avoid a collision, started his truck
backward colliding with claimant?s car. According to the statement as
submitted, the damages amounted to $79.92. but seemingly by agreement 50% of
this amount, to wit, $39.96, is to be paid by the state.
The claim is approved by the state road commission in the amount of $39.96 and
the claim is further approved by the special assistant to the attorney general.
We have carefully considered the case upon the record as submitted and arj of
the opinion that it should be entered as an approved claim and an award is
accordingly made in the sum of thirty-nine dollars and ninety-six cents
($39.96) with the further prvision that when the claim is paid a receipt in
full for money shall be signed and executed both by the claimant, Henry L.
Heldreth and the United States Casualty Company, which seemingly had insured
claimant?s car against injury and damage.
302 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 355-S--Claimant awarded $188.22.)
STANDARD ADVERTISING CORPORATION,
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled July 11, 1944
CHARLES J. SCHUCK, JuDGE.
Claimant, The Standard Advertising
Corporation, of Clarksburg, West Virginia, asks damages in the amount of
$188.22 for injuries to its truck occasioned by being struck by a state road
commission truck in Clarksburg, on or about January 25, 1944. From the record
as submitted, it appears that tha state road truck was defective so far as its
mechanism was concerned and that by reason of the breaking of a cylinder and
the truck being out of repair, it was impossible to stop it in time to prevent
the collision with claimant?s truck. The state road commission truck was in the
rear of claimant?s truck and consequently the collision occurred through no
fault 3f the claimant.
The state road commission does not contest the claimant?s right to an award for
the amount aforesaid, but concurs in the claim; the claim is also approved by
the special assistant to the attorney general as one that should be paid. After
carefully considering the record as submitted, we are of the opinion that it
should be entered as an approved claim and an award is made in the sum of one
hundred eighty-eight dollars and twenty-two cents ($188.22).
W. VA.] REPORTS
STATE COURT OF CLAIMS 303
(No. 357-S?-Claimant awarded $34.68.)
J. M. DOWNS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 12, 1944
CHARLES J. SCHUCK, JUDGE.
Claimant, J. M. Downs, seeks
reimbursement for damages in the amount of $34.68, caused by a collision
between a state road truck and claimant?s automobile. The accident happened in
Marion county on route 250 on December 10, 1943. From the record, as submitted,
it appears that the mechanism on the state road truck was defective causing the
said truck to be suddenly thrown out of gear and driven forward colliding with
claimant?s automobile passing at the time.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for the amount aforesaid. We have
carefully considered the case as submitted and are of the opinion that it
should be entered as an approved claim and an award is made accordingly in the
sum of thirty-four dollars and sixty-eight cents
($34.68).
304 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 358-S-?Claimant awarded $160.00.)
THE BALTIMORE & OHIO RAILROAD COMPANY,
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinwn flIed July 12, 1944
ROBERT L. BLAND, JuDGE.
This claim is in the sum of $160.00. It is
for cost of repairs to stock pens of The Baltimore & Ohio Railroad Company
at West Romney, Hampshire county, West Virginia. On the lZth of February, 1944,
state road commission employees permitted the fire which they were using to
heat asphalt to ignite the stock pens and caused damage thereto necessitating
such repairs. The claim is concurred in by the head of the state agency
concerned. Its payment is approved by W. Bryan Spillers, assistant attorney
general. The claim is also approved by E. M. Worthington, district engineer.
In view of the facts disclosed by the record an award is made in favor of
claimant, The Baltimore & Ohio Railroad Company, for one hundred and sixty
dollars ($160.00).
W. VA.]
REPORTS STATE COURT OF CLAIMS 305
(No. 362-S?Claimant awarded $25.00.)
E. S. BAYLOUS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinon flied July 12, 1944
ROBERT L. BLAND, JUDGE.
The claim involved in this case is submitted
to the court upon a record prepared by the state road commission and filed with
the clerk on 16th of May, 1944, under the provision of section 17 of the court
act. The head of the agency concerned concurs in the claim. The assistant
attorney general has approved it as one which, within the meaning of the court
act, should be paid by the state.
It appears from this record that between noon and 1: 20 o?clock p M. on the 25th
day of November, 1943, claimant was walking on the walkway over Peach Creek bridge
on a state controlled highway in Logan county, West Virginia, ?when he caught
the toe of his shoe in a hole of a board of said sidewalk, causing him to fall
and injure his knee and wrist.? The special investigator of the road
commission, who investigated the facts of the case and the condition of the
bridge at the time of the accident, made a report to the road commission
recommending a settlement in the sum of $25.00 for the payrnent of a doctor?s
bill incurred for necessary treatment on account of injuries sustained by the
fall. A report made by an inspecting engineer of the road commission to
respondent. and on file in the office of that department, shows that he
recommended that necessary repairs should be made to th? floor of the bridge.
Under all circumstances attending the claim and the recommendations,
concurrence and approval aforesaid, we are of opinion that the claim should be
approved and an award made therefor.
306
REPORTS STATE COURT OF CLAIMS [W. VA.
An award is therefore made in favor of
claimant, E. S. Baybus, for the sum of twenty-five dollars ($25.00).
(No. 368-S-----Claimant awarded $19.80.)
IGNACY GRISUR, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fried July 12, 1944
ROBERT L. BLAND, JUDGE.
This claim is in the sum of $19.80. It
grows out of a collision between one of respondent?s trucks and an automobii
owned and driven by claimant. On November 20th, 1943, state road commission
truck NO. 630-36, was being driven by Allen Stevens, from Washington Pike, a State
controlled highway in Brooke county. At the same time claimant was travelling
on the highway in his Oldsmobile automobile, bearing West Virginia license
125-7A. It was following the truck. When it attempted to pass the truck the
state vehicle drew to the side of the highway near a filling station. The
driver of the state vehicle failed to give proper warning signal when he made a
quick turn to the left of the road and as a result the two vehicles collided.
Claimant?s automobile was damaged to the extent that he was obliged to pay the
amount of this claim for necessary repairs.
The head of the agency concerned concurs in the claim. Its payment is approved
by W. Bryan Spillers, assistant attorney general.
An award is made in favor of claimant, Ignacy Grisur, for the sum of nineteen
dollars and eighty cents ($19.80).
W. VA.] REPORTS
STATE COURT OF CLAIMS 307
(No. 369-S?-Claimant awarded $7.94.)
ROY UNDERWOOD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opi4on filed JuIy 12, 1944
G. H. A. KUNST, JuDGE.
On November 11th, 1943, on state route
NO. 50, in Harrison county, near overhead Bristol bridge, employees, while
spreading cinders from truck, negligently threw a shovelful against windshield
of claimant?s car while passing, breaking same and it costing $7.94 to replace.
Respondent recommends and attorney general approves its payment.
An award of seven dollars and ninety-four cents ($7.94) is made to claimant.
(No. 370-S-----Claimant awarded $50.00.)
L. W. BEANE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied July 12, 1944
G. H. A. KUNST, JuDGE.
On December 28th, 1943, on route NO. 10, a road
under respondent?s jurisdiction, west of Rockview in Wyoming county,
308 REPORTS
STATE COURT OF CLAIMS [W. VA.
West Virginia, respondent?s truck,
through its driver?s negligence, struck claimant?s car and caused damage
amounting to $50.00.
Respondent recommends and the attorney general approves its payment.
An award for fifty dollars ($50.00) is made to claimant.
(No. 371-S-?Claimant awarded $48.26.)
JUNIOR WOLF, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 12, 1944
G. H. A. KUNST, JuDGE.
On January 19, 1944, state road truck NO. 838-3
while cindering a road under its jurisdiction in Randolph county, in foggy
weather, negligently struck claimant?s car causing damage which cost $48.26 to
repair.
Respondent recommends and the attorney general approves its payment.
An award of forty-eight dollars and twenty-six cents ($48.26) is made to
claimant.
W. VA.] REPORTS
STATE COURT OF CLAIMS 309
(No. 375-S?--Clairnant awarded $8.16.)
FRED W. DAVISSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flIed July 12, 1944
G. H. A. KUNST, JuDGE.
In January, 1943, state road truck NO. 430-131,
on a road in Preston county, under respondent?s jurisdiction, while plowing
snow, negligently struck claimant?s Chevrolet car, while parked on the side of
the road to put on chains, causing the damage of $8.16 to claimant?s car.
Respondent recommends and the attorney general approves its payment.
An award of eight dollars and sixteen cents ($8.16) is made to claimant.
(No. 194?Claim denied.)
JENNIE CANTER SANDRIDGE, executrix of the estate of
LEE J. SANDRIDGE, deceased, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flIed July 13, 1944
No negligence of respondent having
been shown, no award is made and the case is dismissed.
Appearances:
Lee J. Sandri.dge, Esq., and F.
N. Alderson, Esq., for the claimant;
310 REPORTS STATE
COURT OF CLAIMS [W. VA.
Eston B. Ste phenson, Esq., special assistant to the attorney general for the
state.
G. H. A. KUNST, JUDGE.
This case was on the docket of the court
at the October term 1942, and set for hearing November 20, 1942, at the court
house at Clarksburg, West Virginia.
At that time claimant did not have his witnesses present and moved for a
continuance. The state?s witnesses being present, it was stipulated that
respondent should introduce its evidence and that claimant should introduce his
evidence at the next term of the courL
The evidence of respondent?s witnesses, John P. Marshall and Charles H. Davis,
was: That at about five o?clock on the evening of Monday, the 28th day of
October 1940, on state highway NO. 20, under the control and jurisdiction of respondent,
at Quiet Dell, on a bridge near Quadrille Inn, in Harrison county, about three
miles from Clarksburg, West Virginia, the truck of claimant, loaded with heavy
logs and driven by Virl Stemple, ran into the rear end of a truck, with lime
spreader attached, belonging to respondent; that Marshall was driving
respondent?s truck and Davis was sitting on the lime spreader controlling its
discharge of lime dust, which was being placed on the middle section of the
road; that the shock of the collision threw Davis into the radiator of
claimant?s truck and severely injured him; and that the truck of respondent was
being driven in a lawful manner at a speed of about eighteen miles an hour and
did not suddenly stop on the bridge as alleged in claimant?s petition and
stated by Virl Stemple in his signed statement, but was continuing at the same
speed when struck by claimant?s truck and that the collision was due to the
negligence of claimant?s driver.
Evidence of Norris Greitzner, an insurance adjuster, was that he had made an
adjustment, based on another adjuster?s
W. VA.] REPORTS
STATE COURT OF CLAIMS 311
report, for the Buckeye Union Casualty Company of Columbus, Ohio, in which
claimant held a policy for personal property and personal injury damage, with
Mr. Davis and respondent, and that the insurance company had paid in connection
with personal injury to Mr. Davis the sum of $1535.50, and to respondent for
injury to its truck and lime spreader, the sum of $45.78.
Respondent introduced the evidence of M. F. Jordon, a member of the state
department of public safety for Harrison county, who made an investigation of
the case soon after it occurred, took the signed statements of all the
witnesses and showed the location of trucks on the bridge after the collision
and filed his report as an exhibit with his evidence.
At the January term, 1944, of the court, F. N. Alderson, an attorney, appeared
and announced claimant?s death, and filed a copy of an order of the county court of
Barbour county appointing decedent?s wife, Jennie Canter Sandridge, as
executrix of his estate, and upon the attorney?s motion the case was revived
and ordered to be carried on in the name of said executrix as claimant, and
said attorney moved for a continuance, but failing to show grounds for
continuance, the case having been set for hearing at four previous terms and
there having already been four continuances granted to claimant and full
opportunity given claimant to introduce his evidence, the case was submitted
without argument or briefs.
No evidence of negligence of respondent having been shown, no award is made and
the case is dismissed.
312 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 213?Arthur B. Perdue awarded $3000.00; No. 214?Dolije E. Perdue
awarded $1500.00.)
ARTHUR B. PERDUE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
DOLLIE E. PERDUE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion jIbed July 17,
1944
An award will be granted claimants
where by failure of respondent to exercise the care required of it and the
abuse of the discretion vested in it, obstructions were created and existed for a
considerable time in a public road under its jurisdiction creating a public
nuisance by which negligence claimants in an automobile were precipitated down
a mountainside and sustained injuries and the automobile destroyed.
Appearances:
James S. KaJzie, Esq., for claimants,
Eston B. Stephenson, Esq., special assistant to the attorney general for the
state.
0. H. A. KUNST, JuDGE.
By stipulation these two cases were heard
together, the evidence being the same in each, except as to injuries suffered
by claimants and treatment for same, and damages.
Arthur B. Perdue, forty-five years of age, with Dollie E. Perdue, his wife,
twenty-eight years of age, started driving in his car, a 1934 Plymouth Coupe,
from Bluefield, West Virginia, by way of Pocahontas and Maybury to Coaldale to
visit his mother. At about seven o?clock on the drizzly, rainy eve-
W. VA.] REPORTS
STATE COURT OF CLAIMS 313
fling of Sunday, January 23, 1937, at
a point just north of and above Barlow Tipple, south of Maybury in McDowell
county, on a secondary road, known as the Peeled Chestnut Mountain Road, under
the control and jurisdiction of respondent, an accident occurred, which
claimants allege was due to the negligence of respondent and from which they
suffered injuries for which is asked awards of $10,000.00 for Arthur B. Perdue and
$5,000.00 for his wife, Dollie E. Perdue, against respondent.
Perdue states, that as he drove north, with car lights fully on, down this
mountain road which has a grade of four or five degrees, going very siowiy, a
car came around the curve, going so rapidly that it passed as he dimmed his
lights and applied brake and stopped his car the right front wheel of which, dropped
into a hole, broken in the asphalt pavement of the road and caused his car to
roll over and over with himself and wife inside, down the hillside, having a
grade of about forty-five degrees one hundred and ten feet to a ditch beside
the railroad track of the Norfolk and Western Railway. Perdue was found
unconscious and he and his wife were taken to the Bluefield Sanatorium where
they remained until the 15th day of July, 1937, when he returned to his work as
motorcar operator for the Norfolk and Western Railway Company in the Bluefield
yards of said company, in whose employ he had been for about nineteen years.
The preponderance of evidence is, that this road had been decreased in width
from twenty feet of roadway, consisting of fourteen feet of asphalt pavement
with three feet of berm on each side, to a width of from ten to eleven feet by
testimony of witnesses and by actual measurement of one witness to ten feet,
eight inches, which made a road too narrow for two vehicles to safely pass.
That after a period of continuous excessive rainfall, a slide from the hillside
filled the ditch with muck, dirt, rock and shrubbery extending to a
considerable depth and width over the berm and asphalt pavement, dammed the
water flowing in the ditch for a long distance above, causing it to overflow
the road, to wash a deep gully
314 REPORTS
STATE COURT OF CLAIMS [W. VA.
down the hillside, to wash away the
berm and undermine and break the asphalt pavement from eighteen to twenty-four
inches in depth and extending in length from thirty to thirty- six inches. This
left a sheer, abrupt hole perpendicular with the surface of the road and
several feet in depth; portions of the asphalt pavement could be seen lying in
the gully below the break in the pavement.
The place of this accident was at a section of the narrow mountain road,
composed of three short connecting curves, the middle one of which reverses the
direction of the other two. This break in the asphalt pavement was at the
center of the middle curve. That such a condition constituted an extraordinary
and unusual hazard, particularly since the evidence shows, that the roadway was
elsewhere along its entire extent, approximately twenty feet in width, made up
of fourteen feet of asphalt pavement, with three feet of berm on each side. No
signal or sign apprised the traveler of this dangerous pitfall, also a slight
elevation before reaching it and a dip in the road at that point, caused lights
of a car to over-shoot and thus conceal this danger spot.
That such condition at this point had existed for from three to six weeks
before the accident herein considered, during which time three similar
accidents had occurred. The obstruction which existed at the place of this
accident and which caused same and which was left and permitted to exist for
such length of time constituted a public nuisance by general law and as defined
and declared by sec. 1651 (1) of the c)de of 1937 and 1939, among which are
listed landslides and iay other thing which will prevent the easy, safe and conve
mt use of a public road for public travel placed and left within the limits of
such road.? Acts 1921 c. 112, Sec. 184, 185; :Dode 1923 c. 43, Sec. 184, 185;
1925 c. 17, Sec. 185. Clay County Court v. Adams, 109 W. Va. 421-429, 155 S. E. 174.
That respondent?s officials and agents in failing to discover such conditions
and permitting same to exist and continue,
W. VA.]
REPORTS STATE COURT OF CLAIMS 315
especially after such repeated and
emphatic notifications of their existence by the continued accidents here,
failed to exercise the care required of them and rendered respondent guilty of
negligence and that by reason of such negligence the discretion vested in it
was abused and injury sustained by claimants for which awards are made.
The court of claims? jurisdiction is limited to claims against the state and
its agencies.
Two well established legal doctrines determine their immunity from liability.
-1st.
That sovereignty must not be violated?
that since they only perform governmental functions and are given discretion in
such performance no liability arises by reason of their misfeasance, or
nonfeasance unless assumed by statute.
2nd.
That they are not liable for the
misfeasance or nonfeasance of the agents representing them, who are held to owe
a duty to the public and not to an individual.
No liability was imposed by common law. No statute of this state imposes
liability, such liability has not been assumed by the state.
The constitution prohibits suits against the state.
A statute expressly provides that the state shall not be made defendant in any
proceeding to recover damages because of defective construction or condition of
any state road or bridge.
Hence if there were no restrictions, inhibitions or limitations, constitutional
or statutory, of suit against the state or its agencies there could be no
recovery in the courts because no liability exists and the court of claims
would have no jurisdiction of any claims ex delicto and particularly of this
316 REPORTS
STATE COURT OF CLAIMS [W. VA.
claim and this is the argument
advanced in opposition to the granting of an award, and if such is the correct
construction of the act creating the court of claims the jurisdiction conferred
as to ex delicto claims is futile and the court of claims has a most limited
jurisdiction.
Sec. 12 of the Court Act states that:
?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.?
(Italics ours.)
Because of no assumption of liability by the state by statute, no liability
exists against the state for the nonfeasance or misfeasance of the state or its
agencies.
Inclusion in this statement of its jurisdiction the phrase, in accordance with this articLe, calls attention to the fact that this statement is only
a part of the exposition of jurisdiction intended and contemplated by the act,
for if this were all, the court of claims could not even consider a claim ex
delicto. Such a statement, taken alone, would not need any construction or
interpretation, its meaning would be literally that; for no claim could be made
in the courts of the state if there were no liability. When the act is
considered in its entirety and the other provisions of the act as to its
jurisdiction are read with this provision, in order to get the true purpose and
intent of the Legislature, the act has an entirely different meaning, for it
expressly provides that the court shall have jurisdiction of claims ex delicto.
The great weight of authority generally and the law of this state is that no
liability exists against a state or its agencies for the misfeasance of its
agents unless the state has by statute assumed such liability.
W. VA.] REPORTS STATE COURT OF CLAIMS 317
No legislative act of this state has
assumed such liability, hence there is no liability imposed by the law of the
state or the decisions of its courts for the court of claims as an investigating
instrumentality of the Legislature to report. To make an award liability is not
essential as in a judgment or decree. The act expressly states that no
liability is imposed upon the state or 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 is not invested with and cannot exercise any ju?icial power in the
sense of article eight of the constitution and its determinations are not
subject to an appeal or review by a court of law or equity, created by or
pursuant to article eight of the constitution. Hence it is manifest that the
Legislature reserves to itself the power or prerogative of determining whether
or not it shall assume liability by making an appropriation for the payment of
a claim, and the duty of the court of claims is to determine whether the claim
is just and proper, and is one which the state should in equity and good
conscience pay and so recommend by its award, that assumption of liability be
made by the state by an appropriation of the Legislature for its payment.
Good authority asserts that the state and its agencies being corporations can
commit tortious acts, that when they have failed to exercise the care required
of them in the exercise of their duties; abused or failed to exercise the
discretion accorded them in the exercis? of their governmental functions and
their errors of judgment been so great as to constitute negligence.
?The state, or general government, may be guilty of individual wrongs, for
while each is a sovereignty, it is a corporation also, and as such capable of
doing wrongful acts. The difficulty here is with the remedy, not with the
right. No sovereignty is subject to suits,
318 REPORTS
STATE COURT OF CLAIMS [W. VA.
except with its own consent. But
either the consent is given by general law, or some tribunal is established
with power to hear all just claims. Or if neither of these is done, the tort
remains, and it is always to be presumed that the legislative authority will
make the proper provision for redress when its attention is directed to the
injury.? Cooley on Torts, Students? Edition by John Lewis (1907), Sec. 29, page
82.
?Although it is not liable therefor unless it has voluntarily assumed such
liability, the state has capacity to commit tortious acts . . . where the state has failed to exercise the care
required of it, and thereby an injury is sustained, it is guilty of an act of
negligence.? 59 Corpus Juris 193, 194, Sec. 336; Cook v. State, 201 N.
Y. S. 834, 121 misc. 864; Tiggerman v. State, 228 N. Y. S. 576, 132 misc. 45.
?A state is not liable for the torts of its officers or agents in the discharge
of their official duties unless it has voluntarily assumed such liability and
consented to be so liable, the only relief the aggrieved person has in such
case being an appeal to the legislature; and, in the absence of a statute so
providing, a state cannot be forced to compensate a private individual for
damages to property from the construction or operation of public works, but the
legislature may make an appropriation for this purpose.? 59 Corpus Juris 194
Sec. 337.
?While highway officers have only such powers as are conferred by statute, yet,
their functions being governmental, within the limits of the jurisdiction
conferred on them by law, highway officers have a reasonable discretion; and
courts will not interfere with them in the lawful exercise of such
jurisdiction, unless it is abused; and it has been held that such discretion
stops where absolute rights of property begin.? 29 C. J. 574, Sec. 298; McCcrc1 v. High, 24 Iowa 326; Cubit
v. O?Dett, 51 Mich. 347, 16 N. W.
679.
?In exercising their discretion they are not justified in acting . . . with a clear abuse of discretion or without any
discretion at all.? 29 Corpis Juris 574,
W. VA.]
REPORTS STATE COURT OF CLAIMS 319
Sec. 298; WaiLsworrth v.
Micldletown, 94 Conn. 435,
441, 109 A 246, 248, 249; Corn. v. Day, 69 Pa. Super
541.
?Where they have acted outside of any suggested benefit to public travel and
destroyed property they cannot plead governmental immunity, their act is
clearly illegal.? Wadswarth v. M?klLetown,
94 Conn. 435, 441, 109 A 246, 248,
249.
no action lies .
. . for mere inadvertence or
error of judgment, unless such error is so great as
to constitute negligence, .
. .? 29 Corpus Juris 591
Sec. 319; North Vernon v. Voegler, 103 md. 314, 2
N. E. 821.
In Chandter v. Darncfscm
County, 142 Tenn. 265, 273, 218 S. W.
222, it was held, that in acting for the state in constructing a road, the
state had delegated its authority for that purpose, hut the state had not
authorized it to commit a nuisance, because such an act is not an attribute of
sovereignty.
A corporation, public or private, can only act through or by its otuicers or
agents. While a public corporation acting within the scope and limits of the
governmental functions and poweis granted. or entrusted to it is sovereign and
possesses immunity from liability because of such sovereignty, when it acts in
excess thereof and does not exercise the care required of it and is guilty of
negligence, or has abused the discretion vested in it or exercised none at all,
as the commission of a public nuisance, an illegal act, its action is outside
of and beyond its governmental function and its immunity does not follow.
Sovereignty was not granted for that purpose, and hence liability is incurred,
immunity only being commensurate with the authority granted.
Under what is by the court act, called the shortened procedure, all claims not
exceeding one thousand dollars, con-
320 REPORTS STATE
COURT OF CLAIMS [W. VA.
curred in by the state agency concerned, and approved by the attorney general
as one that ?in view of the purposes of this arLicle? should be paid, the court
shall consider the claim informally upon the record submitted; consisting of
all papers, stipulations and evidential documents required by the rules of the
court prepared by the state agency concerned. 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 very great majority of the claims ex delicto which have been
presented for consideration of the court were claims against the state road
commission and arose from claims for damages occasioned by the negligence and
misfeasance of the officers and agents of that state agency.
By this shortened procedure, the factual matters involved and the negligence
alleged were admitted by the agency concerned and the claims approved by the
attorney general as just and proper claims and determined by the court to be
approved claims and awards made.
The same laws apply to claims under the shortened and to the claims under the
regular procedure.
The oniy material difference between these claims and the procedure, being the
amount of the claim and the admission of the misfeasance by the agency
concerned in the shortened procedure and its determination by the court under
the regular procedure. Hence here are many precedents and rulings determined by
the court, and to adopt any other rule or contrary legal doctrine would
overrule or reverse all of these decisions.
To overrule these decisions and precedents or to determine claims of one class
governed by different laws from claims of the other class would be a total
disregard of the law of stare decisis; would create the greatest confusion and bring an un
W. VA.] REPORTS
STATE COURT OF CLAIMS 321
certainty and indefinite status as to the laws regulating the action of the
court as would be most destructive of its efficiency and usefulness and of its
standing as a tribunal worthy of the respect of those having any relations with
it.
What criterion determines a claim as just and proper and one which the state
should in equity and good conscience pay?
For practically the lifetime of the state it was regarded as ?equity and good
conscience? that there should be an assumption of liability by the county
courts of the state, they having the duty of constructing and keeping in repair
the highways of the state, to compensate in damages any person suffering injury
from their negligence in the performance of such duty.
In the majority of the states of the union such liability has been assumed by
the state. Since the repeal of the statute assuming liability by the county
courts, the Legislature has by appropriation assumed such liability and
compensated the individual.
There could be no better criterion for the court in determining what is a just
and proper claim which a state should in equity and good conscience pay than
the Legislature?s own conception and interpretation. Certainly the Legislature
did not waive its constitutional and statutory immunity from suit to give the
court of claims jurisdiction to hear and determine a just ex delicto claim,
with no possibility of its making an appropriation in accord therewith.
A statute provides that ?any person injured by the violation of a statute may
recover from the offender such damages as he may sustain by reason of the
violation.? Code 1849 C. 148 Sec. 6; Code 1860 C. 148 Sec. 7; Code 1868 C. 103
Sec. 8; Code 1923 C. 103 Sec. 8; Code 1931 C. 55 Sec. 9.
Should the state have less regard for its obligation than the individual or be
held to a less degree of responsibility?
322 REPORTS
STATE COURT OF CLAIMS [W. VA.
?Independently of express
constitutional restrictions, the Legislature can make appropriations of money
whenever the public well-being requires or will be promoted by it, and it is
the judge of what is for the public good. It can recognize claims founded in
equity and justice in the largest sense of those terms.? Richmond v.
Pace, 127 Va. 274, 103 S. E. 647.
The uncontradicted testimony shows that claimant, Arthur B. Perdue, suffered
severe injuries entailing hospital and doctors? services amounting to $443.00;
that he lost twenty-six weeks of work at the time he was earning $44.80 per
week; that his automobile was wrecked and badly damaged; that he had an
ambulance charge to pay, and these facts taken into consideration with the
nature of his injuries, his pain and suffering, justify in our opinion an award
of three thousand dollars ($3000.00).
The claimant Dollie E. Perdue had hospital and medical expenses amounting to
$339.00; was unable to attend to her household duties for several months;
sustained injuries that perhaps are permanent in their nature; suffered much
pain and physical inconvenience for all of which we make an award of one
thousand five hundred dollars ($1500.00) as herein- before stated.
ROBERT L. BLAND, Judge, dissenting.
I do not agree with the awards made in these cases or with the theory upon
which they are predicated. The majority opinion is based upon a misconception
of the spirit and purpose of the court act. It is unfortunate that the state
should be convicted of ?maintaining a public nuisance? in order to discover
negligence to support its recommendations.
It is held that a statute is always construed in the light of its purpose.
Chapter 20, of the acts of the Legislature of 1941, creating the court of
claims, deals with claims and demands against the state, its officers and
agents. A ?claim,? in its
W. VA.]
REPORTS STATE COURT OF CLAIMS 323
ordinary sense, imports the assertion,
demand or challenge of something as a right. 11 Corp. Jur. 816. The claims in
these cases are not based upon any right that would entitle the claimants to awards. There
is no liability of the state to compensate
them for the personal injuries which
they have sustained or the property loss suffered. To hold otherwise would be
in derogation of common law. The state has not heretofore voluntarily assumed
such liability.
In the opinion in the case of Shipley v. County Court of Jefferson
County, 72 W. Va. 656, Judge
Poffenbarger said:
?At the common law, there was no liability for personal injury occasioned by
defects in highways, for the duty of keeping them in repair was regarded as one
due to the public and not to the individual, wherefore failure to perform this
duty was a mere nonfeasance and not a misfeasance
against the individual. Thomp. Neg. Sec.
5919.?
No suit or claim on behali of an individual can be maintained against Ihe state
for injuries occasioned by the negligence or misfeasance of its officers or
agents, except when it has been voluntarily assumed by legislative enactment. Lewis v. StcLte, 96 N. Y. 711. The great weight of authority supports this
proposition.
Whiist our statute confers jurisdiction upon the court of claims to consider ex
delicto claims such power is limited to that class of 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.? Sec. 12, Court Act. The claims for which awards are made
in these cases do not fall within the jurisdiction of the court for the reason
that they are not claims which could
be maintained
in the regular courts of the state.
