STATE OF WEST VIRGINIA
Report of the Court of Claims 1946-1948
Volume 4
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the period from December 1, 1946, to November 30, 1948.
By
JOHN D. ALDERSON
Clerk
VOLUME IV
(Published by authority. Code 14-2-25).
WM.
W. GAUNT & SONS INC.
Reprint
Edition
Wm. W. GAUNT & SONS,
INC.
301 1 Gulf Drive, Holmes Beach, Florida 33510
Printed
irt the United States of America
by
Jones Offset, Inc., Braderiton Beach, Florida 33510
CONTENTS III
TABLE
OF CONTENTS
Cases (claims) reported, table of XLV
Claims classified according to
statute, list of __XXXIV
Court of Claims Law VII
Digest of opinions (opinion index) 221
Letter of transmittal - V
Opinions of the Court XLIII
Personnel of the Court ? IV
Rules of practice and procedure XXI
Terms of Court VI
IV PERSONNEL
OF THE STATE COURT OF CLAIMS
PERSONNEL
OF THE
STATE
COURT OF CLAIMS
HONORABLE CHARLES J. SCHUCK Presiding
Judge
HONORABLE ROBERT L. BLAND Judge
HONORABLE MERRIMAN S. SMITH _Judge
HONORABLE WALTER T. CROFTON, JR.
Alternate Judge
HONORABLE JACK MARINARI Alternate Judge HONORABLE G. H. A. KUNST Alternate
Judge
JOHN D. ALDERSON Court Clerk
LENORE THOMPSON Law Clerk
IRA J. PARTLOW Attorney General
LETTER OF
TRANSMITTAL V
Letter
of Transmittal
To His Excellency
The Honorable Clarence W. Meadows
Governor of West Virginia
Sir:
[n conformity with the requirements of section twenty- five of the Court of
Claims law, approved March sixth, one thousand nine hundred forty-one, I have
the honor to transmit herewith the report of the State Court of Claims for the
period from December first, one thousand nine hundred forty-six to November
thirtieth, one thousand nine hundred forty-eight.
Respectfully submitted,
JOHN D. ALDERSON,
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
STATE COURT OF
CLAIMS LAW VII
STATE
COURT OF CLAIMS LAW
Passed March 6, 1941; amended March 8,
1945
CHAPTER
14, CODE
Article 2. Claims Against the State.
Section
1. Purpose.
2. Definitions.
3. Proceedings against state officers.
4. Court of claims.
5. Court clerk.
6. Terms of court.
7. Meeting place of court.
8. Compensation of members.
9. Oath of office.
10. Qualifications of judges.
11. Attorney general to represent state.
12. General powers of the court.
13. The jurisdiction of the court.
14. Claims excluded.
15. Rules of practice and procedure.
16. Regular procedure.
17. Shortened procedure.
19. Claims under existing appropriations.
20. Claims under special appropriations.
21. Limitations of time.
2. Compulsory process.
23. Inclusion of awards in budget.
24. Records to be preserved.
25. Reports of the court.
26. Fraudulent claims.
27. Repealer.
28. Provisions severable.
Section 1. Purpose.?The purpose of this article is to provide a simple and
expeditious method for the consideration of claims against the state that
because of the provisions of section thirty-five, article six of the
constitution of the state, and 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.
VIII STATE
COURT OF CLAIMS LAW
Sec. 2. Defiiitions.?For
the I)UI)O5C of this article
?Court? means the state court of claims established by section four of this
article.
?Claim? means a claim authorized to be heard by the court in accordance with
this article.
?Approved claim? means a claim found by the court to be one that should be paid
tinder the provisions of this article.
?Award? means the amount recommended by the court to be paid in satisfaction of
an approved claim.
?Clerk? means the clerk of the court of claims.
?State agency? means a state department, board, commission, institution, or
other administrative agency of the state government: Provided, however, That a ?state agency? shall riot be considered to include county courts,
county boards of education, municipalities, or any other political or local
subdivision of the state regardless of any state aid that might be provided.
Sec. 3. Proceedings Agaivst State
Offlcers.?The following proceedings
shall be brought and prosecuted only in the circuit court of Kanawha county:
1. Any suit in which the governor, any other state officer, or a state agency
is made a party defendant, except as garnishee or suggestee.
2. Any suit attempting to enjoin or otherwise suspend or affect a judgment or
decree on behalf of the state obtained in any circuit court.
This section shall apply only to such proceedings as are not prohibited by the
constitutional immunity of the state from suit under section thirty-five,
article six of the constitution of the state.
Sec. 4. Court of Claiins.?There is hereby created a ?State Court of
Claims? which shall be a special instru
STATE COURT OF
CLAIMS LAW IX
mentality of the Legislature for the purpose of considering claims against the
state, which because of the provisions of section thirty-five, article six of
the constitution of the state, and of statutory restrictions, inhibitions or
limitations, cannot be heard in a court of law or equity, and recommending the
disposition thereof to the Legislature. The court shall not be invested with or
exercise the judicial power of the state in the sense of article eight of the
constitution of the state. A determination made by the court shall not be
subjected to appeal to or review by a court of law or equity created by or pursuant
to article eight of the constitution.
The court shall consist of three judges who shall be appointed by the governor
with the advice and consent of the senate. The terms of judges shall be six
years, except that the first membership of the court shall be appointed as
follows: One judge for two years; one judge for four years, and one judge for
six years. As these appointments expire, all appointments shall be for six-year
terms. Not more than two of the judges shall be members of the same political party.
An appointment to fill a vacancy shall be for the unexpired term. The court
shall each year elect one of its members as presiding judge.
The governor shall appoint three persons as alternate judges. Whenever a
regular judge is unable to serve or is disqualified, the governor shall
designate an alternate judge to serve in the place and stead of the regular
judge. Alternate judges shall be appointed for six-year terms except that the
first alternates appointed shall be designated to serve for two, four, and
six-year terms as in the case of regular judges. Not more than two alternate
judges shall belong to the same political party. The provisions of sections
eight to ten, inclusive, of this article with respect to judges shall apply
with equal effect to alternates.
Sec. 5. Court Clerk.?The court shall have authority to appoint a clerk, and
shall fix his salary at not to exceed
STATE COURT OF
CLAIMS LAW
the sum of three thousand six hundred dollars per annum to be paid out of the
regular appropriation for the court. The clerk shall have custody of all
records and proceedings of the court, shall attend meetings and hearings of the
court, shall administer oaths and affirmations and shall issue all official
summonses, orders, statements and awards.
Sec. 6. Terms of Court.?The court shall hold at least four regular terms each year,
on the second Monday in January, April, July and October. If, however, one week
prior to the date of a regular term, no claims are ready for hearing or
consideration the clerk, with the approval of the presiding judge, shall notify
the members that the court will not be convened. So far as possible, the court
shall not adjourn a regular term until all claims then upon its docket and
ready for hearing or other consideration have been disposed of.
Special terms or meetings may be called by the clerk at the request of the
presiding judge whenever the number of claims awaiting consideration, or any
other pressing matter of official business, makes such a term advisable.
Sec. 7. Meeting Place of the
Court.?The regular meeting place of
the court shall be at the state capitol, and the board of public works shall
provide adequate quarters therefor. When deemed advisable, in order to
facilitate the full hearing of claims arising elsewhere in the state, the court
may convene at any county seat.
Sec. 8. Compensation of Members.?Each judge of the court shall receive twenty
dollars for each day actually served, and actual expenses incurred in the
performance of his duties. Requisition for traveling expenses shall be
accompanied by a sworn and itemized statement, which shall be filed with the
auditor and preserved as a public record. For the purposes of this section,
days served shall include time spent in the hearing of claims, in the consideration
of the record, and in the preparation of opinions. In no case, however, shall a
judge receive compensation
STATE COURT OF
CLAIMS LAW XI
for more than one hundred fifty days? service in any fiscal year.
Sec. 9. Oath of Office.?A judge shall, before entering upon the duties
of his office, take and subscribe to the oath prescribed by article four,
section five of the constitution of the state. The oath shall be filed with the
clerk.
Sec. 10. Qualifications of Judges.?A judge shall not be
a state officer or a state employee except in his capacity as
a member of the court. A meniber shall receive no other
compensation from the state.
A judge shall not hear or participate in the consideration of a claim in which
he is personally interested. Whenever a member is thus (lisqualified, the clerk
shall notify the governor, and thereupon the governor shall assign an alternate
to act during such disqualification. Whenever a judge is unable to attend and
serve for any reason, the governor shall, when so notified by the clerk, assign
an alternate to act in the absence of the regular judge.
Sec. 11. Attorney General to Represent
Statc.?The attorney general shall
represent the interests of the state in
all claims coming before the court.
Sec. 12. General Powers of the Con
rt.?The court shall, in accordance
with this article, consider claims which, but for the constitutional immunity
of the state from suit, or of some statutory restrictions, inhibitions or
limitations, could be maintained in the regular courts of the state. But no
liability shall be imposed upon the state or any of its agencies by a
determination of the court of claims approving a claim and recommending an
award, unless the Legislature has previously made an appropriation for the
payment of a claim subject only to the determination of the court. The court
shall consider claims in accordance with sections sixteen to twenty, inclusive,
of this article.
Except as is otherwise provided in this article, a claim shall be instituted by
the filing of notice with the clerk.
XII STATE COURT
OF CLAIMS LAW
Each claim shall be considered by three judges. If, after consideration, the
court finds that a claim is just and proper, it shall so determine and shall
file with the clerk a brief statement of its reasons. If the determination of
the court is not unanimous, the reasons of the dissenting judge shall be
separately stated. A claim so filed shall be an approved claim. The court shall
also determine the amount that should be paid to the claimant, and shall itemize
this amount as an award, with the reasons therefor, in its statement filed with
the clerk. In determining the amount of a claim, interest shall not be allowed
unless the claim is based upon a contract which specifically provides for the
payment of interest.
Sec. 13. The Jurisdiction of the
Court.?The jurisdiction of the court,
except for the claims excluded by section fourteen, shall extend to the
following matters:
1. Claims and demands, liquidated and unliquidated, ex contractu and ex
delicto, against the state or any of its agencies which the state as a
sovereign commonwealth should in equity and good conscience discharge and pay.
2. Claims and demands, liquidated and unliquidated, ex contractu and ex
delicto, which may be asserted in the nature of set-off or counter claim on the
part of the state or any of its agencies.
3. The legal or equitable status, or both, of any claim referred to the court
by the head of a state agency for an advisory determination.
Sec. 14. Claims Excluded.?The jurisdiction of the court shall not extend to any
claim:
1. For loss, damage, or destruction of property or for injury or death incurred
by a member of the militia or national guard when in the service of the state.
2. For injury to or death of an inmate of a state penal institution.
STATE COURT OF
CLAIMS LAW XIII
3. Arising out of the care or treatment of a person in a state institution.
4. For a disability or death benefit under chapter twenty-three of this code.
5. For unemployment compensation u n d e r chapter twenty-one-a of this code.
6. For relief or public assistance under chapter nine of this code.
7. With respect to which a proceeding may be maintained by or on behalf of the
claimant in the courts of the state.
Sec. 15. Rules of Practice and
Procedure.?The court shall adopt and
may from time to time amend rules of procedure, in accordance with the
provisions of this article, governing proceedings before the court. Rules shall
be designed to assure a simple, expeditious and inexpensive consideration of
claims.
The court shall also adopt and may from time to time amend rules pertaining to
persons appearing as representatives of claimants. Rules shall permit a
claimant to appear in his own behalf, or to present his claim through a
qualified representative. A representative shall be a person who, as further
defined by the rules of the court, is competent to present and protect the
interests of the claimant.
Under its rules, the court shall not be bound by the usual common law or
statutory rules of evidence. The court may accept and weigh in accordance with
its evidential value any information that will assist the court in determining
the factual basis of the claim.
Sec. 16. Regular Procedure.?The regular procedure for the consideration of claims
shall be substantially as follows:
1. The claimant shall give notice to the clerk that he
XIV STATE COURT
OF CLAIMS LAW
desires to maintain a claim. Notice shall be in writing and shall be in
sufficient detail to identify the claimant, the circumstances giving rise to
the claim, and the state agency concerned, if any. The claimant shall not
otherwise be held to any formal requirement of notice.
2. The clerk shall transmit a copy of the notice to the state agency concerned.
The state agency may deny the claim, or may request a postponement of
proceedings to permit negotiations with the claimant. If the court finds that a
claim is prima facie within its jurisdiction, it shall order the claim to be
placed upon its regular docket for hearing.
3. During a period of negotiations and pending hearing, the state agency and
the attorney general?s office shall, if possible, reach an agreement with the
claimant regarding the facts upon which the claim is based so as to avoid the
necessity for the introduction of evidence at the hearings. If the parties are
unable to agree upon the facts, an attempt shall be made to stipulate the
questions of fact in issue.
4. The court shall so conduct the hearing as to disclose all material facts and
issues of liability. Any judge may examine or cross-examine witnesses. The
cdurt may call witnesses or require evidence not produced by the parties; may
stipulate the questions to be argued by the parties; and may continue the
hearing until some subsequent time to permit a more complete presentation of
the claim.
5. After the close of the hearing the court shall consider the claim and shall
conclude its determination, if possible, within thirty days.
Sec. 17. Shortened Procedure.?The shortened procedure authorized by this section shall
apply only to a claim possessing all of the following characteristics:
STATE COURT OF
CLAIMS LAW XV
1. The claim does riot arise under an appropriation for the current fiscal
year.
2. The state agency concerned concurs in the claim.
3. The amount claimed does not exceed one thousand dollars.
4. The claim has been approved by the attorney general as one that, in view of
the purposes of this article, should be paid.
The state agency concerned shall prepare the record of the claim consisting of
all papers, stipulations and evidential documents required by the rules of the
court. The record shall be filed with the clerk. The court shall consider the
claim informally upon the record submitted. If the court determines that the
claim should be entered as an approved claim and an award made, it shall so
order and shall file its statement with the clerk. If the court finds that the
record is inadequate, or that the claim should not be paid, it shall reject the
claim. The rejection of a claim under this section shall not bar its
resubmission under the regular procedure.
Sec. 18. Advisory Determination
Procedure.?The governor or the head of
a state agency may refer to the court for an advisory determination the
question of the legal or equitable status, or both, of a claim against the
state or one of its agencies. This procedure shall apply only to such claims as
are within the jurisdiction of the court. The procedure shall be substantially
as follows:
1. There shall be filed with the clerk the record of the claim including a full
statement of the facts, the contentions of claimant, and such other materials
as the rules of the court may require. The record shall submit specfic
questions for the court?s consideration.
2. The clerk shall examine the record submitted and
XVI STATE COURT
OF CLAIMS LAW
if he finds that it is adequate under the rules, he shall place the claim on a
special docket. If he finds the record inadequate, he shall refer it back to
the officer submitting it with the request that the necessary additions or
changes be made.
3. When the claim is reached on the special docket, the court shall prepare a
brief opinion for the information and guidance of the officer. The claim shall
be considered informally and without hearing. A claimant shall not be entitled
to appear in collection with the consideration of the claim.
4. The opinion shall be filed with the clerk. A copy shall be transmitted to
the officer who referred the claim.
An advisory determination shall not bar the subsequent consideration of the
same claim if properly submitted by, or on behalf of, the claimant. Such
subsequent consideration, if undertaken, shall be de novo.
Sec. 19. Claims Under Existing Appropriations. ? A claim arising under an appropriation made by the
Legislature during the fiscal year to which the appropriation applies, and
falling within the jurisdiction of the court, may be submitted by:
1. A claimant whose claim has been rejected by the state agency concerned or by
the state auditor.
2. The head of the state agency concerned in order to obtain a determination of
the matters in issue.
3. The state auditor in order to obtain a full hearing and consideration of the
merits.
The regular procedure, so far as applicable, shall govern the consideration of
the claim by the court. If the court finds that the claimant should be paid, it
shall certify the approved claim and award to the head of the ?state agency,
the state auditor, and the governor. The governor
STATE COURT OF
CLAIMS LAW XVII
may thereupon instruct the auditor to issue his warrant in payment of the award
and to charge the amount thereof to the proper appropriation. The auditor shall
forthwith notify the state agency that the claim has been paid. Such an
expenditure shall not be subject to further review by the auditor upon any
matter deterrnine(l and verified by the court.
Sec. 20. Cia irns Uiuh e Special Applo)) lie ho ,is.?When?
ever the Legislature makes an appropriation for the payment of claims against
the state, then accrued or arising during the ensuing biennium, determination
of clainis and the payment thereof may be made in accordance with this section.
But this section shall apply only if the Legislature in making its
appropriation specifically so provides.
The claim shall be considered and determined by the regular or shortened
procedure, as the case may be, and the amount of the award shall be fixed by
the court. The clerk shall certify each approved claim and award to the
governor. The clerk shall issue his requisition to the auditor who shall issue
his warrant to the treasurer in favor of the claimant. The auditor shall issue
his warrant without further examination or review of the claim except for the
question of a suflicient unexpended balance in the appropriation.
Sec. 21. Limitations of Tiiia .?The court shall not take jurisdiction over a claim
unless the claim is tiled 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 (usability. With respect to a claim arising
prior to the adoption of this article, the limitation of this section shall run
from the effective date of this article: Proz?ided,
hon?ei?e, That no such claim as shall
have arisen prior to the effective date of this article shall be barred by any
limitation of time imposed by any other statutory provision
XVIII STATE COURT
OF CLAIMS LAW
if the claimant shall prove to the satisfaction of the court that he has been
prevented or restricted from presenting or prosecuting such claim for good
cause, or by any other statutory restriction or limnitation.
Sec. 22. Compulsory Process.?In all hearings and proceedings before the
court, the evidence of witnesses and the production of documentary evidence may
be required. Summons may be issued by the court for appearance at any
designated place of hearing. In case of disobedience to a summons or other
process, the court may invoke the aid of any circuit court in requiring the
evidence and testimony of witnesses, and the production of books, papers, and
documents. Upon proper showing, the circuit court shall issue an order
requiring witnesses to appear before the court of claims; produce books, papers
and other evidence; and give testimony touching the matter in question. A
person failing to obey the order may be punished by the circuit court as for
contempt.
Sec. 23. Inclusion of Awards in
Budget. ?
The clerk shall certify to the director of
the budget on or before the twentieth day of November of each year next
preceding the year in which the Legislature meets in regular session, a list of
all awards recommended by the court to the Legislature for appropriation. The
clerk may certify supplementary lists to the board of public works to include
subsequent awards made by the court. The board of public works shall include
all awards so certified in its proposed budget bill transmitted to the
Legislature.
Sec. 24. Records to Be Preserved.?The record of each claim considered by the court, including
all documents, papers, briefs, transcripts of testimony and other materials,
shall be preserved by the clerk and shall be made available to the Legislature
or any committee thereof for the reexamination of the claim.
Sec. 25. Reports of the Court.?The clerk shall be offi
STATE COURT OF
CLAIMS LAW ?
XIX
cial reporter of the court. lie shall collect and edit the approved claims,
awards arid statements, and shall prepare them for publication and submission to
the Legislature in the form of a biennial report.
Claims and awards shall be separately classified as follows:
1. Approved claims and awards not satisfied but referred to the Legislature for
final consideration and appropriation.
2. Approved claims and awards satisfied by payments out of regular
appropriations for the biennium.
3. Approved claims and awards satisfied by payment out of a special
appropriation made by the Legislature to pay claims arising during the
biennium.
4. Claims rejected by the court with the reasons there- for.
5. Advisory determinations made at the request of the governor or the head of a
state agency.
The court may include any other information or recommendations pertaining to
the performance of its duties.
The court shall transmit its biennial report to the governor who shall transmit
a copy thereof to the presiding officer of each house of the Legislature. The
biennial reports of the court shall be published by the clerk as a public
document.
Sec. 26. Fraudulent Claims.?A person who knowingly and wilfully presents or attempts
to present a false or fraudulent claim, or a state officer who knowingly and
wilfully participates or assists in the preparation of a false
XX STATE COURT
OF CLAIMS LAW
or fraudulent claim, shall be guilty of a misdemeanor. A person convicted, in a
court of competent jurisdiction, of violation of this section shall be fined
not more than one thousand dollars or imprisoned for not more than one year, or
both, in the discretion of such court. If the convicted person is a state
officer he shall, in addition, forfeit his office.
Sec. 27. Repealer.?Section three, article three, chapter twelve of the official
code, one thousand nine hundred thirty-one, is hereby repealed. Any other
provision of law in conflict with the provisions of this act is hereby
repealed.
Sec. 28. Provisions Severable.?If any part of this act is held unconstitutional, the
decision shall not affect any portion of the act which remains. The remaining
portions shall be in full force and effect as if the portion declared
unconstitutional had never been a part of the act.
RULES OF
PRACTICE AND PROCEDURE XXI
Rules of Practice and
Procedure
OF THE
STATE
COURT OF CLAIMS
(Adopted by the Court July 30, 1941,
and Revised July 19, 1945)
XXII RULES OF
PRACTICE AND PROCEDURE
TABLE
OF RULES
Rules of Practice and
Procedure
RULE
1. Clerk?s Office, Location, etc.
2. Clerk, Custodian of Papers, etc.
3. Filing Papers.
4. Records and Record Books.
5. Form of Claims, Number of Copies.
6. Copy of Notice of Claims to Attorney General and State Agency.
7. Jurisdiction, Prima Facie.
8. Preparation of Hearing Docket.
9. Proof and 1ules Governing Testimony.
10. Claims, Issues on.
11. Stipulations of Fact; Interrogatories to Determine.
12. Claimants, Appearances.
13. Briefs, Number of Copies.
14. Amendments to Notices, Petitions, etc.
15. Continuances; Dismissal for Failure to Prosecute.
16. Original Papers Not to be Withdrawn; Exceptions.
17. Withdrawal of Claims; Refiling, etc.
18. Witnesses.
19. Depositions.
20. Rehearings; Reopening, Reconsideration.
21. Shortened Procedure Records.
RULES OF PRA(TICF ANI) PRO(EDURE XXIII
Rules
of Practice and Procedure
OF TI-TE
State
Court of Claims
RULE 1. CLERK?S OFFICE, LOCATION ANI) HOuRS.
The office of the Clerk of the Court
shall be at the State Capitol, in the City of Charleston, and shall be kept
open in charge of the Clerk, or some competent employee of the Court under the
directioii of the Clerk, each weekday, except legal holidays, for the purpose
of receiving notices of claims and conducting the business of the office,
(luring the same business hours as other public oflices in the State Copitol
are kept open, except when otherwise required by the Court during a regular or special
session of the Court.
RULE 2. CLERK, CUSTOI)IAN OF
PAPERS, ETC.
The Clerk shall be responsible for
all I)al)ers, claims or demands filed in his office; and will be reqUire(l to
properly file, in an index for that purpose, any paper, pleading, document, or
other writing filed in connection with any claim or demand. The Clerk shall
also properly endorse all such papers, claims, or demands showing the title of
the claim or demand, the number of the same, and such other data as may he
necessary to properly connect and identify the document or writing, claim or
demand.
RULE 3. FILING PAPERS.
(ci)
Communications addressed to the
Court or Clerk and all notices. petitions, answers and other pleadings, all
reports, exhibits, depositions, transcripts, orders and other papers or
documents received or filed in the office kept by the Clerk of this Court,
shall be en(lorsed by him showing the date of the receipt or filing thereof.
XXIV RULES OF
PRACTICE AND PROCEDURE
(b) The Clerk, upon receipt of a notice of claim, shall enter of record in
the docket book, indexed and kept for that purpose, the name of the claimant,
whose name shall be used as the title of the case, and a case number shall be
assigned accordingly.
RULE 4. RECORDS.
The Clerk shall keep the following
record books, suitably indexed in the names of claimants and other subject
matter:
(1) Minute and Order Book, in which shall be recorded at large, on the day of
their filing, all orders or recommendations made by the Court in each case or
proceeding, and the Minutes of all official business sessions of the Court,
including Rules of Procedure, orders paying salaries of members and expenses of
the Court, and the salaries, compensations and expenses of its employees, and
all orders pertaining to the organization and administration of the Court,
together with such other orders as may be directed to be entered therein by the
Court.
(2) Docket Book in which shall be entered each case or claim made and filed,
with a file or case number corresponding to the number of the case, together
with brief chronological notations of the proceedings had in each case.
(3) Financial Ledger, in which shall be entered chronologically, all
administrative expenditures of the Court under suitable classifications.
RULE 5. FORM OF CLAIMS.
Notices of all claims and demands
must be filed with the Clerk of the Court and may be by a written statement,
petition, declaration, or any writing without regard to form, which
sufficiently sets forth the nature of the claim or demand, the facts upon which
it is based, the time and place of its origin, the amount thereof, and the
State
RULES OF PRACTICE
ANI) PROCEI)URE XXV
Agency, if any, that is involved. Technical pleadings shall not be required.
The Court, however, reserves the right to require further information before
hearing, when, in its judgment, justice and equity may require. it is
recommended that notices of claims be furnished in triplicate.
RULE 6. COPY OF NOTICE OF CLAIMS TO
ATTORNEY GENERAL AND STATE AGENCY.
Upon receipt of a notice of claim or
demand to be considered by the Court, the Clerk shall forthwith transmit a copy
of the notice to the State Agency concerned, if any, and a copy thereof to the
office of the Attorney General of the State, and the Clerk shall make a note of
the time of said delivery of such notice to the Attorney General?s office.
RULE 7. JURISDICTION,
PRIMA FAdE.
A reasonable time before the
printing of the docket, a provided by these rules, the Court will examine each claim to
ascertain whether it is prima facie within its jurisdiction. If it is found that the Court
has jurisdiction, the claim will then be ordered to be placed upon the docket.
If it is found that the Court is without jurisdiction, the claimant or
representative presenting the claim will be notified accordingly, by letter
from the Clerk; leave being granted the claimant or his representative to
appear be fore the Court at any time during a regular or speci& session
thereof, to show cause, if any, why the Court has or should assume jurisdiction
of the claim.
RULE 8. PREPARATION OF HEARING DOCKET.
The Clerk shall prepare fifteen days
previous to the regular terms of Court a printed (locket listing all
claims and demands that are ready for hearing and consideration by the Court,
and showing the respective dates, as fixe( by the Court, for the hearings
thereof. The said claims
XXVI
RULES OF PRACTICE AND PROCEDURE
or demands shall appear on the said docket in the order in which they were
filed in the office of the Clerk. The Court, however, reserves the right to
rearrange or change the order of hearing claims or demands at any regular term,
when in its judgment such rearrangement or change would help to expedite and
carry on the work of the term. As soon as the docket is completed and printed,
a copy thereof shall be mailed to the address of record of each claimant or his
representatives of record, and a copy furnished the office of the Attorney
General.
RULE 9. PROOF, AND RULES GOVERNING
TESTIMONY.
(a) Claims asserted against the State, including all the allegations in a
notice of claim, are treated as denied, and must be established by the claimant
with satisfactory proof, or proper stipulation as provided under Rule 11 of the
Court, before an award will be made in any case. Affidavits are not admissible
as proof of claims under the regular procedure.
(b) While it is not intended or contemplated that the strict rules of
evidence governing the introduction of testimony shall control in the hearing
or presentation before the Court of any claim or demand; and while, so far as
possible, all technicalities shall be waived, yet the Court reserves the right
to require or outline from time to time certain formalities to be required in
presenting testimony in support of a claim or in opposition thereto, and to
preserve the proper sequence of procedure in the hearing of each individual
claim, as the circumstances may demand or require. Such requirements or
formalities may be announced from time to time during sessions of the Court.
(c)
Under its rules, the Court shall not
be bound by the usual common law or statutory rules of evidence. The Court may
accept and weigh, in accordance with its evidential value, any information that
will assist the Court in determining the factual basis of the claim.
RULES OF PRACTICE
ANT) PROCEDURE XXVII
RULE 10. CLAIMS, ISSuES ON.
In order to promote a simple, expeditious and inexpensive consideration of the
claim made, the Attorney General shall within ten days after a copy of the
notice has been furnished his oflice file with the clerk a formal or informal
statement or notice in writing, either denying the claim, requesting
postponement of proceedings to permit negotiations with the claimant, or
otherwise setting forth reasons for further investigation of the claim,
otherwise after said ten-day period the Court may order the claim placed upon
its regular (locket for hearing, if found to be a claim prima facie within
its jurisdiction.
RULE 11. STIPULATIONS OF FACT, INTERROGATORIES TO DETERMINE.
(a) It shall be the duty of claimants or their attorneys or
representatives, in claims under the regular procedure, to negotiate with the
office of the Attorney General so that the claimant and the State Agency and
the Attorney General may be ready at the beginning of the hearing of a claim to
read, if reduced to writing, or to dictate orally, if not reduced to writing,
into the recor(l such stipulations, if any, as the parties may have been able
to agree upon, as for example, such factual data as the following if material
and applicable to the particular claim:
The control and jurisdiction over, location, grade, width, type of surface and
condition of particular roads, right of ways and bridges; exact or approximate
dates; identities of persons; identity, (lescription and ownership of property;
and any and all other evidential facts directly involved or connected with the
claim, without regard to the foregoing enumeration of data, and which the
parties may be able properly and definitely to agree upon and stipulate, for
the purpose of expediting the hearing, simplifying and shortening the
transcript or record of the claim and to facilitate the labour of the Court in
arriving at and re
XXVIII RULES OF
PRACTICE AND PROCEDURE
solving the controverted questions and issues involved; and to the further end,
where the claim is small, to avoid, if possible, the necessity for the
introduction of evidence.
(h) Where there is a controversy between a claimant and any State Agency,
the Court may require each party to reduce the facts to writing, and if the
parties are not in agreement as to the facts, the Court may stipulate the
questions of fact in issue and require written answers to the said.stipulated
questions.
RULE 12. CLAIMANTS, APPEARANCES.
Any claimant may appear in his own
behalf or have his claim presented through a duly qualified representative. The
representative may be either an attorney-at-law, duly admitted as such to
practice in the courts of the State of West Virginia, or one who has the
qualifications, in the judgment and opinion of the Court, to properly represent
and present the claim of a claimant. Where the representative is not an attorney-at-law,
then such representative must have the written authority of the claimant to act
as such.
RULE 13. BRIEFS, NUMBER OF COPIES.
(a) Claimants or their duly
authorized representatives, as well as the Attorney General or the State Agency
concerned, may file with the Court for its consideration a brief on any
question involved, provided a copy of said brief is also presented to and
furnished the opposing party or counsel. The Court may designate the time
within which reply briefs may be filed.
(b) All briefs filed with, and for the use of, the Court shall be in
quadruplicate?original and three copies. As soon as any brief is received by
the Clerk he shall file the original in the Court file and deliver the three
copies, one each, to the Judges of the Court.
RULES OF PRACTICE
AND PROCEI)URE XXIX
RULE 11. AMENDMENTS TO NOTICES, PETITIONS, ETC.
Amendments to any notice, petition, or
other pleading may be made by filing a new statement of claim, petition, or
such other pleading, unless the Court otherwise directs.
RULE 15. CONTINUANCES; DISMISSAL FOR FAILURE TO PROSECUTE.
(a) After claims have been set for hearing continuances are looked upon by the
Court with disfavor, but may be allowed when
good cause is shown (here for, or when
the State and the claimant jointly move for a continuance.
(b) A party desiring a continuance should file a motion showing good cause
therefor, before the first day of
the term, or otherwise at the earliest
possible (late, SO that if the motion be granted the opposing party may be
notifled, if possible, in time to obviate the attendance of witnesses on the
day set for hearing.
(c) Whnever any claim regularly filed shall not be moved for trial by the
claimant during the time that four regular terms of Court have been held at
which the claim might have been prosecuted, and the state shall be ready to
proceed with the trial thereof, the Court may, upon its own motion or that of
the State, dismiss the claim unless sufficient reason appear or be shown by the
claimant why such claim cannot be tried.
(d) Whenever a claimant shall fail to appear and prosecute his claim on the
day set for hearing and shall not have communicated with the Clerk or the Court
prior thereto, advising of his inability to attend and the reason therefor, and
if it further appear that the claimant or his representative had sufficient
notice of the docketing of the claim for hearing, the Court may, upon its own
motion or that of the State, dismiss the claim.
XXX RULES
OF PRACTICE AND PROCEDURE
(e)
Within the discretion of the Court,
no order dismissing a claim under either of the two preceding sections of this
rule shall be vacated nor the hearing of such claim be reopened except by a
notice in writing filed not later than the end of the next regular term of
Court, supported by affidavits showing sufficient reason why the order
dismissing such claim should be vacated, the claim reinstated and the trial
thereof permitted.
RULE 16. ORIGINAL PAPERS NOT TO BE
WITHDRAWN; EXCEPTIONS.
No original paper in any case shall
be withdrawn from the Court record, except upon special order of the Court, or
one of the Judges thereof in vacation, and except when an official of a State
Department is testifying from an original record of his department a certified
copy of the original record of such department may be filed in the place and
stead of the original without special order of the Court.
RULE 17. WITHDRAWAL OR DISMISSAL
MOTION BY PARTY FILING CLAIM.
(a) Any claimant may move to withdraw
his claim and the same shall be dismissed. Should the claimant later refile the
claim, the Court shall consider its former status, such as previous
continuances and any other matters affecting its standing, and may redocket or
refuse to redocket the claim as iii its judgment justice and equity may require
under the circumstances.
(b) Any department or state agency, having filed a claim for the Court?s
consideration, under either the advisory determination procedure or the
shortened procedure provision of the Court Act, may move to withdraw the claim
and the same shall be dismissed, but without prejudice to the right of the
claimant involved to file the claim under the regular procedure.
RULES OF
PRACTICE AND PROCEI)URE XXXI
RULE 18. WITNESSES.
(a) For the purpose of convenience and in order that proper records may be
preserved claimants and State Departments desiring to have subpoenas for
witnesses shall file with the Clerk a memorandum in writing giving the name and
number of the claim and setting forth distinctly the names of such witnesses,
and thereupon such subpoenas shall be issued and delivered to the person
calling there- for or mailed to the person designated.
(b) Requests for subpoenas for witnesses should be furnished to the Clerk
well in advance of the hearing (late so that such subpoenas may be issued in
ample time before the hearing.
(c)
The payment of witness fees, and
mileage where transportation is not furnished, of any witness subpoenaed by or
at the instance of either the claimant or the respondent state agency, shall be
the responsibility of the party by whom or at whose instance such witness is
subpoenaed.
RULE 19. DEPOSITIONS.
(a) Depositions to be read as part of
the record in any claim under the regular procedure shall not be taken,
recognized or allowed except in accordance with this Rule of the Court.
(b) Before any deposition shall be taken, permission shall be obtained from the
Court if in session, or from the Presiding Judge, or one of the other regular
Judges in the vacation of the Court. Application for such permission shall be
made in writing and show good and sufficient reason why the designated
witnesses, whose depositions are sought to be taken, cannot appear and testify
before the Court when such claim shall come up in regular order for hearing and
investigation.
(c)
If such permission is granted to take
the deposi
XXXII RULES OF
PRACTICE AND PROCEDURE
tions of any designated witnesses, reasonable notice of the time and place
shall be given the opposite party or counsel, and the party taking such
depositions shall pay the costs thereof and fllf? an original and three copies
of such depositions with the Court. Extra copies of exhibits will not be
required; however, it is suggested that where exhibits are not too lengthy and
are of such a nature as to permit it, they should be read into the deposition.
RULE 20. REHEARINGS AND REOPENINGS OF
CLAIMS AFTER DETERMINATION.
(a) Rehearings may not be allowed except where good
cause is shown why the case should be
reconsidered. Motions for rehearings may be entertained and considered cx pctrte, unless
the Court otherwise directs, upon the petition and brief filed by the party
seeking the rehearing. Such petition and brief shall be filed within 30 days
after notice of the Court?s determination of the claim, and the filing of the
Court?s opinion therein, unless good cuase be shown why the time should be
extended.
(b) Unless the petitioner expressly shall seek that the case also be reopened
upon the rehearing for the introduction of new testimony, and unless such
request for reopening the case appears proper and is supported by affidavits
showing good cause why the case should be reopened, such petition shall be
treated only as seeking a reconsideration of the claim upon the record already
made and before the Court. If a rehearing is allowed it shall be only for the
purpose of a reconsideration and redetermination of the case upon the record
already before the court unless the Court, in its discretion shall, by its order, otherwise direct.
RULE 21. RECORDS OF SHORTENED PROCEDURE CLAIMS SUBMITTED BY STATE AGENCIES.
When claims are submitted under the shortened pro-
RULES OF PRACTICE
AND PROCEDURE XXXIII
cedure section of the Court Act, concurred
in by the head of the department and approved for payment by the Attorney
General, the record thereof, in addition to copies of correspondence, bills,
invoices, photographs, sketches or other exhibits, should contain a full, clear
and accurate statement, in narrative form, of the facts UPOfl which the claim
is based. The facts in such record, among other things which may be peculiar to
the particular claim, should show as definitely as possible that:
(1) The claimant did not through neglect, default or lack of reasonable care,
cause the damage of which he complains. In other words, it should appear he was
innocent or without fault in the matter.
(2) The department, by or through neglect, default or failure to use reasonable
care under the circumstances caused the damage to claimant, SO that the State
in justice and equity should be held liable.