The majority opinion concedes this to be true and cites ample authority to
support the well-established doctrine that a sovereign state is not liable for
the negligence of its
324 - REPORTS STATE COURT OF CLAIMS_-__[W. VA.
officers or agents, unless such
liability has been voluntarily assumed by statute. This has not been done in
West Virginia.
The derogation of the sovereign power of a state by an act of the Legislature
is not to be assumed. Gilman v. She boy
gan, 67 U. S. 2 Black 510. Statutes
guaranteeing special privileges are to be construed strictly, and whatever is
not given in unequivocal terms is withheld. Moran v. Miami County, 67
U. S. 2 Black 722. Statutes which strip a government of any portion of its
prerogative should receive a strict interpretation. Academy of Fine Arts v. Philadelphia County, 22 Pa. 496. Statutes made in derogation of the common
law are to be strictijy construed. Melody
v. Reed, 4 Mass. 471. Where a
limited jurisdiction is given by the statute, the act should be construed
strictly as to the extent of the jurisdiction, but liberally as to the mode of
proceeding. Russell v. Wheeler, 1 Hemp. 3.
A statute authorizes the state of Massachusetts to be sued in its own courts.
In the case of Murckck Parlor Grate Co.
v. Commonwealth of
Massachusetts, reported in 8 L. R. A., at page 399 it is held:
?An action to recover damages for injuries resulting from the negligence of a
servant of the Commonwealth in the performance of his duties is not a claim
within the meaning of Acts 1887, Chapter 246, which authorizes the maintenance
of a suit against the Commonwealth to recover ?all claims? against it whether
at law or in equity.?
The case is interesting and sheds light, I think, upon the proper construction
to be given to our court act. The opinion in that case was written by Judge
Devens. He says:
?The object of the statute cannot have been to create a new class of claims for
which a sovereignty has never been held responsible, and to impose a liability
therefor, but to provide a convenient tribunal for the determination of claims
of the character which
W.VA I REPORTS
STATE COURT OF CLAIMS 325
civilized governments have always recognized, although the satisfaction of them
has been usually sought by direct appeal to the sovereign, or in our system of
government, through the legislature.?
Continuing, Judge Devens further observes:
?It is therefore to be considered whether a demand or claim for an injury done
or tort committed by a public servant in the performance of his duties is one
for which a liability has been held to have been incurred by the government,
even if there existed no tribunal competent, judicially, to pass upon it.
?States have always found it necessary to take and use the property of their
citizens for the purpose of their government; they have assumed various
responsibilities on behalf of their citizens or others; they have also always
been parties to contracts for the borrowing of money, the purchase of property,
the employment of labor; and the duties arising from such acts have always been
fully recognized, even if judicial tribunals have not always been provided to
make proper compensation for, or adjustment or payment of, the demands arising
from such acts. But we do not find that demands founded on the neglect or torts
of ministerial officers engaged as servants in the performance of duties which
the state as a sovereign has undertaken to perform, have ever been held to
render it liable. Nor does this rest upon the narrow ground that there are no
means by which such obligations can be enforced, but on the larger ground that
no obligations arise therefrom.?
In referring to the Massachusetts statute Judge Devens remarked:
?Had the Legislature intended to create such an obligation and voluntarily to
assume in the administration of the State all the responsibility which an
individual must incur in his private business, it certainly would have done so
in express terms. An intent so to do, as it is in violation of the ordinary
principles by which the administration of less un
326
REPORTS STATE COURT OF CLAIMS [W. VA.
portant bodies is ordinarily
regulated, would not have been left to inference but would have been explicitly
stated.?
This is my opinion with respect to our court act. If the Legislature had
intended to make the state liable to respond in damages for torts generally, it
would have made the fact manifest in the act. It is, therefore, important that
the situation should be clarified by amendment of the statute, in order that
the court may not be left in doubt as to what is actually intended.
The administration of the state?s system of highways is vested by general law
in the state road commission. In the building, repair and maintenance of such
highways it is engaged in the exercise and performance of governmental
functions.
The eminent Judge Cooley once declared in a dissenting opinion:
?I concur fully in the doctrine that a municipal corporation or body is not
liable to any individual damnified by the exercise, or the failure to exercise,
a legislative authority; and I also agree that the political divisions of the
State, which have duties imposed upon them by general law without their assent,
are not liable to respond to individuals in damages for their neglect, unless
expressly made so by statute. Upon these two points the authorities are
generally agreed, and the result is well stated in the opinion of the Chief
Justice.? Detroit v. BZakely, 21 Mich. 84, 4 Am. Rep. 450.
The majority opinion in that case concludes as follows:
?We think it will require legislative action to create any liability to private
suit for non-repair of public ways. Whether such responsibility should be
created, and to what extent and under what circumstances it should be enforced,
are legislative questions
W. VA.1 REPORTS
STATE COURT OF CLAIMS 327
of importance and of some nicety. They cannot be
solved by courts.?
I am unable to agree, as stated by the majority opinion, that
the court of claims may make recommendations to the Legislature without respect
to the jurisdiction conferred upon it by the court act. It is not the intention
of the Legislature to invest the court of claims with unlimited jurisdiction to
consider claims, as is evidenced by the various claims excluded by section 14
of the court act and those proceedings mentioned in section 3 of said act,
which shall be brought and prosecuted only in the circuit court of Kanawha
county. Where there is absence of jurisdiction the court of claims is without
power to act; and, if it does so, such action is nugatory and void. To assume
and exercise a jurisdiction not expressly conferred by statute would be a work
of super- arrogation on the part of the court. I think it is the duty of the
court to advise the Legislature with respect to matters of law as well as
matters of fact, but I do not understand that any obligation arises upon the
court to make recommendations to the Legislature not embraced withii the actual
jurisdiction conferred upon the court.
I cannot bring myself to believe as a result of any examination of
authorities that I have made, that it was ever the Legislative intent to
impede, handicap or penalize the state in the performance of its governmental
functions.
I am unable to perceive anything in the record that would warrant or justify
the conclusion that in the instant cases the state road commission has abused a
power vested in it or been guilty of maintaining a public nuisance. The statute
cited in the majority opinion has no application to such a case.
I do not agree with the statement of facts contained in the majority opinion.
Nor do I believe that a prepondrance of the evidence in the case which is
entitled to any value, shows any negligence on the part of the state if it
could be main-
328 REPORTS
STATE COURT OF CLAIMS [W.VA.
tamed that the state would under any circumstances be responsible for
negligence in the premises. If this case shall be reexamined by a committee of
the Legislature I would respectfully call attention to the very forceful
testimony given by John V. Archer, who made an investigation of the accident
and a report of the circumstances attending it, a short time after its
occurrence. The oral testimony rests upon the uncertain memory of individuals
who testified after a lapse of six or seven years. I believe that it is of the
highest importance to the state that the Legislature should determine,
definitely and for all time, whether or not it is its purpose to authorize and
ratify awards such as have been made in these cases. It is my personal judgment
that the records show that the injuries sustained were the result of the action
of claimant, Arthur B. Perdue, driving over the embankment when he was blinded
by an approaching automobile rounding the curve.
W. VA.]
REPORTS STATE COURT OF CLAIMS 329
(No. 316?Claim denied.)
DORA HARMON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 17, 1944
The state does not guarantee the freedom from accident or safety of pedestrians on its public highways; and upon the facts disclosed by the record in the case, an award will be denied
to the claimant.
Lilly & Lilly and W. H.
Damron, Esq., for claimant.
Eston B. Stephenson, Esq., special assistant to the attorney general for the
state.
ROBERT L. BLAND, JuDGE.
The claim involved in this case arises
out of an accident which occurred on the berm of state route NO. 119, at
Barnabus, in Logan county, West Virginia, on the night of June 22, 1943.
Sometime prior to that date employees of the state road commission found it
necessary to clean out a culvert on the berm of the highway just above the
schoolhouse between the highway and the Chesapeake and Ohio railway at Barnabus
which had become clogged or filled up. It had rained and the water from the
culvert was over on the improved black top road. The highway at this point is
of the standard width of eighteen feet. The head wall was removed and the
culvert opened sufficiently to drain the accumulated water. Pending the
replacement of the head wall of the culvert the rocks takei therefrom
were used in building a protecting wall around it. This wall was intended to
serve as a warning of danger to persons using the highway. The rocks were laid
on three sides in triangular form, the embankment on the railroad, or left side
of the berm, obviating the necessity of placing any part of the wall on that
side. The weight of the evidence shows that between this pile or wall of rock
around the culvert and
330 REPORTS
STATE COURT OF CLAIMS [W. VA.
the edge of the black top highway
there was a space of approximately two feet.
Before dark on that evening claimant, Dora Harmon, a midwife seventy years of
age, went to the Soloman restaurant, where beer is sold, and where, she
testified, she expected a man whom she identified as ?Estepp? to call for her
and accompany her to his home at Cinderella. While there, she further
testified, one Tommy Williams, who resided at Hatfield Bottom, came to the
restaurant and arranged with her to visit his wife, who was pregnant. She was
also joined at the restaurant by P. B. Browning who, she said, was her first
cousin. ?Estepp? having failed to arrive at the restaurant by ten o?clock,
claimant requested Browning to accompany her to the Williams home. They left
the restaurant together when it closed for the day at ten o?clock r?. M. and
right above the storehouse crossed from one side to the other of the eighteen
foot improved highway. Claimant walked on the left berth, while Browning
remained on the black top surface. They engaged in conversation as they
proceeded. Presently Browning perceived an automobile coming in the direction
of Barnabu; and left the highway, stepping upon the berm behind claimant.
Explaining this action of Browning, she testified: ?The car was way up the
road. There is a long stretch of road, you can see way up the road, and Mr.
Browning said he saw a car coming, and he stepped in behind me, off the hard
road, stepped over to let the car pass.? After the automobile passed Browning
returned to the improved highway. When they had then proceeded about
twenty-five or thirty feet they reached the above mentioned pile of rocks or
rock wall which had been placed around the culvert after the head wall had been
removed and the culvert cleaned out, and claimant tripped and fell upon the
rocks. She affirmed: ?I didn?t see that pile of rocks and I just caught my foot
under them and fell on top of the rocks and the rocks started sliding, I
reckon. I went on right over in the culvert.?
An ambulance was called and claimant was taken to th Mercy hospital at Logan,
where it was found that she had
W.VA.] REPORTS
STATE COURT OF CLAIMS 331
sustained a fracture of the surgical
neck of the femur and suffered bruises about the body. She was admitted to th?
hospital June 23, 1943 and remained there until July 12, 1943. Upon her
admission to the hospital she was placed in a body cast?what is called a hip
spica?of the left hip, and experienced a great deal of suffering. After
returning to her home she was confined to her bed for about six weeks. Although
there has been improvement in her condition it is made clear that she has some
permanent disability and some limitation of motion in her left knee and left
hip. She uses crutches when walking.
Claimant now seeks an award against the state for $15,000.00. Her claim is
based upon the allaged liability of the state to pay her damages in that amount
on the ground of the negligence of the state road commission, its agents or
employees. She contends that in removing the rocks from the culvert employes of
the road commission negligently placed such rocks upon and along the berm of
the road and close to the paved portion thereof, and negligently failed to
place any lights or other warnings near said rocks, and negligently failed to
place any barriers or other safeguards around said rocks, and that by reason of
such alleged negligence she sustained her said accident.
We do not think that the facts established by the evidenc? and relied upon by
the claimant entitle her to an award in any amount.
A state of the union is not liable to suit in its own courts or the courts of
another state, without its consent. 23 Am. and Eng. Ency. Law, page 83. A state
is not liable for th torts of its officers or agents in the discharge of their
official duties, unless it has voluntarily assumed such liability and consented
to be so liable: 36 Cyc. 881. It is well settled that in the absence of a
statute voluntarily assuming such liability the state is not liable in damages
for the negligent acts of its officers while engaged in discharging ordinary
official duties, pertaining to the administration of the government of tha
332
REPORTS STATE COURT OF CLAIMS [W. VA.
state. Story on Agency, section 31. In the case of The Citij of Richmond v. Long?s
Administrators, 17 Grattan 375, the
Supreme Court of Virginia held:
?Public officers of the government, in the performance of their public
functions, are not liable for the misconduct, negligence or omissions of their
official subordinates.?
The state road commission is a department of the state government. It is held
in Stewart v. State Road
Commission, 117 W. Va. 352, 185 S. E.
567, that the constitutional immunity of the state from suit extends to its
governmental agencies. And it may be said that under general law the state is
not
o persons injured upon its public highways by reason of defects therein. No
statute has been enacted by the Legislature making the state so liable.
However, in 26 Ruling Case Law 66, it is said:
?The power of the Legislature to make the state or one of its sub-divisions
liable for injuries inflicted by it upon an individual is unquestioned even if
there was no liability at common law.?
The court of claims act does not impose liability upon the state where no
liability existed prior to its enactment. And since our state has not by
general law assumed liability for the negligence of its officers and agents,
the recommendations of the court of claims to the Legislature must of necessity
depend upon the facts of each case presented for detrmination. An individual
does not, in the absence of a statute assuming liability on the part of the
state for such negligence, have a right or be entitled to an award for injuries
sustained through the negligence of the state where such negligence actually
exists. If the Legislature shall intend to make the state liable for the
negligence of its officers and agents in all cases it will be necessary for it
to so provide by future enactments. The present court of claims act is not
susceptible of such interpretation.
W. VA.] REPORTS
STATE COURT OF CLAIMS 333
To make an award in this case, upon the
facts disclosed by the record, would be equivalent to the bestowal of a
charity, which we have no power to do. It would be a mere gratuity. The
Legislature has no power to authorize and direct th application of the public
money of the state to the payment of gratuities. Cooley Const. Lim.. page 155.
It is generally understood to be the law that the Legislature is without power
to levy taxes or make appropriations of public monies for . purely private purpose. ?The Legislature is to make
laws for the public good, and not for the benefit of individuals. It has
control of the public monies, and should provide for disbursing them only for
public purposes.? 1 Cooley Con. Lim., 184. A very enlightening West Virginia
case dealing with this subject is that of Woodall v. Darst, Auditor, 71 W. Va. 350. In that case an appropriation made by the Legislature to
an individual was held under the facts of the case to have been for a public
purpose. The facts of that case and the facts of the case under consideration
are easily distinguishable. In that case an appropriation was made by the
Legislature for a member of the West Virginia National Guard injured while on
duty going to state encampment at Parkersburg. It was held that a moral
obligation rested upon the state to sustain the appropriation. In this case we
fail to perceive that any moral obligation rests upon the Legislature to make
an appropriation for the payment of the claim. To do so would involve the
appropriation of the public money of the state for a pure1r private purpose.
That claimant met with an accident is unquestioned. Accidents frequently occur
on the streets and highways. The mere happening of an accident would raise no
presumption of negligence. That claimant suffered severe injuris on account of
her accident is also unquestioned, but it does not follow under the
circumstances of the case that she is entitled to an appropriation of the
public money of the state to compensate her for her injuries and suffering. No
legal or equitable right to an award is disclosed by the evidence. We have no
power to make an award on purely sentimental grounds.
334 REPORTS
STATE COURT OF CLAIMS [W. VA.
Claimant testified that it was very
dark on the night of the accident, yet neither she nor Browning carried a
lantern or flashlight when they left the restaurant. Both professe1 knowledge
of the absence of lighting facilities in the village. Browning testified:
?Well, it was not real dark. I think probably the moon shined ten or eleven
o?clock a little bit, probably a half-moon, as well as I remember. It wasn?t
real dark nor it wasn?t light.? Although claimant testified, ?There is a long
stretch of road, you can see way up the road,? she chose to leave that part of
the highway appropriated to public travel and go upon the berm of the road. Her
companion, Browning, remained on the highway, only stepping off onto the berm
when he saw the approaching automobile. Browning told claimant that the car was
coming, but she denies that she saw it. It is strange that the noise and
headlights of the automobile did not attract her attention. What was she doing
and where was she looking when the car passed? She testified that she fell on
the pile of rocks just as the automobile passed. Browning testified that they
proceeded twenty-five or thirty feet after the car passed before they reached
the culvert. Certainly the claimant was required to exercise ordinary care and
prudence wherever she walked. There is no law that required the road commission
to place a barrier at the point of the accident. Neither is there a statute
requiring it o place lights on the berm and off of the travelled part of the
road. The erection of a stone wall of the height of two feet at the point of
the culvert should be sufficient warning of any danger that might have existed
there. In the case of Rachel C. Lambert,
Administratrix, v. State Roard Commission, 1
Ct. Claims (W. Va.) p. 186, we said:
?The road commission is not required to make the travelled part of the highway
the whole width of the road as laid out. It has the power to determine how wide
the road shall be extended and used for public travel. By placing the concrete
on this road of the width of eighteen feet it fixed the limits of the road. It
determined that part of the road appropriated to the use of automobiles,
vehicles and public travel generally. The width of eighteen feet
W. VA.]
REPORTS STATE COURT OF CLAIMS 335
of hard-surface road would seemingly be sufficient to accomodate public travel
with convenience and safety.?
All of the evidence relating to the circumstances attending the accident is
found in the testimony of claimant and that of her witness, Browning. There is
conflict of statement in this testimony. Claimant asked the court to believe
that she earned as much as $500.00 a year for her services as a midwife. That
would mean, according to her testimony, fifty cases per annum. She testified
that Tommy Williams engaged her to attend his wife, coming to the Soloman
restaurant for that purpose. She was in the restaurant from before dark on a
June evening until ten o?clock at night, th most of which time her witness,
Browning, was there. He did not corroborate claimant?s testimony in relation to
the alleged visit to the restaurant of Williams. Williams was introduced as a witness
on behalf of the state. He testified that he had been acquainted with claimant
all his life. When asked if he went to Barnabus on or around June 22, 1943 and
asked claimant to go out to see his wife, who was expecting a child, he
answered: ?1 did not.? He said that he did not at any time call claimant to go
to his home to see his wife. On June 22, 1943 he was working on the night shift
of the We?t Virginia Coal and Coke Company. He went to work at 6:30 o?clock in
the evening and was working on the night of June twenty-second from that hour
?up until about three in the morning.? He further testified that after the
accident claimant ?called me in once and asked me would I swear for her.? When
asked what she wanted him to testify to, he replied:
?That she was either coming to my house or going to my house or going from my
house, I forget which.? He denied that he had been at the restaurant at any
time on June 22,
1943. The evidence upon which claimant
asks this court to make a recommendation to the Legislature on her behalf is
unsatisfactory.
We are of the opinion that the claim does not possess substantial merit, and
that an award would operate as an injustice to the taxpayers of the state.
336
REPORTS STATE COURT OF CLAIMS [W.VA.
An award is, therefore, denied and the claim dismissed.
CHARLES J. SCHUCK, JUDGE, (concurring note.)
I agree with the conclusion reached in Judge Bland?s opinion to the effect that
an award should be denied, but I do so soleiy on the ground that the testimony
taken as a whole failed to sustain claimant?s contention of negligence on the
part ?)f the state road commission, and left some doubt as to the real cause of
the accident.
I do not agree with the reasons set forth in the opinion upon which the
conclusion seems to be premised, as to do s) would in my judgment lead to
endless confusion, and in effect and in fact be a direct contradiction of the
opinions and findings involving many awards heretofore made by the court,
approved by the Legislature, and ultimately paid and satisfied. This applies
both to shortened procedure awards and claims heard in detail by the court.
The exhaustive opinion written by Judge Kunst in the Perdue claims and filed at
the present term, and in which opinion I concurred, fully sets forth my views
with reference to ex delicto claims against the state, and I am constrained to
follow the line of reasoning therein advanced as indicating the true intent of
the Legislature in creating the court of claims. The Perdue opinion is also, in
my judgment, consistent with the former decisions rendered by this court in
claims of similar nature.
G. H. A. KUNST, JUDGE, (concurring note.)
I concur with Judge Bland in his conclusion that an award be refused for
failure to prove alleged negligence of respondent herein, but do not agree with
his reasoning in conflict with my opinion in the Perdue case rendered at the
present term of court.
W.VAJ REPORTS
STATE COURT OF CLAIMS 337
(No. 349?Claim denied.)
J, SHIRLEY ROSS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled July 17, 1944
Where the testimony shows that the
state or department involved has fully complied with the oral contract or
understanding of employment, and has fully discharged all of its obligations
assumed by it under such oral contract or understanding, an award will be
refused.
Appearances:
Messrs. Sa.lisbury, Hcz.ckney & Losky (D. L.
Salisbury) and C. E. Kimbrottgh, for the claimant.
Eston
B. Stephenson, Esq., special
assistant to the attorney general for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant, a former employee of the
state road commission, prosecutes his claim on the theory that he was not paid
his salary and expenses in accordance with an unwritten contract or
understanding had at the time such employment began, about April 1, 1941.
The claim as originally filed was in the amount of $569.00, and at the time of
the hearing amended to include an additional $1800.00, to which claimant
maintained he was entitled; th increase being computed at the rate of $100.00
per month, for the eighteen months he was so employed. As stated no written
contract was entered into befween claimant and the road commission, and we must
therefore look solely to the testimony of the witnesses to ascertain the merit
or lack of merit of
338
REPORTS STATE COURT OF CLAIMS [W. VA.
the claim as based on the alleged oral
understanding. The item of $50.00 for expenses alleged to have been incurred
?fact-finding? in the state library was stricken from the claim by the court
without objection, on the ground that no state department was involved and that
the state could not in any sense be held liable for the payment of the expense
in question.
Considering, now, the question of the amount of the salary to be paid, claimant
maintains that he was to be paid $250.00 per month for his services, plus
expenses, which proposition is emphatically denied and contradicted as to the
amount of the monthly salary by the commissioner, Ernest L. Bailey, with whom
the alleged contract or understanding was made.
Without going into all the details of the testimony contradicting claimant on
the amount of the salary, it is surpassingly strange that for eighteen months
the claimant received and accepted a salary of $150.00 per month as fixel by
the commissioner, cashed his checks in the aforesaid amount, thereby, to all
appearances, agreeing, at least from month to month, with the salary as paid,
and at no time made any claim in any monthly requisitions to the state for the
alleged additional salary. True, he states that he made a claim to Bailey, but
this statement is again repudiated by Bailey, with the explanation that at no
time was claimant?s salary to be increased, owing to the nature and lack of
efficiency of claimant?s work and efforts. The employment was at the will and
pleasure of the parties concerned. It could be terminated at any time by
either, yet, notwithstanding this fact claimant worked on for eighteen months
without exercising any right to quit; received and accepted his monthly checks
in the amount as fixed by the commissioner, and therefor under all the
circumstances, and in view of all the testimony as received by us, is not
entitled to the item of $1800.00 for additional salary.
As to the expense account of $519.00, the testimony shows that on many
statements furnished by claimant from time to time, items were stricken out or
deleted by those in author-
W. VA.] REPORTS STATE COURT OF CLAIMS 339
ity and changes frequently made when improper and
incollectible items of expense had been included in the statements by claimant.
Among these were entries for candies and flowers given without authority by claimant
and charged in his expense account against the department involved; also the
incurring of daily expenses in excess of those allowed and fixed and beyond
which claimant could not go without making himself personally liable for the
excess. However, no matter what the testimony or its value may be as offered by
witnesses against claimant on the expense items, we are again confronted by his
own acts in accepting from month to month payments of his expense accounts as
changed by his superiors, and which acceptance under all the facts is binding
on him and conclusive as to the amount or amounts of expenses involved.
Accordingly, he has been paid in full. No proper items of expense are due or
payable to him by reason of his employment in the road department.
We, therefore, refuse an award.
340 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 339?Claim denied.)
GEORGE L. BUCKLEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 17, 1944
An award will not be made where
alleged negligence of respondent is not proven.
Appearances:
George L. Buckley, claimant, in his own behalf.
W. Bryan Spillers, Esq., Assistant Attorney General for respondent.
G. H. A. KUNST, JuDGE.
At 10:30 o?clock A. M. on the
20th day of January, 1944 claimant?s truck, a ton and one-half unloaded
International van, was being driven by Roscoe Lamb, accompanied by his helper
Lormie Dean, on state road NO. 21, toward Charleston. Although the road was very icy
when the truck left Parkers- burg and continued in such condition, no chains
were used. The visibility was good and no traffic obscured the vision or
impeded the progress and driving of the truck. At a point about twenty miles
from Charleston, upon rounding a curve in the road, a state road truck could,
if the driver of the truck had been looking, been seen at a distance of
seventy- five to one hundred yards parked on the left side of the road and
headed in the direction of Charleston. Lamb did not observe the truck until he
was within thirty-five or forty yards of it. The paved surface of the road was
eighteen feet wide, with berm on the right side of the road on which Lamb was
driving, five feet in width.
W. VA.]
REPORTS STATE COURT OF CLAIMS 341
The state road truck occupied about
two and one-half feet of berm and four feet of the left half of paved surface,
leaving five feet of paved surface of road to the center, and thus giving Lamb,
if he chose to use the berm, eighteen feet of road which could have been used
by him in passing. When nearly opposite the state road truck, his truck skidded
on the icy pavement and struck the state road truck. This truck had brought a
load of rock to fill a hole, and its driver, who had been ahead with a flag to
warn approaching traffic, had just returned to and entered the cab of his
truck, upon being notified that rock had been unloaded. When claimant?s truc
struck rear of respondent?s truck driving it forward several feet, the
collision caused damage to claimant?s truck, for the repairing of which and
loss of time in getting same repaired, he asks an award against respondent of
$292.00.
No negligence of respondent having been shown, the alleged failure of state
road employees to display on the road signs showing men working, would not have
prevented the collision and so far as the evidence shows the collision was due
solely to the failure of claimant?s driver to exercise the requisite degree of
care in driving the truck, which he states could have been stopped. at the
speed he was driving, within twenty-five feet. An award is denied and the case
is dismissed.
342 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 340?Claim denied)
S. H. WORRELL, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 25, 1944
Upon failure of claimant to prove by a
preponderance of evidence his claim that certain personal property belonging to
him was stolen by convicts from the state penitentiary, engaged in performing
special labor under the direction of the prison labor division of the state
road commission in time of flash-flood, in a proceeding in the court of claims
to obtain an award for the value of such alleged stolen property, an award will
be denied when it appears from the record that all proper precautionary
measures were employed to guard such convicts and no negligence or dereliction
of duty is shown on the part of the officials having them in charge.
Ckiim4int, in his own behalf;
W. Bryan Spillers, assistant Attorney General, for Respondent.
ROBERT L. BLAND, Juios.
In the late summer of 1943 an unprecedented flash-flood swept the Little
Kanawha valley of central West Virinia with tempestuous fury. It was especially
severe and disastrous at Burnsville, in Braxton county, and in the vicinity
contiguous thereto. There was great damage to and destruction of property and
many lives were lost. After the subsidence of the storm it was found that the
homes and streets of Burnsville were so greatly damaged by muck, mud and
debris, and conditions generally were so unsanitary that assistance was sought
to aid in the work of rehabilitation. In some of the houses the water was more
than six feet high. The conditions were appalling. A group of convicts from the
state penitentiary at Moundsville at the time working at a prison
W. VA.]
REPORTS STATE COURT OF CLAIMS 343
labor camp of the state road
commission at Buckhannon in Upshur county, was sent to Burnsville to aid in the
work of cleaning up the damage wrought by the flood.
Claimant, a retired Methodist minister, with his wife and household goods,
arrived in Burnsville on the 6th of August, 1943, to take up his residence in
Burnsville. He had come from a farm about five miles from Point Pleasant, Mason
county. The household effects were brought from that point to Burnsville by a
transfer company. On arrival in Burnsyule these household goods were
temporarily placed in storage on the first floor of the Burnsville Grocery
Company until such time as the residential property which he had secured could
be made ready for occupancy. The flood had been in that building. Subsequently
claimant?s household goods and other personal effects were removed to the house
which he intended to occupy as a residence and placed in a room on the second
floor of the building. He then cleaned out the house as well as he could; but
his daughter who resides at Cowen, in Webster county, having told him it was
not a sanitary place to live, he and his wife went to reside with her until
everything was put in better condition in Burnsville. When they returned to
Burnsville on the 22nd day of August, 1943, they found that the doors of their
home had been opened and the house ransacked. Claimant then discovered that
various household articles and other personal effects were missing, including
about $27.00 in money, a watch, ten cans of salmon, a string of pearls, box of
soap, and numerous other articles. Naturally suspicion rested upon the convicts
although no one was able to establish their guilt.
The convicts were daily brought from Buckhannon to Burnsyule and returned to
Buckhannon in the evening until a small trailer camp located in the outskirts
of Burnsville was provided for them. On these trips to and from Buckhannon the
convicts carried with them only their jackets and were under the close
surveillance of the guards who accompanied them. It would seem unlikely that
they could have carried articles
344 REPORTS
STATE COURT OF CLAIMS [W. VA.
of bulk or heavy weight, such as boxes
of soap and salmon, without discovery.