(3) The amount of the claim should be itemized and supported by a paid invoice,
or other report itemizing the damages, and vouched for as to the correctness
and reasonableness by some one in authority in the department.
The State Agency shall ascertain that it and the claimant are in agreement as
to the amount of the claim as proposed to be presented to the Court. Before the
record of the claim is filed with the Clerk it must bear the concurrence of the
head of the State Agency concerned and the approval for payment by the Attorney
General.
REPORT OF THE COURT OF CLAIMS
For Period December 1, 1946, to November 30, 1948
(1-a) Approved claims and awards referred to the Legislature, 1947, for the period December 1, 1946, to February 7, 1947, after Report No. 3 had gone to press; allowed by the Legislature, 1947; opinions therein included in this report:
Ci)
-4
-4
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O
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Ci)
Ci)
|
No. Name of Claimant |
Name of Respondent |
Determination |
||||||
|
577 |
Alt, Grant, Sheriff |
State Auditor |
$ |
51.05 |
$ |
51.05 |
January 18, |
1947 |
|
565 |
Bennett, Jacob
F. |
State Road Commission |
|
1,560.00 |
|
1,560.00 |
February 4, |
1947 |
|
566 |
Cabell, N. B. and W. E. Myles |
State Road Commission |
|
39.75 |
|
39.75 |
January 15, |
1947 |
|
567 |
Davis, Robert |
State Road Commission |
|
100.00 |
|
100.00 |
January 16, |
1947 |
|
560 |
Gribble, L. G. |
State Road Commission |
|
? |
250.00 |
January 28, |
1947 |
|
|
570 |
Hall, D. Ray |
State Road Commission |
|
57.00 |
57.00 |
January 17, |
1947 |
|
|
578 |
King?s, Inc. |
Department of Public Safety |
|
132.77 |
132.77 |
January 22, |
1947 |
|
|
574 |
Meeker, David McClung, Alice E. |
State Road Commission State Road Commission |
|
9.10 |
9.10 |
January 17, |
1947 |
|
REPORT OF THE COURT OF CLAIMS (Continued)
(1-a) Approved claims and awards
referred to the Legislature, 1947, for the period December 1, 1946, to February
7, 1947, after Report No. 3 had gone to press; allowed by the Legislature,
1947; opinions therein c
included in this report:
= ? CI2
C12
Amount Amount Determination
No. Name of Claimant Name of Respondent Claimed Awarded Date of
573 O?Conner, George E. State Road
Commission 92.85 92.85 February 5, 1947
569 Pratt, Efile Savage, Gdn. State Road Commission 240.00 240.00 January 16,
1947
Charles Layman and Lois
Elaine Savage
564 S. G. M. Gas Company State Road Commission 4.50 4.50 January 15, 1947
563 Weir-Cove Ice & Coal Co. State Road Commission 435.19 435.19 January
15, 1947
Totals $3,442.21 $3,692.21
ti2
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not satisfied but referred to the Legislature, 1949, for final consideration and appropriation:
C12
9-
C
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9-
02
02
|
No. |
Name of Claimant |
Name of Respondent ? |
|
|
Determination |
|
615 |
American Oil Co. |
State Tax Commissioner |
$ 674.83 |
$ 674.83 |
April 21, 1948 |
|
614 |
Bailey, Clark |
State Road
Commission |
50.00 |
50,00 |
January 16,
1948 |
|
625 |
Caplan, Ben,
d/b/a National Towel Supply Co. |
State Tax
Commissioner |
1,514.89 |
944.27 |
July 26, 1948 |
|
621 |
Daugherty, Duncan W. Davis, I. S., d/b/a Fairmont Linen Supply Co. |
State Auditor |
615.00 |
615.00 |
April 14, 1948 April 21, 1948 |
|
592 |
Eastern Coal Sales Co., a corporation |
State Tax Commissioner |
4,616.10 |
4,616.10 |
Sept. 17, 1947 |
REPORT OF THE COURT OF CLAIMS (Continued)
AfliOllilt Amount Ulaiiued Awarded
Name of (laimant
(1?h) Approved claims and awards not, satisfied but referred to the Legislature, 1949, for Ilual consideration and approprin Li on
Na mnt? of Respondent
No.
602
611
607
(;ot)
1 :t
632
582
599
626
589
603
Date of Del erminat ion
|
l3ite Lttiiiidrv (o. |
lh?pt. of i1otoi? Vehicles |
52.50 |
52.50 |
November 9. 1048
|
|
I?arlev, Alex |
State loml (omtnesion |
100(10 |
100.00 |
t obei? 11. 1947 |
|
(:iljorin 1lnic (?o. |
\V. Va. Boant of Fducatin |
30.11 |
27.95 |
No 10. lOtS |
|
I Iae , Joatie |
State Board of (?otitrol St ate Ioml (?ommissi&in |
10,000.00 |
1,000.00 |
Nov. 12, 1948 A pril 17, 1947 |
|
I tee |
State Road (?ottlntissiolt |
100,00 |
100.00 |
( obet? 19, 19 N |
|
K iietv, Win. M. |
State Read (?ommission |
17.50 |
17.50 |
i ober 28, 1.047 |
|
l,ivlt, SilvI ?, |
State Boat (?omiiissioii |
1.955,00 |
510.00 |
N v niber 5. lOIS |
|
Moore. IicI1e |
State Boat (?4.iOn State Board of (onti?ol |
239.12 |
2:1902 |
.Jaitiarv 10, 194$ Jul 17. 1947 |
|
ll?(3ialv, Sjni |
State Road (?onintission |
38.00 |
5 00 |
\oventer 3, 1.947 |
623
586
579
610
620
580
640
583
576
Pinnell, W. L.
Sr. and W. M. Pfost, d/b/a Pinnell & Pfost
Presson, Katherine
Raleigh County Bank
Robinson, Robert Ray, an infant, by Bob Robinson
Saunders, Thomas
Short, Nellie 0.
Sidell, A. R., M.D.
Slayton, George
Starcher, Zora, Bessie Starcher Cahill and Nora Starcher Rexroad
Utilities Coal Co., a corporation
Webb, Lena J.
Whitaker, R. C. and American
- Central Insurance Co.
State Tax
Commissioner State Road Commission
State Tax Commissioner State Conservation Commissioner
State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Department of Unemployment Compensation
State Conservation Conmission
State Road Commission
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not
satisfied but referred to the Legislature, 1949, for final consideration and
appropriation:
No. Name of Claimant Name of Respondent
536
631
629
Amount
Claimed
907.72
1,000.00
737.88
2,500.00
300.00
43.90
19.81
25.00
835.00
1,884.42
40.00
41.93
Amount Date of
Awarded Determination
907.72 July 27, 1948
100.00 November 6, 1947
472.83 Sept. 15, 1947
2,000.00 January 27, 1948
300.00 April 26, 1948
43.90 April 24, 1947
19.81 October 20, 1948
2500 April 17, 1947
150.00 April 28, 1947
240.62 January 22, 1948
35.00 Nov. 10, 1948
41.93 July 14, 1948
-4
C
C
4j
C12
rj
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not
satisfied but referred to the Legislature, 1949, for final consideration and
appropriation:
(11
J2
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C
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C
C12
z
(3) Approved claims and awards satisfied by payments 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 I Date of Awarded Determination |
|
584 |
Wilson, Blanche
State Road Commission |
15,000.00 |
750.00 April 29, 1947 500.00 January 29,
1948 |
|
(2) Approved claims and awards satisfied by payments out of regular appropriations for the biennium: (None.) |
|||
State Road
Commission
State Road Commission
W. Va. and Kanwha County Boards of Education
Department of Public Safety
State Board of Control
State Department of Public
Assistance
Workmen?s Compensation
Dept.
State Road Commission
State Tax Commissioner
State Road Commissior
State Road Commission
State Road Commission
State Road Commission
(4) Claims rejected by the Court:
REPORT OF THE COURT OF CLAIMS (Continued)
Name of Claimant
Name of Respondent
Amount Amount Date of Claimed Awarded Determination
No.
595
575
557
619
542
627
628
618
624
596
558
581
585
Aibright, S. D.
& F. V., d/b/a Albright Oil Co.
Bess, John W.
Brigode, Lillian
Duke, Ruth C.
Goins, Harry
Hartigan, J. W., M.D.
Hartigan, J. W., M.D.
Hartley, John R., Admr. estate of Donald Lee Hartley, decd.
Huntington Excavating Co.
King, Ida Mae
Loveless, Columbus
Matherly, Effle
Mize, Benny
X2
C C
t-4
I2
z
J2
$ 631.18
1,871.14
3,000.00
300.00
5,000.00
1,170.00
305.00
10,000.00
379.75
25,000.00
1,000.00
1,978.59
Denied Denied
Dismissed Denied
Denied
Dismissed Dismissed
Denied
Dismissed
Denied
Denied
Dismissed
Denied
May 3, 1948
November 3, 1947
January 23, 1947
April 30, 1948
February 5, 1947
June 18, 1948
June 18, 1948
April 30, 1948
June 18, 1948
January 19, 1948
January 28, 1947
May 5, 1948
April 30, 1947
Morris, Paul
Edward, infant, by W. S. Morris
Morris, i,ril1iam
Morrison, James A. and Onieda
McGraw, Della J.
McNeil, Louise
Neville, Charles W.
Orsini, Sylvia
Richmond, Jess P.
Saunders, Thomas
Thompson, A. J.
W. Va. and Mason
County Boards of Education
W. Va. and Mason County Boards of Education
State Road Commission
State Board of Control
State Board of Control
State Conservation
Commission
State Road Commission
State Tax Commissioner
State Road Commission
State Road Commission
(2
?0
lz
?f2
No.
REPORT OF THE COURT OF CLAIMS (Continued)
(4) Claims rejected by the Court:
Name of Claimant
Name of Respondent
571
572
608
622
590
561
601
594
598
593
Amount Amount
Claimed Awarded
25,000.00
Dismissed
5,000.00
Dismissed
1,000.00 Denied
5,200.00 Denied
208.20 Denied
955.00 Denied
31.95 Denied
5,557.86 Denied
1,500.00 Dismissed
50.00 Denied
Date of
Determination
January 21, 1947
January 21, 1947
May 4, 1948
October 20, 1948
July 22, 1947
February 7, 1947
November 4, 1947
October 22, 1947
January 28, 1948
October 20, 1947
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.
|
|
Total $95,138.67 |
|
(5) Advisory determinations made at the request of the Governor or the head of a State Agency: (None.) |
|
OPINIONS
I XLIII]
TABLE OF CASES
REPORTED XLV
TABLE
OF CASES REPORTED
Page
Aibright, S. D. and F. V. v. State Road Commission 150
Albright Oil Company v. State Road Commission - 150
Alt, Grant, Sheriff v. State Auditor 11
American Central Insurance Company et al v. State Road
Commission 160
American Oil Company v. State Tax Commissioner -- - 139
Bailey, Clark v. State Road Commission - 105
Bennett, Jacob F. v. State Road Commission 21
Bess, John W. v. State Road Commission - - 83
Bonded Oil Company v. State Tax Commissioner 95
Bowling, J. Otis v. State Road Commission 89
Breedlove, John H. v. State Road Commission 134
Brigode, Lillian v. W. Va. and Kanawha County Boards of
Education -
-- 16
Brodhead-Garrett Company, Inc. v. W. Va. Board of Education 184
Buffalo-Winifrede Coal Company, a corporation v. State Department of
Unemployment Compensation 114
Cabell, N. B. and W. E. Myles v. State Road Commission 3
Caplan, Ben, d/b/a National Towel Supply v. State Tax Com missione -- 164
Catron, S. P. v. State Road Commission 185
Clark, Maud v. State Road Commission 162
Cochron, Zackwell v. State Road Commission 100
Coole, J. W. v. State of West Virginia 206
Crescent Brick Company v. State Auditor 118
Duke, Ruth C. v. State Department of Public Safety 148
Daugherty, Duncan W. v. State Auditor -- 132
Davis, I. S., d/b/a Fairmont Linen Supply Company v. State
Tax Commissioner 137
Davis, Robert v. State Road Commission 4
Eastern Coal Sales Company, a corporation v. State Tax Com missione 68
XLVI TABLE OF
CASES REPORTED
Elite Laundry Company, a corporation v. State Department of
Motor Vehicles 197
Eureka Pipe Line Company v. State Road Commission (No.
602) 85
Eureka Pipe Line Company v. State Road Commission (No.
611) 99
Evening Journal Publishing Company v. State Auditor 116
Fairmont Linen Supply Company v. State Tax Commissioner_ 137
Farley, Alex v. State Road Commission 81
Galperin Music Company v. W. Va. Board of Education 199
Goins, Harry v. State Board of Control 25
Gribble, L. G. v. State Road Commission 17
Hall, D. Ray v. State Road Commission 9
Hartigan, J. W., M.D. v. State Department of Public Assistance 158
Hartigan, J. W., M.D., v. Workmen?s Compensation Department 159
Hartley, John R., admr. of estate of Donald Lee Hartley v. State
Road Commission 145
Hayes, Isaac v. State Board of Control 202
Hendrickson, Jack and Martha v. State Road Commission 39
Huntington Excavating Company v. State Tax Commissioner 155
Jackson, Dee v. State Road Commission - 175
King, Ida Mae v. State Road Commission 107
Kings, Inc. v. State Department of Public Safety 15
Knisely, Wm. M. v. State Road Commission 79
Light, Sibyl C. v. State Road Commission ---- 194
Loveless, Columbus v. State Road Commission 19
Meeker, David v. State Road Commission 10
Mize, Benny v. State Road Commission 62
Moore, Lucille v. State Road Commission 102
Morris, Paul Edward, infant, by W. S. Morris v. W. Va. and
Mason County Boards of Education 12
Morris, William v. W. Va. and Mason County Boards of Edu catio 12
Morrison, James A. and Oneida v. State Road Commission - 152
Musgroves Wholesale Grocery v. State Board of Control 64
Myles, W. E., et al v. State Road Commission 3
McClung, Alice E. v. State Road Commission 6
TABLE OF CASES
REPORTED XLVII
McGrady, Sim v. State Road Commission 86
McGraw, Della J. v. State Board of 178
McNeil, Louise v. State Board of Control 65
National Towel Supply Company v. State Tax Commissioner 164
Neville, Charles W. v. State Conservation -Commission 32
O?Conner, George E. v. State Road Commission - 23
Orsini, Sylvia v. State Road Commission - 88
Pinnell, W. L. Sr. and W. M. Pfost v. State Tax Commissioner 167
Pratt, Effie Savage, guardian v. State Road Commission 7
Presson, Katherine v. State Road Commission - 92
Raleigh County Bank v. State Tax Commissioner - - - 42
Richmond, Jess P. v. State Tax Commissioner 76
Robinson, Robert Ray, infant, by Bob Robinson v. State Con servatio Commission - - -- - 120
Saunders, Thomas v. State Road Commission (No. 598) 122
Saunders, Thomas v. State Road Commission (No. 620) - 143
S. G. M. Gas Company v. State Road Commission -- -- 2
Short, Nellie 0. v. State Road Commission - - 40
Sidell, A. R., M.D., v. State Road Commission 180
Slayton, George v. State Road Commission - 38
Starcher, Zora, Bessie Starcher Cahill and Nora Starcher Rex-
road v. State Road Commission 54
Thompson, A. J. v. State Road Commission 74
Utilities Coal Company, a corporation v. State Department of
Unemplayment Compensation -
- - 110
Webb, Lena J. v. State Conservation Commission 201
Weir-Cove Ice & Coal Company v. State Road Commission 1
Whitaker, R. C. and American Central Insurance Company v.
State Road Commission 160
Wilson, Blanche v. State Road Commission 56
Wisman, George, James and Garnett and Hazel Wood and Ed
Moore v. State Road Commission 124
Young, Elizabeth v. State Road Commission 174
Cases Submitted
and Determined
in the Court of Claims in the
State of West Virginia
(No. 563-S--- Claimant awarded
$435.19)
WEIR-COVE ICE & COAL COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Jctnuctry 15, 1947
CHARLES J. SCHUCK, JUDGE.
Claimant?s Dodge truck, loaded with
coal and having a gross weight of 14,700 pounds, while crossing the bridge
spanning Holberts Run in Hancock county, West Virginia, broke through the said
bridge causing damage to the truck in the amount of $435.19. From the record it
appears that two of the stringers underneath the bridge and supporting the
floor thereof had been affected by dry rot and had consequently materially
weakened the carrying capacity of the bridge, which was a wooden structure. No
signs were posted as to weight limits, nor had the bridge been inspected for
several months previous to the time of the accident in question. A detailed and
itemized statement is furnished showing the various repairs that total the
amount of the claim.
The state road commission shows through its special claims investigator, George
I. Simons, that a personal in-
2 REPORTS STATE
COURT OF CLAIMS [W. VA.
vestigation of the claim was made by him; that the bridge in question had not
been inspected for several months and then only in a haphazard manner; that
there were no caution signs and no load-limit signs placed anywhere near the
bridge designating the limit of the load that the bridge would carry. He also
states that a towing truck and wrecker was necessary to remove the wrecked
truck, and that other expenses were incidental to the removal of the wrecked
truck and coal; also that the bridge in question had been used for loads
similar to those that claimant had at the time of the collapse of the bridge.
He recommends that payment be made in favor of the claimant in the amount asked
for and this recommendation is approved both by the head of the state road
department and the attorney general?s office, by the attorney general and the
assistant attorney general.
Under the circumstances and facts, as shown, there was negligence on the part
of the road crew or local superintendent of the road commission in not having
signs posted and the bridge in question inspected and we are of the opinion
that the claim should be paid. An award is therefore made in the amount of four
hundred thirty-five dollars and nineteen cents ($435.19).
(No. 564-S?Claimant awarded $4.50)
S. G. M. GAS COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 15, 1947
CHARLES J. SCHUCK, JUDGE.
On March 6, 1946, a state road commission crew was engaged in placing gravel in
the Armstrong Creek Road in
W. VA.] REPORTS
STATE COURT OF CLAIMS
Fayette county, West Virginia, and in the course of said work was using a state
road truck for the purpose of hauling the gravel. From the facts, as submitted,
it seems that it was necessary for the driver to leave the state right of way
in the operation of his truck and drive in, over, and upon private property to
reach other state road equipment which was then located in the creek bed of the
aforesaid creek. In doing so and while operating the said truck, as aforesaid,
it struck the private gas line of claimant, causing the pipe to become
separated and bring about a leak in the gas line. Damages in the amount of
$4.50 are claimed.
The claim is recommended for payment by the head of the department involved and
approved by the attorney general?s office, through the attorney general and the
assistant attorney general. We are of the opinion that the carelessness of the
operator of the state road truck was the immediate cause of the accident, and
therefore recommend payment of the claim and make an award in the amount of
four dollars and fifty cents ($4.50).
(No. 566-S?-Claimants awarded $39.75)
N. B. CABELL and W. E. MYLES, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 15, 1947
CHARLES J. SCHUCK, JUDGE.
On July 12, 1946, a state road commission crew, under the supervision of W. A.
Dysard, as foreman, was employed at cleaning out what is known as Spring Run in
Greenbrier county, a mile and one-half northwest of White
4 REPORTS STATE
COURT OF CLAIMS [W. VA.
Sulphur Springs, West Virginia. The work was being carried on upon private
property and was for the purpose of removing the debris and filling an
embankment that had been considerably washed during a previous flood. A state
road shovel was used for doing the work and during the process of cleaning the
aforesaid run the shovel in question came in contact with, raised and damaged
the private gas line of claimants, causing damage to the extent of $39.75.
Payment of the claim is authorized by the state road commissioner and approved
by the attorney general?s office by the attorney general, himself, and the assistant
attorney general.
We are of the opinion that under the circumstances claimants are entitled to an
award in the sum heretofore specified, to wit, thirty-nine dollars and
seventy-five cents
($39.75).
(No. 567-S-?Claimant awarded $100.00)
ROBERT DAVIS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 16, 1947
ROBERT L. BLAND, JUDGE.
According to a record prepared by the state agency involved in this case and
submitted to this court on December 11, 1946, under section 17, article 2,
chapter 14 of the code, the state road commission exercises supervision of a
bridge crossing Kanawha Two-mile Creek and what i known as Dutch Hollow Road,
in Kanawha county, West Virginia. This bridge is fifty-two feet long and
fourteen
W.VA.] REPORTS
STATE COURT OF CLAIMS 5
feet wide. The floor of the bridge is seven feet above t stream of water. It
had been neglected and permitted to become and remain in a defective and
dangerous condition. Close to one end of the bridge was a large hole, sixty-six
inches long and eleven inches wide, according to a statement made by Grover
Melton, district safety director. The hole had been in existence approximately
si weeks prior to the accident out of which the instant claim arises. The state
claim agent, who investigated the claim in question, refers to the bridge
accident as ?another case of no reports, no inspections.?
Claimant and his family reside in Dutch Hollow, one- fourth mile up the hollow
from Kanawha Two-mile Road. About five o?clock, P. M., on November 4, 1946,
claimant?s small daughter, Arbutus Davis, aged seven years, was sent by her
mother to a mail box to obtain a daily paper. While crossing the bridge on her
way home the child stepped into the hole and fell for a distance of seven feet,
knocking out one permanent tooth and one ?baby? tooth, and sustaining bruises
to her body. Claimant made certain expenditures for x-ray pictures and dental
treatment and will incur other and further liability in the necessary treatment
of the child, and dental work and services. A careful investigation reveals
that this liability will approximate the sum of $100.00.
It is difficult to believe that officials of the road commission should be so
neglectful of duty and so indifferent to the safety of the traveling public as
is shown by th record of this claim. No excuse can be offered for the continued
existence of the dangerous hole in the bridge in question. There is, we think,
under the facts disclosed by the record, a moral obligation on the part of the
state sufficient to warrant an award in this case. An award is, therefore, made
in favor of claimant Robert Davis, in the sum of one hundred dollars ($100.00),
to compensate him for money already expended in the necessary treatment of his
child, Arbutus Davis, and for the further use anr1 benefit of said child in
providing necessary dental services.
6 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 568-S?Claimant awarded $720.00)
ALICE E. McCLUNG, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Jtrnuary 16, 1947
ROBERT L. BLAND, JUDGE.
Claimant Alice E. McClung is the dependent widow of John McClung, deceased.
Said John McClung, while an employe of the state road commission and in the
line of duty sustained a fatal injury when struck by a snowplow in Greenbrier
county, West Virginia, on January 25, 1936. His death occurred on February 9,
1936. At the time of the accident the state road commission was not a
subscriber to the workmen?s compensation fund. In 1937, 1939, and 1941 the
Legislature made appropriations for the benefit and relief of his widow, the
said Alice E. McClung. In 1943 this court made a further award in her favor.
See Alice E. McClung v. State Road Commission 2 Ct. Claims (W.
Va.) 83. The opinion of Elswick, Judge, sets forth the facts out of which the
claim arose and the reasons supporting the appropriations and awards made.
Reference is also made to the subsequent opinion of this court, Alice E.
MeClung v. State Road Commission, 3 Ct. Claims (W. Va.) 47.
The claim under consideration now comes to this court again from the state road
commission. It is concurred in by the state road commissioner and approved by
an assistant attorney general as a claim which, within the meaning of the act
creating the court of claims, should be paid by the state.
Pursuant to the policy established by the Legislature, and following the
precedent created by this court, an award is now made in favor of claimant
Alice E. McClung for
W. VA.] REPORTS
STATE COURT OF CLAIMS 7
the sum of seven hundred and twenty dollars ($720.00), payable in monthly
installments of thirty dollars ($30.00) each from January 1, 1947, to December
31, 1948, but to terminate and end upon her remarriage or death within such
period of twenty-four months.
(No. 569-S?C?aimant awarded $240.00)
EFFIE SAVAGE PRATT, Guardian of Charles Layman Savage and Lois Elaine Savage, infants under
the age of sixteen years, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 16, 1947
ROBERT L. BLAND, JUDGE.
The two claims involved in this case grow out of the death of Theodore Savage,
a former employe of the state road commission, and father of said infants. Each
claim is in the sum of $120.00, and each is concurred in by the state road
commission, and approved by the attorney general as a claim that, in view of
the purposes of the court of claims statute, should be paid by the state. The
claims are submitted to this court for determination under the provisions of
section 17 of the court act.
Said Theodore Savage was engaged in the line of duty as an employe of the state
road commission when his death occurred on the twelfth day of June, 1936. The
facts supporting the claims are particularly set forth in case No. 227-S, in
which the opinion of the court by Elswick, Judge, appears in 2 Ct. Claims (W.
Va.) 89, to which reference is here made. At the time of the accident which
resulted in the death of said Theodore Savage, the state road corn-
8 REPORTS STATE
COURT OF CLAIMS [W.VA.
mission was not a subscriber to the workmen?s compensation fund. The decedent
left surviving him Effie Savage, as his widow, and said Charles Layman Savage
and Lois Elaine Savage, as his only children and sole heirs at law.
Appropriations were made for the benefit of said widow and two dependent children
by the Legislature in 1937, 1939 and 1941, the amount appropriated in 1937 for
said widow and two children being one thousand three hundred seventy dollars
($1370.00), the amount for 1939, nine hundred sixty dollars ($960.00), and in
1941, three hundred sixty dollars ($360.00), as compensation to said two
children, their mother having entered into a second marriage. In 1943 this
court made awards of five dollars ($5.00) per month for each of said children
from January 1, 1943. to December 31, 1944, and further awards were made for
said two children by this court in case No. 424-S, E/Jie Savage Pratt, gdn., etc., 3 Ct. Claims (W. Va.) 46.
Pursuant to the policy established by the Legislature, and following the
precedent created by this court, an award of two hundred forty dollars
($240.00) is now made in favor of claimant, Efflie Savage Pratt. guardian of
Charles Layman Savage and Lois Elaine Savage, infants under the age of sixteen
years, payable in monthly installments of five dollars ($5.00) each for each of
said infants, for a period of twenty-four months from January 1, 1947, to
December 31, 1948.
W.VA.1 REPORTS
STATE COURT OF CLAIMS 9
(No. 570-S?Claimant awarded $57.00)
D. RAY HALL, Claimant
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 17, 1947
MERRIMAN S. SMITH, JUDGE.
In the fall of 1945 and spring of 1946, Sam Smith, an employe of the state road
commission, was engaged in driving a patrol grader, and graded onto the private
property of claimant B. Ray Hall, situated off Popular Street in the town of
St. Albans, Kanawha county, West Virginia. During the same period of time stone
was being blasted from the embankment and dumped on claimant?s property. This
work was being done on a private road which was not included in the state road
commission system of Kanawha county and consequently was not authorized by any
official of the state road commission.
The damage done necessitated claimant employing a surveyor to reestablish the
property line, and labor for removing the stone and dirt, which work was done
in August, 1946. An itemized bill in the amount of $57.00 was filed with the
record of this claim.
The claim is recommended for payment by the head of the department involved and
approved by the assistant attorney general.
An award in the sum of fifty-seven dollars ($57.00) is therefore made in favor
of claimant, D. Ray Hall.
10 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 574-S?Claimant awarded $9.10)
DAVID MEEKER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Jctnuary 17, 1947
MERRIMAN S. SMITH, JUDGE.
While driving across the Aetnaville toll bridge operated by the state road
commission in Ohio county, West Virginia, on September 29, 1946, the muffler
and exhaust pipe of claimant?s car were damaged when a loose or displaced floor
or deck board flew up and engaged the underside of the car. The cost of
repairing the damage to the said automobile was $9.10.
The circumstances and facts connected with this claim having been duly
investigated by those in authority in district No. 6 of the state road
commission, and the payment of the claim being concurred in by the state road
commissioner and approved by an assistant attorney general, an award in the
amount of nine dollars and ten cents ($9.10) in favor of the claimant, David
Meeker, is recommended.
XV. VA.I REPORTS
STXTE (OURT OF (I.\LMS 11
(No. 57T-S?? (laimant awarded $1.O)
GRANT ALT, Sheriff, Claimant,
V.
STATE AUDITOR, Respondent
Opinion filed Jnnaiy is, ii 7
MERRIMAN S. SMITH, JUDGE.
Grant Alt, sheriff of Pentileton county, West Virginia. did not present to
the state auditor for payment twenty certificates for state?s witness
attendance at December 1941 and 1942 terms of circuit court, totaling $51.05,
until after the statutory period for current appropriations out of which they
could have been paid had expired.
It appears from the twenty certificates, made a part of the instant record,
that this is a just obligation and one that should be paid, the payment of
which is concurred in and recommended by the state auditor and the assistant
attorney general. Therefore, an awar(l in the amount of fifty-one dollars and
five cents ($51.05) is hereby made t the claimant, Grant Alt, sheriff of
Pendleton county, West Virginia.
12 REPORTS STATE COURT
OF CLAIMS [W.VA.
(Nos. 571, 572?Claims dismissed)
PAUL EDWARD MORRIS, infwnt, by W. S. MORRIS,
his next friend, claimant,
V.
WEST VIRGINIA BOARD OF EDUCATION
and BOARD OF EDUCATION OF MASON COUNTY, Respondents.
WILLIAM S. MORRIS, Claimant,
V.
WEST VIRGINIA BOARD OF EDUCATION
and BOARD OF EDUCATION OF MASON COUNTY, Respondents.
Opinion filed January 21, 1947
The court of claims is without
jurisdiction to hear and determine or to make an award in any matter or claim
involving a county board of education. Reaffirming Dillion v. Board of Education, 1 Ct. Claims (W. Va.) 366; Richards
v. Board of Education, 3 Ct.
Claims (W. Va.) 251.
Appearances:
Kay, Casto & Amos (John S. Haight)
for the claimants.
W. Bryan Spillers, Assistant
Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
The above claims growing out of the same facts, for the purpose of this
opinion, are herewith considered jointly. The state department involved having
filed a plea denying the court?s jurisdiction to hear and determine the claims
on their merits, we are now called upon to render an opinion on the pleadings
as filed by the claimants and the said plea as to jurisdiction. This court has
heretofore on
W. VAJ REPORTS STATE COURT OF CLAIMS 13
several occasions iassctl upon the quest ion here involv d. and has held that
we are without jurisdiction to hear and determine any claim or matter involving
a county board ot education. See Dillon
v. Sum mc,s Coo ntj Board of Education, 1 Ct. Claims (W. Va.) 366; llicharth
v. State aud Calhoun County Bocuds of Education, 3 Ct. Claims (W. Va.) 251.
We appreciate, however, that the claimants have made the state board of
education a party to these proceedings, and are seeking by argument presented
in an able brief to make the state board liable, on the theory that under
section 5, article 2, chapter 18 of the code of West Virginia (1933) the state
board shall make rules and carry into effect the laws and proceedings of the
state relating to education,
including rules relating to the physical welfare of pupils, . . .?; and further, that under section 3, article 3 of the
same chapter the general supervision of the schools is vested in the state
superintendent of schools.
We have again considered the foregoing provisions in connection with the claims
as presented, and are of the opinion to affirm our former opinions herein
referred to and to hold that we are without jurisdiction to hear and determine
the merits of the said claims. Chapter 39 of the acts of the Legislature 1945
specifically excludes from our consideration or jurisdiction any claim that may
grow out of any matter involving a county board of education, and also excludes
all county boards of e(lucatiOn from the definition of the term ?state agency?
as found in the act creating this court.
We believe that the Legislature clearly intended, by the aforesaid act, to take
from this court every right to hear and determine any question involving in any
manner a claim against any county board of education, even when coupled with the
state board. Especially is this true, in our opinion, when the claims, as
presented, arose originally by reason of the alleged negligence of employes or
attaches employed by the county board of education and under the
14 REPORTS STATE
COURT OF CLAIMS [W. VA.
control and supervision of such board. The statute above referred to is plain
and unambiguous, clear and definite in its application, and therefore leaves
not the slightest reason for doubt or conjecture.
The local or county board of education has full charge of the personnel that is
required to operate the schools located within the county; retains the services
of teachers, superintendents and principals, as well as janitors and those
employed in and about the school buildings, and who are charged with keeping
the buildings in a safe, sanitary condition for the welfare of pupils enrolled
in the school; fixes their salaries and discharges them when their services are
no longer wanted or required. The state board of education does not control this
personnel in any way, except as to certain requirements that are necessary in
the matters of superintendents, principals and teachers before they can be
employed by the local board. The negligence, therefore, of any employe such as
a janitor or one in charge of the school buildings, could not by the widest
stretch of the imagination place upon a state board a moral obligation to
respond in damages for the negligence of an employe of th local board. We
cannot agree with the proposition that the state board is in any sense
involved, and feel that we are likewise enjoined from hearing any matter
against the state board, not only by reason of the imputation and intent of the
legislative acts, but by decisions of our State (?ourt of Appeals as well.
These claims seem to be highly meritorious, and claimants, of course, can still
present the matter to the Legislature for appropriate action.
The plea to the jurisdiction is sustained and the cases dismissed.
W.VA.1 REPORTS
STATE COURT OF CLAIMS 15
(No. 578-S?Claimant awarded $132.77)
KING?S, INC., Claimant,
V.
DEPARTMENT OF PUBLIC SAFETY,
Respondent
Opinion filed January L.?, 19.47
MERRIMAN S. SMITH, JUDGE.
Ticket invoices for repairs to leggings and shoes belonging to various members
of the West Virginia state police during the years 1943, 1944 and 1945, were
presented by King?s, Incorporated, of Charleston, West Virginia, to the
department of public safety, in the total amount of
$132.77.
After double checking the individual tickets as to names, dates and amounts,
the total amount claimed was found to be correct and just; and the head of the
agency involved certified that said bills, as rendered, had not been paid. This
claim being concurred in by the superintendent of the department of public
safety, and approved by the assistant attorney general, an award in the sum of
one hundred thirty-two dollars and seventy-seven cents ($132.77) is hereby made
to King?s, Inc., of Charleston, West Virginia.
16 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 557?Claim dismissed)
LILLIAN BRIGODE, Claimant,
V.
STATE BOARD OF EDUCATION and KANAWHA COUNTY BOARD OF? EDUCATION,
Respondents.
Opinion
fl/cd January 23, 1947
The court of claims is without
jurisdiction to hear and determine or to make an award in any matter or claim
involving a county board of education. Reaffirming Dillon v. Board of Education, 1 Ct.
Claims (W. Va.) 366; Richards v. Board of
Edncation, a ct. Claims (W. Va.) 251.
Appearances:
Dayton, Campbell & Love (Ernest
Gilbert), for the claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
The above claim grows out of facts involving a county board of education, and
in accordance with our opinions heretofore rendered in similar cases or claims,
we again hold that we are without jurisdiction, and reaffirm our previous
findings or conclusions in a claim or claims of similar nature.
W. VA.1 REPORTS
STATE COURT OF CLAIMS 17
(No 560?Claiinant awarded 2iO.Oo)
L. G. GRIBBLE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Ojiieion. filed -January 28, 1947
An award will be made when the
evidence shows that the employes of the state road commission entered UPOfl private property without authority and felled
some twenty trees and otherwise damaged the property.
Appearances:
Claimant, in his own behalf.
W. Brya?i Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JUDGE.
In August, 1946, a crew of the state
road commission was clearing the right of way on state route 17 in the suburbs
of St. Albans, Kanawha county, West Virginia, and while so doing they cut down
twenty trees and three rose bushes which were located on two lots belonging to L.
G. Gribble, the claimant. These trees were situated from eighteen to
twenty-four inches off the state?s right of way and on the land of the said
Gribble.
The liability of the state road commission for the wrongful act was admitted by
the assistant attorney general on behalf of the state, therefore evidence was
introduced by claimant in order that the amount of damages sustained might be
ascertained.
From the evidence introduced it aI)peared that claimant purchased these two
lots in 1945, paying approximately
18 REPORTS STATE
COURT OF CLAIMS [W. VA.
$1000.00
for them, and that he expects to build
his home thereon, at such time as materials are available, in which to live
during his declining years.
Some of the trees, by virtue of their location, would undoubtedly have been cut
down anyway; on the other hand, they were from four to twelve inches in
diameter, and two of them were so planted as to distance that they were
especially arranged for the placing of a hammock and the claimant had visions
of spending many idle moments under the spreading boughs and shades reclining
in his hammock.
Jus as ?Rome was not built in a day? so with trees, they are the handiwork of
the Ruler of the Universe, and only time can develop them to usefulness to
mankind.
After due consideration the court approves an award in the sum of two hundred
and fifty dollars ($250.00) to the said claimant, L. G. Gribble.
W. VA.I REPORTS
STATE COURT OF CLAIMS 19
558 Claim denied)
COLUMBUS LOVELESS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Janiia,y 8, 1947
An award will be denied upon failure
to Prove l)y a preponderance of the evidence the justness and
merit of a claim against the state or any of its governmental agencies.
Hendricks, Boiddin & Jones, for claimant.
W. Bryan Spillers, Assistant Attorney General, for respondent.
ROBERT L. BLAND, JUDGE.
The state road commission exercises control over and maintains a bridge for
pedestrians and vehicular traffic over Big Coal River, within the corporate limits
of the town of Whitesville in Boone county, West Virginia. It exten(ls from the
main highway in the direction of and toward a coal mining camp.