Claimant has, however, filed a claim against the state for the sum of $251.20
for the value of the property which he claims to have lost. This claim is
contested by the state. Before going to Mason county to live claimant had
resided at Cross Lanes, West Virginia. His household goods, including all the
articles embraced in this claim, were packed and transported to Mason county
from Cross Lanes. ?The most of the stuff,? testified the claimant, ?had not
been unpacked from the time we moved away from Cross Lanes. . . .? The property was then removed by a transfer company to
Burnsyule. At the latter place they were twice handled. They were first placed
in a grocery establishment and finally removed to the place intended to be
occupied as a residence. At the latter place the doors were not locked but
insecurely barred. It is strange that claimant should have left money there
knowing the condition of the house when he left it.
After claimant discovered the loss of his property he reported the fact to the
prison camp. The convicts were then ?shaken down? at the Buckhannon camp. There
was found in the possession of one of them?a colored prisoner about thirty
years of age?a watch, radio, electric iron, electric toaster and possibly
several other small articles, none of which is embraced in the claim filed, and
all of which were restored to claimant. None of the other articles mentioned
and set forth in the claim were found either at the Buckhannon camp or the
Burnsville camp. Witnesses for the state testified that claimant did not
identify with absolute certainty all of the property actually turned over to
him. The convict from whose custody the articles were taken which were restored
to claimant said he found a watch along the river where it had been washed out
in some rubbish, and the other articles in a sack under a bush; that he
supposed someone else had put them there to take away and that he ?just picked
up the sack and everything.? In this connection it may be
W. VA.] REPORTS
STATE COURT OF CLAIMS 345
observed that claimant testified that
a neighbor informed him that on the supposed date of the theft of his property
she had seen a man coming out of his house ?shaking a bag.? But it was not
shown that he wore the garb or uniform of a convict. There is no positive
evidence in the record to prove that convicts stole any of the missing articles
embraced in the claim filed by claimant. The circumstantial evidence relied
upon is insufficient to justify an award in his favor.
The convicts cleaned the streets, as well as the homes, when they were asked to
do so. They were instructed not to enter any house unless requested to do so.
It is not shown that any one of them entered claimant?s residence during his
absence. They were in charge of a superintendent, one guard and three or four
maintenance foremen during all of the time that they were at Burnsville. They
worked in groups and were at all times under the closest observation and care.
The evidence shows that there were thirty-two trusted convicts, known as honor
men, selected for the clean-up work. There were four times as many guards
supervising their work and watching over them as usually employed in the
ordinary state road prison labor camp.
Claimant is a kindly, conscientious and upright gentleman and was very careful
in the statements he made. We can sympathize with him in the loss he has
sustained, but are unable under the evidence to recommend to the Legislature an
appropriation for the payment of it.
An award will be denied and the claim dismissed.
346 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 329?Claimant awarded $4000.00)
PAULINE GOLDEN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied July 27, 1944
Where the evidence clearly shows that
a pedestrian on a highway was injured by the faulty and defective equipment of
a passing state road truck, which defect should have been known, or could have
been known through the proper inspection of the truck by the .employees of the
road commission previous to the time of its use on the highway; and no
negligence on the part of the pedestrian is shown, but that on the contrary she
was exercising the required and necessary degree of care as such pedestrian, an
award will be made in her favor.
Appearances:
Dczy1ion R. Stemple, Esq., for the claimant;
W. Bryan SpiLIers, Esq., assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant, Pauline Golden, thirty-eight
years of age and engaged in conducting a farm in Barbour county, West Virginia,
was severely and permanently injured by being struck by a tail gate falling or
swinging from a passing state road truck while she was a pedestrian on the
highway known as Fisher?s Mill Road, which highway is under the control of the
state road commission. The testimony shows that claimant walking on the proper
side of the highway, between five and six o?clock in the evening on September
15, 1943, and in the lawful use of said highway, noticing a state truck
approaching stepped off the highway to allow it to pass and while so doing she
was struck by the tail gate, knocked to the side of the road and so severely
injured as to require
W. VA.) REPORTS STATE COURT OF CLAIMS
347
hospital and medical treatment and care. Her injuries consisted of a long,
ragged, deep cut on the right upper arm, approximately ten inches long which
has left a permanent scar and according to the testimony, has permanently
impaired the use of her arm. Her side was bruised and her back injured; her
forehead cut, and while of a nervous nature previous to the time of the injury,
the physician testifies that this nervousness has increased since the time of
the injury and that while claimant has shown improvement, her injuries are
nevertheless of a permanent nature and prevent her from carrying on the work on
her farm that she had theretofore been able to do. She still complains of pain
in both her arm and head at the present time. She has been obliged to obtain
help to operate her farm and to do much of the work that she did herself previous
to the time of the accident. Her father, who lives with her, is eighty-three
years of age and is unable to do any of the work. She has also been obliged to
have a hired girl work for her part of the time at the rate of ten dollars per
week and has expended bills for medical and hospital treatment, and other
expenses totaling approximately $300.00.
The testimony shows that the tail gate in question was improperly and
insecurely fastened, that both pins or latches holding it in place, together
with the chain serving the same purpose, seemingly became loose or pulled out
just as the truck was passing the claimant causing the tail gate to swing
across the highway and striking her, inflicting the injuries as aforesaid. The
testimony, in our judgment, clearly shows that the faulty equipment or defect
of the tail gate allowed it to swing to the side of the road and strike
claimant. The driver of the truck testifies (record p. 23) ?Well, the tail gate
was what you call down?it was laying back on a level with the rest of the bed,
held by latches at the bottom and chains attached to the sides of the bed that
would hold the tail gate up on a level with the bottom of the bed; and the
latch that held the tail gate to its place at the bottom come loose and dropped
down, and that give the tail gate a chance to fall off, and these chains that
held it on a level, one of
348 REPORTS
STATE COURT OF CLAIMS [W. VA.
them came loose that held the lefthand
end, and that left the tail gate swing by the other chain, which swung around
past the side of the truck.? In view of this testimony we are of the opinion
that an examination of this truck and its equipment previous to its use on the
day in question would have revealed its faulty condition and defect and put the
employees in charge of its operation on notice to have the necessary repairs
made. There was nothing that occurred at the time of the accident so far as the
operation of the truck was concerned that would cause the latches to pull out
or become loose nor to cause the chains in question that held up the tail gate
to likewise pull out or become loose and thus cause the tail gate to swing
beyond the body of the truck itself and thereby be the means of striking a
passng pedestrian. These defects ought to have been known at the time the truck
was being operated and care taken to avoid injury to persons on the highway.
Under all of the circumstances and testimony in this case, we are constrained
to find that the claimant is permanently injured, with her earning power on her
farm considerably permanently impaired, and that she will never again be able
to do the work that she did previous to the time of her accident; that she is
still suffering pain in her head and arm. Taking all the testimony therefore in
consideration, we are of the opinion that an award of four thousand dollars
($4000.00) should be made and this amount is recommended accordingly.
ROBERT L. BLAND, Judge, concurring.
Without adopting the above syllabus, to which I do not agree, I would favor an
award in this case upon the ground of social justice. However, I do not see
sufficient evidence in the record upon which to make an award of $4,000.00.
Such award, in my judgment, should not exceed $2,500.00.
W. VA.]
REPORTS STATE COURT OF CLAIMS 349
(No. 363-S?Claimant awarded $50.00)
MABSCOTT SUPPLY COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 28, 1944
ROBERT L. BLAND, JUDGE.
The claim involved in this case is for
the sum of $50.00. It is concurred in by the state road commission, and
approved by the assistant attorney general as a claim which, within the meaning
of the court act, should be paid by the state. From the affidavit made by one
Charles Hurt, it is made to appear that on December 13, 1943, he was driving
state road truck No. 1038-13, distributing cinders on route 19-21, near
Prince Hill, Raleigh county, West Virginia, when it collided with a Ford truck
owned by claimant, properly parked on the side of the road, and causing damage
thereto, to repair which he incurred a cost of $82.58. However, he carried
insurance on the truck, but the policy contained a deductable clause in the
amount of $50.00. He was paid $32.58, leaving a balance of $50.00 as necessary
for him to pay for the repair of his vehicle. The reason assigned by the road
commission for concurring in the claim is as follows:
?We contributed to the accident by operating truck on ice-covered road without
chains.?
In view of the concurrence and approval aforesaid, award is made in favor of
claimant, Mabscott Supply Company, for fifty dollars ($50.00.)
350 REPORTS STATE
COURT OF CLAIMS LW. VA.
(No. 341?Claim dismissed)
EDWARD PRUITT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 31, 1944
By paragraph 2, section 14, of the court act, it is expressly provided that
the jurisdiction of the court of claims shall not extend to an injury to or
death of an inmate of a state penal institution.
Claimant, in his own behalf;
Ir(L J. Pa.rtlow, Acting Attorney General, and W. Bryan Spillers, as&istant
Attorney General, for respondent.
ROBERT L. BLAND, Ju]oE.
Claimant, Edward Pruitt, represents
that on January 16, 1942, while working in the prison labor division of the
state road commission on the state highway at Point Mountain in Webster county,
West Virginia, he sustained an injury which caused the loss of his right arm,
without fault on his part. At the time of the accident he was in prison labor
camp No. 75, of which one Ray Phillips was foreman. Bernard
Givens was grade foreman on construction work being done on the road.
Claimant alleges that he was duly assigned to the work of oiler on P25-3, power
shovel, operated by the road commission on said road project and had been
placed there as such oiler by those in charge of the labor work. The day was cold
and it became necessary to move the shovel in order to make an approach to run
traffic around on the lower side
W. VA.i REPORTS
STATE COURT OF CLAIMS 351
of the road. In doing this it was necessary for claimant to get out of the
shovel and latch what was designated as the ?dog,? or in other words to unlock
the track under the shovel in order that it could be moved, and in doing so he
was compelled to turn sideways so as to pass between the drum hoist and the
motor, and just as he turned sideways to effect this passage, the shovel rocked
and threw his right arm into the ?hoist drum.? Claimant?s sleeve caught in the
brake-band rigging and the hoist drum and wrapped his arm around the hoist drum
shaft and pulled his arm completely off and out from the socket at his
shoulder.
Prior to the accident claimant had been an able-bodied man and is now
handicapped for life. The case presented is pathetic.
The jurisdiction of the court to entertain the claim is challenged by a special
plea filed by the attorney general?s office. By paragraph 2, section 14, of the
court act, it is expressly provided that the jurisdiction of the court of
claims shall not extend to an injury to or death of an inmate of a state penal
institution. Claimant was constructively in the state penitentiary, although
since has been released. The statutory provision is binding upon us. We have no
power or authority to consider the claim, and for that reason it was not placed
upon the trial calendar for investigation and hearing.
352 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 356?Claim dismissed)
HOMER BAISDEN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled July 31, 1944
By paragraph 2, section 14, of the
court act, it is expressly provided that the jurisdiction of the court of
claims shall not extend to any injury to or death of an inmate of a state penal
institution.
W. H. D. Preece, Esq., for claimant.
W. Bryan SpiUers, assistant Attorney General, for respondent.
ROBERT L. BLAND, JUDGE.
Claimant, Homer Baisden, on November 23, 1942, was an inmate of the West
Virginia penitentiary, and was working on the construction of a stone building
for a state prison labor camp at or near Buckhannon, West Virginia; said
building being intended for a garage, supply house and office for said state
prison labor camp. The petition filed in the court of claims on April 20, 1944,
alleges that on the date aforesaid, in his work and on said building, he was
required to and was lifting a large stone approximately 41? x 8?/2? in diameter,
and that in lifting said stone and using a defective scaffold said scaffold
broke and said stone was caused to fall onto the body of the claimant, thereby
breaking, mashing and crushing his body, right hip and pelvis; that said
scaffold was furnished by the state prison labor camp supervisors, under whom
he was working, that his injuries were caused as the direct and
4
WVA.1 REPORTS
STATE COURT OF CLAIMS 353
proximate result of the carelessness
of his overseers, the state prison labor camp officials in whose charge he was
kept.
The petition further avers that as a result of claimant?s injuries he was
hospitalized at the St. Joseph?s hospital, Buckhannon, West Virginia, and was
forced to remain in said hospital as a result of said injuries for a period of
fifty-three days, and that while in said hospital he was under the care of Dr.
Forman of said institution; that as a result of his said injuries he was forced
to undergo and endure great pain and suffering, and that he was and is
permanently injured, and his earning capacity lessened.
Claimant avers that he was parolled from the West Virginia penitentiary on July
1, 1943, and that as a result of his said injuries he is greatly and materially
handicapped in performing labor and earning a living; that he is a young man
thirty-five years of age, married, and has a family, and that, as aforesaid,
his injuries are the direct and proximate result of the carelessness and
negligence of the state of West Virginia, its agents and employees, and that as
a result thereof he is entitled to have paid to him by the state of West
Virginia a reasonable sum as compensation for his injuries.
Claimant therefore seeks an award of $5,000.00.
It is provided by paragraph 2 of section 14 of the court act that the
jurisdiction of the court of claims shall not extend to an injury to or death
of an inmate of a state penal institution. Since it firmly appears that at the
time of the accident claimant was an inmate of the West Virginia penitentiary,
we are without power or authority to consider or act upon his claim. For such
reason the court determined that it was without jurisdiction to do so.
354 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 193?Claimant awarded $2070.97)
SAM G. POLINO & COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled July 31, 1944
Appearances:
A. E. Fiorentino, Esq., for the claimant;
Arclen Trickett, Esq., state right-of-way agent, state road commission,
for the state.
CHARLES J. SCHUCK, JUDGE.
On July 23, 1943, the Monongah
Construction Company entered into a contract with the state road commission to
surface and stone base a certain project known as NO. 3493-810;
the road involved leading from Belington to Nestorville, in Barbour county,
West Virginia; and covering a distance of approximately eleven miles. The
contract, among other things, called for twenty-four thousand cubic yards of
unclassified excavation; five hundred cubic yards of excavation for structures
and approximately fourteen thousand four hundred cubic yards of knapped stone
as the base course complete in place. The unclassified excavation was to be
paid for at the rate of 40 cents per cubic yard. The excavation of the five hundred
cubic yards for structures, including refilling, was to be paid at $1.50 per
cubic yard. The fourteen thousand four hundred cubic yards of broken stone were
to be supplied and put in place at the rate of $3.90 per cubic yard. Fourteen
thousand four hundred cubic yards of knapped stone, complete in place, were to
be supplied and placed at
W. VA.]
REPORTS STATE COURT OF CLAIMS 355
$3.95 per cubic yard; and forty-three
thousand gallons cold surface application, asphalt applied, one-third gallon
per square yard. was to be supplied at 10.3 cents per gallon; sixty-five
thousand gallons of cold surface tar application at 12 cents per gallon; four
thousand two hundred tons cover coat of limestone chips, complete in place, at
$4.50 per ton and four cubic yards of class B concrete at $25.00 a yard; three
thousand feet eight-inch perforated corrugated metal pipe, complete in place,
at $1.00 a foot; one hundred linear feet of pipe culvert, complete in place, at
$2.00 a foot; four hundred and twenty cubic yards of loose stone for
underdrains, delivered in place, for $4.00 a cubic yard; making approximately a
total price or cost of $160,000. The contract was originally awarded to the
Monongah Construction Company and afterward assigned to the claimant here. The work
was to start in July of 1934, but seemingly delayed until September of that
year before work actually began. It was completed sometime in
1935.
The testimony shows that during the course of carrying on the project, which,
as indicated, was rather extensive and entailed a large amount of excavating
and material, there were many difficulties and disputes between the contracting
firm and the road officials and supervisors, during which time some of the
material was condemned and the contracting concern ordered to replace it; for
certain reasons the excavating could not be carried out as originally planned
and as shown on the plans and specifications, and the contracting firm alleges
it was put to additional costs and expenses in carrying out the contract as
changed and not provided for in the plans and specifications or the original
contract itself.
Concerning these many disputes, the testimony is very conflicting. The claimant
company maintains that it was obliged to do considerable extra work and furnish
extra material not contemplated in any way by the contract. This contention, of
course, is denied by the state department and we are there-
356
REPORTS STATE COURT OF CLAIMS [W. VA.
fore obliged to carefully examine the
record in order that we may be able to separate the good from the bad, the
wheat from the chaff, and the essential from the nonessential. The claim, as
prosecuted here, is in the amount of $33,617.50.
The record is very long and voluminous and
we have given much time to the consideration of the various questions
.presented and the problems involved, and repeat that we have sought to
eliminate the unimportant and highly conflicting testimony from that which we
consider pertinent and conclusive in the endeavor to settle the issues that were
presented at the time of the hearing.
By reason of the conflicting and uncertain testimony with reference to the many
items for extra work, we have concluded to eliminate from our consideration all
such items except two, which we feel are supported by a fair and impartial
analysis of the testimony and should be paid.
The question of the widening of the berm beyond that contemplated in the
contract and the plans and specifications, seems to be definitely settled; and
the testimony, as shown by claimant?s witnesses and supported to a degree by
the state?s witnesses, tends to show that there were 45,306 cubic yards of
extra berm construction for which claimant was at no time paid and to which
item he is entitled to remuneration at the rate of $.0424 per yard. There are
admissions by the state?s witnesses that this extra berm construction was found
necessary under the circumstances and conditions presented in carrying on the
project, the only question being as to the amount of yardage involved and
whether or not payment had been made. There is also testimony tending to show
that by reason of the widening of the berm, the contracting firm was saved
other expenses such as extra hauling, which would have been necessary had the
berm not been widened to the width eventually established; however, when this
matter is taken into consideration with the extra excavating that was found
necessary, the claimant would be entitled in our opinion
W. VA.]
REPORTS STATE COURT OF CLAIMS 357
either to the extras on the excavations
or in the matter of widening the berm. We have taken the item with reference to
the increased berm as being in our opinion equitable and just to all parties
concerned. The rock formation required to be removed for subgrade purposes
likewise seems not to have been fully contemplated by the contract or the plans
and specifications, and yet we feel that the contracting concern is being
rewarded in this extra item by the increasing of the width of the berm where
the extra excavation was and could be deposited with the least expense to
claimant, as well as to the state. We therefore allow as one of the items the
matter for the extra berm (record p.p. 25-26, record p. 114) of 45,306 cubic
yards at $.0424 per yard or $1920.97. The other item which is allowed is the
matter of 150 feet of pipe at $1.00 extra, amounting to $150.00 (record p. 81),
making a total allowance of $2070.97, for which an award will be recommended.
In the matter of the item for extra pipe, the record nowhere reveals a
contradiction of the witnesses for claimant that this extra item was furnished,
that the pipe was used in connection with the completion of the project, and
that the item as such was not contemplated by the contract; and therefore an
award is made accordingly in the sum of $150.00. In view of all the testimony
and our consideration of this record, we recommend an award in the amount of
two thousand seventy dollars and ninety-seven cents ($2070.97).
ROBERT L. BLAND, JUDGE, dissenting.
In my judgment no additional compensation should be allowed for berm width over
and above six feet on either side of the eighteen foot road, for the reason
that all such additional width was contemplated and provided for by the
specifications and settlement therefor was included in the final estimates. The
six feet berm widths specified on the typical cross sections were merely
minimum widths.
358 REPORTS STATE
COURT OF CLAIMS [W.VA.
The specifications provided as follows:
?The bidder is required to examine carefully the site of, and the proposal,
plans, specifications and contract forms for the work contemplated; it will be
assumed that the bidder has investigated and is satisfied as to the conditions
to be encountered for performing the work as scheduled or as at any time
altered without resulting in increases or decreases of more than the
restricting percentage hereinafter stipulated, and as to the character, quality
and quantities of work to be performed and materials to be furnished including
increases and decreases, and as to the requirements of these specifications,
special provisions and contract. It is mutually agreed that submission of a
proposal shall be considered prima facie evidence that the bidder is satisfied
as to all the conditions and contingencies.?
Paragraph 4 of the contract under which the work was done reads:
?(4) The contractor further agrees that he is fully informed as to all
conditions affecting the work to be done, as well as to the labor and materials
to be furnished for the completion of this contract, and that such information
was secured by personal investigation and research and not wholly from the
estimates of the Engineer; and that he will make no claim against the said
State by reason of estimates, tests or representations heretofore made by any
officer or agent of the State.?
It was the duty of Monongah Construction Company before submitting its proposal
to the state road commission to go upon the ground of the proposed project and
familiarize itself with all of the conditions found to exist there, and with
the knowledge thus acquired to submit its bid for the work to be done. This is
not only required by the specifications, which form a part of the contract, but
is embodied in the contract itself. It must be assumed, therefore, that
Monongah Con
a
W. VA.]
REPORTS STATE COURT OF CLAIMS 359
struction Company did go upon the
premises and examine the topography of the proposed road and familiarize itself
with all the conditions that should confront it if it should be awarded the
contract to complete the project. With the knowledge thus acquired it submitted
its bid to the state road commission and agreed to do all that was required by
the plans and specifications for the sum of $159,499.00.
I may add that I find no warrant in the record to sustain the award made for
the 150 feet of pipe. There is quite a difference between making a claim and
proving it. Apparently little attention was paid by Monongah Construction
Company or Sam G. Polino & Company, its assignee, to the specifications. It
is as important to protect the interests of the state as the interests of the
claimant.
I would disallow both of the items for which the awards are made.
360
REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 359-S---Claimant awarded $601.75)
(No. 360-S?Claimant awarded $747.44)
(No. 361-S?Claimant awarded $602.78)
J. G. FREDEKING, et als, partners, d/b/a FREDEKING &
FREDEKING, Claimants,
V.
STATE TAX DEPARTMENT, Respondent.
J. G. FREDEKING and T. H. PRICE, et als, partners, d/b/a
T. H. PRICE OIL COMPANY, Claimants,
V.
STATE TAX DEPARTMENT, Respondent.
J. G. FREDEKING, et als, partners, d/b/a SERVICE OIL &
GAS COMPANY, Claimants,
V.
STATE TAX DEPARTMENT, Respondent.
OpLnion filed August 1, 1944
CHARLES J. SCHUCK, JUDGE.
The Standard Oil Company of New Jersey
and J. G. Fredeking, Hinton, West Virginia, entered into several contracts, all
of which are exactly alike, except as to the places in which the operations
under the contracts were to be carried on. For the purpose of operating under
the several contracts in the
W. VA.]
REPORTS STATE COURT OF CLAIMS 361
different territories J. G. Fredeking
created several different partnerships, three in number, and these partnerships
are the claimants for refunds of taxes, allegedly improperly paid, in three
different claims presented to this court for consideration.
An examination of the records submitted, including the contracts mentioned, has
raised the question as to whether or not the several partnerships were in fact
employees of the Standard Oil Company or whether they were independent concerns
acting as independent agents and consequently liable to the tax which, as
indicated, had been paid.
For some time these questions were under consideration in the state tax
department, and after a very thorough examination of the facts as presented and
the law relating thereto, the tax department concluded that the relationship of
employer and employee existed as between the Oil Company and the several partnerships,
and that the partnerships were accordingly entitled to a refund in the amounts
set forth in their respective petitions filed in this court. A very able and
elaborate statement or brief is filed in each case by the tax department
sustaining its contention that the refunds should be allowed.
In view of the questions presented and the issues involved, we have examined
the contracts in question and the tax statutes relating to the matter as
submitted, and their application thereto, and agree with the conclusions
reached by the state tax commissioner. The state tax department recommends the
payment of the several claims and the attorney general approves the same in the
amount of each claim, respectively.
We are therefore of the opinion that in claim NO. 359-S. J. G. Fredeking, et
als, partners doing business as Fredeking and Fredeking, claimants are entitled
to a refund in the sum of
362 REPORTS
STATE COURT OF CLAIMS [W. VA.
six hundred one dollars and
seventy-five cents ($601.75) and we make an award accordingly.
In claim No. 360-S, J. G. Fredeking and T. H. Price, partners doing
business as T. H. Price Oil Company, claimants are entitled to a refund of
$747.44, and an award is made accordingly in the amount of seven hundred
forty-seven dollars and forty-four cents ($747.44).
In claim No. 361-S, J. G. Fredeking and others doing business as the
Service Oil & Gas Company, claimants are entitled to a refund of $602.78
and an award is made in their favor in the sum of six hundred two dollars and
seventy-eight cents ($602.78), accordingly.
W. VA.]
REPORTS STATE COURT OF CLAIMS 363
(No. 333-S?Claimant awarded $169.79)
S. E. BURNS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
0pi?non filed October 9, 1944
ROBERT L. BLAND, JUDGE.
This case involves a claim for the sum
of $169.79. The record thereof was prepared by respondent and filed with the
clerk on February 2, 1944. The state road commissioner, head of the department
concerned, concurs in the claim. Its payment is approved by an assistant
attorney general.
The facts disclosed by the record are substantially as follows: On January 24,
1944 on the Unis-Frankford road in Greenbrier county, West Virginia, being a
state-controlled highway a collision occurred between an automobile owned by
claimant and state road commission truck No.
930-74 operated by Berdie Bostic. The
state truck was being driven at a speed of from 15 to 20 miles an hour. The
road was narrow being only about 9 feet in width. The accident was the result
of short-sight distance. While the two vehicles rounded a curve in the road the
driver of the state road truck lost control of the truck in failing to slow
down while attempting to make the turn. The impact of the two vehicles caused
claimant?s.car to go over a bank. To repair the damage caused to claimant?s car
by the accident he was obliged to pay the amount of the claim above mentioned.
Claimant was without fault. The state road commission admits responsibility for
the accident.
From the showing made by the record the claim is one for which an appropriation
should be made.
An award is, therefore, made in favor of claimant S. E. Burns for the sum of
one hundred sixty-nine dollars and seventy- nine cents ($169.79)
364
REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 373-S--Claimant awarded $900.00)
JOHN J. SWINT, Bishop of the Diocese of West Virginia,
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opnon
flIed October 9, 1944
ROBERT L. BLAND, JUDGE.
This case is heard and a determination
thereof made upon a record prepared by the state road commission and duly filed
with the clerk of this court as provided by section 17 of the
court act.
The claim submitted is for damages to the basement of the Sacred Heart of Mary
Church, located at the intersection of a state-controlled road and avenue ?F?
at Weirton, in Hancock county, West Virginia. The title to said church property
is vested in the Bishop of the Roman Catholic Church of the Diocese of West
Virginia, in whose name and on behalf of whom the claim is asserted.
Prior to July 9, 1943, and in the course of the building and improvement of the
state-controlled road aforesaid, the state road commission moved the wall
around the basement window of the church edifice and collected dirt, debris,
and building materials near the intake of the sewers on the northeast and
southeast corners of the intersection.
On July 9, 1943, a hard rainstorm occurred at Weirton. The storm waters washed
the accumulated dirt, debris, and building materials into the intakes of the
sewers and filled and clogged them. The waters were consequently diverted and
caused to run into the basement of the church, thus resulting in the damage for
which this claim is made.
W. VA.]
REPORTS STATE COURT OF CLAIMS 365
An examination of the basement made
after the storm had bated revealed that it was filled with water, dirt, debris,
and uilding material and damaged beyond repair. It was found ecessary to place
and install an entirely new floor. Contracrs submitted estimates for the cost and
expense of work ictually required. One of these estimates fixed the amount it
$2705.39, and another at $1690.46. The church. authorities Were finally able to
repair the damage sustained to the extent F having a new floor placed in the
basement at a cost of $900.00. fhis amount covered only a part of the damage
which had oeen caused to the basement.
After careful examination and consideration of all of the facts in connection
with the actual cause of the damage, which seems very clearly from the record
to have been the result of the removal of the wall around the windows, the
district engineer and the county maintenance engineer both recommended an
allowance of that sum.
The state road commission concurs in the payment of this amount. The assistant
attorney general approves an award of that sum.
In view of the recommendations, concurrence, and approval aforesaid, an award
is now made in favor of claimant John J. Swint, Bishop of the Diocese of West
Virginia, for the said sum of nine hundred dollars ($900.00).
366
REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 381-S?Claimant awarded $22.04)
GRAYSON D. THORNTON, Claimant,
V.
STATE LIQUOR CONTROL COMMISSION,
Respondent.
Opiriion fIled October 9, 1944
ROBERT L. BLAND, JUDGE.
On April 3, 1943 claimant was a
superintendent of a warehouse in Charleston, West Virginia, of the state liquor
commission. On that date his personal automobile was being used in the city of
Charleston for business of the commission. He had sent one Clark Neal, a supply
manager, out in the car to locate an employee of the commission who was acting
in the capacity of guard, but not supposed to report for duty until a
subsequent date. He was needed over the weekend. The driver of the automobile
stopped the, car on Donnally street, opened the door about 12 inches to look
back and the car was then hit by another vehicle, causing damages for which the
claim is made. To repair such damages claimant was obliged to pay $22.04. The
head of the department concerned concurs in the claim. An assistant attorney
general, whose responsibility it is to represent the state in claims asserted
against it in this court, approves the claim as one which within the meaning of
the court act should be paid.
In view of the concurrence in and approval of the claim as aforesaid an award
is made in favor of claimant Grayson D. Thornton for twenty-two dollars and
four cents ($22.04).
W. A.] REPORTS
STATE COURT OF CLAIMS 367
(No. 382-S?Claimant awarded $20.40)
JAMES M. CAMPBELL, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion ftlecl October 9, 1944
ROBERT L. BLAND, JUDGE.