Claimant Columbus Loveless, a ?grease man? in the employ of the Anchor Coal
Company, resides about three hundred yards from this bridge, and has crossed
over it on an average of twice a day for the past seven years. About
four-thirty o?clock on the morning of Saturday, September 21, 1946?after having
been out until that hour having a ?good time??while crossing the bridge on his
way home from Whitesville he claims to have stepped into a large and dangerous
hole in the treadway on which he was walking and thereby sustained personal
injuries, in consequence of which he suffered much discomfort and pain and was
prevented from resuming the duties of his employment with the coal company for
fourteen (lays, thus losing
20 REPORTS STATE
COURT OF CLAIMS__- [W. VA.
wages at the rate of $11.85 per day for that period of time. He, therefore,
seeks an award of $1000.00 to compensate him for his personal injuries and loss
of wages. He made several trips to a physician, but asks no compensation for
medical attention. No one witnessed the alleged accident, but when claimant
returned to his home he informed his wife and stepson and stepdaughter as to
how he claimed the accident occurred, and they perceived the extent of his
injuries, and know that he lost fourteen days of working time wages.
Claimant related the circumstances attending his accident in these words:
?Well, about 4:30 in the morning
I was coming across that bridge and my right leg went
down in a hole and my left leg doubled up under me and
I reached over to the bannister to pull myself out.?
To make out a case entitling him to an award the claimant has the laboring oar.
The onus of proof is on him. An award will be denied upon failure to prove, by
a preponderance of the evidence, the justness and merit of a claim against the
state or any of its governmental agencies.
Oak planks in the floor of the bridge were laid crosswise. In course of time
when, on account of heavy traffic and hard usage, holes would from time to time
appear in the floor of the structure, a ?traffic tread? was built on the
bridge. In doing so the planks were laid lengthwise. This was done to secure
greater safety. According to the testimony of claimant he was walking on this
treadway when he crossed the bridge to go to his home. He always walked on the
treadway, and had never, prior to his accident, observed a hole in the
treadway. He testified that the hole in the treadway was about six by eighteen
inches in size, and that his leg went through this hole as far as his thigh.
The evidence in the case shows that when holes would appear in the floor
outside of the treadway they were always promptly repaired. The evidence of the
mayor of Whitesville and other testimony shows this to be true. When a new
floor was to be placed in the bridge the
W. VA.1 REPORTS
STATE COURT OF CLAIMS 21
treadways were removed. No holes appeared in these treadways, and no holes were
discovered in the oak planks on which the treadways were constructed.
We deem it unnecessary to record in this statement the evidence at any length.
Suffice it to say that the claimant has not only failed to prove that a hole in
the bridge was the proximate cause of his accident, but has wholly failed to
establish a just and meritorious claim against the state? one for which an
appropriation of the public funds should be made. The evidence as a whole
conclusively disproves the contention of the claimant. We cannot, under the
convincing showing of the record, make an award in favor of claimant.
An award, therefore, is denied and the claim dismissed.
(No. 565?Claimant awarded $1560.00)
JACOB F. BENNETT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Febriutry 4, 1947
Appearances:
Claimant, in his own behalf.
George I. Simons, special claims investigator for the state road
commission, for respondent.
CHARLES J. SCHUCK, JUDGE.
As heretofore noted in the several awards made to the claimant, he was
permanently injured by reason of a dynamite explosion, through no fault of his,
while employed
22 REPORTS STATE
COURT OF CLAIMS [W. VA.
by the state road commission; his injuries having been received at a time when
the road commission had not as yet been placed by statute under the provisions
of the workmen?s compensation act, and this court, finding that the state was
morally bound to compensate him, made an award accordingly. Bennett v. Road Commission, 2 Ct. Claims (W. Va.) 108. By the said award claimant was. and has been,
paid at the rate of $52.00 per month for the biennium of 1943 and 1945, which
payments per month at the same rate have been continued by reason of a
subsequent award made by this court at its January term 1945. Bennett v. Road Commission 3 Ct. Claims (W. Va.) 7.
The claim as now presented is in effect for a continuation of the awards
heretofore made; and the court again having heard all the evidence adduced, is
of the opinion that the said monthly payments, desired as such by the claimant,
should be continued at the same rate, namely $52.00 per month for the period
beginning January 1, 1947 and ending July 1, 1949, on or before which time a
physical examination of claimant shall be made by a competent physician or
physicians, designated by the court, for the purpose of guiding the court in
its future consideration of this claim as well as to determine whether or not
such payments should be continued, modified or discontinued.
An award is therefore made in the sum of one thousand five hundred and sixty
dollars ($1,560.00) payable in monthly payments of fifty-two dollars ($52.00)
each, for and during the period hereinbefore indicated.
ROBERT L. BLAND, JuDGE, concurring.
It is with hesitation that I concur in the above award. Taking into
consideration the amount of said award, the claimant will have received
$9,747.02 since his accident. When the claimant first came before the court I
was of opinion that an award adequate to compensate him for his suffering and
disability should have been made. I do not believe that awards should be made
in the manner in
W.VA.l REPORTS
STATE COURT OF CLAIMS 23
which they have been made to this claimant. I believe in finality of awards. I
am not satisfied that the claimant is entitled to any more money than the total
amount for which awards have heretofore been made. Upon the last hearing it was
made clear that he can milk cows and perform chores about the farm and he was
able to travel a distance of eighty miles in order to attend the hearing.
Should this claimant desire other and further compensation from the state I am
of opinion that he should come into the court under its regular procedure and
let the case be thoroughly investigated; certainly there should be a prope?
medical examination made to determine the extent of his disability before any
other or further compensation shall be made to him. I have never been satisfied
that this court should make awards as contemplated under chapter 23 of the
code.
(No. 573?Claimant awarded $9185)
GEORGE E. O?CONNOR, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 5, 1.947
Negligence in maintaining the traveled
portion of a highway in a reasonably safe condition, thereby causing claimant?s
automobile to be wrecked and damaged, without any contributory negligence on
his part, entitles claimant to an award.
Appearances:
Claimant, in his own behalf.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Early on the morning of October 15, 1946, while driving
24 REPORTS STATE
COURT OF CLAIMS [W.VA.
on Coal Fork road, about one mile from the intersection with Davis Creek road,
at Loudendale, Kanawha county, and while accompanied by his wife and two minor
daughters, the right front wheel of claimant?s automobile dropped into an
opening in the highway several feet in diameter, and located adjacent to a
certain bridge crossing what is known as 1)avis Creek, causing damages to the
car and slight injuries to one of the children. Since the accident, however,
the said child has suffered no ill effects by reason thereof, is in good
health, and no claim is made by or for her except the cost and expenses of
doctors examinations to determine the nature and extent of the injuries, if
any, that she might have had.
The evidence shows that the opening or hole in the road was covered by grass
and weeds which had improperly and negligently been allowed to grow and spread,
and that consequently the defect could not be seen by one using the road as a
traveler in an automobile and while approaching the bridge in question, as
claimant was doing at the time of the accident. Claimant was driving at the
rate of about ten miles per hour and seemingly using the necessary care in
approaching the bridge and nowhere does the record in the case reveal that
there was any negligence on his part contributing in any manner to the
happening of the accident. The evidence further tends to show that the
condition of the highway had been called to the attention of the road
authorities prior to claimant?s accident, but no effort of any kind was made to
remedy the defect, until after the accident.
Under all the facts and circumstances adduced we are of the opinion that the
state is morally bound to reimburse the claimant for the damages suffered by
him.
Accordingly an award is made in favor of the claimant in the sum of ninety-two
dollars and eighty-five cents ($92.85), being the amount of the damages to his
automobile and medical expenses incurred by him on behalf of his daughter.
W. VA.1 REPORTS
STATE (?OURT OF ( LAIMS 25
(No. 542? Claim denied)
HARRY GOINS, Claimant
V.
STATE BOARD OF CONTROL, Respondent
Opinion
li/cd Fcbruo )JJ 3. ff147
1. The effective date of the court of
claims is held to he the date, after the appointment and qualification of its
members, that the court convened and organized and proceeded to function in
accordance with the purposes of its creation, namely, July 14. 1941.
2. A person in accepting an assignment in a state mental institution, knowing
he would be placed in contact with mentally deranged and incapacitated patients
?assumed risk? of injury which might result from such association.
John S. Haight, for the claimant.
W. Bryan Spillers, Assistant Attorney General for the respondent.
ROBERT L. BLAND, JuDGE.
Claimant Harry Goins, now residing at Cleveland, Ohio, but formerly a citizen
of West Virginia and an attendant at Lakin State Hospital located in Mason county,
is seeking an award in the sum of $5,000.00 to compensate him for damages
claimed to have been sustained on account of an alleged assault made upon him
on the first day of October, 1934 by an inmate of the hospital. Lakin State
Hospital is an institution for the treatment and care of mentally defective
negro persons. Claimant?s petition, setting forth the nature and character of
his claim against the state, was filed with the clerk of this court on the
twenty-eighth day of June, 1946, eleven years, eight months and twenty-seven
days after the alleged occurrence of the accident.
In the petition he alleges that he was, upon his employ-
REPORTS STATE
COURT OF CLAIMS [W. VA,
ment as an attendant in said institution,
assigned to duty on the third floor of the hospital. on which floor were a
number of violently insane persons; that on October 1, 1934, while engaged in
the duties assigned to him by the superintendent, he was stabbed, cut and
severely wounded by an insane inmate of the hospital. He contends that there
were normally two attendants constantly on duty on the said third floor or
wai?d and that said attendants had instructions to enter patients? rooms and
handle patients only when both attendants were present, the purpose of this
instruction being to prevent or minimize injury to attendants at the hands of
violent inmates. He further contends that on the first day of October, 1934,
and for two veeks prior thereto, he had been required by the superintendent to
act as the attendant for the said third floor by himself and without the
assistance of any other employe, and that the fact that he himself was the only
attendant in the ward was due to the fact that the other person normally
employed as an attendant in the ward had been permitted to take a vacation and
no arrangements or provisions had been made by the superintendent or other authorities of
the hospital to have a substitute for the absent attendant on vacation. He
charges that the patient who assaulted and stabbed him was known to the
superintendent of the hospital to be insane and given to physical violence and
that the claimant entered the patient?s room alone because of the absence of
any other ernplove, and that when he entered the room said patient struck and
stabbed him several times with a large knife, inflicting serious injuries to
his hands, arms, head and back.
The state agency involved opposes an award to claimant and has filed two oleas
in the case, one for want of jurisdiction of the court to hear and determine
the claim, and the other a general denial of? liability, and the attorney
general has also moved to dismiss the said claim on account of the bar of the
statute of limitations. By its special plea, the board ol control says that
claimant should not be permitted to maintain his claim in the court of claims
because the ,jurisdiction of the court does not extend to
W. VA.f RlP(aTs \
ii: ( Ut P1 OF ( 1\1 us 27
any claim for (tisahilitc or loath 1 onefit U(I 01 (h1 pt?r 23 of the code,
governed by the vo;kn n?s comI)&?flnltiOil corn? mission. The motion to
(list 1SS [he said
ckt fl presents a more serious (1uet ion Secril n 2 1 of the co ii it of uliti ms law reads as follows
?Limitations of Time.? rf court shall not take
jurisdiction over a claim unit-s tb claim is tiled
within five years after tht?
dim might have been presented to such court. IL however, till? claimant was for any reason d?sabl? I fiom mt!ntiIifliflg the claim, the jurisdiction o the court shall continue for two years
after the rowo\ il of the
(lisilbility. With respect to a claim :0-i?dug
urior to the adoption of this article, the 1imit;4 1-In (If this section shall run from the
effective (late of t his article:
Provided, hoir vei, Thai no such rh irn
uS shall have arisen prior
to the efl?ecti date of this article
shall he barred by any ]imitatio:i of
trne imposed by any otht r -utatutoiy proviso a if the claimant shall prove to the satisfaction of the court that he has boen prey
?ntecl or ?estrictt?d from presenting
or prosecuting such claim for good cause, or by any other statutory restriction or limitation.?
May the court propei lv take
jurisdiction of the claim in
question? Was said claim
presented to the court of claims
within five ye rs froni ti-n? rime it could have been presented to the court? Thor was, we think, rio Oi>pOr? tunity afforded to preent said claim to the court of rlaims until its members had keen
appoint 0(1. qualified, and the court was ready to functim in
accoluince with the purposes of
its creation. Th-? au of thi
Legislature creating the state court
of claims was pass?d Mtreh 6. 1941, was in effect from
passage and duly aplrivod by
the Governor. Commissions were issued b\ the Govornor as follows : to WTalter M. Elswick, June 31, l211 ; Charles J. Schuck,
July 1, 1941 and Robert L. lUaud, -Jul? 1, 1911. Although tho court act was passed ON Maicll 6. as aLoe stated, it thus appears that the membeiship of thu court was not
created
28 REPORTS STATE
COURT OF CLAIMS [W. VA.
until the dates last aforesaid. The court was not formally organized until
Monday, July 14, 1941, as disclosed by the following excerpt from its records:
?The State Court of Claims having been created by an Act of the Legislature of
West Virginia, Regular Session of 1941, and the Honorable M. M. Neely, Governor
of West Virginia, having appointed and issued commissions to the honorable
Charles J. Schuck, of Wheeling, the Honorable Robert L. Bland of Weston, and
the honorable Walter M. Elswick of Hinton, as members of said Court for terms
ending, respectively, on the thirtieth day of June, 1943, the thirtieth day of
June, 1945, and the thirtieth day of June, 1947; and said Act having fixed the
Office of the Secretary of State as the meeting place for said Court, and
designated the Secretary of State as ex officio Clerk thereof, said three
members appeared at the office of the Secretary of State on Monday, the
fourteenth day of July, 1941, that being the beginning of the July term fixed
by statute. And said three members having respectively qualified in manner
prescribed by law, an organization was effected by the election of Honorable
Robert L. Bland as Presiding Judge for the ensuing year.?
Since the claim in question was filed with the clerk of the court on June 28,
1946, it necessarily follows that it was filed within five years from the date
that the court was organized and ready to proceed with business. We therefore
hold that the court has piiina fade jurisdiction
of the claim and the motion to dismiss it is accordingly overruled.
We shall now proceed to determine said claim upon its merits. It is predicated
upon alleged negligence of the authorities of Lakin State Hospital in not
providing more attendants in the ward in which claimant was employed. The
evidence adduced consisted of testimony of the claimant and the affidavit of
Dr. C. A. Banks who was superintendent of Lakin State hospital at the time of
the accident of which the claimant complains, which affidavit was permitted to
be filed and considered by agreement of coun
W. V.A.: FI?ORTS FATF CO1IT (F CLAIMS
sel for the claimant and counsel for the
state. It is shown that claimant accepted eniployment as au attendaiit in the
hospital on March 10, 1933 and was assigned to (lUty ill the ward on the third
floor of the institution. r1hert were from fifty to sixty patients in said ward
under care and attention of two attendants who were usuall on (lilty at the
same time. It was their duty, according to the allidavit of the former
superintendent to look after the inmates of the wards to which they were
assigned for duty, there being three floors in the hospital building, each
atteiidant being rotated from one floor to another so that within three months
each attendant manned all three Iloors, and th instructions to claimant and to
all other attendants were to search all patients night and morning who were locatct
on the second and third floors of the hospital. lIe reeollected that the inmate
who was alleged to have assaulted claimant was a patient of the instituiton for
about one month prior to October 1, 193 1 and that he could not recall any
information that the alleged assailant was particularly dangerous or violent.
The superintendent recalled the incident of the accident which occurred to the
claimant and affirmed that to the best of his recollection claimant was taken
to the clinic where his wounds were dressed and injury was found to be chiefly
in his right arm. Aftei proper dressing Mr. Goins was taken to his room in the
hospital where he remained for a week or more and then returned to duty as an
attendant. According to the physician?s statement, claimant?s wounds had
completely healed. Evidence of thE claimant is to the effect that he was so
badly injured that he has never been able from the time of his accident until
the present time to perform heavy labor. It does appear, however, from his
testimony that after resigning from the institution in 1935 claimant returned
to Charleston and engaged in work as a janitor and other employment. During the
recent world war he had worked in Cleveland, Ohio, apparently doing heavy work.
It further appears from the testimony of the claimant himself that on the day
of the accident in question he was preparing to take patients from the third
floor of the
30 REPORTS STATE
COURT OF CLAIMS [W.VA.
hospital out on the lawn for recreation and had enterc the room of the patient
by the name of I)avis in order to have him accompany the group. Evidently if
this patient were of a violent and dangerous type he would not have been
permitted to go out on the lawn. How this patient who is alleged to have
assailed claimant obtained the knife with which he stabbed him is not made to
appear. It was evidently the duty of the claimant as an attendant in the ward
to search the rooms of the patients in order to discover possible dangerous
weapons. It was when the claimant entered the room that he was assailed by
Davis. If there had been a half dozen other attendants in the ward the sudden
assault upon claimant could not have been prevented. It therefore follows that
the absence of another attendant iii the ward at the time of the assault was not the
approximate cause of assault.
??Negligence? does not exist unless there is a reasonable likelihood of
dangerous consequence of the act complained of, and the possibility of an
accident must be clear to the ordinarily prudent eye.? Henick v. State, 32nd N. Y. Supplement (2nd Series) p. 607.
In the case just cited, prosecuted in the court of claims of New York, by a
student nurse for compensation for damages claimed to have been sustained by
her in a state hospital when she was assaulted by an inmate in a cafeteria, it
was held as follows:
?Although state assumes the responsibility of caring for and keeping
individuals in state hospitals from harm and injury, there is no such
obligation or duty to a student nurse in such a hospital.?
And further:
?Student nurse, in accepting assignment in state hospital, knowing sh would be
placed in contact with mentally (leIanged and incapacitated patients, assumed
risk? of injury which might result from such association, including risk of
alleged
W. VJ iLiOITS Si
\Tl ( i IT 01? (?I\1\1S
assault by inmate ailegu(li\ suffering horn dementia praecox when leaving en
feteria.??
In the above case Greenberg, Justice, in the opinion says:
?Can the State be charged with negligence because of its failure to have
additional nurses and attendants in charge of the patients while in the
cafeteria? Would additional nurses or attendants have prevented such an
accident? There were, at the time of the alleged assault, in addition to claimant,
four regular nurses or attendants and four dining room attenoants. Even if
there were more attendants or nurses in charge of the patients in the
cafeteria, the assault might not have been prevented. The alleged striking was
sudden and momentary and the hospital authorities had no notice of its
imminence. How, then, could such a happening have been avoided? Even a guard or
attendant for each and every inmate would not have avoided what is alleged to
have happened to the claimant. There is no such duty on the part of the State
to maintain such supervision. Any such rule of law would place an unreasonable
burden upon the State or upon the authorities of the State . .
Claimant had a special relief bill
introduced on his behalf in the Legislature of 1939. It was referred to the
committee and permitted to sleep there. So far evidence shows no other step has
been taken by claimant to assert his alleged grievances against the state of
West Virginia. Under all the evidence, we are of the opinion that claimant has
failed to establish a case that would warrant the court of claims in
recommending an appropriation in his behalf for any sum, especially in view of
his statement that after the alleged assault was made UOfl him he received his
salary and resumed the duties of employment until such time as he saw fit to
resign and leave the institution.
An award is accordingly denied and claim dismissed.
32 REPORTS STATE
COURT OF CLAIMS LW. VA.
(No. 561?Claim denied)
CHARLES W. NEVILLE, Claimant,
V.
STATE CONSERVATION COMMISSION, Respondent.
Opinion filed February 7, 1947
Where a guest passenger who, with
another passenger, protested to the driver regarding the speed of the truck,
after having made several stops affording him ample occasion to alight from the
truck, fails to avail himself of such opportunity, thereby assumes the risk,
and an award will be denied.
Appearances:
M. S. Hodges, for claimant.
W. Bryan Spillers, Assistant
Attorney General, for respondent.
MERRIMAN S. SMITH, JuDGE.
Mr. Cokeley, superintendent of the trout hatchery operated by the state
conservation commission, at Petersburg, West Virginia, notified Hansel Ruddle,
who was employed by the conservation commission as game protector for Pendleton
county, in May, 1945, that he was sending a load of trout to distribute above
Thorn Creek, near Franklin, Pendleton county, West Virginia. On the morning of
May 24, 1945, Ruddle arrived at the court house at Franklin with a pick-up
truckload of fish; he called Dr. Richard Boggs, a dentist in Franklin, who was
president of the local sportsmen?s club and advised him of the arrival of the
truck and he talked with Charles W. Neville, the claimant, on the street;
consequently a number of the sportsmen?s club members gathered around the truck
to look over the fish. Frank Sites, the driver of the truck, Ruddle and
W. VAJ RFJ?OR?I?S
ST \TE (OLnT OF ( LAI\IS
Neville (the claimant) occupying the cab,
and Jimmy Anderson and Stanley Spaulding, two high-school boys being in the
rear with the tank of fish, the truck proceeded on its journey to distribute
the fish. They were accompanied by Dr. Thacker and at least one other party in
a private passenger car.
On the way out, in leaving the highway and crossing a field, Ruddle cautioned
the driver, Frank Sites, not to drive too fast because the boys on the rear of
the truck
would fall off or something.? (Record p. 19) . After having stocked all their fish and emptied the tank, and upon their
return while on ii. s. route 220, about four miles from Franklin, the driver of the truck, in passing
another oncoming truck, rounding the curve at a point known as Trout Rock
Curve, lost control of the truck and went off the highway over the bank,
upsetting the truck and injuring the claimant, Neville, who is seeking damages for
his medical, hospital and incidental expenses thereto, and for loss of time
from his work.
For the past several years various sportsmen?s clubs over the state have
insisted that they accompany the game protectors when restocking the fish so as
to be on hand when the fish are released, primarily for two reasons; first,
that they might see that the fish are properly stocked, and second, to
ascertain the location of the holes that the fish go in. It has grown to be a
regular custom that these clubs be notified of the time and place of these
stockings by the game protector, since they are conducted primarily for the
benefit of the fishermen and public of this state. However, no specific order
was entered on this particular distribution, according to the following
testimony of Mr. B. D. Wills, supervisor of state fish hatcheries: . . . there has never been any specific request by the
commission to have them meet the trucks and go out. They take that on
themselves, that if they want to go, why, they have gone in the past and they
want to see how they are stocked.? (Record p. 37). Consequently, when these
club members
1 i1?()R?[?S S?17t?FI? ((II WI?
Of? (?I \ I
MS V. VA
go oii tlies(? restocking trips i hey ;issilnle I he risk.
In the very nature ol ant oinobile acci(k?Iits each one is (leI)eIldeJIt upon
the speci tic i iicideiits, ci rcumst ances and acts surrounding I lie part
ien Ia i
ace i(Ieitt . \ ml iii the iii stant case when
(hiving I lirougli a rough field, Ruddle (autione(l tlit dun er i
tot to (I ri Vt? too last oii
ccoU ut of I he boys iii the rear (It I lie I nick. ii t he clai
itia ut tel I that I lie driver of the I nick ?as a reckless
driver
he could easily have gotten out of I in? truck a ml coui 1(1 1 lave ridden iii the
private car w hich was ticconi oi liv it ig [lie truck a uid driveti by 1)r. Thacker. The
evidence fu rt lieu shows, (record p. 4) that Nevilk? testified ??So, there
was one sharp curve that we come to
and I nhiidt the reiiiiLrI( to him and
Mr. Ruddle that if we got around this one we may save our necks awl get to town alive, but we (hi(Itit rliIjs was j tist before the
acci(heiIt occurred and about four ni
des from tliei
t (h.?stinatioii. Again, if the claimant was so
fearful of hay? ing an aeci(lent he could have hiL(l
the truck stopl)ed and gotten out. Belore the acci(Ic?it the I nick hia(l lfla(lc about
ten
stops am! if the cia i uiiauit was u Ii(I(?r any aj)j)rehensiotu or fear that thit? (I river
of I lit? truck was reckless, ample opportunity was
1LfrO1(h(d
hi in to a[ight irorn
the truck. By his own ev
i(IelIc(? the cliii mait I tissi med the risk by coii ti tin i tig his ri(lv ?it Ii the d ri ?er f r, a fter having rernoti?
strate(l with the (I river, he (?Ott 1(1 I11IVC 111 ighte I from tii(
truck at any one of
the stoits which it made during the Process of (histi?i lot Ii tig I ht&? fish. ??i . Ilh 11)!!, 126 W Va. 741. Speed is a relative (I4?tii(tit den?iiding
upon tin? kim! all(1 coiiditioui of tin?
r(sI(lin?( I, I he toiogrtphy of the
terrain and time m(ehILuiical (otolit ((II ol I Ill? macloin?;
also the coor(li nato ot of the (I riVer.
?l?he CVi(leiin ii)
Iii is case 15 (01111
mcI i iig as to the si)ee(I of the truck at thi(? tiiii? of
till? ac(T(hIlt.
I1t(i(ii(? test 1114(1 that they were utitikitig troll) thirty to
I hirly?five miles per hour, while thi(? (iaiiIllull Sii5 I Io?v were going from Iifi? to fifty?five 11111(5 helOil?
1001011 tig till? (?IIi\(? iii ?i?toiil lock,
5(1
1)10)11 i)aXSitlJ till?
OtiCOtliIll I I?ll(k it (5 roorliltitarily lost coot rol of the vhiecI, atid
I roiti Ii(? i(til:urks
of Nevihle, cmi
W. VA.] UFP()1TS
T.\TI? (?OVRT oF (
1AIM 35
route, who apparently was a highly
nervous passenger aiitl by this time had played upon the driver?s nerves to the
extent that he momentarily lost control and the truck headed over the
embankment. In this manner the claimant contributed in no small way to the
incoordination of the driver.
The stocking and restocking of the streams and game preserves by the
conservation commission is done primarily for the benefit and pleasure of a
particular small group of the citizens of the state and the state derives no
particular benefit by having the beneficially interested members of a club
inspect or assist in the distribution of the fish or game and there is no
record of a general specific request by those in authority to have them meet
the trucks or to accompu,/1
them during the distribution.
Where a guest passenger who, with another passenger, protested to the driver
regarding the speed of the truck, after having made several stops affording him
ample occasion to alight from the truck, fails to avail himself of such
opportunity, thereby assumes the risk, and an award will be denied.
Award denied and claim dismissed.
CHARLES J. SCHUCK, JUDGE, dissenting.
I cannot agree with the majority opinion filed in this case, primarily for the
reason that I do not believe the facts justify the conclusion set forth in the
opinion. Too much is taken for granted which is not supported by the evidence
and assumptions are made and conclusions drawn that are not supported by the
evidence as introduced during the hearing. In the first place, I am quite sure
that an impartial reader of the transcript of the evidence must conclude that
the claimant here was not only an invitee, but that he was rendering a service
to the state department involved for which no charge was made, and which
department was carrying out one of the purposes for which
36 REPORTS STATE
COURT OF CLAIMS [W. VA.
it is created and for which those in charge are paid by the taxpayers of the
state. It doesn?t make any difference, in my opinion, what some superintendent
may say, that no specific requests are made for outsiders to meet the trucks
about to make distribution of fish, the contrary is shown by the evidence in
this case; not only was the claimant invited to accompany the driver and game
warden on th. trip in question, but the warden had special instructions to
obtain the services of high school boys, as well, to accompany them on this
trip of fish distribution. The majority opinion seems to be based entirely on
the case of Young v. Wheby, 126 W. Va. 741, which in my judgment does not govern
in the instant case. In that case the injured person was purely a guest
passenger, all of the persons in the car, including the passenger in question,
were drinking, and an ample opportunity had been given the injured passenger to
get out of the automobile at a town where one of the passengers had alighted,
and after she was fully aware of the reckless driving of the operator of the
automobile and after she must have concluded that the said driver was under the
influence of liquor. No such circumstances al presented in the case before us.
It is true that the driver of this truck hauling the fish had been cautioned on
the way out to the point of distribution, while crossing an open, rough field,
primarily because of the fact that two high school boys, who had been asked to
accompany them, were riding on the rear of the truck and might be thrown off
owing to the rough condition of the ground. Claimant testifies (record page 12)
that at the time the driver was cautioned about the boys riding on the rear of
the truck, that he wasn?t making excessive speed, but that as the field over
which they were passing was rough, he should drive slower. It was the rough
condition of the field and not the matter of speed at that time which brought
the caution to the driver from the game warden himself, who was riding in the
cab of the truck.
The statement is also made, in the majority opinion, that claimant could have
ridden with a certain doctor who
W.VA.i REPORTS
STATE (OURT OF CLAIMS 37
was accompanying the expedition in his own machine, but I fail to find any
supl)ort for this contention in a careful reading of the transcript and it
seems to me that it i simply an assumption on the part of the majority members
so far as the claimant riding with the doctor in question was concerned, and
not justified by the evidence in the case.
So also does the evidence reveal that the farthest point away from Franklin
from which distribution was made was ten or twelve miles, and to state or to
intimate that claimant could have refused to ride on the truck would he an
unwarranted assumption not justified by the circumstances as presented at the
time of the hearing. I repeat, claimant was not only an invitee but he was
assisting in the work of making the distribution of the fish for and on behalf
of the commission charged with that duty and for which he, claimant, was to
receive no compensation.
On the return trip and when about four miles from Franklin, the driver was
cautioned that he was then operating the machine in a reckless manner by reason
of the speed that he was maintaining and in my opinion claimant had the right
to assume that the driver of the truck would heed the warning and act
accordingly in the operation of the truck. I cannot see that any reasonable
opportunity was given the claimant to leave or get out of the truck, nor do I
believe the law even as set forth in the Young
case, supra, would
contemplate that claimant was obliged to get out of the truck and perhaps run
the risk of walking back to Franklin, a distance of four miles. It seems that
shortly after being given the caution referred to, the truck was wrecked and
claimant injured by reason of the excessive speed and the carelessness of the
driver, an employe of the state conservation commission. Under all the
circumstances, I feel that claimant is entitled to an award.
38 REPORTS STATE
COURT OF CLAIMS LW. VA.
(No. 583-S?Claimant awarded $25M0)
GEORGE SLAYTON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed April 17, 1947
CHARLES J. SCHUCK, JUDGE.
On December 6, 1946, claimant?s horse, while being driven across a wooden
bridge located on road No. 72, Mason county, broke through the flooring of the
bridge, injuring its right hind leg and disabling the horse for a period of
approximately five weeks. The record before us shows that the floor of the
bridge was rotten and that the road commission was negligent in not making the
necessary repairs to the bridge, previous to the accident in question. No fault
or negligence of any kind is shown on the part of the owner of the horse or the
son of the owner, who was driving the animal at the time. A compromise
settlement of $25.00 is recommended by the road commission and approved by the
attorney general and his assistant, and acceptable to the claimant.
We feel from the facts disclosed that there is a moral obligation on the part
of the state to pay the amount agreed on by the several parties and therefore
make an award in favor of the claimant, George Slayton, in the sum of
twentyfive dollars ($25.00).
W.VA.1 REPORTS
STATE COURT OF CLAIMS 39
(No. -S?Claimant awarded 22.15)
JACK Ti. and MARTHA HENDRICKSON, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinioa filed April 17, 1947
MERRIMAN S. SMITH, JUDGE.
On April 6, 1946, a prison labor crew, working for the state road commission on
route 88, at Bethlehem, Ohio county, West Virginia, upon setting off a blast
threw rocks and debris striking the roof and downspout on the home of Jack L.
and Martha hendrickson, damaging it to the extent of $22.15.
The Allemannia Fire Insurance Company paid claimants under a loan agreement the
above mentioned sum.
The itemized items covering the cost of material and labor appear to be just
and the claim is one deserving of payment.
The state agency concurred in this claim and the claim is approved by the
attorney general. Therefore, an award in the sum of twenty-two dollars and
fifteen cents ($22.15) is hereby made to the claimants Jack L. and Martha
liendrickson.
ROBERT L. BLAND, JUDGE, dissenting.
The record of the claim for which an award is made in this case by a majority
of the court, prepared by the state road commission and filed with the clerk on
March 14, 1947, contains a letter addressed to the state road commission under
date of December 6, 1946, which reads in part as follows:
?So far as I am concerned the matter is closed.
40 REPORTS STATE
COURT OF CLAIMS [W.VA.
I was reimbursed by my insurance company to the amount of $22.15. I do not seek
any additional claim against the Road Commission.?
The majority opinion discloses on its face that the claim described in the
record, concurred in by the agency concerned and approved by an assistant
attorney general as a claim which, within the meaning of the court act, should
be paid by the state, was paid by the Allemannia Fire Insurance Company.
I see no reason to pay the claim in question twice.
No question of subrogation is presented by the record.
I cannot, for reasons assigned, agree to recommend the claim to the
Legislature.
(No. 580?Claimant awarded $43.90)
NELLIE 0. SHORT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed April 24, 1947
A case in which the evidence
introduced upon the investigation of the merits of a claim asserted against the
state shows the existence of a moral obligation on the part of the state to
make reparation by way of money compensation in view of the purpose of the act
creating the state court of claims.
Schmidt, Hugus & Lees, for claimant.
W. Bryan Spillers, Assistant
Attorney General, for respondent.
ROBERT L. BLAND, JUDGE.
The claim involved in this proceeding is submitted upon
W. VA.1 BlJ?ORTS F \TF etiF ( V 1i
an agreed statemcnt (t lads.
On I he fifteenth lt of
February, 19 1(. claimant Nellie 0. Short
was driving her Cadillac automobile, model 61. on national road
lesigiid ed as U. s. route :10, in the cjt of WHeeling, Ohio county, West Virginia, a highwa
under the jurisdiction and cont ri of the state road
commission of said state. A bout one?li ft ceo
o?clock p iu. on the dato stated na mant was driving her said automobile,
using due ( ale o her put . in
an eisu ily direction on that part of said nat mae I road, or
U. S. route 40, known as Reid?s
HiP. At said tune and place thO
said road was icy and slipper- and a truck of tie said
road commission w?as proceeding s ru (lista ore ahead of cia i
ant?s said automobile in an eio-t nv (hi? tion on said road. As claimant was about to
pass aed in piIsinc said truck of
said state road commission of West
Virginia, an empiove of said commission threw a sho\ eltul of shale and cinders from said truck directly on eltimint?s autonmbile, hich said cinders scratched and otherwjse (1aflnLgd the windshield, hood, body and
fender of the mot? r vehicle. As a result of such action on the part
of said employe of the state road
commission claimant was require(l to Ifl(l (li(l expend the sum of $13.90 for painting and
repairs of her said automobile, said amount being actually necessary by reason of the damage
(lone to said vehicle; said sum of $43.90 is made up of the
following items:
One?half windshield and installation
$1 5.9) Repair of scratches and
painting 28.00
Total $43.90
The claimant, a citizen of the state, was
entitled to use the highway on the
occasion mentioned and was, as above stated, exercising due care in her driving an(l
efltitle(1 to protection against the consequence of the state road commission employe?s
action. According to the agreed statement
of facts it is shown that the road commission truck was at the time of the
occurrence of the accident engaged in the spreading of cinders on the highway,
and that the person who actually threw the cinders or? claimant?s car
42 REPORTS STATE
COURT OF CLAIMS -
[W. VA.
was an employe of the state. Under such circumstances it would appear, we
think, that there is a clear moral obligation on the part of the state to make
reparation for the damages which claimant suffered. WTe think, furthermore, that
it is a claim which within the meaning of the purpose of the act creating the
court of claims an appropriation by way of money compensation should be made to
claimant.
An award is, therefore, made in favor of claimant Nellie 0. Short, for the said
sum of forty-three dollars and ninety cents ($43.90).
(No. 579?Claimant awarded $472.83 upon rehearing)
RALEIGH COUNTY BANK, Claimant,
V.
STATE TAX COMMISSIONER, Respondent.
Opinion filed April 28,1947
Opinion upon rehearing filed September 15, 1947
Where a gross sales tax is paid
voluntarily and without filing any protest since there was no question as to
the validity of the exemption and such tax was improperly accepted by the state
tax commissioner there is a moral obligation imposed upon the state to refund
the total amount of the exempted tax.
Appearances:
Ashworth & Sanders (Carl Sanders),
for the claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITh, JUDGE.
The Raleigh County Bank of Beckley, Raleigh county,
\V. V\:
West Virgima. o??
ii. - i!
it operates the biisin.s lo .: tb ear
to 1913 inclusive it rIhol tv--I 11 ? t;)X to Li Ia\
co 0- missioner of the Stnte et \V -1 Vi i;ia as fdi avs
STIOULD
BANK 01 IIF:R TivE rio ro
RS\?T 11L0 01 ?1 ml)) Pall) OUI
1939 8 8,831.0.5 8 5 o2Lr s:L1 s i2. 25.65 2
1940 17,673110
10.57-L;2I7J 0.72 16J1
1941 15,618.75 11,722 2 2 272. 1 I 2 92.24 I 52-10
194 14,389.89
11,562.11 22 952.0 1 52 01.62 1
ISo)))
7,715.?3
6,182.12 1 4.l9 9 129. i? 52.32
1943 10,587.75 4,57211.1 29.?7 113.1
$71847.17 49,o3 1.45 2 2!: 1 1
;Th)17
It is provided Ufl(lpr Mht?s eo<1t s?ct;ni 1)61 (p. 39) official code chapter 11, artiue 13, sectia , Exemptions Non?Exempt Business.?? . . (Ii) Pero mo
engaged in the business of banking: j)?) ied, h(nx (V(0?, That swim exemption
shall not extend to that part of the gross iflPOfllC of such persons which is
re cive?l for the use of real property owned, other than th. 1)0 lkiisg hou;e ni building in
which the business of the ?qn1? i? trarisacted, whether such income be in the form of
rentals or royalties
It is apparent from the tatut? that the claimant is exempted from
paying businwo and oecupatjon tax on rentals accruing from the banking iioio or
building in which the business of the hank is traiisacted.