Claimant?s Chrysler automobile was
parked for a funeral
on Spruce street, in Morgantown, West Virginia, on April 21,
1944. State road commission truck No. 430-30 passed it and
a sign projecting from the bed of the road truck sideswiped
claimant?s car, causing damages thereto for which claim is
made in the sum of $20.40, the amount
of repair bill.
The claim is concurred in by the head of the department concerned and its
payment is approved by an assistant attorney general.
An award is made in favor of claimant James M. Campbell for the said sum of
twenty dollars and forty cents ($20.40).
368 REPORTS STATE
COURT OF CLAIMS [W. VA
(No. 384-S?Claimant awarded $133.57)
0. R. SHREVE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 9, 1944
ROBERT L. BLAND, JUDGE.
This claim is in the sum of $133.57.
It grows out of an accident which the claimant sustained while driving his
Plymouth sedan automobile on West Virginia route No. 4, project
3565, in Lewis county on June 28, 1944. An investigation of the accident made
by Laco M. Wolf, investigator for the state road commission, revealed that
claimant?s vehicle skidded on the wet slippery pavement of the road, due to an
excess of bituminous material which caused the accident. The car was badly
damaged. In order to repair it claimant was obliged to and did pay to the
Capitol City Body Works, Inc. and the Pritchard Motor Company, both of
Charleston, the said sum of $133.57, for which the claim is made. The state
road commissioner concurs in the claim. An assistant attorney general approves
it as a proper claim against the state for payment.
In view of the concurrence and approval of the claim and the facts shown by the
record, prepared by respondent and filed with the clerk July 14, 1944, an award
is made in favor of claimant 0. R. Shreve for one hundred thirty-three dollars
and fifty-seven cents ($133.57).
W. VA.] REPORTS
STATE COURT OF CLAIMS 369
(No. 290?Claim denied)
AGNES MARIE SIMS, Administratrix of the estate of
Everet Brady Sims, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled October 9, 1944
A claim for damages filed by the
personal representative of a boy four and one-half years of age, who walked
upon and fell from a state- owned bridge, while it was closed for necessary
repairs, then being made thereon, and sustained injuries which resulted in his
death will be denied, when it appears from the evidence that such bridge was
duly barricaded and ample precautions observed to prevent accident thereon.
Appearances:
Groves F. Hedges, Esq., for claimant;
Eston B. Stephenson,
Esq., special assistant to the
attorney general for the state.
G. H. A. KUNST, JUDGE.
From July, 1942, until the 28th day of
November, 1942, employees of the state road commission, respondent herein, were
employed in reflooring and painting what is called Neal Run Bridge, about two
and one-half miles from Parkersburg in Wood county, West Virginia. This is a
structure six hundred and twenty-seven feet long and twenty-one feet in width,
with a roadway fifteen and one-half feet in width and a walkway five and
one-half feet in width. It crosses Neal Run and connects and is a part of the
state road system under the jurisdiction and control of respondent. The road at
the western end of the bridge is called Camden avenue and there are several
cross streets. This is a residential section, consisting of twelve or more
houses. In the families living in this immediate locality, there were about
thirty children; three small ones,
370 REPORTS STATE
COURT OF CLAIMS [W. VA.
not sv,i juris, one five years of age, two about four, and one nine, and
the rest considerably older, many of them attending high schooL
When the repair work on the bridge was started, a ?road closed? sign was placed
on the north side of the pavement of the road approximately one-fourth of a
mile west of the west end of the bridge and a similar sign similarly placed, at
similar distance at the east end of the bridge. At each end of the bridge,
across the roadway, a barricade about fourteen feet in length and about four
and one-half feet in height, made by nailing three two by six inch boards to
three braced upright, heavy, pieces. The first board was about eighteen inches
from the ground and with spaces about eight inches or more between the boards.
Boards were fastened across the walkway and affixed to the barricades were
?road closed? signs. At night lighted torches were placed at each end of the
bridge.
At the time of the accident herein mentioned the old flooring had all been
removed, which left eight steel i beam girders
five inches wide on top surface exposed, parallel and properly spaced extending
the length of the bridge and upon which the new floor was being placed and
which now extended from the east end of the bridge to within approximately one
hundred and sixty feet of the west end. Pedestrians had placed a two by twelve
inch board across the stream and when the water was not over the board, or the banks
were not excessively slippery and muddy, were using this as a substitute for
the bridge in crossing the stream. But when water covered the board, they, men
and women, used the bridge in its unfloored condition and it was also used by
school children, when the board of education stopped bus service and required
school children within two miles of school houses to walk. Men working on the
bridge carried books and other equipment for them and assisted children across.
Boys riding bicycles had crossed by walking on the flange of one girder and
running the bicycle on another. A great many people, adults and children
crossed the bridge during the long period it was unfloored. Some boards were
laid upon the i
beams for work-
WA.] REPORTS
STATE COURT OF
CLAIMS
men in walking and carrying boards but part of it was apparently not covered
and timid persons would hold to the railing on side of bridge and walk on the
flange of girder to the refloored portion of bridge.
Mrs. Agnes Marie Sims, a widow, forty years of age, who made a living by
washing and paper hanging and with state aid for her little girl, with her
family consisting of a boy fifteen years of age, named Brooks Lagnor, whom she
had reared from a child; a daughter two years of age, and a boy Everett Brady
Sims about four and one-half years of age, and Harry Sims, a boarder, a cousin
of her deceased husband, lived in a house on Camden avenue about six hundred
and fifty feet from the west end of the bridge.
At about 12:40 o?clock, p ivi. of the 28th day of November, 1942, she permitted
her son, Brady, to go out in the back yard to play. This back yard opened onto
Camden avenue. At about one twenty o?clock p? M, Cleto Janutolo, foreman,
William Miller and Raymond Beal, employees, of respondent went to the west end
of the bridge to find the right sized board to fit in flooring. Two small boys
were playing on the concrete near the barrier at the west end of the bridge.
Having examined some boards piled on one side, at the end of the bridge, they
were returning without the board when about one hundred and forty feet from the
west end of bridge they heard a noise like a board striking the ground below
the bridge. Miller went to investigate. He found that the small Sims boy,
Brady, had fallen from the bridge, a distance of about twenty feet on broken
concrete chunks in the creek bed. Beal went to a house to telephone for an
ambulance. Miller carried the child to the home of Mrs. Chester Smith, a short
distance from the bridge. He was fatally hurt, still living, but unconscious.
Mrs. Smith bathed his face and when the ambulance came he was taken to Camden
hospital and died about an hour later.
Mrs. Sims, his administratrix, alleging negligence of the state road
commission, respondent, caused his death, asks an award of $10,000.00 from this
court.
372 REPORTS
STATE COURT OF CLAIMS [W. VA.
The extent of danger incident to the use by pedestrians of this unfloored
bridge at the western end is not well shewn by the evidence, the nature and
condition of ground, under same, its slope and distance from bridge girders can
only be approximated. Witness Miller says: ?It is low on the ground.? At about
eighty feet from the west end, the place where Brady Sims fell, the top of
girders were about twenty feet from the ground. Witness Cottle stated that:
?The ground level sloped down from the west abutment fairly flat.?
That this unfloored bridge was not a dangerous factor, instrumentality or
agency, such as gasoline, electricity, dynamite, powder, or other explosives
and respondent and its employees did not owe to trespassing young children the
high degree of care which is required in the possession and storage of such
articles, and the law applicable in such cases, cited in brief for claimant, is
not applicable here. What danger existed was patent, not latent; it constituted
no trap, no pitfall, no lurking danger, no danger that could not be seen and
appreciated by all persons sui uris?and so far as the evidence shows not
trespassed upon in any way by anyone, not sui iiuris, except by the
unfortunate youngster, Brady Sims.
The bridge had, by the action of respondent in placing barriers and notices of
the road being closed and lighted by torches at night, ceased to be in use for
all vehicular and pedestrian travel and fully informed all sui uris persons
of that fact, and the evidence shows that it was so known by them, and any use
by them of it constituted them as trespassers. There was no tacit consent, no
passive acquiesence by the employees of respondent, no toleration of the
trespass by children that could be interpreted into an inference of
permission?it seemingly being the element that distinguishes the licensee from
the trespasser. Evidence of claimant?s own witnesses shows:
That the workmen on the bridge had warned each one of the children in the
vicinity to stay away from the bridge; that it was their custom and repeated
practice to tell them not to go upon it and to drive and put them off;
that Mr. Sprouse?s grandson, one of the three non jnris children
mentioned, was
W. VA.]
REPORTS STATE COURT OF CLAIMS 373
not allowed near the bridge; that
Jesse Wilson would not allow his children to play around the bridge; that Mrs.
Smith?s little girl and her sister?s little girl, when she and her sister came
to play with other children in Mrs. Smith?s basement and yard and on the
concrete at the end of the bridge, were never unattended and were always in the
care of older children.
It is not shown that the bridge with its girders exposed was used as a
playground. or that it could have been so used, and little danger is
shown by boys climbing in and out and over the barrier at the end of bridge,
that the basement and the yard of Mrs. Smith near the bridge and the concrete
at the west end of the bridge was not a regular playground bui there was only
a casual and intermittent use of these premises for play by neighborhood
children. The evidence does not show that the boys who sat on the end of the
steel girders when the workmen had left the bridge were in any danger, so far
as the evidence discloses their feet could have been on the ground.
Much emphaasis is placed by counsel for claimant on the fact that the barrier
at the west end of bridge did not sufficientlv safeguard the danger of this
unfloored bridge from the trespassing of young children and that a high, wide
and solidly built barrier should have fenced the opening on the west end of
bridge and that a guard should have been placed there. The evidence shows that
had this barrier been of solid structure. extending the full height and width
of the bridge and along its sides, it would have still been possible for
children to get upon the bridge by going down to the run and coming up under
the bridge to climb upon the i beam girders at the end, or by climbing up a ladder
over the top.
Courts have held that it is not required that premises should be ?. . . child proof ? 45
Corpus Juris 782., and cases there cited. ?But to hold that the fence must have
been such that a boy could not climb over it, would be to impose upon
defendant the duty of extraordinary care and the liability of an
374 REPORTS
STATE COURT OF CLAIMS [W. VA.
insurer, and no court has yet extended the rule further than to require
ordinary precautions to prevent injury in such cases,. . .? lVleLendcm v.
Hamptcm Cotton Mills, 109 S. C. 238, 243, 95 S. E. 781. The Lourts have well
said that no one yet has been able to build a fence which a boy cannot
surmount. The law is that although these children Billy Lowery and Brady Sims
had no legal right to go upon this bridge and were therefore trespassers, the
fact that Brady Sims was a child of tender years did not alter the rule
governing the rights of trespassers and because he was an infant of tender
years did not raise a duty where none otherwise existed.
Respondent?s duty to him as such trespasser was not to wantonly injure him, but
respondent, as the evidence shows before and at the time when this sad
happening occurred, gave to him the same care as if its duty had been to an
invitee; five men fully instructed to keep children off the bridge, and
constantly and repeatedly carrying out this instruction were working on this
bridge and some one of them did drive these two boys from the bridge, taking
hold of them to do so, immediately before the child, Brady Sims, fell through
the bridge.
There is no evidence that respondent or its workmen had knowledge of or could
have anticipated the presence of this child upon the bridge at this time,
consequently no negligence appears on the part of respondent, and an award is
refused and the case dismissed.
W.VA.] REPORTS
STATE COURT OF CLAIMS 375
(No. 386-S-?Cajmant awarded $15.00)
LEWIS STILLMACK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 10, 1944
ROBERT L. BLAND, JUDGE.
Claimant?s Chevrolet automobile was
parked on a state- controlled road at Panther, McDowell county, West Virginia,
on the 25th of September 1944, when state road truck NO. 1030-7 in
backing failed to cut sufficiently and struck claimant?s car, causing damages
thereto which it is agreed will cost $15.00 to repair. The head of the
department concerned concurs in the claim for this amount and its payment is
approved by an assistant attorney general.
Upon the facts disclosed by the record an award is now made in favor of
claimant Lewis Stillmack for the sum of fifteen dollars ($15.00).
376 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 387-S-?Claimant awarded $53.00)
L. C. HILEY, Claimant,
V.
STATE
ROAD COMMISSION, Respondent.
Opinion filed October 10, 1944
ROBERT L. BLAND, JUDGE.
At a point near Newman, in Doddridge
county, West Virginia, where state road commission truck No. 430-136
was patching a public road on August 11, 1943 claimant?s car was passing the
truck when the latter turned left to make a turn in the road and caught
claimant?s car with bumper and left fender, causing damages thereto which
Kennedy Motor Company estimates will cost $53.00 to repair as shown by an
itemized statement filed as a part of the record. The state road commission
recommends the payment of the claim in that amount and its payment is approved
by an assistant attorney general.
Upon the facts shown by the record an award is now made in favor of claimant L.
C. Hiley for the sum of fifty-three dollars ($53.00).
W. VA.J
REPORTS STATE COURT OF CLAIMS 377
(No. 388-S-?Claimant awarded
$147.50)
ELMER CROW, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied October 10, 1944
ROBERT L. BLAND, JuDGE.
The record of the claim involved in
this case was prepared by the state road commission and filed with the clerk
August 6, 1944. The claim is in the sum of $147.50. Its payment is recommended
by a district engineer and also a maintenance engineer. The state road
commissioner concurs in the claim. An assistant attorney general approves it as
one which the state should pay.
On August 10, 1944 claimant was riding a horse which broke through the wooden
floor of Meighn Bridge on Fish creek, secondary road NO. 4, in Marshall
county, West Virginia. Claimant was thrown in such manner that he landed on the
tip of his left shoulder. He was hospitalized and on account of his accident
lost much time from his regular employment. Respondent admits that the bridge
had been unsafe for public travel thereon.
In view of the showing made by the record of the case an award is made in favor
of claimant Elmer Crow for one hundred forty-seven dollars and fifty cents
($147.50).
378 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 391-S?Claimant awarded $385.76)
MARGARET FAHEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 10, 1944
ROBERT L. BLAND, JuDGE.
The record of the claim involved
herein was prepared by the state road commission and filed with the clerk on
August 21, 1944. The claim is in the sum of $385.76. Paul Nichols, an equipment
superintendent of the state road commission in district 6 had been called out
for work at the district shop of Elm Grove at approximately 11 o?clock P. M. on June
22, 1944, and was returning to his home from his work at 1:20 o?clock A. M. on June
23, 1944. He was driving state road commission Chevrolet automobile No. 629-13.
Having fallen asleep on the road the automobile which he was driving ran into a
parked De Sota coupe automobile, owned by the claimant, Margaret Fahey, bearing
West Virginia license No. 338-502 on state route No. 2, Wheeling avenue,
Glendale, West Virginia. The estimated damage done to the state vehicle was
$150.00, while it required $385.76 to repair claimant?s car as shown by an
itemized statement made a part of the record. The payment of that sum to the
claimant is recommended by Ray Cavendish, district engineer and by the county
maintenance engineer. The head of the department concerned concurs in the
claim. It is approved by an assistant attorney general as a claim which within the
meaning of the court act should be paid by the state.
Section 17 of the court act provides a ?shortened procedure? for the
consideration of claims filed in this court against the state. This procedure,
however, applies only to a claim possessing all of 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; (3)
The
W. VA.] REPORTS
STATE COURT OF CLAIMS 379
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 provisions of this
article, should be paid. All such claims are considered informally by the court
upon records prepared and filed with the clerk by the heads of the state
department involved. It does not necessarily follow that because a claim has
been submitted to the court for consideration under the shortened procedure
provision of the statute and concurred in by the head of the agency involved
and approved by the attorney general that an award will be made. No provision
is made by the statute for the recommendation of payment of such claims by
subordinate officers of the state. It is only by the concurrence in the claim
of the head of the department concerned and the approval provided by the
statute to be given to the claim by the attorney general that such a claim may
be so considered. The court is limited in its consideration of all such claims
by the record prepared and filed by the head of the state department concerned.
It is highly important that all such records should be full and complete in
order that the court may determine the merits of claims from the facts
appearing in the records and be justified and warranted in making awards upon
the basis of such facts.
In the instant case the facts show that a state employee went to sleep while on
duty and as a result of such indiccretion and irresponsibility a serious
accident occurred on a public road of the state, causing damage to the state
property of $150.00 and to the property of an innocent individual lawfully upon
the highway to the extent of $385.76. He himself could be proceeded against for
the enforcement of such liability and perhaps should be in all fairness to the
state. However if the road commission permits an irresponsible person to drive
its motor vehicles upon a state highway either in daylight or at nighttime and
an innocent person?s property is wrecked and damaged in consequence of his
conduct, it would hardly be argued that the state should not make reparation.
An award is now made in favor of claimant Margaret Fahey for three hundred
eighty-five dollars and seventy-six cents
380 REPORTS STATE
COURT OF CLAIMS LW. VA.
($385.76), the record of the case clearly showing that she is entitled to
an appropriation for that amount.
(No. 394-S?Claimant awarded $30.00)
V. K. BUCK, Claimant,
V.
STATE ROAD COM1VIISSION, Respondent.
Opinion filed October 10, 1944
ROBERT L. BLAND, JuDGE.
From the record prepared in this case
by the state road commission and filed with the clerk on August 28, 1944, it
appears that on July 18, 1944 on route 21 between Ripley and Niger Hill, in
Jackson county, West Virginia, at about 8:30 A. M. Evert Kays, operator of a
state road commission truck was going north and was passing claimant V. K.
Buck, of Ripley, who was driving a cow and calf in the same direction that the
truck was proceeding. Claimant was leading the cow with a halter. His daughter
was helping him drive the calf which was loose. When the state road truck
approached on the right it frightened the calf and it ran in front of
the truck and was killed. Upon investigation of the accident it was found that
the state road truck had bad brakes and could not stop on that account. F. M.
Ferrel, safety director, ascertained the state truck to be t fault for the
accident and recommended a settlement in favor of claimant of $30.00. It is
estimated that the calf weighed 250 pounds and was worth from $30.00 to $35.00.
The head of the department concerned concurs in the claim filed in the sum of
$30.00 and its payment is approved by an assistant attorney general.
An award is made in favor of claimant V. K. Buck for the said sum of thirty
dollars ($30.00).
W.VA.1 REPORTS
STATE COURT OF CLAIMS 381
(No. 398-S?Claimant awarded $243.71)
C. T. CLARK, M.D., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
ftled October 11, 1944
G. H. A. KUNST, JuDGE.
On June 12, 1944, while respondent?s truck
103040 was transporting laborers to Hanover headquarters in Wyoming county,
West Virginia, on route 52, its driver negligently attempted to cross the road,
and obstructed traffic lane at a curve and was struck by claimant?s 1942
Chevrolet car, traveling at a speed of about forty miles an hour, The collision
caused damage to the car, which cost $243.71 to repair and for which claim is
made.
Respondent recommends and the attorney general approves its payment.
An award for two hundred forty-three dollars and seventyone cents ($243.71) is
made to claimant.
382 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 399-S?Claimant awarded $255.86)
WHEELING PUBLIC SERVICE COMPANY,
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Octobei- 11, 1944
G. H. A. KUNST, JUDGE.
On the 3 day of July, 1944, the
operator of respondent?s shovel 625-13 negligently left the shovel parked in an
unsafe position at the intersection of S bridge at Peter?s Run, in Ohio county,
West Virginia. The brakes of the shovel became released and the shovel ran
downhill two hundred feet striking claimant?s bus which was parked waiting for
passengers.
Claim is made for $255.86, the cost of repairing the damage to the bus.
Respondent recommends and the attorney general approves its payment.
An award is made for two hundred fifty-five dollars and eighty-six cents
($255.86) is made to claimant.
W. VA.] REPORTS
STATE COURT OF CLAIMS 383
(No. 400-S?Claimant awarded $255.00)
ADAM KUZNIOR, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 11, 1944
G. H. A. KUNST, JuDGE.
Respondent?s bulldozer 431-35, on May
3, 1944, on a secondary road 19-4, near station 7+50, in Harrison county, West
Virginia, while in operation, was negligently permitted to slip out of gear and
ran backward down a steep grade into claimant?s house, causing damage, the cost
of repairing which amounted to $255.00, for which claim is made.
Respondent recommends and the attorney general approves its payment.
An award of two hundred fifty-five dollars ($255.00) is made to claimant.
384 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 401-S?-Claimant awarded $49.98)
DAVID W. WOOD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed October 11, 1944
G. H. A. KUNST, JuIE.
On January 4, 1944, respondent?s truck
c-30-2 in Charleston, West Virginia, was negligently backed out of Richard
street into Wilson street striking the right side of claimant?s Mercury car
traveling at a speed of about twenty miles an hour along Wilson street.
Claim is made for $49.98, the cost of repairing the car. Respondent recommends
and the attorney general approves its payment.
An award of forty-nine dollars and ninety-eight cents ($49.98) is made to
claimant.
W. VA.1 REPORTS
STATE COURT OF CLAIMS -
385
(No. 395-S??Claimant awarded $20.00)
ALBERT WORKMAN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 11, 1944
G. H. A. KUNST, JUDGE.
On May 30, 1944, while claimant?s car
was standing on Clear Fork road about four miles east of Clear creek in Raleigh
county, West Virginia, having been stopped by a flagman and claimant admonished
for driving past a ?workmen working? sign, at a speed of about thirty miles an
hour, having passed respondent?s truck 1038-1 loaded with stone, the truck
backed into car causing damage to car estimated at $20.00 for which claim is
made.
Respondent recommends and the attorney general approves its payment.
An award of twenty dollars ($20.00) is made to claimant.
386
REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 364,365, 366?Claims denied)
JULIA W. SCOTT, Administratrix, of the estate of CHARLES
P. SCOTT, deceased, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
JULIA W. SCOTT. Claimant,
V.
STATE ROAD COMMISSION, Respondent.
JAMES C. SCOTT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinkm
flied October 12, 1944
A case in which the testimony shows
the claimants? automobile was operated at a high and dangerous rate of speed
under adverse weather conditions, thereby constituting such negligence as would
bar an award.
Messrs. Mohier, Peters & Snyder, (Charles G. Peters, Esq.), for the claimant;
W. Bryan SpiUers, Esq., assistant attorney general for the state.
CHARLES J. SCHUCK, JuDGE.
This and two other claims, namely one
of Julia W. Scott in her own right, and James C. Scott, her son, are brought
against the state road commission in the amounts of $10,000.00, $15,000.00, and
$5,000.00 damages respectively. The three claims were heard together, the same
evidence or testimony being presented and applied to the said claims
respectively, and the decision herein by the court will accordingly apply in
all of the said claims.
Plaintiff?s husband, Charles P. Scott, the claimant Julia W. Scott and James C.
Scott, her son, were driving in an auto
W. VA.] REPORTS
STATE COURT OF CLAIMS ??
387
mobile on the 25th day of October. 1943, in the late afternn of the said day
over and on the public road or highway betweeri the town of Deepwater and the
city of Oak Hill in Fayette county. West Virginia. which said highway is known
and designated as West Virginia route 61. The highway is improved, having a
width of approximately 16 feet and at and near the place of the accident berms
on either side of the said improved highway varying in width from three to four
feet and at places nearly as wide as eight or ten feet. While driving along
said highway and approaching the bridge which crosses Loop creek at and near
the unincorporated town of Robson, the said automobile then and there driven by
the claimant, James C. Scott, a young man of twenty-four years of age. and now
in the armed forces was driven over the embankment or approach to the end of
the said bridge causing the automobile to turn over, the said Charles P. Scott
to be then and there killed, and the claimant, Julia W. Scott, and claimant,
James C. Scott, to suffer serious bodily injuries which required medical and
hospital treatment and for which these actions are brought in this court. The
accident took place at about 6:30 on the evening of October 25, 1943, at a time
when it was raining or misty, all of which conditions were known by the two
living claimants and undoubtedly by the deceased Charles P. Scott. Claimants
maintain that by reason of the growth of brush along the road leading to the
said bridge and by reason of the height and thickness of the said brush. it was
impossible to see the approach to said bridge and that the driver, the said
James C. Scott, could not see the approach but thought that the road continued
straight ahead without the angle approach, which was noticed too late for him
to negotiate the turn onto the bridge causing the automobile to go over the
embankment at the end of the bridge and bringing about the accident in question.
Witnesses were introduced to sustain claimants? contention, and in view of the
seriousness of the claims and the amounts involved, the court determined to and
did in July make a very careful investigation and took a personal view of the
road and bridge and the attendant surrounding conditions. We are, therefore, in
our judgment, in a position to fully determine the effect and weight to be given
388 REPORTS STATE
COURT OF CLAIMS [W. VA.
to the testimony introduced by both the claimants and the department
involved and to apply the results of the said view in determining whether or
not claimants are entitled to awards.
One important fact presents itself in determining whether or not the brush, or
growth, in question, was sufficient to ob? scure any view of the bridge, so far
as any traveler on the road approaching it, at a reasonable rate of speed,
under the existing conditions, was concerned. Immediately in front of the brush
in question and on the same side, however, and near to the bridge, there were two
mail boxes used as receptacles for the deposit of daily newspapers by the
persons who lived in that vicinity. There is no evidence to show that these
mail boxes could not have been seen at the time of the accident; on the
contrary, it may well be assumed that they could, and that if such was the case
there is no question in our minds from the view that we took, considering the
season of the year in which the accident happened, namely, in the middle of the
fall of 1943, that anyone approaching the bridge and driving at the proper rate
of speed could have seen the bridge for at least 250 to 300 feet removed from
the approach and in the direction from which the car was traveling at the time.
There is testimony that the bridge can be seen at a distance of over 400 feet
when traveling from the direction that claimants? car was moving at the time of
the accident.
Claimants introduced as a witness, one W. R. Seal, a state trooper, who
testified (record pp. 39-42):
?Q. At the time of the accident about how far would you say
a person driving from Oak Hill could first see the bridge, coming around the
curve before you get to the bridge?
A. Well, he could see it for probably 150 feet, That is only a guess, but he
could see it at least 150 feet before he would get to it.?
If all this be true, considering the fact that it was raining and that any
driver under the circumstances would be obliged
W. VAJ REPORTS
STATE COURT OF CLAIMS 389
to exercise certain care for his own protection as well as of those riding in the
car, then we maintain that the accident could not have happened from the causes
alleged in claimants? petition but that it was caused by the careless and
negligent driving of the automobile and that the high rate of speed at which it
was being driven, made it impossible to negotiate the curve or approach to the
bridge in question, and thus caused the automobile to leave the highway, go
over the embankment, and causing the death of one of its occupants and the
injuries to the other two.
Another factor that presents itself prominently in the consideration of this
case is that at least the driver of the car and the claimant, Mrs. Julia W.
Scott, were fairly well acquainted with the road, as well as with the approach
to the bridge in question. The claimant James C. Scott testifies that he passed
over the road several years before and that he had also passed over it going in
an opposite direction on the morning of the accident. His mother, Mrs. Julia W.
Scott, in her testimony says (record p. 97) that just a week or so previous to
the accident she and her said son had passed over the road going to Oak Hill on
one day and returning home the next. Their trips to Oak Hill were occasioned by
reason of the fact that a daughter of the claimant iVirs. Scott lived there, (a
sister of the claimant, James C. Scott) and that they had passed over the road
in making the visits to the said daughter?s home. Under these circumstances and
conditions, these claimants had, or ought to have had, a fair knowledge of any
dangerous conditions that might exist with reference to passing over the said
road in question and were charged with the duty of using such care and caution,
and have the car running at such rate of speed at the time, especially so, as
it was raining, that the approach to the bridge could be made safely and
without any harm to the occupants of the car. We are of the opinion that the
car was being operated at a high, improper and dangerous rate of speed. To
repeat, the claimant James C. Scott says that he was running at 30 miles per
hour, or perhaps a little better; a violation of the speed limit where the
accident occurred and consequently such negligence as would ordinarily
390
- REPORTS STATE COURT OF CLAIMS [W. VA.
bar a recovery, Ambrose v. You, 100 W. Va. 452, 130 S. E. 810, the said Trooper Seal having testified (record p.
40) that the speed limit where the accident occurred is 15 miles per hour. When
we take into consideration the further fact of the location of the car with
reference to the approach of the bridge, after the happening of the accident,
and find that it was from 75 to 100 feet down the creek and away from the
bridge and that the claimant, Julia W. Scott, was thrown from the automobile, a
distance of about 50 feet from the bridge, then we are driven to the conclusion
that, if the automobile had been traveling at the proper and lawful rate of
speed, under all the attendant circumstances, it would have been impossible for
it to have gone a distance indicated, after going over the embankment.
Under all the circumstances, the negligence of the driver was likewise the
negligence of the other occupants of the car, since nowhere is it shown that
any protest was made by them, or either of them, to the driver, concerning the
operation of the car and its speed at any time previous to the happening of the
accident. See Oney v. Binfo?rcl, 116 W. Va.
242, 180 S. E. 11.
It is contended that there were no warning signs along the road at and near the
place of the accident, but we fail to comprehend how the presence of these
signs could have in any way prevented the accident. Claimants knew or ought to
have known the road, its condition and dangers if any, and the presence or
absence of warning signs, could not seemingly, under the circumstances in our
opinion, have influenced the driver in the operation of the automobile. It was
raining and was beginning to get dark; proper care and caution were required
whether signs were present or not.