It is our opinion that sin( e the claimant made these payments voluntarily and
without tiling any protest, but through ignorance solely, and dnce our statute
of limitations would only include the yearo 1 9 12 and 1943 and the payments for 1939
to 1941 incluiv e would he barred by this statute, that this is a moral
ohlgoton and either all of the payments should be refunded or none,
notwithstanding that the claimant did pay mistakenly this specifically exempted
tax from 1939 to 19 1% inclusive, voluntarily and without being required, which
tlxes were accepted by the
44 REPORTS STATE
COURT OF CLAIMS [W. VA.
state tax commissioner. Therefore it is the opinion of the majority of this
court that this is a moral obligation on the part of the state of West Virginia
and refund should be made of the amount paid for the respective years as
follows:
1939 Refund $
88.31
1940 Refund 176.74
1941 Refund 156.48
1942 Refund 143.90
1943 Refund 172.45
making a total refund for the five-year period of seven hundred thirty-seven
dollars and eighty-eight cents ($737.88), which amount is hereby awarded to the
claimant, The Raleigh County Bank, Beckley, West Virginia.
ROBERT L. BLAND, JUDGE, dissenting.
It is regrettable that I find myself at variance with my colleagues in respect
to the award which they have made in this case. Such award, in my judgment,
cannot be sustained or upheld on the ground of a moral obligation on the part
of the state to pay it, since it is in direct conflict with and in total
disregard of two express statutory enactments.
Claimant, the Raleigh County Bank, owns its banking house in the city of
Beckley, West Virginia and also other real estate. From 1939 to 1943,
inclusive, it received rents from said banking house building, aggregating
$74,847.17. For said years it made regular reports of the receipt of such
rentals to the state tax commissioner, and voluntarily paid what is generally
known as gross sales tax on account of said rental receipts.
By virtue of chapter 11, article 13, section 3 of the code of West Virginia,
the banking house or buildieg in which claimants business is conducted is
exempt from the payment of business or occupational tax. Apparently claimant
W.
VA.I REPORTS STATE COURT OF? CLAIMS 45
was not aware of this fact until the
latter part of the year of 1910.
In this
proceeding claimant seeks an award
covering what it conceives to have been erroneous gross sales taxes, paid by it
to the state tax commissioner ; not only On account of the banking building itsel but also on other real estate
owned by the institution.
By virtue of chapter 11, article 1, sectioii 2 (a) of the code of West
Virginia, it is provided as follows:
?On and after the effective (late of this section, any taxpayer claiming to be
aggrieved through being required to pay any tax into the treasury of this
state, may, within two years from th (late of such payment, and not after, file
with the official or department through which the tax was paid, a petition in
writing to have refunded to him any such tax, or any part thereof, the payment
whereof is claimed by him to have been required unlawfully; and if, on such
petition, and the proofs filed in support thereof, the official collecting the
same shall be of the opinion that the payment of the tax collected, or any part
thereof was improperly required, he shall refund the same to the taxpayer by
the issuance of his or its requisition on the treasurer; and the auditor shall
issue his warrant on the treasurer therefor, payable to the taxpayer entitled
to the refund, and the treasurer shall pay such warrant out of the fund into
which the amount so refunded was originally paid:
Provided, however, That no ref uiid shall be made, at any time, on any claim
involving the assessed valuation or appraisement of property which was fixed at
the time the tax was originally paid.?
It will thus be observed that unless application is made to the state tax
commissioner within two years from the date of the payment of the gross sales
tax to him, he is precluded from making any refund for such taxes.
Upon the hearing of the claim it was made to appear that proper application for
a refund for the years 1944-
46 REPORTS STATE
COURT OF CLAIMS [W.VA,
1945-194(3
has been made to the state tax
commissioner, and it is shown that checks covering refunds for such period of
three years will be released to claimant on the twenty-fifth (lay of May, 1947.
Claimant is now seeking to recover refunds for the years 1939 to 1943 inclusive,
and the award above made embraces said periods.
Chapter 14, article 2, section 21, being the act creating the court of claims,
provides as follows:
?The court shall not take jurisdiction over a claim unless the claim is filed
within five years after the claim might have been presented to such court. if,
however, the claimant was for any reason disabled from maintaining the claim,
the jurisdiction of the court shall continue for two years after the removal of
the disability. With respect to a claim arising prior to the adoption of this
article, the limitation of this section shall run from the effective date of
this article: Provided, however, That no such claim as shall have arisen prior
to the effective date of this article shall be barred by any limitation of time
imposed by any other statutory provision if the claimant shall prove to the
satisfaction of the court that he has been l)revented or restricted from
presenting or prosecuting such claim for good cause, or by any other statutory
restriction or limitation.?
The award made by majority members of the court includes refunds Toi Lie? years
1939, 1940, 1941, 1942 and 1943.
In claim No. 542, Goi,,s
v. Bourd of Control, we held the
effective elate of the court to be July 14, 1941.
The Legisletare its If has seen fit to fix a time beyond which this uouiL is
witiout power or jurisdiction to make an award.
By virtue ni Jn? tw;.-. n i?erid of the statute of limitations, first n1nvu
cite L ad by virtue of the statute of limitations ((ma1ne(i Hi tne court act,
a refund could not,
W.VA.l -- REPORTS STATE (OURT OF (?IAIMS 17
in my judgment, be lawfully made, either by the state tax commissioner or this
court, to claimant for the years for which the award in this case has been
made, it having been clearly shown that no application was made to the state
tax commissioner for relun(1 until I)ecember, 1946.
How, therefore, can it be said that there is a moral obligation on the part of
the state to make refund to the claimant for the periods excluded by the two
statutes of limitations? It may be said in passing that it is generally
understood that voluntary payments of taxes may not be recovered back; however,
in view of the purpose of the court act, in a proper case where the claim is
shown to be meritorious, I should say that this court would recommend such
payment.
In my judgment the above award creates a dangerous precedent. It cannot be
helpful to the state tax commissioner, and it is in excess of our jurisdiction.
MERRIMAN S. SMITH, JUDGE, upon petition for rehearing.
Where a gross sales tax is paid voluntarily and without filing any protest
since there was no question as to the validity of the exemption and such tax
was improperly accepted by the state tax commissioner there is a moral
obligation imposed upon the state to refund the amount not barred by the state
conit of claims statute of limitations.
Ashworth & Sanders
(Coil G. Sniders) for
the claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JUDGE.
At the April 1947 term of the court of claims the above styled claim was heard
and an award was made in the sum of $737.88 for the refund of gross sales tax
for the years
48 REPORTS STATE
COURT OF CLAIMS [W, VA.
1939 to 1943 inclusive. Upon motion by the state a rehearing was granted by the
court.
It is provided under Michie?s code section 961 (p. 395), Official code chapter
11, artic!e 13, section 3, Exemptions; Non-Exempt Business.??. . . (b) Persons engaged in the business of banking:
Provicied, however, That such exemption shall not extend to that part of the
gross income of such persons which is received for the use of real property
owned, other than the banking house or building in which the business of the
bank is transacted, whether such income be in the form of rentals or royalties;
. .
.?
For the years 1939 to 1943 inclusive the
claimant paid to the state tax commissioner gross sales tax on all rents
derived from its bank building and all other property and is now seeking a
refund on the taxes paid upon the rents from the banking building.
It is the opinion of the majority of the court that since the claimant made
these payments voluntarily and without filing any protest and without an audit
being made by the state tax department, and since the statute of limitations
imposed upon the court of claims would only include the years 1941, 1942 and
1943 and the payments for 1939 and 1940 would be barred by the statute of
limitations, that this is a moral obligation and that refund should be made of
the amount paid for the respective years as follows:
1941 $156.48
1942 143.90
1943 172.45
making a total refund for the three year period of four hundred seventy-two
dollars and eighty-three cents ($472.83), which amount is hereby awarded to
claimant The Raleigh County Bank, Beckley, West Virginia.
ROBERT L. BLAND, JUDGE, dissenting.
The claim involved in this case was filed in the court of
W. VA.]
REPORTS STATE COFTtT OF (mAIMS -19
claims on January 1,
19 17,
Refund of business and occupation taxes paid for the years 1939. 1940, 1941,
1942, and 19-13 is sought in the proceeding.
Any remedy which claimant may ever have had to obtain a refund of the taxes
which it contends it paid through mistake iiit() the ti?easurv of this
state? has bcn exhausted by reason nf its (aches in making application for such refund within the period
prescribed by statute in such case made and provided.
Chapter 11, article 1, section 2(a) of the? code of Vest Virginia provides
that any taxpayer claiming to be aggrieved through being required to pay any
tax into the treasury of this state may, within two years from the date of such
payment, and not of ter, file with the official or department through which the
tax was paid, a petition in writing to have refunded to him any such tax, or
any part tcreof, the payment whereof is claimed by him to have been required
unlawfully. The refund authorized by the statute is to be paid by the treasurer
out of the fund into which the amount so refunded was originally paid. Such
remedy to obtain any such refund is exclusive. State v. Penn Oak Oil & Gas, Inc., 128 W. Va. 212; 36 SI (2nd)
595.
?An award will not be made to a person
failing to file application for refund of taxes paid on
- gasoline within sixty (lays after date of purchase or
delivery of gasoline as prescribed by general law, when it appears from the
general law that it is the policy of the Legislature to deny payment of such
refunds unless such application is filed as prescribed by the statute
permitting refunds on gasoline used for certain specific purposes.? Del Balso v. State Tax Commissioner, 1 Ct. Claims (W.
Va.) 15.
?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
50 REPORTS STATE
COURT OF CLAIMS 1W. VA.
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.? Consolidated
Coal Company v. State Auditor, 2
Ct. Claims (W. Va.)
10.
?An award will not be made to a person failing to file application for refund
of taxes paid on gasoline within sixty days after date of purchase or delivery
of gasoline as provided by general law when it appears from the general law
that it is the policy of the Legislature to deny payment of such refunds unless
such application is filed as prescribed by the statute permitting refunds on
gasoline used for certain specific purposes.? State Construction Company v. State Tax Commissioner, 3 Ct. Claims (W. Va.) 85.
?The Court of Claims is without jurisdiction to extend the time fixed by
statute to make application for refund of excess income tax paid. Such income
taxpayer is obliged to avail himself of the remedy provided by law for relief.?
Long v. State Tax
Commissioner, 3 Ct. Claims (W. Va.)
25.
Code 11-13-3 exempts persons engaged in the business of banking from the
payment of a business or occupation (commonly known as gross sales) tax on a
banking house or building. The Legislature has thus been very generous toward
persons engaged in the banking business. Notwithstanding the statute in
question, claimant, which had received rentals on leased portions of its
banking house from 1939 to 1943, inclusive, of $74,847.17, and also rentals
from other property which it owned for the same period, of $49,934.45, paid to
the state tax commissioner business or occupation taxes on the combined rentals
which it had
W.VA.l
REPORTS SLTE (?OIIRT OF (1AIMS 51
collected from its (lemied prenhises. It did not segregate or separate the
rental collected from the l)ankiflg house from the rental received from other
real estate, but made its own computation of gross sales tax due on the entire
rental, and made return accurdingly to the state tax commissioner with checks
for the amount which it cOnCeiVe(l to he in proper settlement of such taxes.
These payments were purely voluntary. The state tax commissioner did not require claimant
to pay taxes on the rentals received from its banking house, claimant made such
payments without duress or compulsion of any kind. It made its own
determination ot the amount due the state on account of its supposed liability
to pay business or occupation taxes on rentals collected by it. The money paid
to the tax commissioner by claimant was not unlawfully received by the tax
commissioner. The tax commissioner had no way of knowing that the return made by claimant
of liability to pay the taxes was not a correct computation and finding by
claimant. The tax commissioner could not be expected to act as a bookkeeper or
accountant for the bank. The payment made was a purely voluntary payment of
taxes which claimant felt it should account for and pay to the state. The money
paid to the tax commissioner was paid as taxes.
?Money paid voluntarily with full knowledge of the facts under a mistake of law
cannot be recovered.? Beard v. Beard, 25 W. Va. 486.
In the opinion in the above case, on page 489 it is said:
?. .
. It is too well settled in Virginia and
in this State to now be controverted, that when one voluntarily pays money to
another with full knowledge of all the facts but under a mistake of law he
cannot recover it. (Maijor of Richmond
v. Judah, 5 Leigh 305; Haigh v. Building Association, 19 W. Va. 792; Transportation
Company v. Sweetzer, supra, p. 434.)?
The Supreme Court of the State of Illinois, in American
52 REPORTS STATE
COURT OF CLAIMS [W. VA,
Can Company v. Gill,
County Collector, 364 Ill. 254, held
that taxes voluntarily paid cannot be recovered or refunded unless the statute
expressly authorized such recovery or refunding. And the same court, in LeFevre v. County of Lee, 353
III. 30, held that taxes paid voluntarily and not under duress cannot be
recovered by the taxpayer, even though the tax be illegal.
Claimant concedes that if the state were suable its claim would have no
standing in a court of law or equity, but argues that the court of claims was
created for the very purpose of doing what a majority of the court did upon the
original hearing of this case and, in effect, attempts to invoke the equity and good conscience provision of the court act. The language used in the court act, in
relation to equity and good conscience, defines the jurisdiction of the court
and does not create a new liability against the state, nor increase or enlarge
any existing liability. I prefer to adopt the view of the court of claims of
the state of Illinois, where the court act is very similar to the act creating
the court of claims of West Virginia. The court of claims of that state has
held that the jurisdiction of the court is limited to claims in respect to
which the claimant would be entitled to redress against the state, either at
law or in equity, if the state were suable, and that unless the claimant can
bring himself within the provisions of a law giving him the right to an award
he cannot invoke the principles of equity and good conscience to secure such an
award. It seems to me that this is substantially the view expressed by the
Supreme Court of West Virginia in the recent case of Cashman v. State Board of Control. Such view also finds support in the language used by
Judge Fox in the opinion in the Penn
Oak case, supra:
?Where a statute imposing a tax
provides the taxpayer with a specific remedy against injustices arising
thereunder and the taxpayer fails to avail himself of the remedy so provided,
he cannot go
\V.VA.1 REPORfS
STATE COURT OF LAIMS 53
outside the statute for other and different remedies.?
Claimant freely admits that the state tax commissioner made no demand upon it
to pay taxes on the rentals received from its banking house, and agrees that
such payments were not required by him, but were voluntarily paid by it without
separating such rentals from the rentals which it received from other
properties. Subsequently it made proper application to the state tax
commissioner to obtain refunds of such payment so made for the years 1944, 1945
and 1946, and refunds for such years were made by the tax commissioner, but
because applications had not been made for refunds for the preceding years no
such refunds were made by him. Claimant pursued the remedy afforded it by
statute to obtain refunds for the three years for which refunds were made. It
seeks an award for refunds for the preceding years from this court. I
respectfully maintain that this court is without jurisdiction to make such
refunds, since the only remedy afforded claimant by statute is the remedy it
pursued when refunds were made to it by the tax commissioner for the years
1944, 1945 and 1946. Claimant paid its money to the said tax commissioner as
taxes. Such payments must be treated as taxes paid.
For reasons set forth in my dissenting statement upon the first hearing and
additional reasons herein announced I would deny an award to claimant and
dismiss its claim.
54 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 576?Claimants awarded $150.00)
ZORA STARCHER, BESSIE STARCHER CAHILL, and
NORA STARCHER REXROAD, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed April 28, 197
A case in which the facts justify the
finding of a moral obligation on the part of the state to reimburse claimants
for their loss.
Appearances:
John P. Malloy, for the claimants.
W. Bryan Spillers, Assistant
Attorney General, for the state.
CHARLES J. SCIIUCK, JUDGE.
Claimants Zora Starcher, Bessie Starcher Cahill and Nora Starcher Rexroad are
the owners of a tract of land or farm comprising about forty-two acres located
on or along Straight Run of Fink Creek in Freeman?s Creek district, Lewis
county. A state secondary road passes through part of the meadowland of the
acreage and also through the better part of the farm which is adjacent to the
said road; it is a public road under the control of the state road commission
and traverses claimants? farm for a distance of approximately a quarter of a
mile. Sometime previous to the spring of 1939 a slip of the road along the said
farm occurred, covering claimants? land for an area variously estimated from
six-tenths to three-quarters of an acre; which part so covered was meadowland,
used for grazing and hay producing purposes and considered as part of the best
land in the said farm. The slip also destroyed about four hundred feet of
fencing along the road which had
W. VA.I REPORTS
STATE COURT OF CLAIMS 55
been constructed or erected a number of years before at the time when the
father of claimants was still living and in control of the farm.
Another slip occurred at about the same place as the first, in 1942, which
required the reconstruction of the road and which reconstruction seems to have
cured the difficulty with reference to the maintenance and stability of the
road, as no further slips have occurred to injure or damage claimants? land.
The road commission?s efforts to make the road safe and free from slides seem
to have been successful, as heretofore indicated, and we feel that under
existing conditions no further damages from the road maintenance will occur. It
seems to be a somewhat heavily traveled county road which as the testimony
reveals is and has been receiving the necessary attention of the road
authorities in recent years.
As to the item for the trees owned by claimant and cut down during the
reconstruction of the road in 1942 we are of the opinion that claimants fully
gave their consent to the cutting down of the trees; have the wood or lumber
for their use and were materially benefitted by the reconstruction and location
of the road.
Considering all of the facts as presented and giving due consideration to the
evidence as submitted and the rights of the parties involved, we are of the
opinion that a moral obligation rests upon the state to compensate claimants
for their loss or damage and accordingly recommend an award in the sum of one
hundred and fifty dollars ($150.00).
56 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 584?Claimant awarded $750.00)
BLANCH WILSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed April 29, 1947
Where by reason of an inadequate
drainage system, as maintained by the state road commission, surface water is
collected and cast in a mass or body on adjoining property, the owner of such
property is entitled to an award.