We are of the opinion, therefore, that the negligence of the occupants of the
car was the approximate cause of the accident and that their negligence was
such as to bar a recovery and consequently an award is denied.
W, VA.] REPORTS
STATE COURT OF CLAIMS 391
(No. 350?Claim denied)
ELMER CLYDE BALL, Claimant,
V.
DEPARTMENT OF PUBLIC ASSISTANCE, Respondent.
Opinion flied October 12, 1944
Where one purchases a team of
horses from one of the state departments at a public sale without any guarantee
of any kind being given him as to the soundness and physical condition of the
horses, and after he has seen them and made his own investigation at the time
of the sale, he assumes all risk and cannot recover against the department in
question for any defects appearing after the consummation of the sale.
Appearances:
Elmer Clyde Ball, the claimant, appearing in his own behalf;
W. Bryan SpiUers, Esq., assistant attorney general, for the state.
CHARLES J. SCHUCK, JuDGE.
Claimant, Elmer Clyde Ball, prosecutes
a claim in an amount approximating $125.00 against the department in question
on the ground that on or about the 4th day of May, 1943, the said department at
a public auction sold an unsound horse to him as one of a pair of horses for
which he paid $250.00, including a double set of harness. Claimant maintains
that the horse, a mare, was unsound in that, during the heated season, she
evidenced a skin disease which made it impossible to work her at that
particular season of the year and that consequently he was deprived of the
mare?s services and should be reimbursed for half of his purchase price.
The testimony shows that the team of horses was bought at a public sale
conducted by the department in question, seem-
392 REPORTS
STATE COURT OF CLAIMS [W. VA.
ingly for the purpose of disposing of
the livestock at a camp on Turtle Creek in Boone County. Claimant admits that
he had seen the team of horses before although he had not been near enough to
make a careful examination, but on the day of the sale he was close to the
horses and did see them and so far as he could ascertain the horses were in
good condition. No guarantee, written or otherwise, was given by the department
in question, nor by the auctioneer who conducted the sale acting as the agent
for the said department, and nowhere does the testimony tend to show that in
any way had the department bound itself to guarantee the horses in question as
good and sound and workable in all respects. Claimant evidently took the horses
as he saw them, paid the amount he bid, and a month or so later maintains that
the skin disease appeared and that this was the first that he knew of such
condition existing so far as the mare was concerned. Under the testimony, as
shown by the record, the department made the sale and the claimant the purchase
without any guarantee of any kind passing between them. The claimant therefore
assumed whatever risk there may have been so far as the physical condition of
the horses in question was concerned. The evidence does not even show that he
made any particular inquiry with reference to their physical condition.
Under these circumstances and the testimony as submitted, we deny an award.
W. VA.] REPORTS
STATE COURT OF CLAIMS 393
(No. 367?Claim
denied)
LEWIS WOOFTER and DOLLIE HALL WOOFTER, his wife,
Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opnton filed October 12, 1944
The duty of the state or highway
commission in the matter of the removal of obstruction caused by snow or ice is
a qualified one, and if ordinary care is used by the state or its department in
charge of the roads at such times or in the winter months, and an accident
happens nevertheless by reason of such snow or ice the state is not liable.
Appearances:
Herbert M. Biair, Esq., for the claimant;
W. Bryan Spillers, Esq., assistant attorney general, for the state.
CHARLES J. SCHUCK, JUDGE.
On January 3, 1944, claimant together
with his wife, also a claimant, and 15 year old daughter left their home in
Weston, West Virginia, to drive in their automobile to Auburn, in Ritchie
county, for the purpose of visiting relatives in the latter place. They drove
from Weston to Linn in Gilmer county and then to what is known as Cox?s Mills
from which point they turned on a secondary road in the direction of Auburn in
Ritchie county. Leaving Gilmer county and about 150 feet after crossing into
said Ritchie county, claimant maintains (record p. 11) that he could feel from
the action of the car that there was ice on the road which couldn?t be seen,
however, it was slick and smooth and by reason of the said icy condition on the
said highway claimant?s automobile began to skid and slide and some distance
down the bill from where they had crossed into Ritchie county, the automobile
went over an embankment causing the injures to claimants as set forth in their
petition, and injuring and damaging said automobile.
394 REPORTS
STATE COURT OF CLAIMS [W. VA.
Claimants maintain that the state road
commission was at fault in not having the highway in Ritchie county cleared of
the ice and snow, which they contend had been caused by a fall of snow some
days previous, followed by rain and freezing weather causing the ice on the
road and making it dangerous for public travel. No defect in the road or
highway in question is alleged, save, of course, the matter of the accumulation
of the ice and claimants prosecute their claims solely on the ground that the
state road commission and its employees were derelict in the duty they owed to
the traveling public in failing to clear the road in question of the ice that
had formed by reason of the weather conditions prevailing at the time. True the
petition further alleges that there were no guardrails at and near the
embankment where the automobile left the road, but an analysis of claimants?
petition, as well as of the testimony submitted during the hearing, plainly indicates
that the absence of guardrails at the place in question had nothing to do with
the happening of the accident nor did their abserce in any manner seemingly
aggravate the extent of the injuries to claimants or to the automobile being
driven by them.
Under these conditions and circumstances, assuming that claimants sustained the
injuries both to themselves and their automobile, was the state road commission
liable and should an award be made under the facts and testimony adduced, to
the claimants? The accumulation of the ice forming on said highway on the
Ritchie county secondary route No. 7, between Auburn, Ritchie county and the
Gilmer county line, took place sometime between ten o?clock on the night of
January 2, 1944, and early on the morning of January 3, 1944.
At common law a state or highway commission was not accountable for injuries
sustained by reason of defects in a highway; and especially so, do the
authorities seem to hold, with but few exceptions, that in no instance can a
state or highway commission or a department thereof be held accountable for
injuries sustained by reason of an accident caused by ice or snow on any of its
highways. Ordinary care is undoubtedly the limit of responsibility on the part
of a state or highway commission where injuries are caused by icy conditions on
the highways; and the question, therefore, presented
W. VA.1 REPORTS STATE COURT OF CLAIMS 395
to us for our consideration and
determination is whether, under all the circumstances and testimony adduced in
this case, the state used ordinary care in its supervision of the highway in
question and in keeping it in proper condition for public travel.
As heretofore stated there were no defects in the highway so far as the
testimony shows or the petition alleges save the matter of the accumulation of
ice after a freeze already referred to. The matter of guardrails is eliminated
from our consideration of the merits of the claims by reason of the fact, that
the undisputed testimony is that the road at the place or near where the
accident happened, that is where the automobile left the road, had a berm on
ach side about 7 feet in width making the road approximately 28 feet wide. With
such width on which to travel and considering that it was a secondary road, of
which there are about 700 miles in Ritchie county, the state cannot be expected
to erect barriers or guardrails where no apparent danger exists and where the
use of proper care and caution would make travel safe under ordinary
conditions. To be obliged to maintain such guardrails on all roads of this
character, as wide as it is and without apparent danger, would almost bankrupt
the state and make it impossible to keep any of its roads, primary or
otherwise, in proper, passable condition. A duty of such magnitude is not
imposed on any state so far as the maintenance and upkeep of its highways are
concerned.
The duty of the state road commission or its employees was undoubtedly a
qualified one, under the circumstances. There was no statutory
obligation on the road commission for the removal of ice and snow and only
reasonable care is required to keep a road fit for travel during the winter
months. This is especially true with secondary roads or those lightly traveled.
The testimony shows that the road employees, at least several of them, located
in Ritchie county were engaged on this particular morning in making a survey of
the primary roads, the roads over which there would be the most travel to
ascertain their condition and to determine what if anything, would be necessary
on the part of the road employees to make the
396
REPORTS STATE COURT OF CLAIMS [W. VA.
said primary roads safe for travel at
the time indicated. Testimony further shows that one of the employees who was
prevented from coming to work that morning by reason of the rain, shortly after
hearing of the accident went to the scene and began flagging whatever traffic
there might be on this hill road in order that no other accidents would occur
there that morning. He had telephoned to the headquarters at Harrisville from
Auburn for cinders previous to the time he had gone to the hill in question. He
remained at and near the scene of the accident flagging and caring for traffic
for several hours, or until the ice had disappeared, about twelve noon or one
o?clock on the day of the accident.
While it is unfortunate thatthe accident occurred, yet it would appear from all
of the testimony, and we so hold, that the state road commission or its
employees and superintendent in charge of maintaining the roads in Ritchie
county were not guilty of any negligence and that consequently the state would
not be liable in damages under the claims as filed and the testimony as
submitted in the hearing of the said claims. It cannot be expected, of course,
that in a county the size of Ritchie, with the many miles of primary roads and
secondary roads to control and survey, that the state could have a sufficient
number of employees to go over all these roads in a few hours time after a
snowfall or the accumulation of ice caused by freezing weather the night
before. Weather conditions, by reason of which the ice had been caused, were
such that it had rained a day or so before January 3 and then frozen the night
before, and this accident happened about ten o?clock on the morning of the
third. No report had been made at the highway headquarters or to anyone else
until after the happening of the accident and it could not be expected that
within the few hours time, the road employees would be able to survey all of
the roads in Ritchie county and have them in proper and safe condition. Again
it must be stated that to do so would entail a cost so tremendous that it would
be prohibitive, and the state could not afford the expense and maintenance of
roads with such duties imposed. We therefore refuse awards as to each claim.
W. VA. I REPORTS
STATE COURT OF CLAIMS 397
(No. 263?Claimant awarded $110.37)
THE DARLING SHOPS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinton filed October 12, 1944
Appearances:
Messrs. Brown,
Jackson & Knight, (John D. Morrison, Esq.) for the
claimant.
W. Brijan Spillers. Esq., assistant attorney general, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant, a corporation, dealing in
women?s dress goods and having a store or place of business at 342 West Main
street in the city of Clarksburg, West Virginia, asserts its claim against the
said state road commission for damages in the amount ?of $110.37 resulting from
having two plate glass windows in its storeroom, at the aforesaid address,
shattered and broken by loose stones flying or being propelled against the said
windows by passing automobiles; which said stones it is alleged were negligently
left on the highway in front of claimant?s store by the said road commission at
the time that changes or repairs were being made to the said highway. The
testimony shows, agreed to by stipulation, that during the month of February,
1943, the said state road commission, by and through its agents, servants and
employees was engaged in the removal and/or replacement of certain streetcar
rails then situate on the said West Main street in the said city, part of which
rails were immediately in front of the premises where the claimant operates a
retail store. That during the said removal or replacement of said rails, the
said commission allowed said stones and rocks
398 REPORTS STATE
COURT OF CLAIMS [W.VA
to remain lying on said street and that thereafter on two occasions, namely on
the 8th day of February, and the 10 day of February, 1943, passing automobiles
struck and propelled said stones or rocks, hurling them against the said plate
glass windows causing them to be shattered and broken and causing the damages
aforesaid. Claimant alleges that it was negligence on the part of the state
road commission, its agents and servants, to allow the said stones or rocks to
remain on the highway in question, at the time and after the improvements and
alterations were being made to the said highway and that said negligence was
the approximate cause of the accidents in question and consequently liable for
damages in the aforesaid amount.
The stipulation sustains claimant?s contention as to the facts. We have
heretofore held in claim NO. 264, George S. Bassett & Scm v. State Road Commission, that under similar circumstances it was negligence on
the part of the state road commission to allow the stones or rocks to remain on
the highway at the time and after the improvement or change to the highway was
being made or had been made, and that after such improvement all rocks and
stones should have been iemoved to prevent any accident either to those using
the highway, passing pedestrians or adjacent property owners. Failure to do so
was negligence on the part of the employees or agents of the department
involved, for which the state should compensate those suffering damages
thereby.
Under all the circumstances and facts as shown we are of the
opinion that the claimant is entitled to recover and an award is made
accordingly in the amount of one hundred ten dollars and thirty-seven cents
($110.37).
W. VA.] REPORTS
STATE COURT OF CLAIMS 399
(No. 372?Claim denied)
V. E. MACE, M.D., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled October 13, 1944
Where proximate cause of an injury to
an automobile from stone on highway is due to lack of care of the driver, no
ward for damages will be made in favor of claimant against respondent for
alleged negligence not proven.
Appearances:
V. E. Mace, M. D., in person;
W. Bryan Spillers, Esq., assistant attorney general, for the state.
G. H. A, KUNST, JuDGE.
On the morning of March 12, 1944,
about six-thirty o?clock, V. E. Mace, a physician of Charleston, West Virginia,
accompanied by his secretary and her mother, while driving in an automobile at
a speed of about thirty miles an hour, from Charleston to Mullens, over route
19, near Cotton Hill, in Fayette county, West Virginia, had his car injured by
being driven into and over a large stone in the road and claimant asks an award
of $101.74, for the cost of repairing damages to the car. The boy operating the
car is now in the United States Navy and cannot appear as a witness.
At the place where the accident occurred, during rainy and freezing weather,
rocks fall on the road from the cliff on the side of the road, and because of
this, a road sign, twenty-four by twenty-four inches, painted yellow and with
an inscription ?Caution?Falling Rocks? in large black letters is placed
400 REPORTS
STATE COURT OF CLAIMS [W. VA.
about two hundred feet distant on the
side of the road approaching this area from either direction. This fact is
established by state?s witnesses, although it i denied by claimant?s witnesses,
who failed to see the sign as they neared the rocks.
The road superintendent having in charge this portion of the road continuously
patrolled it and in bad weather removed stones several times a day
and at night placed a guard here. At the time of the accident it was raining
hard. There is a slight curve in the road not far from the danger area but
there is a view of about a thousand feet, and while on this morning the
visibility was poor, the evidence shows that large rocks could have been seen
in time to stop the car. The paved road opposite the cliff is eighteen feet in
width and has a shoulder, or berm of twenty feet making a roadway thirty- eight
feet in width, and large falling stones do not roll but a short distance from
base of cliff and it is possible with ordinary care to avoid striking them.
The court is of opinion that if reasonable care had been exercised by the
driver of the car, this danger could have been seen and the injury to the car
avoided, and for thi reason no award is made.
W. VA.1 REPORTS
STATE COURT OF CLAIMS 401
(No. 376?Claim denied)
HAZEN H. FAIR, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 13, 1944
Where alleged negligence of respondent
causing injury
to claimant?s property is not proven, an
award will not be made.
Appearances:
John K. Chase, Esq., for the claimant;
W. Bryan Spitlers, Esq.,
assistant attorney general, for the state.
G. H. A. KUNST, JuDGE.
On the 16th day of August, 1941, Hazen
H. Fair, a trucking contractor, had six trucks engaged in hauling coal from
Hitchum Coal Company?s plant in Benwood, West Virginia, to industrial plants in
Moundsville, West Virginia. While Levi Conner, one of his operators was driving
a 1941 Chevrolet one and one-half ton empty dump truck along state route No. 2,
commonly known as the Narrows Hill Road, about 3:30 o?clock in the afternoon,
the truck bed was struck by a cut stone, approximately two feet by nine or ten
inches square, which had rolled from the hillside, and broke through the steel
bottom of truck, damaging the truck bed beyond repair. Claimant alleges
accident was caused by negligence of respondent?s workmen engaged in building a
retaining wall above the cliff over which the stone rolled and for which
damages he asks for an award of $373.00 against the respond-
402 REPORTS STATE
COURT OF CLAIMS [W. VA.
ent; the driver of truck is in the armed forces and could not be introduced as
a witness. Claimant was the only witness in his behalf and his testimony
concerning the accident was largely based upon what he had been told by his
driver. The evidence of state?s witnesses, employees of respondent, supported
by copies of their daily reports, shows that no work was being done by
respondent at that time and date at this point, although claimant stated that
on that afternoon he went to hilltop and that a number of men were then there
employed in dressing stone and building a wall.
Evidence does not show negligence of respondent and no award is made.
W. VA.] REPORTS
STATE COURT OF CLAIMS 403
(No. 353?Claim denied)
LUSINDA VARNEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent,
Opi?oion filed October
13, 1944
Where alleged negligence of
respondent causing injury to claimant is not proven, no award will be made.
Appearances:
W. H. D. Preece, Esq., and Messrs. Hall
& Benson (Larry W. Andrews, Esq.,),
for claimant;
W. Bryan Spillers, Esq., assistant attorney general, for the state.
G. H. A. KUNST, JUDGE.
About 9:15 o?clock on the morning of
the 27th day of March, 1943, a bus of the Logan-Williamson Bus Company, driven
by Raymond Preston, on U. S. route No. 52, headed in the direction of Williamson, had stopped
to discharge passengers on the right side of the road, before making a highway
crossing into Borderland, Wayne county, West Virginia.
An automobile, owned and driven by Granville Goff, in opposite direction from
the bus, suddenly stopped and a three ton White road dump truck of respondent,
driven by Clyde Wailer, following, struck the automobile, which caused it to
roll across the road a distance of about twenty feet and to strike the bus.
Claimant alleges that respondent?s truck was being driven at an unlawful rate
of speed and that negligence of its driver was
404 REPORTS STATE
COURT OF CLAIMS [W. VA.
the proximate cause of the collision of truck and automobile, and of it with
the bus, which threw claimant from her seat in the bus and caused injuries for
which she asks for an award of $7,500.00 against respondent.
At the time of the accident, it was raining, the road was wet and slippery;
visibility was good, the truck was being driven at a speed of about twenty or
twenty-five miles an hour, when within approximately one hundred feet of the
Goff car, a signal for left turn was given by the driver of the car who,
instead of following his given signal, stopped his car. The driver of the
truck, when the car stopped, by putting on brakes was unable to stop but
succeeded in reducing speed of truck to nine or ten miles an hour and the force
of the collision of truck with car was sufficient to move car across the road
into the front of bus, breaking a fog lamp.
Evidence of two witnesses, bus passengers and the driver of bus, was that the
jar of car striking bus was so slight that it was not noticed by them and that
they did not see any one in any way affected by it. That the seats and nothing
in bus were moved or displaced and that no one in bus, including claimant, in
any way complained of injury or inconvenience by reason of the collision. That
the bus driver had no knowledge of and was not notified of any injury to
claimant until four days later.
The evidence indicated that the accident was caused by the driver of car not
having driven in accordance with his given left-turn signal.
The testimony of the doctor to whom the claimant was going for treatment for
menopause was that he thought her condition was aggravated since his last
examination and which was probably caused by the accident, but that he thought
that claimant had sustained no permanent injury.
No negligence of respondent having been proven, no award is made.
W. VA.]
REPORTS STATE COURT OF CLAIMS 405
(No. 351?Claim dismissed)
JESSE WRIGHT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
(>non
fIled October 16, 1944
The state court of claims
has no power to make an award for a clahn
with respect to which a proceeding may
be maintained by or on behalf of the claimant in the courts of the state.
Grover C. Belknap, Esq., for claimant;
W. Bryan Spillers, Esq., assistant attorney general, for respondent.
ROBERT L. BLAND, JuDGE.
Jesse Wright, the claimant in this case, is a negro octogenarian of Braxton
county, West Virginia. He is a thrifty, upright man and a good citizen. Since
the death of his wife 14 years ago he has resided alone on a farm of about
eighty-seven and one-half acres of land which he owns on Grannies creek,
approximately two miles from the town of Sutton, the county seat, on United
States route NO. 19. On the 16th day of April, 1940, he entered into an
agreement in writing with the state road commission by the terms of which he
gave the commission an option to purchase, within the term of one year, a right
of way through a designated part of his land for the purpose of constructing,
building and maintaining thereon a state road or highway at the price of
$400.00. At that time the existing state road ran around the hill on the upper
side of his residence. He was advised that the road commission decided to make
a change in the location of this road and that the center line of the new road
would pass through about the middle of his dwelling house and extend from the
line of his land near-
406
REPORTS STATE COURT OF CLAIMS [W. VA.
est to Sutton to the property of a
neighbor by the name of Berry, as shown by the survey. Instead of building the
road as thus surveyed and for the distance designated when the option was
executed the road commission went 60 or 70 feet away from that proposed route
and constructed the road on an entirely new and different location along
Grannies creek for the entire length of his property, being practically twice
the distance which he had ben informed that the route would embrace according
to the original survey. It also changed the course of Grannies creek. To do
this it channeled out large sections of claimant?s land, using the soil thus
obtained in grading a new road.
The evidence disclosed that the road commission has occupied the very best part
of claimant?s land being the bottom land of the farm. By reason of the
improvements made claimant?s access to all of that part of his farm lying to
the north or northwest of Grannies creek has been cut off from access thereto.
It is obvious to the court that the state has not only taken his land for
public purposes without paying him just compensation therefor but that he has
been seriously and grievously damaged. It is unnecessary, we think, to make
further statement of the facts. His claim is one of the most meritorious yet
presented to the court of claims for consideration. The members of the court
are unanimous in their judgment that claimant?s case is possessed of exceeding
merit. According to the evidence he has been grievously and unjustly imposed
upon. We believe, however that the court is without power to make an award and
that its jurisdiction to do so is excluded by subsection 7, section 14 of the
court act. It is expressly provided that the jurisdiction of the court shall
not extend to any claim with respect to which a proceeding may be maintained by
or on behalf of the claimant in the courts of the state. We feel that the eourt
is bound by Hardy v. Simpson, 116 W. Va. 440, 191 S. E. 47, and Rig ?ls v. Commissioner, 120
W. Va. 298, 197 S. E. 813. In the case of F. F. Cottle v. State Road Commission, 1 Ct. Claims (W. Va.) 84, we laid down this rule:
W. VA.] REPORTS
STATE COURT OF CLAIMS 407
?The state court of claims will not entertain jurisdiction of a claim upon
which a proceeding may be maintained by or on behalf of a claimant in the
courts of the state.?
If we are without jurisdiction to consider a claim and act upon it, however
meritorious in our opinion the claim may be, we are helpless in the premises.
In this case we are satisfied that a great wrong has been done to the claimant.
His land has been appropriated and used for public purposes. He has, as the
record clearly shows, been damaged. He fixes the amount of his damage at
$1000.00. If we had the power to do so we would unquestionably make a substantial
award in his favor.
However, because we are of the opinion that our jurisdiction of the claim is
excluded by the statute in view of the holding of our Supreme Court of Appeals
in the two cases above cited, an award is denied and the claim dismissed.
We are not aware of any reason that would preclude the presentation to the
Legislature of a special bill for the relief of claimant.
G. H. A. KUNST, Judge, concurring.
I concur in the finding that the court has no jurisdiction in this case, but am
of opinion that no matters should have been considered on the hearing other
than pertaining to the plea to the jurisdiction and do not think any opinion as
to the merits of the claim should be expressed by the court.
408 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 352?Claim dismissed)
JESSIE WILLIAMS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
O?prnion filed October 16, 1944
The state court of claims has no power to make an award for a claim
with respect to which a proceeding may be maintained by or on behalf of the
claimant in the courts of the state.
Grover C. Belknap, Esq., f or claimant;
W. Bryan SpiUers5 Esq., assistant attorney general, for respondent.
ROBERT L. BLAND, JUDGE.
Claimant Jessie Williams is the owner
of a lot or parcel of land containing one and one-sixth acres situate on
Grannies creek, contiguous to United States route 19, about one mile north of
Sutton, in Braxton county, West Virginia. On this lot she has erected a
comfortable modern one-story dwelling house, at an initial cost of about
$1650.00. As now improved it is valued by claimant at about $2500.00. It is
located on the rear of the lot. Immediately in front of this residence is a
very pretty lawn. The property abuts on one side on a secondary road. The land
from the lawn to Grannies creek is loose, sandy fertile soil.
In making improvements on route 19 the state road commission made a change in
the course of Grannies creek. At a certain point not far distant from
claimant?s property there was a bend in the creek, making a sharp turn. In
order to straighten the stream at this point and take the sharp turn out and
thereby make the creek almost a straight line the
W. VA.1 REPORTS STATE COURT OF CLAIMS 409
road commission caused a culvert to be
constructed, which would take the water from the stream at the point of the
culvert instead of letting it run in its natural and original course. At the
end of the culvert adjacent to claimant?s property a large section of earth was
channeled out. The water from the culvert was cast in a body where the earth
had been removed and created a large pooi. Every time that there is a freshet
or high water portions of claimant?s property would be washed away. As a
result of this condition practically everything growing on claimant?s garden
was destroyed at one of these times. The evidence shows that a strip between 75
and 100 feet long and possibly at the deepest place about 12 or 15 feet on
claimant?s property has been wholly washed away. When the last flood in that
vicinity occurred the high bank next to the property was washed away, thereby
further endangering the property of claimant. This flood washed a section of
ground away from the culvert at the point of what was the high bank. Claimant?s
premises lay just a little bit lower than this bank next to the channel. By
washing it out a small flood will possibly get a little more of the soil from
her property. After the water passes through the culvert it washes on through
and upon the premises of claimant. The high ground was removed by the road
commission. The water will probably keep washing away the soil.
The evidence shows that claimant has already suffered substantial damages and
that such damages will continue from time to time unless a wall of concrete or
stone shall be built to protect the property.
Claimant?s damages up to the present time are variously estimated. Substantial
witnesses from Braxton county place such damages from $600.00 to $1000.00 and
say that they are continuing in character.
The members of the court are unanimous in the opinion that the claim is
meritorious and would, if it were in their power, make an award therefor, but
believe that the court is without power to make such award and that its
jurisdiction
410 REPORTS
STATE COURT OF CLAIMS [W. VA.
to do so is excluded by subsection 7,
section 14 of the court act. It is expressly provided that the jurisdiction of
the court shall not extend to any claim with respect to which a proceeding may
be maintained by or on behalf of the claimant in the courts of the state. We
feel, however, that the court is bound by Hardy v. Simpson, 116
W. Va. 440, 191 S. E. 47, and Riggs v. Commissioner,
120 W. Va. 298, 197 S. E, 813. In the
case of F. F. Cottle v. State Road
Commission, 1 Ct. of Claims (W. Va.)
84, we laid down this rule:
?The state court of claims will not entertain jurisdiction of a claim upon
which a proceeding may be maintained by or on behalf of a claimant in the
courts of the state.?
Counsel for claimant, at present a member of the State Senate and an astute
lawyer, will, we think, readily understand the court?s limitations. If we may
assume jurisdiction in one instance not conferred by a statute there would be
nothing to preclude us from doing so in all cases. We can only make an award in
those cases in which power is expressly conferred upon us to do so. We know of
no reason that would preclude the presentation to the Legislature of a special
relief bill in the instant case.
Only for the reason that we do not have power to make an award, an award in the
case is now denied and the claim dismissed.
G. H. A. KUNST, Judge, concurring.
I concur in the finding that the court has no jurisdiction in this case, but am
of opinion that no matters should have been considered on the hearing other
than pertaining to the plea to the jurisdiction and do not think any opinion as
to the merits of the claim should be expressed by the court.
W. VA.] REPORTS
STATE COURT OF CLAIMS 411
(No. 380?Claimant awarded $30.25)
PAUL MALLOW AND BEULA MALLOW, Claimants.
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied October 16, 1944
An award will be granted when a
fence, forming the boundary between land of claimants and right of way of
respondent on claimants? land and keep up and maintained by them for over
twenty-five years and not constituting an obstruction to the right of way, is
without notice to claimants deliberately destroyed by employees of respondent
without legal justification.
Appearances:
Beula Mallow, for claimants;
W. Bryctn Spillers, Esq., assistant attorney general, for respondent.
G. H. A. KUNST, JUDGE.
Claimants allege that respondent,
without notice or asserting that a fence on their land bounding the right of
way of respondent obstructed same or constituted a nuisance, deliberately
destroyed it and they ask an award of $30.25, the cost of replacing the fence.
Witnesses, officials of respondent, state that a search of the records of the
office of the clerk of the County Court of Pendleton county, West Virginia, in
which said land and right of way are located, made by witnesses, assisted by
the clerk of said court, showed that in the year 1859 this road was established
in accord with the statute, but that no report was found, giving its location
and width, which report was thought by the clerk to have been destroyed by a
fire which burned the court house. The court record found, determines the fact
that this right of way of respondent was not acquired by dedication or
412 REPORTS
STATE COURT OF CLAIMS [W. VA.
prescription and consequently the
presumption does not arise that its width was fifteen feet on each side from
center of traveled way.
It was proven that the fence had been in existence for twenty-five years and
probably a much longer time and during that period kept up and maintained by
claimants and former owners of the land. The plats filed as exhibits by
respondent and evidence of its witnesses show the right of way here and its
extensions to be twelve to fifteen feet in width; that the fence extends for
over nine tenths of its length along and near the bank of a creek; which bank
is acute and its top forty to sixty feet from the bed of the creek, making it
very improbable that the right of way extended beyond the fence and not
feasible to extend its width on that side. It is not shown that the opposite
side of the road is fenced but it is shown that the width of the road could be
increased to the statutory requirements on that side.
It might have been possible to determine the established width of this road by
the records of the court as to the width of rights of way through adjoining
tracts of land, or by surveys of claimants? land and land on opposite side of
the right of way, but no such evidence was produced. However, it is proven by
evidence of claimants and also by respondent?s witnesses that the fence was and
now is on the land of claimants and does not constitute an obstruction to the
right of way. It is admitted that notice was not served on claimants to remove
fence as an obstruction and that previous use of a grader by respondent on the
road, by piling dirt on the fence, had narrowed the traveled way and the weight
of dirt had probably been the cause of the bank of creek giving way at one
point back to the traveled way necessitating destruction of fence in order to
use a grader and the placing of large stones on creek bank to hold the berm of
roadway at place where broken.
The promise of one of respondent?s officials, but not kept, that the fence
would be replaced evidenced that there was
W. VA.i REPORTS
STATE COURT OF CLAIMS 413
no legal justification for the destruction of fence. An award is made to
claimants for thirty dollars and twenty-five cents ($3025), the amount shown to
have been the cost of rebuilding the fence.
ROBERT L. BLAND, Judge, dissenting.
The state court ol claims was called into existence by the Legislature of 1941
as an experiment. It is now in its probationary state, or formative period, and
is not yet an established institution. It is especially important to guard
carefully against the creation of dangerous precedents for the recommendation
of appropriations of the public revenues. There should be no award in a case
where the right of the state or any of its agencies to exercise an essential
governmental function is challenged. While the amount of the award in this case
is small, the principle involved is great, and far-reaching in its scope and
effect. The road commission, as an administrative department of the state, is
given certain discretion in the performance of the duties imposed upon it by
law, such as the duties incident to the repair and maintenance of the public
highways and roads under its exclusive control and supervision. If it sees that
encroachments on its road rights- of-way obstruct or impede the public use and
travel thereon, who can say that it does not have the power to remove such
obstructions and use such roads to the full width of the rights- of-way, if it
be necessary to do so? Abutting property owners cannot direct the commission
how or in what manner it shall discharge the duties imposed upon it by
legislative authority. To do so would result in chaos and cause endless
confusion and trouble.
The property of claimants lies on one side of what is known as the Reed Creek
secondary road, 1.35 miles southwest of United States route No. 220, in
Pendleton county. This road was established in 1859 and has ever since been
maintained at public expense. The record does not disclose the width of the
road at the time it was established, but it does show that it appears from record
book A in the office of the clerk of the
414
REPORTS STATE COURT OF CLAIMS [W. VA.
county court of Pendleton county, that
viewers were appointed to lay out the road in the year 1859, and that there is
likewise a reference to the filing of their report, but the report itself has
not been found. It is thought to have been destroyed when the courthouse was
burned in 1924.
Reed creek runs through the land of claimants on the west side of the road and
close to the traveled part of it. The fence enclosing the property was
constructed between the creek and the outer edge of the traveled portion of the
road and very near to the edge of the road. It is shown by the testimony of E.
K. Bowman, a highway engineer of the road commission, that the traveled portion
of the road is from 10 to 12 feet in width. This witness made a survey of the
road showing its location, the location of a fence which is claimed to have
been destroyed by respondent and a new fence thereafter built by claimants. A
plat of his work was filed with his testimony. When asked if it was the claim
of the state that the old fence maintained by claimants was on the right-
of-way as established prior to the time that he made his survey, he answered:
?Yes, sir, the fence was close enough that if you put a grader in there you
couldn?t get a grader down without getting into it,? George D. Moyers,
supervisor of roads for Pendleton county, and a witness introduced on behalf of
the state, testified that he was familiar with the claim made that a portion of
the fence of claimants was allegedly destroyed or damaged by the road
commission and testified that the mail carrier and the school bus man had
reported to him that the condition of the road was dangerous. He further
testified that the creek runs right close to the road ?And it had undermined
the fence and the posts fell over and washed back pretty well? well, I would
say to one track of the road. Then we went in there and we tried to get this
old fence out which was covered up by the washout of the run. After we couldn?t
get the fence out, we built the berm back up, slipped some big rocks down to
widen the road to eliminate the dangerous part of it, and then after this was
done these folks, Miss Mallow and her brother Paul, came and built a fence right
along on the berm
W. VA.] REPORTS
STATE COURT OF CLAIMS 415
that we built which sets the fence about three feet closer to the run.?
It seems clear to my mind that the fence of claimants which they charged to
have been torn down or covered up by dirt removed from the road was actually
built and maintained on the road right-of-way.
In County Court of Raieicjh.
County v. Mvinter, 103
W. Va. 386, it is held in point 2 of the si.illabus
as follows:
?Under sections 3 and 130, chapter 43, Code, making all county-district roads,
however established, thirty feet in width measured fifteen feet on either side
from the ?center of the traveled way,? the dedication in such case, in the
absence of proof to the contrary, will be presumed to have been of a
right-of-way thirty feet wide.?
Such presumption is not overcome in this case by any evidence found in the
record. The statute cited expressly provides that in the absence of any other
mark or record, the center of the traveled way shall be taken as the center of
the road. It not infrequently happens that boundary fences are built upon road
rights-of-way, but when the public use requires it they may be compelled to be
removed.
?Any encroachment on a public street or highway is a ?purpresture,? and, if the
public use is impeded or rendered less commodious, such encroachment is
generally not only a purpresture, but also technically a ?public nuisance? regardless
of the degree of interference with the common enjoyment.? Southeastern Pipe
Line Company v. Garrett, Solicitor
General, (Ga.) 16 S. E., 2nd Ed.
753.
?Where a road is established solely by an implied dedication or by
prescription, its width is not extended by statute beyond fences on each side
of the way constantly maintained by the owner of the land through the period of
user.? Reip v. County
Court of Caihoun County, 110 W. Va. 7, 156 S. E. 754.
416 REPORTS
STATE COURT OF CLAIMS [W. VA.
The declaration in that case alleged
ownership by the plaintiff of a farm for many years; that about 30 years prior
to the suit, without obtaining any right whatsoever from him, the county court
constructed and had since maintained a roadway through his lahd, and that he
limited the width of the way to 20 feet by fences on either side of the way,
from the time it was opened until December, 1928, when the county court again,
without permission from him, tore down the fences on both sides of the road and
widened the way to 30 feet. The case was heard and decided upon a demurrer
interposed to the declaration. It went to the Court of Appeals and was there
decided as above indicated.
The situation here presented is entirely different from the facts of that case,
and the presumption is that the Reed Creek road has a width of 30 feet.
In re claim of CkLrk
v. 1-load Commssixm, 1
Ct. Claims (W. Va.) 232, we stated in the opinion on page 233, as follows:
?All claims asserted against the state or any of its agencies must be
established by satisfactory proof before awards may properly be made for the
payment of them.?
Beula Mallow, one of the claimants, was the only witness who testified in
support of the claim in this case. When asked to state what she had to say in
relation to the claim, she answered: ?There really isn?t much to it except the
fact that this fence was destroyed, covered up, on or after April 28, 1943,
which amounts to $30.25 to get it repaired.? The proof relied upon by
claimants wholly fails, in my judgment, to show that their claim is a
meritorious one against the state. The evidence clearly reveals that the fence
in question actually occupied a part of the road right-of-way.
I would deny an award and dismiss the claim.
W. VA.l REPORTS
STATE COURT OF CLAIMS 417
(No. 385- S-?Claimant awarded $302.17)
LUTHER C. DULANEY d/b/a Dulaney Motor
Company,
Claimant,
V.
STATE TAX COMMISSIONER, Respondent.
Opinion filed October 33, 1944
CHARLES J. SCHUCK, JuDGE.
Claimant, Luther C. Dulaney, is
engaged in the business of handling and selling automobiles in the city of
Wheeling, West Virginia, and as such was required to file with the state tax
commissioner its business and occupation tax report, under the so-called gross
sales act; and in the year 1937 paid a total tax of $1036.59 as its gross sales
tax due and payable to the state. An examination later by the representative of
the state tax commissioner?s office revealed that the tax had been overpaid and
that claimant was entitled to a refund of $302.17. Application was duly and
legally made to the state tax commissioner?s office for the said refund and the
matter is submitted to this court for its consideration.
The state tax commissioner agrees that the claimant is entitled to the refund
aforesaid and the attorney general?s office, through the assistant attorney
general, approves the claim as one in which a refund should be made to the
claimant in the amount aforesaid. Accordingly we make an award to the said claimant,
Luther C. Dulaney, doing business as the Dulaney Motor Company in the amount of
three hundred two dollars and seventeen cents ($302.17).
In view of the fact that the claim is presented in the name of the Dulaney
Motor Company which is the business name used by the owner, Luther C. Dulaney,
receipt should be executed accordingly if and when the legislature authorizes
the payment of the claim by an appropriation to be made in accordance with the
facts herein set forth.
418 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 390-S??Claimant awarded $948.67)
TELEWELD, INC., Claimant,
V.
STATE TAX COMMISSIONER, Respondent.
Opinion
filed October 23, 1944
Appearances:
Claimant, appears in its own behalf by its Treasurer.
W. Bryan Spillers, Esq., assistant attorney general, for the state tax
commissioner.
CHARLES J. SCHUCK, JuDGE.
Teleweld, Inc., a corporation of the
state of Illinois, was employed by the Baltimore & Ohio Railroad Company,
during the years 1936 to 1941 inclusive, excepting, however, the year 1938, in
welding railends, frogs and crossings for the said railroad company and was so
engaged during the said period in the state of West Virginia; and consequently
was charged with a tax on its gross proceeds under Item E (Contract
Classification as provided for in the Business and Occupation Tax Statute of
our State) and during the period so engaged paid to the state tax
commissioner?s office a total of $1771.09. After the payment of the said tax it was
discovered that the income should have been reported under Item H (Service
Classification) and the tax paid at the rate of $1.00 per $100.00 instead of
$2.00 per $100.00, as provided in Item E classification. The agreement between
claimant and the Baltimore & Ohio Railroad Company, reveals that the work
performed was a maintenance service, rather than a construction contract and
that consequently the claimant was charged with an excessive tax.
W, VA.) REPORTS
STATE COURT OF CLAIMS 419
Application was duly and lawfully made by the claimant to the state tax
commissioner?s office for the refund accordingly.
It appears from an examination of the record as filed, that claimant overpaid
the state in the amount of $948.67 for which an award is asked in this court.
The state tax commissioner, as well as the chief auditor of the business and
occupation tax division agree that the claimant overpaid its taxes in the
aforesaid amount and the matter is now submitted under section 17, article 2,
chapter 14, of the state court of claims law. The attorney general?s office,
through the assistant to the attorney general, upon examination of the claim
approves it as one that should be paid and we agree with the conclusions
reached both by the state tax commissioner and the attorney general in the
matter of the refund of the overpaid taxes. Accordingly an award is made to the
claimant in the amount of nine hundred fortyeight dollars and sixty-seven cents
($948.67).
420 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No.
410-S?Claimant awarded $146.93)
V. E. CASSADY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 24, 1944
CHARLES J. SCHUCK, JUDGE.
Claimant, V. E. Cassaday, a resident
of Petersburg, West Virginia, seeks reimbursement in the sum of $146.93 as
damages to his car or automobile caused by a state road tractor or grader
colliding therewith while his car was parked on the highway known as North Main
street in the said town of Petersburg.
The record as submitted reveals that the said state road tractor while
approaching claimant?s car on an elevated curve caused the tractor to suddenly
skid sideways on the low side of the curve crushing claimant?s car against the
sidewalk. No negligence is imputed to claimant.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of one hundred forty-six dollars and ninety-three
cents
($146.93).
W. VA. REPORTS
STATE COURT OF CLAIMS -
421
(No: 411-S?Claimant awarded $80.60)
DEWEY GRAY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Optniom filed October 24, 1944
CHARLES J. SCHUCK, JuDGE.
Claimant, Dewey Gray or Grey, of
Cowen, West Virginia, seeks reimbursement iii the sum of $80.60, which
amount he was obliged to pay for repairs to his automobile damaged by state
road truck No. 730-50. From the record as filed, it appears that on September
20, 1944, while claimant?s car was parked in front of a filling station in Cowen,
the state road truck, driven by a state road employee, in approaching the said
parked automobile slipped or skidded into claimant?s car causing the damage
which entailed expenditures of the amount in question. It appears that the
driver of the state road truck attempted to stop his truck, but was prevented
from doing so as he states, on account of the condition of the road. No
negligence of any kind is imputed to claimant.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount: and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of eighty dollars and sixty cents ($80.60).
422 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 412-S-?Claimant awarded $24.94)
A. C.. BARKER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opt.wn flied October
24, 1944
ROBERT L. BLAND, JUDGE.
On September 24, 1944, state road
commission truck NO. 430-131 was traveling west on the Fairmont-Grafton
turnoff in Marion county, West Virginia. It was going to turn into Joe Harry
street. The driver of the road commission truck gave the proper arm signal for
a lefthand turn, when an auto mobile traveling in the opposite direction forced
his truck to a complete stop. After the car had passed the state road com
mission truck the driver of the truck realized that the truck was too far
forward, and attempted to back it, and in doing so it struck claimant?s car
which had pulled directly behind and to the right of the state vehicle.
Claimant?s car, being directly behind and to the right of the truck, the driver
of the truck was afforded no opportunity to observe the claimant?s car through
the rear-view window.
In order to repair his truck claimant was obliged to pay $24.94, as shown by
itemized receipted bill therefor, made a part of the record.
The claim is concurred in by the head of the department concerned and its
payment is approved by an assistant attorney general. An award is made in favor
of claimant, A. C. Barker, for the sum of twenty-four dollars and ninety-four
cents ($24.94).
W. VAJ REPORTS
STATE COURT OF CLAIMS 423
(No. 413-S-?Claimant awarded $8.16)
MARY HARRIS REYNOLDS, Claimant,
V.
STATE ROAD COMM1SION, Respondent.
Opinion filed October 24, 1944
ROBERT L. BLAND, JuIXiE
The claim involved is for the sum of $8.16.
It is submitted to the court by the state road commission, under the provisions
of section 17 of the court act. The record of the claim, prepared by the ad
commission, was filed with the clerk on October 17, 1944 From this
record it appears that on September 16, 1944, state road commission
truck NO. 430.88, operated by Janes C. Casto, was in a
nrivately-owned lot of Consolidated Supply Company, in the city of Charleston,
West Virginia, gathering cinders. As the state road commission drier was
backing into the loadway position his foot slipped off the brake of the truck
and the truck collided with a parked automobile owned by the claimant, causing
such damage thereto as necessitated the paynior by her of the sum of her claim
to have it repaired.
The claim is concurred in by the head of the department concerned and its
payment is approved by an assistant attorney general and an award is
made in favor of claimant, Mary Harris Reynolds, for the said sum of eight
dollars and sixteen cents ($8.16).
424 REPORTS
STATE COUET OF CLAIMS IW.VA.
(No. 417-S?Claimant awarded $5.00)
T. 0. EVERHART, Claimant,
V.
STATE ROAD COMMISSiON, Respondent.
Opinion fiLed October 25, 1944
ROBERT L. BLAND, JUDGE.
The record of the claim in this case
was prepared by the road commission and filed with the clerk October 17, 1944
The facts disclosed by this record are meagre. It does appear, however, that
while employees of the road commission were blasting rock on a state-controlled
road near claimant?s home in 1938, a rock hit his property, causing damage
thereto to the extent of $5.00. It is suggested that records should be more
completely prepared than has been done in this case. However, since the state
road commission has concurred in the claim and it has been approved for payment
by an assist- ant attorney general, the court may reasonably assume that they
have thoroughly investigated the facts and circumstances in relation to the
claim not shown in the record; and an award will therefore now be made in favor
of the claimant, T. 0. Everhart, for the said sum of five dollars ($5.00).
W. VA. I
REPORTS STATE COURT OF CLAIMS 425
(Nb. 416-.S?Claiinant awarded $10.00)
BENTON SI1VIMS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flIed October 25, 1944
ROBERT L, BLAND, JUDGE
The claim in this case is for the sum
of $10.00. It arises out of an accident involving state road commission truck NO. 730-29, on
July 7. 1944. The car owned by claimant was parked at Rinad near Morgantown, in
Monongalia county, West Tirginia, when it was struck by a road commission truck
and damaged to the extent of the claim for which an award is sought. The claim
is considered informally on the record prepared by the state road commission
and filed with the clerk on October 17, 1944. The state road commissioner
concurs in the claim and its payment is approved by an assistant attorney
general.
An award is made in favor of claimant, Benton Simms, for the sum of ten dollars
($10.00).
426 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 415-S?Claimant awarded $25.00)
ROY L. GROSE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Oct&ber 25, 1944
ROBERT L. BLAND, JUDGE
The claim in this case is informally
heard upon a record prepared by the state road commission and filed with the
clerk October 17, 1944. On April 26, 1944, when a state road commission truck
was moving into a road under the control of the state road commission from
loading position behind a large shovel, the driver did not see the approach of
an automobile owned by the claimant which was attempting to pass the shovel. As
a result a collision occurred, The claimant?s vehicle was damaged. To
compensate him for this damage the state road commission concurs in the claim
to the extent of $25.00, and its payent is approved by an assistant attorney
general.
It is suggested for the benefit and convenience of the court that all records
submitted under section 17 of the court act should give more facts and details
than are found in the record in this case. An award is made in favor of
claimant, Roy L. Grose, for the sum of twenty-five dollars ($25.00).
W. VA.]
REPORTS STATE COURT OF CLAIMS 427
(No. 403-S----Claimant awarded $102.84)
C. R. HILL, Claimant,
STATE ROAD COMMISSION, Respondent.
0-pinion fiLed October 25, 1944
ROBERT L. BLAND, JuDGE,
On July 27, 1944, about noon,
claimant?s Buick automobile was parked in front of the Mankin Lumber Company on
Center avenue?a state highway?in the town of Oak Hill, Fayette county, West
Virginia, when state road commission dump truck No, 938-51, driven by Oather Moran, an employee of the state road
commission, then in line of duty, backed into the left side of claimant?s car,
damaging it considerably. An award of $102.84 is sought to repair this damage.
The state road commission concurs in the claim. It is approved for payment by
an assistant attorney general.
An award is now made in favor of claimant, C. R. Hill, for said .um of one
hundred two dollars and eighty-four cents
($102.84).
428 REPORTS STATE
COURT OF CLAIMS LW. VA.
(No. 346?Claim denied)
HERBERT FISHER, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion filed October 25, 1944
Appearances:
Herbert Fisher, in his own behalf;
W. Bryan Spillers, Esq., assistant attorney general, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant, a farmer living near Kenna,
Jackson county, claims damages in the amount of $63.64, for injury to an
automobile taken or stolen from his premises by two boys, escapees from the
West Virginia industrial school for boys at Pruntytown, West Virginia. The
testimony discloses that these boys escaped from the institution at Pruntytown
and had made their way to the highway in front of the claimant?s residence or
farm and there took the car in question and were making their escape in it when
apprehended by claimant and his father who pursued them in a farm truck having
learned of the theft of the car almost immediately after it had happened. This
took place on or about the 27th day of January, 1944. The boys in question were
thirteen or fourteen years of age and in their attempt to escape in the car,
after being pursued, wrecked it causing the damages alleged. Of course, the
all- important question concerning the claim is whether or not the department
through its superintendent and agents at Pruntytown, was, or were, in any way
negligent and if so, whether such negligence contributed directly to the escape
of the boys.
W. VA.]
REPORTS STATE COURT OF CLAIMS 429
The testimony of the superintendent of the
institution shows that it is conducted in accordance with the modern rules and
regulations as maintained both by the federal and different state authorities
for the conducting of a reformatory institution such as the one at Pruntytown.
The one boy had escaped on a previous occasion but he, himself, had voluntarily
returned to the institution, having just gone over the hill froth the school in
the escape and evidently changing his mind and returning to it on the same day.
The other boy had likewise escaped and had also returned to the institution.
The boys in question had never given the superintendent or guards any
difficulty or trouble on the school grounds or at any place in the institution;
and since the said escapees had been, as the superintendent puts it ?among the
best kids we have got,? they settled down and one of the boys did unusually
well at school. The other was a border line case and seemingly more attention
was paid by the authorities accordingly.
The testimony further shows that under all the circumstances no closer
supervision could have been exercised over these boys than that which was used
in the institution while they were there, and before the escape which led them
to take or steal claimant?s automobile. To repeat again, the superintendent
testified they were unusually ?good kids? from the standpoint of their conduct
at the institution.
Under all these circumstances, we can find no negligence on the part of the
department in question and in line with our previous holdings in such cases, we
deny an award.
ROBERT L. BLAND, Judge, concurring.
I concur in the conclusion reached by Judge Schuck that there should be a
denial of an award for this claim, but I do not adopt the reasons assigned by
him in his opinion for such denial.
430 REPORTS STATE
COURT OF CLAIMS [W.VA
In the conduct and management of the West
Virginia industrial school for boys the state exercises a governmental
function. It has not by general law assumed liability for the negligence of its
officers and agents in charge of that institution, or for that matter for the
negligence of the officers or agents of any of the public institutions of the
state. It is said that in the performance of governmental duties, the state is
not amenable to individuals. I cannot escape the conviction, so well expressed
by- another, that ?all who demand money from the treasury must show that the
claim is warranted by law.?
G. H. A. KUNST, Judge, concurring.
I concur in the finding of no award herein, but upon the legal principle that a
defendant?s negligence is too remote to constitute the proximate cause, where
an independent illegal act of a third person intervenes, which, because it is
criminal, defendant is not bound to anticipate, and without which such injury
would not have been sustained. I consider that this legal principle applies in
similar cases heretofore considered by the court.
W. VA.1 REPORTS
STATE COURT OF CLAIMS 431
(No. 345-S?Claimant awarded $32.56)
FIRESTONE TIRE AND RUBBER COMPANY, Claimant,
V.
STATE DEPARTMENT OF MINES, Respondent.
Opinion
filed October 26,
1944
G. H. A. KUNST, JuDGE.
This claim is for payment for four
tires and tubes delivered to respondent?s agent, L. S. McGee, at Shinnston, West Virginia, by claimant, October 10,
1941, under purchase order NO. 1427. dated September 27, 1941.
Th invoice was sent to the office at Shinnston and not brought to the attention
of respondent at Charleston, West Virginia, for payment. Because of the fiscal
year ending on June 30, 1942, the requisition was cancelled on June 15, 1942,
so that it would not be carried into the next year. Proof of the delivery of
this material is established by the evidence of McGee, but was delayed by
reason of his having left the employ of respondent.
Payment of the claim for $32.56 is recommended by respondent and approved by
the attorney general and an award of thirty-two dollars and fifty-six cents
($32.56) is made to claimant.
432 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 392?Claim denied)
BLANCHE WILSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 26, 1944
Where alleged inadequacy of a sewer
maintained by respondent to carry off storm water from a road, resulted in overflowing
water which caused damage to claimant?s property is not proven, an award will
be
refused.
Ralph. S. Wilson, for claimant;
W. Bryan Spill ers, Esq., assistant attorney general, for the state.
G. H. A. KUNST, JuIxE.
Claimant, owning a house, situated at
No. 3510 Camden avenue, on U. S. route NO.
21, in South Parkersburg, West
Virginia, unincorporated, being under the jurisdiction of re spondent, alleged,
that during a heavy storm on the 23rd day of May, 1943, because of inadequacy
of the sewer, which is located at the lowest part of a vertical curve in the
roadway, became clogged and the water overflowed and washed away a wall and
entered the basement of her property, situated opposite to the catch basin of
the sewer and caused damage amounting to $108.16, for which she asks an award.
It was proven that a catch basin covered by two gratings, eighteen by
twenty-four inches, having openings one by one and one-half inches, two feet
deep, received the water from this drainage area, which was conveyed from the
basin through a sewer pipe, twelve inches in diameter, a distance of
approximately twenty-five feet to a storm sewer; that the difference
W. VA.] REPORTS
STATE COURT OF CLAIMS 433
in level from the bottom of the catch
basin to the storm sewer was from eight to ten feet; that the sewer was
adequate to carry all the water during ordinary and severe rainstorms, but that
the overflow of water during the storm of this date was caused by stoppage of
the openings in the grate bars of the covering of the catch basin.
The witness Boone, who removed the debris, consisting of rags, boxes, pieces of
crates, sticks, sand and almost every kind of trash washed from the higher
levels, which covered and clogged the openings of the grate bars, a few minutes
after the overflow and resulting damage, testified that the sewer was adequate
and sufficient and that upon such removal all overflow ceased and the sewer
carried away almost immediately the accumulated water, and that a gaspipe in
the sewer did not cause the overflow.
It was shown that the employees of respondent had no notice of any obstruction
in the catch basin and that with the large number of such basins in Wood county
it would have been impossible to have a man stationed at each during severe
storms. An award is denied.
434 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 321?Claim dismissed)
ALTHA E. (DILLON) SOLOMON and F. P. SOLOMON,
Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Noventher 14,
1944
The state court of claims has no power
to make an award for a claim with respect to which a proceeding may be
maintained by or on behalf of the claimant in the courts of the state. .,
E. S. Bock, Eq., for claimants;
Ira J. Pctrtiow, acting attorney general and W. Bryan Spitlers, assistant attorney general, for respondent.
ROBERT L. BLAND, JUDGE.
An award for $7000.00 against the state is sought in this case.
It is alleged in the petitionf claimants that on the 28th dar of August, 1936,
claimant, Altha E. (Dillon) Solomon, wife of F. P. Solomon, was the owner of
lots Nos. 1, 2, 3 and 4 of block 24 of Patton?s Division of Amandaville, in
Jefferson district, Kanawha county, West Virginia, and that said lots had a
frontage of 160 feet, more or less, on the Kanawha and James River turnpike,
now the Charleston-Huntington highway known as u. S. route No. 60, in the city
of St. Albans, in said Kanawha county, with a depth extending southward from
said highway a distance of approximately 160 feet. Said lots were situated on a
hillside and were improved by two frame dwelling houses, a large two-story
house, in which claimants resided, situated on the easterly half of the parcel
of land composed of said lots, and a one-story house situated on the westerly
side of said parcel of land, which claimants let out to
W. VA.] REPORTS
STATE COURT OF CLAIMS 435
rent. The body of the first mentioned house was fifty feet from the front
property line and the second house was about forty-one feet from the front
property line of said parcel. The land sloped from said residences to the old
Kanawha and James River turnpike on a comparatively gentle grade. This slope
was and had been for many years well sodded and had remained in the same
condition undisturbed in any way by natural or artificial causes.
On the said 28th day of August, 1936, the state road commission of West
Virginia, in a proceeding entitled The State of West Virginia by the State Road
Commission of West Virginia, a corporation, v. Aitha E. (Dillon) Solomon, F. P.
Solomon, her husband, et aL, filed its petition in the common pleas court of
Kanawha county, West Virginia, for the condemnation of a certain described
portion of the land owned by the said claimant, Altha E. (Dillon) Solomon. Said
condemnation proceedings were prosecuted to termination on the 20th day of
February, 1937. The commissioners appointed in said cause filed their rpoiL on
the 20th day of February, 1937. The award made to claimants for the portion of
the real estate above mentioned intended to be appropriated for highway
purposes as just compensation therefor, as well as for damages to the residue
of said real estate beyond the benefits which would be derived in respect to
said residue from the work to be constructed, was the sum of $2,800.00. Said
report was confirmed, without exception, by the court and the said sum of
$2,800.00 was paid to the owner of said real estate.
In said proceeding the state of West Virginia appropriated for public road
purposes an average of 33 1/2 feet off
the front part of said lots NOs. 1, 2, 3 and 4. It is averred that in the construction
of the highway over and across the part of said lots appropriated in said
condemnation proceeding the toe and the sodded portion of the slope in the
front of said lots within the limits of the part appropriated were cut away and
removed so as to leave a slope from the front line of the residue of claimants?
property to the ditch along the southerly side of said lot having a grade of
forty-five degrees.
436 REPORTS STATE
COURT OF CLAIMS [W. VA.
Claimants say that from time to time after the construction of the highway by
the state road commission of West Virginia on and over the parcel of land
appropriated earth in varying quantities fell away from the embankment left by
the state road commission adjoining the residue of said property, and that the
earth which fell away from said embankment was removed by respondent after the
same slipped away, and that earth has since continued to the present time to
slip and fall away from said embankment so that instead of the slope originally
contemplated, that is to say forty-five degrees, said slope has become and is
materially altered and now presents the appearance of an almost perpendicular
wall of earth.
It is further alleged by claimants that as a result of the slipping away of
said embankment and the removal of said slips by the state road commission it
has destroyed the lateral support which the residue of petitioners? property
had at and before the commencement of the work of constructing said road on and
over the part of claimants? land taken as aforesaid, and that as a consequence
of the removal of said lateral support claimants? residue of the lots,
constituting the parcel of land owned by them, as shown upon the map filed with
the petition of the road commission in said eminent domain proceedings, and the
improvements on said real estate have been and are being greatly injured and
damaged. Cracks in the ground and general damages to the two dwelling houses
are specifically pointed out.
The state has moved to dismiss the claim for want of jurisdiction on the part
of the court of claims to entertain and make determination of said claim.
Respondent also, by way of further defense, has filed a plea of res adjudiecLta and
contends that the claim involved herein was adjudicated and finally disposed of
in the condemnation proceeding above mentioned.
Respondent contends that the damages to the property of claimants, if any,
occurred from the construction of a state highway with excavation of forty-five
degree embankment slopes and that such alleged damages, if any, that may have
W. VA.]
REPORTS STATE COURT OF CLAIMS 437
occurred from the said construction
work would be recoverable by a proper mandamus proceeding against the state
road commission requiring the state road commission to institute condemnation
proceedings to ascertain damages upon authority of Hardy v. Simpson, 118
W. Va. 440, 191 S. E. 47; State v. Riggs, 120 W. Va. 299, 197 S. E. 813; F. F. Cottie v.
State Road Commission, 1 Ct. Claims (W. Va.) 84.
Some exceedingly interesting questions of law and fact are presented by the
record. However, we are of opinion that under authority of the above cited
cases claimants have a plain remedy in the courts of the state. We are further
of opinion that the jurisdiction of the court of claims to make a determination
of the claim in question is expressly excluded by subsection 7 of section 14 of
the court act. In the case of F. F. Cottle v. State Road
Commission, 1 Ct. Claims (W. Va.) 84,
we laid down this rule:
?The state court of claims will not entertain jurisdiction of a claim upon
which a proceeding may be maintained by or on behalf of the claimant in the
courts of the state.?
In the case of Jessie
Williams v, State Road Commission,, claim No. 352, and the case of Jesse Wright v.
State Road Commission, claim No. 351, both determined at the present term of
this court, we held as follows:
?The state court of claims has no power to make an award for a claim with
respect to which a proceeding may be maintained by or on behalf of the claimant
in the courts of the state.?
We can act only within the limits of the jurisdiction conferred upon the court
of claims.
The claim is dismissed.
438 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 418-S??Claimant awarded $145.00)
TOM MOORE, Claimant,
V.
CONSERVATION COMMISSION OF WEST
VIRGINIA,
Respondent.
Opinion fled November 14, 1944
ROBERT L. BLAND, JuixE.
Claimant, Tom Moore, of Gordon, West
Virginia, seeks an award for $145.00 for the ioss and burial of a cow belonging
to him. The case is informally considered upon a record prepared by the
conservation commission and duly filed with the clerk.
The division of forestry of the conservation commission maintains certain
telephone lines in order to communicate with lookout, or fire posts, to guard
against the outbreak and suppression of forest fires. A pole from one of these
telephone lines, in Crook district, Boone county, had become rotten and fallen
from its natural position. The claimant?s Holstein cow became entangled in the
fallen wire from the telephone line and was found dead on the morning of August
14, 1944. An official of the commission authorized and directed claimant to
bury the animal. To do so he was obliged to pay the sum of $20.00. From the
facts set forth in the record it would appear that the reasonable value of the
cow was $125.00.
There is no stock law in Crook district, of Boone county.
The head of the department concerned concurs in the claim made for loss and
reimbursement. It is approved for payment by an assistant attorney general.
W. VA.)
REPORTS STATE COURT OF CLAIMS 439
In view of the facts disclosed by the record, the concurrence in the claim by
the department concerned and the approval of the attorney general, an award is
now made in favor of claimant Tom Moore, for the said sum of one hundred forty-
five dollars ($145.00).
(No. 397?Claim dismissed)
DELPHIA BAY BURNS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Op4nion filed November 14, 1944
The act creating this court, section 14, relating to the jurisdiction of
the court, specifically excludes from its jurisdiction any claim which may be
maintained by or on behalf of the claimant in the courts of the state.
Wm. Herbert Belch,er, Esq., for the claimant;
W. Bryan. Spiliers, Esq., assistant attorney general, for the state.
CHARLES J. SCHUCK, JuDGE.
This court recently held in the case
of Jesse Wright v. State Road
Commission, and Jessie Williams v. State Road Cornmission, that where damages are claimed for injuries to prop-
440 REPORTS
STATE COURT OF CLAIMS [W. VA.
erty occasioned by the permanent
construction, change or improvement of a highway, that following the decisions
of our State Supreme Court of Hardy v. Simpson, 118 W. Va. 440,
191 S. E. 47 and Riggs v. Com.mission, 120 W. Va. 298, 197 S. E.
813, this court was without jurisdiction to hear and determine the merits of
such claims and claimant is obliged to resort to the State Supreme Court or
circuit courts for relief.
The act creating this court specifically provides, section 14, relative to its
jurisdiction that there shall be excluded from such jurisdiction any claim
which may be maintained by or on behalf of claimant in the courts of the state.
A careful reading of the petition filed by claimant as well as the plea filed
by the state through the attorney general?s office, and the answer thereto by
claimant makes it clear to us that under the provision just quoted we are
withoul jurisdiction. The motion to dismiss and the plea for want of
jurisdiction filed by the respondent are therefore sustained.
W. VA.]
REPORTS STATE COURT OF CLAIMS 441
(No. 389?Claim dismissed)
EMMA QUICK, MILDRED MILLER and HARRY
MILLER,
Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled November 15, 1944
The act creating this court, section
14, relating to the jurisdiction of the court, specifically excludes from its
jurisdiction any claim which may be maintained by or on behalf of the claimant
in the courts of the state.
Messrs. Stealey & Black, for the
claimant;
W. Bryan SpiUers, Esq., assistant attorney general, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimants ask damages for injuries to
their property, comprising a tract of 42? acres of land in Wirt county, West
Virginia. and located near the left fork of Tuckers creek in said county. In
1940 the state road commission rebuilt the road running in, over, adjacent and
upon the said tract of land and also constructed a dam or bridge across the
left fork of Tuckers creek and made a fill 8 to 10 feet high across the bottom
of said creek; leaving an opening under the dam or bridge in question which,
according to the allegations set forth in claimant?s petition, was insufficient
to drain the water flowing into said Tuckers creek and, as a result of rains in
July, 1943, the water backed up to the dwelling house of claimants over the
garden and cornfield of their property, causing the damages aforesaid.
Recently, this court in the case of Jessie
Williams v. the State Road Comnsssion, a claim very similar in all respects to the one now being considered,
held that the court
442 REPORTS STATE
COURT OF CLAIMS [W. VA.
of claims was without jurisdiction to hear and determine the merits of the
claim under section 14 of the act creating the court of claims.
The said act specifically provides that there shall be excluded from the
jurisdiction of the court of claims any claim which may be maintained by or on
behalf of the claimants in the courts of the state.
A careful reading and consideration of the petition filed by claimants, as well
as the plea filed by the state through the attorney general?s office, seem to
indicate that the claim in question is one that should properly be presented to
the state courts, and that therefore this court is without jurisdiction. See
the cpiriion in Jessie Williams v.
State Road Commissicm, supra.
The motion to dismiss the claim for
want of jurisdiction as filed by the respondent is therefore sustained.
W. VA.] REPORTS
STATE COURT OF CLAIMS 443
(No. 209?Claim denied)
POLINO CONSTRUCTION COMPANY, a Corporation,
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 15, 1944
When it appears from the evidence upon
the hearing of a claim for additional compensation by way of damages alleged to
have been sustained in the performance of a contract for building and
completing a highway project, that the Legislature has previously made an
appropriation in favor of claimant for a substantial amount of money, when
claimant was remediless in law or equity under the terms of its contract, and
voluntarily accepted and retained the benefit of such appropriation and
executed and delivered a receipt showing it to be complete and final payment
for all work performed in accordance with its contract and for all claims of
any nature, the court of claims will not make or recommend a further award on
account of such claim.
L1. T. Eddy, Esq., for claimant;
W. Bryan SpiUers, assistant attorney general, for respondent.
ROBERT L. BLAND, JUDGE.
The claim for which an award is sought
in this case is in the sum of $85,686.20 and arises out of a highway
construction project in Hardy county, West Virginia.
In 1931 the state, acting by arid through its agency, the state road
commission, under a certain advertising duly published and posted according to
law, invited proposals for building
and completing, according to plans then on file in the office of the state road
commission, and according to plans and specifications of the road commission, a
certain road in said county of Hardy, from Lost City to the Virginia line,
known as project
444 REPORTS
STATE COURT OF CLAIMS [W. VA.
No. 3471-B, being approximately
59,136 feet in length. Pursuant to said advertisement, claimant, Polino
Construction Company, submitted to the commission a written proposal and bid
for building and completing said road according to said plans and
specifications. Being the lowest responsible bidder therefor the contract for
said work was awarded to claimant for the unit prices specified in its proposal
and bid, amounting in the aggregate to $216,368.84. Thereupon claimant entered
into a contract with the state of West Virginia, by and through the state road
commission, bearing date on the 23rd day of April, 1931, for the construction
of said project. The plans and specifications for the project were made parts
of the contract.
Claimant contends that there was submitted with said contract, as part thereof,
certain plats, tables, estimates, and blueprints showing the course of said
road, locating the highway. and showing cuts and fills, and certain
measurements on said cuts and fills, and estimating the amount of yardage and
excavations- from the cuts, and the amount of yardage required to make fills.
It says that it employed an efficient and competent engineer to go over the
plans and specifications and to check the final estimate submitted by the state
road commission in order to determine, as best it could determine, the amount
of yardage to be removed and the yardage required to make certain fills; and
that the engineer or engineers employed by the road commission to make the
drawings, estimates, and tables failed to take into account and make allowance
for what is known among contractors, road builders, and engineers as ?swells.?
?Swells? are a condition of compaction of materials to be removed which produce
more actual yardage in excavation than the measurements of the engineer total.
It is claimed that the land and territory in which the project was embraced was
known to the road commission as a territory in which there would be ?swells.?
Claimant further says that in building roads there is another condition often
found which is termed ?shrinkage,?
W. VA.]
REPORTS STATE COURT OF CLAIMS 445
wherein a certain allowance must be
made on account of ready compaction of the materials removed from and
excavation of the solid into a fill, which was known generally by the road
commission.
Claimant takes the position that the engineers for the state road commission,
who worked on the project had not been advised of these conditions of ?swell?
and ?shrinkage,? and did not make proper allowance or in any manner indicate in
their blueprints, drawings, tables, or estimates, so that it, in checking
drawings, tables, blueprints, and estimates would have knowledge that it would
have to deal with such conditions, and that such conditions were unknown at the
time it signed the contract. It may be apropos at this point, however, to
observe that section 4 of said contract provides as follows:
?The contractor further agrees that he is fully informed as to all conditions
affecting the work to be done, as well as to the labor and materials to be
fur-. nished for the completion of this work, and that such information was
secured by personal investigation and research and not wholly from the estimate
of the engineer; and that he will make no claim against the said state by
reason of estimates, tests, or representations theretofore made by any officer
or agent of said state.?
The schedule of prices contained in claimant?s proposal or bid and forming a
part of his contract contemplated an approximate or estimated quantity of
400,000 cu. yds. of unclassifled excavation at 30 cents per cu. yd. and 25,000
cu. yds. of borrow excavation, unclassified, at 30 cents per cu. yd. The plans
and blueprints for the project as prepared by the commission?s engineers showed
the profiles of the road and that the excavation from the cuts would be
substantially the same amount of material necessary to make the corresponding
fills. The total estimated amount of unclassified excavation for the project
was 400,000 cu. yds., and the estimate as shown by the blueprints for the fills
or embankments was 314,570 Cu. yds. When the project was finally completed it was
shown
446 REPORTS STATE
COURT OF CLAIMS {W.VA.
that instead of the 400,000 cu. yds.
estimated, the dirt actually excavated from the cuts and measured in the solid
was 396,227 cu. yds., and that the dirt actually hauled away from the cuts and
placed in the fills and otherwise amounted to 502,000 CU. yds., as
measured in the fills. Claimant maintains that the matenals excavated from the
cuts as measured in the solid totaled 396,227 cu. yds., which was sufficient to
make all the fills called for by the blueprints without requiring any borrow,
and left an excess of 105,775 Cu. yds. of material which had to be hauled away
and disposed of otherwise than in the fills, as set forth on the blueprints,
making a variation from the original blueprints of 33.4%. This condition was
the result of the peculiar nature of the soil which was excavated from the
cuts, it consisting of shale which when excavated and placed in the fills
swelled. We think that it is sufficiently shown by the record that claimant
encountered practically an unprecedented situation. It is the contention of
claimant that this unprecedented and unforseen condition arising out of the
peculiar nature of the soil constituted a risk or hazard which was not in the
contemplation of either of the contracting parties. It argues that there was a
mutual mistake of fact as to the estimate that the material removed from the
cuts would be and could be, entirely disposed of in the fills. In other words,
the claim made is not for any payment under the contract, but is more in the
nature of a quasi-contractual claim for a benefit conferred upon the road
commission by the claimant.
It is said that the road commission always figures a shortage instead of a
swell for the material which is to go into the fill, and that claimant?s
contract contemplated a shortage, as shown by the blueprints, for the reason
that the blueprints estimated 400,000 cu. yds. of borrow and represented that
the total of
425,000 cu. yds. would be just sufficient to make the estimated
314,570 cu. yds. of fill. It is argued, therefore, that according to the
blueprints and specifications the commission itself figured on an allowance of
110,430 cu. yds. of shortage. It is pointed out that 105,773 u. yds. of excess
material had to be disposed of otherwise than in the fill as shown by the blue-
W. VA.] REPORTS
STATE COURT OF CLAIMS 447
prints and specilications and necessitated an additional
expense to claimant. No claim is made for compensation for actually digging the
dirt out of the cut, for the reason that that is covered by the contract
itself. The claim for additional compensation is based at the point where the
disposition of the dirt began after it had been excavated.
We think it is made quite clear upon the record that claimant actually
sustained substantial loss in the performance of its contract, but it is
equally clear that its claim for any additional compensation whatever other
than that provided for by the contract could not be sustained under the terms
and provisions of the contract. After the completion of the project claimant
was afforded a hearing before the road commission in support of its claim tor
additional compensation, but the claim was rejected. There was no way under the
law whereby the claim could be recognized, although the road commission as
constituted at that time believed that the claim to some extent was possessed
of merit. What seems to have been a rather thorough and comprehensive
examination of the merits of the claim was given to it by a committee of the
Legislature of 19S7. It was considered fully. The Legislature of 1937 made an
appropriation in favor of claimant in the amount of $12,313.83 to take care of
the ioss which it had sustained in the completion of the project for which the
present claim is made. When that amount was paid to claimant by the road
commission it executed and delivered a receipt therefor endorsed on the back of
the final estimate for the road project, reading as follows:
?The Polino Construction Company of Fairmont, West Virginia, contractor for the
construction of project 3471-B, Hardy County hereby accepts the amount of
$12,879.70 as shown on this final estimate No. 18, as complete and final
payment for all work performed in accordance with its contract and for all
claims of any nature.
Polino Construction Company
Sam G. Polino
By Sam G. Polino, President.?
448 REPORTS STATE
COURT OF CLAIMS [W. VA.
Notwithstanding the above mentioned appropriation and receipt therefor claimant
now in this proceeding says that the reasonable and fair value placed upon the
extra services which it rendered under its said contract with the road
commission made necessary by reason (0 errors
of the commission, is
$44,000.00.
In addition to said claim for $44,000.00 clainiant says that in the years 1930,
1931, and 1932 it had bought certain machinery and equipment on the payment
plan, the total contract price for which equipment amounte(l lo $64,000.20, and
that by reason of the extra work and time required in completing the project
under the terms of its said contract and due to the neglect and failure of thc
road commission to pay for its alleged extra work and time required to complete
the project aforesaid it was unable to meet its installment payments due on
said machinery and in consequence of such failure lost said machinery and
equipment, and says that there is now due and owing it from the state road
commission, after allowing credit for the award made as aforesaid by the
Legislature and all other credits or setoffs
to which the respondent is in any wise
entitled, the just and full sum of $85,680.20.
We are of the opinion that it was the intention of the Legislature in
appropriating the said sum of $12,313.83 in favor of claimant to compensate it
lo the extent to which it believed it was entitled to be compensated for all
work and labor done and performed in the completion of the Hardy county project
and that claimant so understood that to be true when it executed and delivered
to the road commission its receipt for the amount of said appropriation. In Massing v.
Slate, 14 Wise. 502, it is held:
?Where an act of the Legislature makes an appropriation as in full payment of a
demand some portion of which was controverted or disallowed, the acceptance of
the money is a bar to any further claim on account of such demand in cases
where there is no
W. VA.] REPORTS
STATE COURT OF CLAIMS 449
evidence of fraud, accident or mistake in matter of fact.?
In the instant case no fraud, accident or mistake is shown. The money was
voluntarily accepted by claimant.
The claim will be denied and an order entered accordingly.
REFERENCES
ACCORD AND SATISFACTION
When it appears from the evidence upon
the hearing of a claim for additional compensation by way of damages alleged to
have been sustained in the performance of a contract for building and
completing a highway project, that the Legislature has previously made an
appropriation in favor of claimant for a substantial amount of money, when
claimant was remediless in law or equity under the terms of its contract, and
voluntarily accepted and retained the benefit of such appropriation and
executed and delivered a receipt showing it to be complete and final payment
for all work performed in accordance with its contract and for all claims of
any nature, the court of claims will not mako or recommend a further award on
account of such claim. Polino Construction Company v. State Road 443
Where it appears from the evidence that claimant a former employee of the
state, failed to present his claim as a setoff or credit in his settlement made
with the state, at a time when he was heavily in debt to the state for funds
misappropriated and wrongfully used by him, it will be presumed that such claim
presented some time later to this court was without
merit and an award will be denied. Neese v. Conservation -- 177
ASSAULT AND BATTERY
A case in which it is held that the state was not responsible in damages for
injuries to one of its road foremen caused by a personal assault on him by one
of his fellow employees; however, a claim for which the amount of lost services
is allowed.
Pierson v. State Road - 273
BLASTING OPERATIONS
Where a state road commission employee
is injured by reason of a dynamite explosion, through no fault of his own, and
from the evidence it appears that he was using a mixed case of dynamite, and
from all probability from the evidence a stick of dynamite had an explosive cap
in it, setting off the explosion, then an award will be made to him as a method
of compensation for the injuries received. The injuries were received before
the employees of the road commission were placed under the provisions of the
workmen?s compensation act, and an award is made in accordance with the
following decision. Bennett v.
State Road 108
Where private property not taken for public use but damaged by blasting in the
course of grading, draining and hard-surfacing with a rock base of a public
road an award may be made
for such damage. Proud foot v. State Road 78
See also
Everhart v. State Road 424
Rial v. State Road 242
452 REPORTS STATE
COURT OF CLAIMS [W. VA.
BRIDGES, CULVERTS AND DRAINS
A claim for damages filed by the
personal representative of a boy four and one-half years of age, who walked
upon and fell from a state-owned bridge, while it was closed for necessary
repairs, then being made thereon, and sustained injuries which resulted in his
death will be denied, when it appears from the evidence that such bridge was
duly barricaded and ample precautions observed to prevent accident thereon. Sims
Admx. v. State Road .----- ------ 369
An award will be refused where alleged negligence of respondent is not proved,
and when claimant, knowing the conditions and existence of a danger,
voluntarily and unnecessarily exposed herself to it, when an ordinarily prudent
person would not have incurred the risk of injury, which such conduct in volved
Morton v. State Road 262
Where alleged inadequacy of a sewer maintained by respondent to carry off storm
water from a road, resulted in overflowing water which caused damage to
claimant?s property is not proven, an award will be refused. Wilson v. State
Road 432
See also
Meyers, et al. v. State Road 128
COMPROMISE SETTLEMENTS?See also Accord and Satisfaction
A compromise settlement made by the
state road commission of a claim filed against that state agency in the court
of claims for damages for personal injuries sustained by claimant when he was
struck by a disconnected wheel and axle from a one and one-half ton state truck
being towed from one point to another point on a state highway, subject to the
ratification and approval of the court of claims, will be approved and an award
made for the amount of such compromise settlement when the evidence offered
upon the hearing of the claim shows such settlement to have been proper and
advisable in the premises. Lester v. State Road - -- 265
CONTRACTS
A claim in which the evidence
justifies a finding for the claimant company for extra compensation, to wit,
for wages paid during ?shutdowns? caused by change of plans on the part of the
state road commission; fair rental value of equipment on the project not used
during the cessation of work caused by said changes; and extra compensation for
work done and not comtemplated in any manner by the plans and specifications
under which the contract was originally entered into.
Hatfield, et als V. State Road
3
W. VA.] REPORTS
STATE COURT OF CLAIMS 453
Where a contract for road improvement is interfered with or delayed by the
action of the state road commission, through no fault of the contractor, and
the contractor thereby suffers loss by not being able to use his equipment or
part thereof, and, in consequence, said equipment remains idle during the
period of the delay, then the contractor is entitled to a reasonable rental
value as damages for said equipment so idle during the period of the delay or
interference. Reaffirming Keeley Construction Company v. State Road
Commission, 1 Ct. Claims
(W. Va.) 168. Cain & Company v. State Road 48
Where a commissioner in chancery to whom school land suits were referred for
the usual accounting required in such suits, failed to avail himself of the
remedy afforded commissioners in chancery for payment of services performed for
the court in such suits, by filing his certificate, under oath, showing the
number of hours that he was actually and necessarily employed in such matters,
to enable the chancellor to fix his fee based upon such services performed,
before the funds available for its payment are disbursed, as prescribed by law
in such cases, but has pursued another method not authorized by law, and
received substantial fees under such method without complying with the requirements
of the statute, there was no liability of the state to pay additional fees by
reason of the acts abolishing the office of school land commissioner and thus
preventing his collection of additional fees under the method so pursued at
variance with the terms of the statute. Adkins v. Auditor 41
When the evidence shows that a claimant who had been anarded a contract by the
state for the construction of a road project was required to place gravel on
the road of greater thickness than provided for by the specifications, an award
will be made to cover the amount due for such extra thickness.
Sargent v. State Road 228
When a controversy arises between a contractor for the construction of a state
road project and the state road commission as to whether material used in the
gravel surfacing of a road shall be paid for by weight or on the number of
cubic yards of surfacing material, compacted by manipulation and traffic, in
place on the road, the method set forth in the specifications will prevaiL Id.
An award will be made in favor of a contractor for the construction of a
state road project for the outlay made by him in leasing scales to weigh gravel
material to be placed thereon, when he had reason to rely on the fact that a
unit of weight would be adopted by which to estimate the weight per cubic yard
of such gravel material. Id.
454 REPORTS STATE
COURT OF CLAIMS [W. VA.
Where one purchases a team of horses from one of the state departments at a
public sale without any guarantee of any kind being given him as to the
soundness and physical condition of the horses, and after he has seen them and
made his own investigation at the time of the sale, he assumes all risk and
cannot recover against the department in question for any defects appearing
after the consummation of the sale. Ball
v.
Public Assistance 391
Where the testimony shows that the state or department involved has fully
complied with the oral contract or understanding of employment, and has fully
discharged all of its obligations assumed by it under such oral contract or
understanding, an award will be refused. Ross
v. State Road 337
An award will be made by this court to a claimant for the payment of an unpaid
debt regularly incurred by a state government agency, when presented after the
biennium has passed in which such claim should have been paid. Firestone v.
Con servatio -
173
When it appears from the evidence upon the hearing of a claim for additional
compensation by way of damages alleged to have been sustained in the
performance of a contract for building and completing a highway project, that
the Legislature has previously made an appropriation in favor of claimant for a
substantial amount of money, when claimant was remediless in law or equity
under the terms of its contract, and voluntarily accepted and retained the
benefit of such appropriation and executed and delivered a receipt showing it
to be complete and final payment for all work performed in accordance with its
contract and for all claims of any nature, the court of claims will not make or
recommend a further award on account of such claim. Polino Construction Company v. State
Road 443
Where a tenant rents property with full knowledge that it is to be taken for
road improvement purposes by the state, and where by the provisions of his
lease he is entitled to but a thirty-day notice to vacate, and is given more
than the said period to remove his business after the purchase of the property
by the state, he is not entitled to any damages, and an
award will be refused. Miller v. State Road 112
The state court of claims is without authority to make an award reimbursing a
coal company which had voluntarily advanced money prior to May 16, 1933, the
effective date of chapter 40 of the acts of the first extraordinary session of
the Legislature of 1933, for the payment of labor, materials and supplies (used
along with county funds) in the construction of a countydistrict road in West
Virginia, notwithstanding that such countydistrict road for which such moneys
were expended has since become an integral part of the state system of
highways; and a claim asserted against the state f or such reimbursement will
be denied and dismissed. New River and
Pocahontas Consolidated Coal Company v.
State Road 210
W. VA.]
REPORTS STATE COURT OF CLAIMS 455
When it appears from the evidence upon
the hearing of a c1ain ified by a former member of the department of public
safety who had been granted an indefinite leave of absence, without pay,
privilege or prerogative, for salary alleged to be due him for the unexpired
term of his said enlistment, that such claimant had very defective hearing,
failing sight, very bad hemorrhoids, a broken arch in the left foot, and was
not physica1 y qualified to serve in the department of public safety, and
performed no duties or served any part of the last year of the term of his
enlistment, and that such disabilities did not arise frorp and were not
incident to his service in the department of public safety, the court of claims
will not make recommendation to the Legislature for an appropriation for the
payment of
such claimed salary. Broclcus v. Dept. Public Safety 164
Where a person deals with an agent, it is his duty to ascertain the extent of
the agency. He deals with him at his own risk. The law presumes him to know the
extent of the agent?s power; and, if the agent exceeds his authority, the
contract will not bind the principal, but will bind the agent. Rosenclorf
v. Ppling, 48 W. Va. 621. Morton et als V. State Road 180
When upon the hearing of demands seeking awards for the price of lumber claimed
to have been purchased for the use of the state road commission by a
superintendent of a prison lahr camp, the evidence shows that such lumber was
actually furnished to the state by another person who had been given purchase
orders therefor in the usual and customary mariner in which such purchases were
made by the state, and ha been paid in full for such lumber, awards will be
denied to sich defendants. Id.
See also
Sam G. Polino & Company v. State Road 354
CONTIUBUTORY NEGLIGENCE
An award will not be made for the
value of surgical instruments belonging to the superintendent of a state
emergency hospital, misplaced or lost at a time when such superintendent was
responsible for the security and safekeeping of such instrumerits. Hartigan v.
Board Control 275
Where the evidence clearly shows that a pedestrian on a highway was injured by
the faulty and defective equipment of a passing state road truck, whcih defect
should have been known, or could have been known through the proper inspection
of the truck by the employees of the road commission previous to the time of
its use on the highway; and no negligence on the part of the pedestrian is
shown, but that on the contrary she was exercising the required and necessary
degree of care as such pedestrian, an award will be made in liar favor. Golden
v. State
Road 346
456 REPORTS STATE
COURT OF CLAIMS [W. VA.
When claimant fails to show by the evidence that injuries received in a fall
from an approach to a bridge on the highway were caused by lack of due care on
the part of the state road colnmmission, and it appears that he failed to
eercise due care for his owi safety to avoid the accident, an award will be
denied.
Tacey v. State Road 27
Where proximate cause of an inury to an automobile from stone on highway is due
to lack of care of the driver, no award for damages will be made in favor of
claimant against respondent
for alleged negligence not proven. Mace
v. State Road 399
A case in which the claimant?s negligence was of such a nature and degree as to
bar any recovery, notwithstanding the serious
injuries she sustained in the accident. Mattis
v. State Road - 31
A case in which the testimony shows the claimants? automobile was operated at a
high and dangerous rate of speed under adverse weather conditions, thereby
constituting such negligence
as would bar an award. Scott v. State Road 386
The state is not liable for medical and surgical expenses incurred by the
father of a child seven years of age who suffered personal injuries as the
result of an unavoidable accident when he suddenly emerged from between two
parked automobiles and started to cross a state highway in front of an
approaching state road commission truck, and was knocked down and run over.
Swiger v. State Road 93
Choice of several safe ways of descent from one floor of a building to another
being available to claimant, an award will not be granted where a dark stairway
is chosen in preference to ways known to be safe, and when an ordinarily
prudent man would not have incurred the danger of. injury known, or which could
have been reasonably anticipated from such choice, alleged negligence of
respondents not having been shown. McClure
v.
Building & Grounds 269
An award will be refused where alleged negligence of respondent is not proved,
and when claimant, knowing the conditions and existence of a danger,
voluntarily and unnecessarily exposed herself to it, when an ordinarily prudent
person would not have incurred the risk of injury, which such conduct involved.
Morton
v.StateRoacl 262
Where the claimant is charged with contributory negligence which from the
evidence presents a mixed question of law and fact, and on which reasonable
minds may difler, the question of such negligence will be considered in
determining whether or not an award should be made, and if made, the amount
thereof.
Uptonv.StateRoad 134
Where the claimant is charged with contributory negligence which from the
evidence presents a mixed question of law and fact, and on which reasonable
minds may differ, the question of such negligence will be considered in
determining whether or not an award should be made, and, if made, the amount
thereof.
Burgess, Adin. v. State Road 140
W. VAJ REPORTS
STATE COURT OF CLAIMS 457
CONVICTS, Escaped?See Escapees
EMPLOYEES OF STATE?See State Employees
ESCAPEES
Upon failure of claimant to prove by a
preponderance of evidenc? his claim that certain personal property belonging to
him was stolen by convicts from the state penitentiary, engaged in performing
special labor under the direction of the prison labor division of the state
road commission in time of flash-flood, in a proceding in the court of claims
to obtain an award for the valu? of such alleged stolen property, an award will
be denied whettL it appears from the record that all proper precautionary
measures were employed to guard such convicts and no negligenco or dereliction
of duty is shown on the part of the officials
havi?ig them in charge. Worrell v. State Road 342
Upless the authorities in charge of the boys? industrial school at Pruntytown
are guilty of such negligence or breach of duty as contributes directly to the
escape of one of the boys, the state or the board of control in charge of the
school, cannot be held liable for a tort committed by the boy while such
escapee.
Lambertv.Board Control 198
For reasons set forth in the opinion, an award is allowed in this claim and the
case distinguished from the opinion ified in Lam bert v. State Board of Control, case No, 139. Fletcher v.
Board Control 280
A case in which the claim is found to be just and proper under the peculiar
facts supporting it, and for which an award will
be rade. Johnson v. Board Control - 203
EVlDECE
A 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 Control 275
Upon failure of claimant to prove by a preponderance of eviden e his claim that
certain personal property belonging to him was stolen by convicts from the
state penitentiary, engaged in performing special labor under the direction of
the prison labor division of the state road commission in time of flash-flood,
in a proceeding in the court of claims to obtain an award for the va4e of such
alleged stolen property, an award will be denied when it appears from the
record that all proper precautionary measures were employed to guard such
convicts and no negligence or dereliction of duty is shown on the part of the
officials
having them in charge. Worrell v. State Road 342
Where alleged inadequacy of a sewer maintained by respondent to carry of! storm
water from a road, resulted in overflowing water which caused damage to
claimant?s property is not proven, an award will be refused. Wilson v.
State Road 432
458 REPORTS STATE
COURT OF CLAIMS [W. VA.
Where alleged negligence of respondent causing injury to claimant is not
proven, no award will he made. Varney V.
StateRoad -
403
An award will not be made where alleged negligence of re sponden is not proven.
Buckley v. State Road - - 340
Where alleged negligence of respondent causing injury to claimant?s property is
not proven, an award will not be made.
Fair v. State Road 401
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. Swartzwelcler
V. State Road -
96
FELLOW SERVANT
A case in which it is held that the
state was not responsible in damages for injuries to one of its road foremen
caused by a personal assault on him by one of his fellow employees; however, a
claim for which the amount of lost services is allo-ied.
Pierson v. State Road 273
FENCES ALONG RIGHT OF WAYS
An award will be granted when a fence,
forming the boundary between land of claimants and right of way of respondent
on claimants? land and kept up and maintained by them for over twenty-five
years and not constituting an obstruction to the right of way, is without notice
to claimants deliberately destroyed by employees of respondent without legal
justification. Mallow
v. State Road -
411
GLASS, PLATE GLASS
BROKEN BY CINDERS, etc.
When agents of the state road
commission engaged in spreading cinders on a state highway, to promote the
safety and public use thereof under icy and slippery weather conditions,
negligently place and leave large and heavy (linkers with such cinders, and one
of said clinkers is dislodged by passing traffic and cast with such force
against a plate glass window in the store of merchants whose place of business
abuts on said highway and breaks such plate glass window, an award will be
made for the cost of replacing it. Bassitt et el V. State Road 174
See also
Harpold Bros. V. State Road 69
Darling Shops v. State Road 397
W.VA.1 REPORTS
STATE COURT OF CLAIMS 459
GUARD RAILINGS AND BARRIERS
When the state road commission by the
act of 1933
assumed control and authority over the
primary roads of the state, the duty was imposed upon it to guard all dangerous
places on the public roads and bridges by suitable railings or barriers, so as
to render the said roads and bridges reasonably safe for travel
thereon by day or by night. Burgess Adm. et als. v. State Road 140
An award will be granted claimants where by failure of respondent to exercise
the care required of it and the abuse of the discretion vested in it,
obstructions were created and existed for a considerable time in a public road
under its jurisdiction creating a public nuisance by which negligence claimants
in an automobile were precipitated down a mountainside and sustained injuries
and the automobile destroyed. Perdue v. State
Road 312
When the state road commission by the act of 1933 assumed control and authority
over the primary and secondary roads of the state, the duty was imposed upon it
to guard all dangerous places on the public roads and bridges by suitable
railings or barriers, so as to render the said roads and bridges reasonably
safe for travel thereon by day or by night. Upton v. State Road 134
An award will not be granted claimant, asking damages against respondent for
alleged negligence in the erection of an insuflident and inadequate barrier, or
safeguard on top of a wall extending along a sidewalk under its jurisdiction,
where an unattended child of tender years had fallen from the barrier s.renteen
feet to the base of the wall and sustained injuries, when the barrier is proven
sufficient to meet the legal requirements of ordinary care. Gill, infant v.
State Road --
290
ICE ON ROADS?See Snow and Ice on Roads
INSURANCE ON STATE VEHICLES?See
Advisory Opinions In
American Insurance Agency v. Conservation, et al 175
Dougan, et als. v. Auditor 260
JURISDICTION
The act creating this court, section
14, relating to the jurisdiction of the court, specifically excludes from its
jurisdiction any claim which may be maintained by or on behalf of the
claimant in the courts of the state. Burns v. State Road 439
460 REPORTS STATE
COURT OF CLAIMS [W. VA.
By paragraph 2, section 14, of the court act, it is expressly provided that the
jurisdiction of the court of claims shall not extend to any injury to or death
of an inmate of a state penal
institution. Baisden v. State Road -- 352
The act creating this court, section 14, relating to the jurisdiction of the
court, specifically excludes from its jurisdiction any claim which may be
maintained by or on behalf of the
claimant in the courts of the state. Miller v. State Road 441
By paragraph 2, section 14, of the court act, it is expressly provided that the
jurisdiction of the court of claims shall not extend to an injury to or death
of an inmate of a state penal
institution. Pruitt v. State Road - ---- 350
The state court of claims has no power to make an award for a claim with
respect to which a proceeding may be maintained by or on behalf of the claimant
in the courts of the state. Wright
v.StateRoad --
- - -405
The state court of claims has no power to make an award for a claim with
respect to which a proceeding may be maintained by or on behalf of the claimant
in the courts of the state. Solo monv State Road --- -?- 434
The state court of claims has no power to make an award for a claim with
respect to which a proceeding may be maintained by or on behalf of the claimant
in the courts of the state. Wil liam v. State Road -- - 408
A claim which has been barred by a statute of limitations for a period of more
than five years prior to the reenactment of chapter 14, article 2 of the 1931
code, creating the court of claims, which was of such nature that it could have
and should have been presented to the circuit court of Kanawha county for
auditing and adjusting and its action reported by the auditor to the
Legislature under a proceeding then provided for by statute, held not revived,
and an award denied, when petitioner has not been prevented or restricted from
prosecuting such claim under the procedure provided prior to the time such
claim became barred under the statute. Consolidation Coal Company V.
Auditor -- -- - 10
This court under section 14, chapter 20 of the acts of 1941, does not have
jurisdiction to consider a claim for refundment of an overpayment of taxes
erroneously assessed, continuing for a period of twenty-two years, when an
adequate remedy in the courts of the state has been disregarded yearly during
such period. Ford, et als. v. County Court Randolph County - 238
This case is controlled by the majority decision announced in the cases of Jess
F. Miller v. The Board of Educatiou of Lewis County, 1 Ct. Claims (W.
Va.) 205 and Mary Dillon v. The Board of Education of Summers County, 1 Ct.
Claims (W. Va.) 366. TJtz v. Board Education 220-222; Marsh v. Board Education
224-226.
W.VA.1 REPORTS
STATE COURT OF CLAIMS 461
LANDS?See also Jurisdiction and Right
of Ways
When it appears from the evidence that
the state road commission has made an entry upon property leased, equipped and
used for a golf course, and in surveying places stakes in such proximity to the
holes on said course and removes sod to the extent that it may not be used in
its customary manner, before the right of the tenant to possession of such
leased premises is terminated, and such tenant is shown to have sustained
damages in consequence of such entry and work of the state road commission, an
award will be made in favor of the tenant for the
loss of profits suffered by him. Braid v. State Road 23
Where a tenant rents property with full knowledge that it is to be taken for
road improvement purposes by the state, and where by the provisions of his
lease he is entitled to but a thirty-day notice to vacate, and is given more
than the said period to remove his business after the purchase of the property
by the state, he is not entitled to any damages, and an award will be
ref used. Miller v. State Road - 112
Where private property not taken for public use but damaged by blasting in the
course of grading, draining and hard-surfacing with a rock base of a public
road an award may be made for
such damage. Proudfoot v. State Road 78
NEGLIGENCE
An award will be granted claimants
where by failure of respondent to exercise the care required of it and the
abuse of the discretion vested in it, obstructions were created and existed for
a considerable time in a public road under its jurisdiction creating a public
nuisance by which negligence claimants in an automobile were precipitated down
a mountainside and sustained injuries and the automobile destroyed. Perdue V.
StateRoad 312
Upon failure of claimant to prove by a preponderance of evidence his claim that
certain personal property belonging to him was stolen by convicts from the
state penitentiary, engaged in performing special labor under the direction of
the prison labor division of the state road commission in time of flash-flood,
in a proceeding in the court of claims to obtain an award for the value of such
alleged stolen property, an award will be denied when it appears from the
record that all proper precautionary measures were employed to guard such
convicts and no legligence or dereliction of duty is shown on the part
of the officials having them in charge. Worrell v. State Road 342
No negligence of respondent having been shown, no award is made and the case is
dismissed. Sandridge, executrix, v.
State Road 309
462 REPORTS STATE
COURT OF CLAIMS [W. VA.
A claim for damages filed by the personal representative of a boy four and
one-hall years of age, who walked upon and fell from a state-owned bridge,
while it was closed for necessary repairs, then being made thereon, and
sustained injuries which resulted in his death will be denied, when it appears
from the evidence that such bridge was duly barricaded and ample precautions
observed to prevent accident thereon. Sims,
Admx. v. State Road - - - 369
Where proximate cause of an injury to an automobile from stone on highway is
due to lack of care of the driver, no award for damages will be made in favor
of claimant against respondent for alleged negligence not proven. Mace, v. State
Road 399
An award will not be made where alleged negligence of re sponden is not proven.
Buckley v. State Road 340
The duty of the state or highway commission in the matter of the removal of
obstruction caused by snow or ice is a qualified one, and if ordinary care is
used by the state or its department in charge of the roads at such times or in
the winter months, and an accident happens nevertheless by reason of
such snow or ice the state is not liable. Woo fter v. State Road 393
Where alleged negligence of respondent causing injury to claimant?s property is
not proven, an award will not be made.
Fair v. State Road 401
The state does not guarantee the freedom from accident or safety of pedestrians
on its public highways; and upon the facts disclosed by the record in the case,
an award will be denied
to the claimant. Harmon v. State Road 329
Where alleged negligence of respondent causing injury to claimant is not
proven, no award will be made. Varney v.
State Road -
403
Where the evidence clearly shows that a pedestrian on a highway was injured by
the faulty and defective equipment of a passing state road truck, which defect
should have been known, or could have been known through the proper inspection
of the truck by the employees of the road commission previous to the time of
its use on the highway; and no negligence on the part of the pedestrian is
shown, but that on the contrary she was exercising the required and necessary
degree of care as such pedestrian an award will be made in her favor.
Golden v. State Road -
-- 346
A case in which the testimony shows the claimants? automobile was operated at a
high and dangerous rate of speed under adverse weather conditions, thereby
constituting such negligence as would bar an award. Scott v. State Road 386
When claimant fails to show by the evidence that injuries received in a fall
from an approach to a bridge on the highway were caused by lack of due care on
the part of the state road commission, and it appears that he failed to
exercise due care for his own safety to avoid the accident, an award will be
denied. Tacey v. State Road 27
W. VA.1 REPORTS
STATE COURT OF CLAIMS 463
An award will not be granted claimant, asking damages against respondent for
alleged negligence in the erection of an insufficient and inadequate barrier,
or safeguard on top of a wall extending along a sidewalk under its
jurisdiction, where an unattended child of tender years had fallen from the
barrier seventeen feet to the base of the wall and sustained injuries, when the
barrier is proven sufficient to meet the legal require ment of ordinary care. Gill, infant, v.
State Road 290
Where private property not taken for public use but damaged by blasting in the
course of grading, draining and hard-surfacing with a rock base of a public
road an award may be made
for such damage. Proudfoot v. State Road 78
Where the testimony shows that an operator of a state road commission grader
was negligent in operating the said grader, and by reason of the said negligence
a boy twelve years of age was severely injured, an agreed award of $1262.50
will be sanctioned and authorized by this court. Dornon, Guardian V.
StaieRoad 30
Where it appears that the damages to claimant?s truck were the result of a head
on collision of claimant?s truck with a state road truck driven by a state road
commission employee on duty which could have been avoided by said state road
commission employee, by the exercise of reasonable care and caution, an award
will be made to compensate claimant for the damages
sustained. Smith v. State Road -- 8
Where a claimant is injured on the highway by the faulty or negligent operation
of a snowplow at the hands of a state road commission employee, and the
claimant himself is free from any negligence, an award will be made in his
favor. Geimer V.
State Road - 36
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. Arbogast v. State Road - 104
An award will be refused where alleged negligence of respondent is not proved,
and when claimant, knowing the conditions and existence of a danger,
voluntarily and unnecessarily exposed herself to it, when an ordinarily prudent
person would not have incurred the risk of injury, which such conduct in volved
Morton v. State Road - 262
Unless the authorities in charge of the boys? industrial school at Pruntytown
are guilty of such negligence or breach of duty as contributes directly to the
escape of one of the boys, the state or the board of control in charge of the
school, cannot be held liable for a tort committed by the boy while such
escapee. Lam ber v. Board
Control 198
A case in which the evidence shows that the driver of a state road truck, owned
and operated by the state, was negligent in its operation, and which negligence
caused the accident or collision complained of and therefore made the state
road commission liable in damages for the injuries to claimant. Marshall
v.StateRoad 206
464 REPORTS STATE
COURT OF CLAIMS [W. VA.
When agents of the state road commission engaged in spreading cinders on a
state highway, to promote the safety and public use thereof under icy and
slippery weather conditions, negligently place and leave large and heavy
clinkers with such cinders, and one of said clinkers is dislodged by passing
traffic and cast with such force against a plate glass window in the store of
merchants whose place of business abuts on said highway and breaks such plate
glass window, an award will be made
for the cost of replacing it. Bassitt
et al. v. State Road 174
When the state road commission by the act of 1933 assumed control and authority
over the primary and secondary roads of the state, the duty was imposed upon it
to guard all dangerous places on the public roads and bridges by suitable
railings or barriers, so as to render the said roads and bridges reasonably
safe for travel thereon by day or by night. Upton V.
State Road - - 134
When the state road commission by the act of 1933 assumed control and authority
over the primary roads of the state, the duty was imposed upon it to guard all
dangerous places on the public roads and bridges by suitable railings or
barriers, so as to render the said roads and bridges reasonably safe for travel
thereon by day or by night. Burgess,
Adm. et als. V.
State Road 140
OBSTRUCTIONS?In Roads or Right of Ways
An award will be made when a fence,
forming the boundary between land of claimants and right of way of respondent
on claimants? land and kept up and maintained by them for over twenty-five
years and not constituting an obstruction to the right of way, is without
notice to claimants deliberately destroyed by employees of respondent without
legal justification. Mallow
V. State Road - 411
An award will be granted claimants where by failure of respondent to exercise
the care required of it and the abuse of the discretion vested in it,
obstructions were created and existed for a considerable time in a public road
under its jurisdiction creating a public nuisance by which negligence claimants
in an automobile were precipitated down a mountainside and sustained injuries
and the automobile destroyed. Perdue V. State
Road 312
The duty of the state or highway commission in the matter of the removal of
obstruction caused by snow or ice is a qualified one, and if ordinary care is
used by the state or its department in charge of the roads at such times or in
the winter months, and an accident happens nevertheless by reason of such
snow or ice the state is not liable. Woofter v. State Road -- 393
The state does not guarantee the freedom from accident or safety of pedestrians
on its public highways; and upon the facts disclosed by the record in the case,
an award will be denied to
the claimant. Harmon v. State Road 329
W. VA.] REPORTS
STATE COURT OF CLAIMS 465
PEDESTRIANS
The state does not guarantee the
freedom from accident or safety of pedestrians on its public highways; and upon
the facts disclosed by the record in the case, an award will be denied
to the claimant. Harmon v. State Road 329
Where the evidpnce clearly shows that a pedestrian on a highway was injured by
the faulty and defective equipment of a passing state road truck, which defect
should have been known, or could have been known through the proper inspection
of the truck by the employees of the road commission previous to the time of
its use on the highway; and no negligence on the part of the pedestrian is
shown, but that on the contrary she was exercising the required and necessary
degree of care as such pedestrian, an award will be made in her favor. Golden
V.
State Road 346
The state is not liable for medical and surgical expenses incurred by the
father of a child seven years of age who suffered personal injuries as the
result of an unavoidable accident when he suddenly emerged from between two
parked automobiles and started to cross a state highway in front of an
approaching state. road commission truck, and was knocked down and run over.
Swiger v. State Road 93
When claimant fails to show by the
evidence that injuries received in a fall from an approach to a bridge on the highway
were caused by lack of due care on the part of the state road commission, and
it appears that he failed to exercise due care for his own safety to avoid the
accident, an award will be de nied Tacey v. State Road ? 27
PENAL INSTITUTIONS
By paragraph 2, section 14, of the
court act, it is expressly provided that the jurisdiction of the court of
claims shall not extend to any injury to or death of an inmate of a state penal
institution. Baisden v. State Road ? 352
By paragraph 2, section 14, of the court act, it is expressly provided that the
jurisdiction of the court of claims shall not extend to an injury to or death
of an inmate of a state penal
institution. Pruitt v. State Road 350
PRIMA FACIE JURISDICTION ? See Jurisdiction. PROOF OF CLAIMS?See Evidence
466 REPORTS STATE
COURT OF CLAIMS [W. VA.
PUBLIC NUISANCES
An award will be granted claimants
where by failure of respondent to exercise the care required of it and the
abuse of the discretion vested in it, obstructions were created and existed for
a considerable time in a public road under its jurisdiction creating a public
nuisance by which negligence claimants in an automobile were precipitated down
a mountainside and sustained injuries and the automobile destroyed. Perdue v.
State
Road 312
RIGHT OF WAYS, Roads
An award will be granted when a fence,
forming the boundary between land of claimants and right of way of respondent
on claimants? land and kept up and maintained by them for over twenty-five
years and not constituting an obstruction to the right of way, is without
notice to claimants deliberately destroyed by employees of respondent without
legal justifica tion Mallow v. State Road 411
The state court of claims is without authority to make an award reimbursing a
coal company which had voluntarily advanced money prior to May 16, 1933, the
effective date of chapter 40 of the acts of the first extraordinary session of
the Legislature of 1933, for the payment of labor, materials and supplies (used
along with county funds) in the construction of a county- district road in West
Virginia, notwithstanding that such county- district road for which such moneys
were expended has since become an integral part of the state system of
highways; and a claim asserted against the state for such reimbursement will be
denied and dismissed. New River and Pocahontas Consolidated Coal Company v.
State Road 210
When it appears from the evidence that the state road commission has made an
entry upon property leased, equipped and used for a golf course, and in
surveying places stakes in such proximity to the holes on said course and
removes sod to the extent that it may not be used in its customary manner,
before the right of the tenant to possession of such leased premises is
terminated, and such tenant is shown to have sustained damages in consequence
of such entry and work of the state road commission, an award will be made in
favor of the tenant for
loss of profits suffered by him. Braid v. State Road 23
ROCK SLIDES
Where proximate dause of an injury to an automobile from stone on highway is
due to lack of care of the driver, no award for damages will be made in favor
of claimant against respondent for alleged negligence not proven. Mace v. State
Road 399
W.VA.1 REPORTS
STATE COURT OF CLAIMS 467
SALES
Where a person deals with an agent, it
is his duty to ascertain the extent of the agency. He deals with him at his own
risk. The law presumes him to know the extent of the agent?s power; and, if the
agent exceeds his authority, the contract will not bind the principal, but will
bind the agent. Rosendorf V. Poling, 48 W.
Va. 621. Morton, et ais. v. State Road ----- 180
When upon the hearing of demands seeking awards for the price of lumber claimed
to have been purchased for the use of the state road commission by a
superintendent of a prison labor camp, the evidence shows that such lumber was
actually furnished to the state by another person who had been given purchase
orders therefor in the usual and customary manner in which such purchases were
made by the state, and had been paid in full for such lumber, awards will be
denied to such demand- ants. Id.
Where one purchases a team of horses from one of the state departments at a
public sale without any guarantee of any kind being given him as to the soundness
and physical condition of the horses, and after he has seen them and made his
own investigation at the time of the sale, he assumes all risk and cannot
recover against the department in question for any defects appearing after the
consummation of the sale. Ball v. Public
Assistance 391
An. award will be made by this court to a claimant for the payment of an unpaid
debt regularly incurred by a state government agency, when presented after the
biennium has passed in which such claim should have been paid. Firestone
Tire &
Rubber Company v. Conservation 173
SCHOOLS?Boards of Education
This case is controlled by the
majority decision announced in the cases of Jess E. Miller v. The
Board of Education of Lewis County, 1 Ct. Claims (W. Va.) 205 and Mary
Dillon v. The Board of Education of Summers County, 1 Ct.
Claims (W. Va.) 366. Utz v. Board Education 220-222; Marsh v.
Board Education 224-226
SNOW AND ICE IN ROADS
The duty of the state or highway
commission in the matter of the removal of obstruction caused by snow or ice is
a qualified one, and if ordinary care is used by the state or its department in
charge of the roads at such times or in the winter months, and an accident
happens nevertheless by reason of such
snow or ice the state is not liable. Woo fter v. State Road 393
468 REPORTS STATE
COURT OF CLAIMS [W. VA.
STATE AGENCY
This case is controlled by the
majority decision announced in the cases of Jess E. Miller v. The Board of Education of Lewis County, 1 Ct. Claims (W. Va.) 205 and Mary Dillon V.
The Board of Education of Summers
County, 1 Ct. Claims (W. Va.) 366.
Utz v. Board Education 220-222; Marsh v. Board
Education 224-226
STATE EMPLOYEES
When a state department fails to avail
itself of the mandatory provisions of the vorkmen?s compensation act, and
subsequent to the effective date of the said act an employee of the said
department is injured while so employed, under circumstances which would have
entitled her to compensation had the said department complied with the act in
question, then an award will be recommended in an amount to reasonably cover
the
damages occasioned by her injuries. Dixie
v. Building & Grounds 171
Where a state road commission employee is injured by reason of a dynamite
explosion, through no fault of his own, and from the evidence it appears that
he was using a mixed case of dynamite, and from all probability from the
evidence a stick of dynamite had an explosive cap in it, setting off the
explosion, then an award will be made to him as a method of compensation for
the injuries received. The injuries were received before the employees of the
road commission were placed under the provisions of the workmen?s compensation
act, and an award is made in accordance with the following decision. Bennett V.
State Road - 108
Where a state road commission employee is injured by reason of defective
equipment, through no fault of his own, and is in no manner connected with the
operation of the said equipment, then an award will be made to him as a matter
of compensation for the injuries received. This accident happened before the
employees of the road commission were placed under the provisions of the
workmen?s compensation act, and therefore an award is made in accordance with
the following decision. Swisher v. State Road - 72
One who is summoned or drafted by a state forester to assist in fighting a
forest fire is entitled to all reasonable protection when complying with the
said summons, and if injured while being transported to the scene of the fire,
through no negligence of his own, and in an automobile not under his control,
then, under the circumstances, he is entitled to an award. Bailey v.
Conservation - - - 70
W. VA.] REPORTS
STATE COURT OF CLAIMS 469
Choice of several safe ways of descent from one floor of a building to another
being available to claimant, an award will not be granted where a dark stairway
is chosen in preference to ways known to be safe, and when an ordinarily
prudent man would not have incurred the danger of injury known, or which could
have been reasonably anticipated from such choice, alleged negligence of
respondents not having been shown. McClure v. Building & Grounds,
et 269
When, upon the hearing of a claim filed by a former employee of a state
department, it is disclosed by the record that it is the policy of such state
department to allow employees who have been in the service of the state for
more than one year an annual vacation with pay, an award will be made in
accordance with such policy. Lynch v. Board Control
A case in which it is held that the state was not responsible in damages
for injuries to one of its road foremen caused by a personal assault on him by
one of his fellow employees; however, a claim for which the amount of lost
services is allowed.
Pierson v. State Road - 273
An award will not be made for the value of surgical instruments belonging to
the superintendent of a state emergency hospital, misplaced or lost at a time
when such superintendent was responsible for the security and safekeeping of
such mstruments. Hartigan v. Board Control 275
When it appears from the evidence upon the hearing of a claim filed by a former
member of the department of public safety who had been granted an indefinite
leave of absence, without pay, privilege or prerogative, for salary alleged to
be due him for the unexpired term of his said enlistment, that such claimant
had very defective hearing, failing sight, very bad hemorrhoids, a broken arch
in the left foot, and was not physically qualified to serve in the department
of public safety, and performed no duties or served any part of the last year
of the term of his enlistment, and that such disabilities did not arise from
and were not incident to his service in the department of public safety, the
court of claims will not make recommendation to the Legislature for an
appropriation for the payment of such
claimed salary. Brockus v. Dept. Public Safety -- 164
Upon a claim for wrongful death where no workmen?s compensation was carried by
the department concerned at the time of the death, when it appears from the
evidence that the death was due to natural causes and not to any injury or
other cause incident to the course of decedent?s employment, an award will
be denied. Frazier, Executrix v. Board Control 130
Where it appears from the evidence that claimant a former employee of the
state, failed to present his claim as a set off or credit in his settlement
made with the state, at a time when he was heavily in debt to the state for
funds misappropriated and wrongfully used by him, it will be presumed that such
claim presented some time later to this court was without merit
and an award will be denied. Neese v. Conservation 177
470 REPORTS STATE
COURT OF CLAIMS [W. VA.
When, upon the hearing of a claim filed by a former employee of a state
department, it is disclosed by the record that it is the policy of such state
department to allow employees who have been in the service of the state for
more than one year an annual vacation with pay, an award will be made in
accordance
with such policy. Null v. Board Control 169
Arbogast v. Board Control 170
STATUTE OF LIMITATIONS
A claim which has been barred by a
statute of limitations for a period of more thati five years prior to the
reenactment of chapter 14, article 2 of the 1931 code, creating the court of
claims, which was of such nature that it could have and should have been
presented to the circuit court of Kanawha county for auditmg and adjusting and
its action reported by the auditor to the Legislature under a proceeding then
provided for by statute, held not revived, and an award denied, when petitioner
has not been prevented or restricted from prosecuting such claim under the
procedure provided prior to the time such claim became
barred under the statute. Consolidation Coal Company v. Auditor 10
STORM SEWERS?See Bridges,
Culverts and Drains
TAXES, REFUNDMENT OF
This court under section 14, chapter
20 of the acts of 1941, does not have jurisdiction to consider a claim for
refundinent of an overpayment of taxes erroneously assessed continuing for a
period of twenty-two years, when an adequate remedy in the courts of the state
has been disregarded yearly during such
period. Ford, et als. v. County Court Randolph County 238
See also
Dulaney V.
State Tax ?_--. 417
Fredeking et als. v. State Tax 360
Producers Gas Company v. State Tax 283
Teleweld v. State Tax 418
VACATIONS OF STATE EMPLOYEES
When, upon the hearing of a claim
filed by a former employee of a state department, it is disclosed by the record
that it is the policy of such state department to allow employees who have been
in the service of the state for more than one year an annual vacation with pay,
an award will be made in accordance
with such policy. Lynch v. Board Control 1
W. VA.] REPORTS
STATE COURT OF CLAIMS 471
When, upon the
hearing of a claim filed by a former
employee of a state department, it is disclosed by. the record that it is the
policy of such state department to allow employees who have been in the service
of the state for more than one year an annual vacation with pay, an award will
be made in accordance
with such policy. Null v. Board Control - 169
Arbogast v. Board Control 170
WARRANTIES, Implied
Where one purchases a team of horses
from one of the state departments at a public sale without any guarantee of any
kind being given him as to the soundness and physical condition of the horses,
and after he has seen them and made his own investigation at the time of the
sale, he assumes all risk and cannot recover against the department in question
for any defects appearing after the consummation of the sale. Ball V.
Public Assistance 391
WORKMEN?S COMPENSATION
Upon a claim for wrongful death where
no workmen?s compensation was carried by the department concerned at the time
of the death, when it appears from the evidence that the death was due to
natural causes and not to any injury or other cause incident to the course of
decedent?s employment, an award will
be denied. Frazier, Executrix v. Board Controi 130
When a state department fails to avail itself of the mandatory provisions of
the workmen?s compensation act, and subsequent to the effective date of the
said act an employee of the said department is injured while so employed, under
circumstances which would have entitled her to compensation had the said
department complied with the act in question, then an award will be recommended
in an amount to reasonably cover the
damages occasioned by her injuries. Dixie v. Building & Grounds 171
Where a state road commission employee is injured by reason of a dynamite
explosion, through no fault of his own, and from the evidence it appears that
he was using a mixed case of dynamite, and from all probability from the
evidence a stick of dynamite had an explosive cap in it, setting off the
explosion, then an award will be made to him as a method of compensation for
the injuries received. The injuries were received before the employees of the
road commission were placed under the provisions of the workmen?s compensation
act, and an award is made in accordance with the following decision. Bennett
V.
State Road 108