Appearances:
E. Franklin Pauley and Wilbur L.
Fugate, for the c?aimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant Blanch Wilson, the owner of several lots located on Camden Avenue,
South Parkersburg, Wood county, and on which are erected three small frame
houses, petitions this court for an award in the amount of $15,000.00 for
damages to the said properties, occasioned by overflows of water thereon from
the adjacent street or highway. Claimant contends that the sewerage or drainage
system maintained by the respondent, the state road commission, in front of the
said houses is inadequate and improperly constructed and fails to take care of
heavy rain- falls causing the water to flow in, over and upon claimant?s
premises and property, to her damage and loss. Claimant further alleges that on
several occasions, the basements of said houses have been flooded; the
foundations washed out, the floors rotted and a dangerous and
W. VA.] 1TIN)RT T
\?l F tu (L.\ITh
unsafe condition created. 1w renso ol all ot which he has suffered a financial loss as
the owiici ol tLe
proprties in question.
In order to thoroughly acquaint
ourselves with all the facts involved the court, together
with counsel, viewed
the premises and property at Parkersburg. and thus obtaine] much firsthand information
toy our henelit and use (Itir ing the
subsequent hearing of the claim.
The lots are partially level at the street grade
but drm) off in a sharp decline to a much lower level at the rear thereof and within a distance of forty or tifty feet. ?Ue three
houses are comparatively small
one?story cottage buildings, renting at
present for the sum of $20.00 per month each,
and as testified to by the son of claimant (record pp. 81-82)
were probably worth about $2000.00 each in 1931, the time of the death of
his father, who was then the owner of the properties. The houses were l)uiIt
in 1929, of frame construction and rented
for $17.50 each per month, before the
raise to $20.00 each in July 191G. While there is testimony that the properties are worth more than
herein indicated, we are of the opinion that the true value of the whole property
including the houses is properly fixed at five or six thousand dollars.
The testimony with reference to the drainage
system, shows that for many years previous to the erection of the houses the road in front of the properties was a county. unpaved
road and that subsequently was improved and partially paved and a drainage or sewer system ifl5ttl1e(l that in 1933 or 1931 the control and maintenance of the
road or street was assumed or taken over by the state road commission; that
subsequently, about the year 1938, by
reason of a W.P.A. l)roject the paving of the street was
widened on the side immediately ad)acent to
claimant?s property. Claimant maintains that the widening of the street as
indicated added to the danger of the
flooding of her property by collecting the water and directing it to claimant?s
side of the street and to the sewer drop or basin immediately in front of one of her houses, which basin
was
58 REPORTS STATE
COURT OF CLAIMS [W. VA.
inadequate to carry off a heavy rainfall thereby causing the water to flood and
damage her property. The said catch basin is at the very lowest point in the
street, in fact the lowest level of the surrounding contour. It is
approximately twenty-four inches square, of street level construction, easily
clogged by debris that washes into the gutters on Camden Avenue from adjacent
and intersecting roads and streets and carried into the basin by the drain of
the said street. A twelve inch line or sewer leads from the basin to a
twenty-four inch line or pipe at the rear of the houses and the water is in
turn carried through this twenty- four inch pipe across and underneath the
street to an outlet several hundred feet from claimant?s property. Testimony
was offered by the claimant to the effect that if the drainage system was
changed to a curb drop basin and a fifteen inch pipe outlet installed iii place
of the twelve inch, as at present maintained, the situation would be remedied
and the flow of water taken care of without any danger to claimant or her
property. We are inclined to agree with this conclusion. The testimony further
shows that for a distance of approximately 1800 feet along Camden Avenue and on
the side thereof adjacent to claimant?s property there are eleven or twelve
catch basins to take care of the water flowing in and along the gutter;
however, it is definitely shown that for a distance of eight hundred and
twenty-five feet, or nearly one-half the distance of the said 1800 feet, only
one catch basin exists or is constructed, and thts the one immediately in front
of and adjacent to claimant?s property at the lowest point or level in the
street, receiving the water from both east and west thereof, and which has been
the cause of the overflow in recent years. This condition, in our opinion,
taken in connection with the inadequate construction of the basin and its
outlet, allows the surface water to be collected and cast in a mass or body
over and upon claimant?s premises during a heavy rainfall or storm and thus
forms the basis for the complaint as heard by this court.
Taking into consideration all the facts as shown in the
W.
VA.I RIThORTS STTR t(;IThT ( F L\fl[S 59
testimony, together with the kHowk-dre
ol)talned by a view of the premises, a maj iitv ot the cout is of the O1fl1(0i
that a moral obligatioii rests t h stale to compensate the claimant for an
amount which iii our judgment will 1w just and equitable.
The testimony reveals that claimant in July, 1946, completed repairs to the
pvoperties which while seemingly protecting the houses from further damage by
any overflow at the same time added to the value of the properties; in fact
these repairs were made the basis of claimants asking for and receiving federal
authority to increase the rent of each house from $17.50 to $20.00 per month.
The witness Emrick, the contractor who made the repairs in question and rebuilt
the porches with concrete floors, testifies (record p.p. 97?98) that in his
opinion no overflow of water would damage the properties again. The repairs
cost approximately $735.00 (record p. 72).
A review of all the testimony thercfore leads us to the conclusion that an
award of seven hundred and fifty dollars ($750.00) will compensate claimant for
all damages and an award in the said amount is accordingly recommended.
ROBERT L. BLAND, JUDGE,
dissenting.
I do not see the claim in this case in the light in which it is viewed by
majority incmbes of the court. I perceive no breach of duty on the part of the
state road commission. and do not think that an award in any sum is warranted
or should be made.
It is shown, as alleged in the petition, that claimant is the owner of three
lots of land, each having a home thereon, situate at 3108, 3410 and 3112 Camden
Avenue, South Parkersbux?g, West Virginia (unincorporated), and that the state
road commission of West Virginia, a governmental agency of said state, has jurisdiction
over u. S. route No. 21 on which said lots abut, and of the
disposal of over-
60 REPORTS STATE
COURT OF CLAIMS [W.VA.
flow water therefrom, including a sewerage system along the said highway.
Claimant maintains that the said state road commission, being charged with the
duty of providing adequate sewerage disposal for overflow waters along said
highway, at the location of her said property, negligently failed to provide an
adequate disposal system for the overflow waters alongside the said property,
and that as a result thereof the said overflow waters damaged her property.
Claimant has the ?laboring oar? in the premises. The onus is on her to
establish the merit of her claim. This, in my judgment, she has failed to do.
The right of the claimant to have an award is stoutly resisted by the road
commission. I do not recall a stronger or more complete defense heretofore made
to any claim asserted against that agency in the court of claims.
Counsel for the state cite this well recognized rule of law, found in 25
American Jurisprudence, Highways, Section 87:
?Generally, when constructing, grading, or otherwise improving a street or
highway, a municipal or quasi-municipal corporation is not obliged to protect
the adjoining property by the construction of sewers and drains, or otherwise,
from the natural flow of surface water therefrom. . .
This rule, however, is not without
qualification in West Virginia. In the opinion in the case of Clay, et ux v. City of St.
Albans, 43 W. Va. 539, judge Brannon says,
on page 546:
?. .
. Our Code gives municipal corporations
power to construct drains and gutters. They may or may not, as they choose,
exercise this power in any street, as the right to elect to do so or iiot to do
so is a matter of discretion, quasi judicial; but when once the corporation decides to
W. VA.I REPORTS
STATE (OURT OF CLAIMS 61
do so, and constructs sewers or drains and gutters, the duty has become merely
ministerial, and the town bound to keep them in fuiily fjood condition to carry off the water ordinarily and naturally coming into the gutter
or sewer in the section where the town is, o as not to overflow lot owners. . . .? (Last italics ours).
The claimant does not prove a case in which it is shown that the state road
commission is responsible for the collecting of surface water and casting the
same in a mass or body on her property. This fact is made clear by the great
weight of the evidence. I think the claim is exaggerated and not one for which
the state should respond in damages.
In the disposal of the surface water in the vicinity of claimant?s property,
the road commission has used due care and prudence in its work. It has been
engaged in the exercise of a governmental function and is not answerable to the
claimant?s damage. As Judge Brannon has so well pointed out in the authority
cited above, no higher duty could properly rest upon the road commission in
taking care of the surface water.
The homes on claimant?s lots were erected in 1929. They were built subject to
the catch basins and sewers then existing. There has been no change in the road
in any way. There has been no act on the part of the road commission to direct
the surface water from its natural course. It has done nothing to increase the
flow of such water. It seems to me that the commission has been exceedingly
diligent and careful in providing for an orderly, proper and adequate disposal
of the surface water from the highway. Eleven catch basins have been installed,
and other necessary measures employed to prevent injury or damage to the
claimant.
I do not think that it has been shown that the road commission, by gutters,
sewers, or otherwise, has collected surface waters and cast it in a body on
claimant?s land.
No higher measure of responsibility could rest upon th.
IEl?ORTS STATE
COURT OF CLAIMS [W.VA.
roa(l COfllflhiSSiOfl under any circumstances than that pointed out by Judge
Brannon ill Cl(fy, of ox v. City of St. Albans, sop,c,
that riich drainage and gutters should be maintained in fairly good eonditon.
Ernployes of the state road commission, experienced in highway work, have
testified very clearly that they regarded lie catch basin in front of the
middle house of claimant to be adequate to take care of the surface water.
(No. 555?Claim denied)
BENNY MIZE, Claimant,
V.
STATE ROAI) COMMISSION, Respondent.
Opinion Jiled April 30, 1947
T1icie it is shown b the evidence that property damage sustained by the claimant, if any, was not caused
by any act or acts of the state road commission, an award will be denied.
Appearances:
Robert J. Ashu?oith, for the claimant.
TV. Bryon Spdloi., Asiistant Attorney
General, for respondent.
MERRIMAN S. SMITH, JUIGE.
In 1938 the claimant pui?chnsed two lots with a combined storeroom and
dwelling biiildiiig thereon, at the
intersection of Iaiiey Avenue, the old
Wehrlc Road and U. S. route
XV.
VA.] REPORTS STXTE (ORT OF cLAIMS
Nos. 19-21, in what is now the city of
Beckky, Rn!eigh county, West Virginia.
During the year 1935, under the supervision of the state road commission, the
Hatfield (?onstruction (?onipany built a concrete road along the old Wehrle road, raising the grade thereof. However. they
installed an eighteen inch culvert at the lowest point of the drainage area
upon the land, which land was later purchased by claimant Bnny Mize.
This eighteen-inch culvert was sullicient to adequately drain an area of eleven
acres, whereas the drainage area for this particular drainage perimeter was
approximately two acres.
It appears from the evidence that not until the year 1943, or about seven years
after the installation of the culvert, did the surface water begin to back up
and stand on the property of claimant. About this time the Elk Refining
Company, which had leased the property of H. E. Fox, the adjoining property
owner on the north side of the concrete highway, covered U the outlet
of the culvert which caused the water to stand on the property of claimant.
Any damage or injury to the property of claimant was not caused by any act or
acts of the state road commission according to the facts as presented iii the
testimony.
Therefore, the state is not liable and an award will be denied.
64 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 589?C1aimant awarded $151.66)
MTJSGROVE?S WHOLESALE GROCERY, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion filed Joly 17, 1947
CHARLES J. SCIITJCK, JuDGE.
This claim was first placed on the regular docket and thereafter by consent of
the claimant and the department involved changed to what is known as a
?shortened procedure? claim.
The claim is in the amount of $221.03 for groceries and provisions supplied to
the industrial home at Pruntytown, l.,Test Virginia, and is evidenced by several invoices filed;
however, an examination of the said invoices shows that three of them,
aggregating $69.37, were contracted for and the merchandise supplied at a time
or period five years previous to the time the claim was filed in this court. To
be exact, the total claim was filed on June 17, 1947. The items or invoices
referred to as not having been presented or filed within the five-year period,
as provided in the act creating the court of claims, were:
February 11, 1912 $23.64
March 13, 1942 24.68
May 23, 1942 21.05
These three foregoing items are therefore barred by the statute of limitations
as found in the aforesaid act, reducing the total amount of the claim due and
payable to the sum of $151.66.
The state. of course, is morally bound to pay for the groco nes and
l)10Vis10115 supplied b claimant to the institutiofl in question. riThe claim
is recommended for payment
W V\l REPORTS STATE (OURT OF (LAIM (l5
by the board of control an(l approved by the ollice of the attorney general.
An award in the amount of one hundred?fifty?one dollars and sixty-six
cents ($151.66) is therefore ma(Ie and recommended for I)aYment to the
Legislature.
(No. 9O (laim denied)
LOUISE McNEIL, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion liled July 22, 1947
The mere loss by theft in a state
emergency hospital of personal belongings of a registered nurse employed in
such hospital does not constitute ground or warrant for the appropriation by
the Legislature of public funds to reimburse such nurse for the value of the
stolen property.
Claimant, in her own behalf.
W. Bryan Spillers, Assistant Attorney General, for respondent.
ROBERT L. BLAND, JUDGE.
Claimant Louise McNeil, formerly employed as a registered nurse at Fairmont
Emergency I1ospital Fairmont, West Virginia. seeks an award against the state
board of control for the sum of $208.20 to reimburse her for the value of
certain articles of personal property belonging to her which she claims were
stolen from her room at said hospital by a female convict who had been
temporarily domiciled at the institution at the request of a member of
66 REPORTS STATE
COURT OF CLAIMS [W. VA.
the board of control. The respondent challenges claimant?s right to such award.
The articles of personal property alleged to have been stolen with the values
placed thereon by claimant, are as follows:
Fur Coat (old) $
75.00
Overnight Bag (new) --
25.00
Eyeglasses -
- 20.00
Dress (had never been worn) 16.25
Shoes (good) 5.00
Slips (5-good) -
25.00
Night Gowns
one never worn 12.00
four iii good condition 20.00
Bed Jacket (good) 5.00
Nylon Hose (3 new pairs)
at $1.65 4.95
Red Cross Nurses pin given
claimant by Red Cross
$208.20
One Helen Sartwell, alias Griffith, alias
Landon, was convicted in the
intermediate court of Kanawha county of grand larceny and sentenced to a term
of imprisonment in the penitentiary at Moundsville. At the time of her
conviction the woman was expecting the birth of a child. The judge who imposed
sentence upon her, not wanting the child to be born in jail or the penitentiary
communicated with the board of control in an endeavor to have some arrangement
made for her removal to one of the state hospitals, where the child could be
born. The Honorable L. Steele Trotter, a member of the board, without any
formal board action in the premises, but motivated wholly by a humanitarian
impulse, arranged for the woman to be transferred to the Fairmont Emergency
Hospital. At the same time the authorities of the institution were advised that
W. VA.] REPORTS
STATE COURT OF CLAIMS 67
the woman had a criminal record and was at the time Under sentence of
imprisonment for grand larceny.
Upon an examination made by the superintendent of the hospital it was
ascertained that the child would not be born for several months subsequent to
the time fixed for its birth by the Sartwell woman. This fact was communicated
to the board of control, but Dr. Johnson, the superintendent, said that since
she had had some experience in nursing they would allow her to do 0(1(1 jobs
about the institution until the time arrived for her confinement. Shortly after
being received at the hospital the woman made her escape. After she had gone
claimant discovered the loss of her personal belongings anti immediately
concluded that the same had been stolen by the fleeing woman. There was,
however, no direct or positive evidence that the Sartwell woman had taken the
property, although it might be readily concluded from the circumstances that
she was the guilty party. A beautician told claimant that she recognized a
dress worn by the woman as one that belonged to claimant.
The Sartwell woman was apprehended within a few days after her escape from the
hospital and conveyed to the penitentiary. She was, however, removed from the
penitentiary to a Wheeling hospital when her child was born. The possession of
the child was taken by the department of public assistance, and arrangements
made for its proper disposition.
None of the alleged stolen property was found in the possession of the Sartwell
woman.
We are unable to perceive any responsibility of the state to recompense
claimant for the loss of her property.
An award, therefore, is accordingly denied and the claim dismissed.
68 REPORTS STATE
COURT OF CLAIMS -
[W. VA.
(No. 592-?Claimant awarded $4,616.10)
EASTERN COAL SALES COMPANY, a corporation,
Claimant,
V.
STATE TAX COMMISSIONER,
Respondent.
Opinion filed September 17, 1947
A claim properly filed with the court
for the refund of gross sales taxes mistakenly and erroneously paid to the
state tax commissioner, will be allowed where there is a moral obligation on
the part of the state to refund the payment so made and where in equity and
good conscience, and upon the facts as presented, the claim should be allowed;
provided, of course, that it is filed within the five year rule governing the
consideration of claims by the court.
Appearances:
Richardson & Kern per, for claimant.
W. Bryan Spillers? Assistant Attorney General, for the
state.
CHARLES J. SCHUCK, JUDGE.
Claimant, a coal sales agency of Bluefield, West Virginia, asks for a refund in
the amount of $4616.10, heretofore erroneously paid the state tax commissioner
on gross sales or business and occupational taxes for the period from April 1,
1942 to June 30, 1946; the amount in question and so admitted by the state
having been paid on sales of coal made wholly in the state of Kentucky and not
in the state of West Virginia.
As shown by the record of claimant?s returns for the second, third and fourth
quarters in 1942, all of 1943 and the first, second and third returns and
payments for 1944, made to the tax commissioner are here involved and total
W. VA.1 REPORTS STATE COURT OF LAIMS 69
the amount for which claim is made in this court. The state tax commissioner on
petition heretofore filed pursuant to code 11-1-2a, refunded similar
overpayments for the fourth quarter of 1944, all of 1945 and the first and
second quarters of 1946, but refused to refund the payments made for prior
years on the ground that the payments had been made more than two years prior
to the filing of the petition for a refund arid were therefore barred by the
statute governing the return of erroneously paid sales taxes.
All of the overpayments however, for which claim is here made, were paid within
less than five years prior to the filing of this claim and in this connection we
are of the opinion that the court is bound by the five-year limitation as set
forth in the act creating the court, code 14-2-21, rather than by the two-year
limitation, and consequently is charged with the duty of considering the claim
as presented on its merits and not on any technical objection as interposed.
That the state was not entitled by law to any of the payments in question is
tacitly admitted; and that the contracts for the sale of coal made by claimant
were consummated wholly in another state, and therefore did not give rise to
any transactions on which the state of West Virginia could or had the legal
right to assess or collect any gross sales taxes whatever; and therefore
collected the payments and now withholds them without any warrant of law and is
therefore morally bound to refund them accordingly. Surely, in equity and good
conscience the state should not be placed in a different or paramount position,
under the conditions here presented, than would be an individual who
erroneously, improperly and illegally obtained money or funds which he refused
to pay to the rightful owner upon demand or request for their return.
We are of the opinion that every claim for a refund of payments of taxes
improperly made and unjustly collected by the state presents an independent
matter based upon the particular facts surrounding the claim, and that
70 REPORTS STATE
COURT OF CLAIMS LW. VA.
therefore the decision of the court in the instant claim is not inconsistent
with former decisions.
In shortened procedure cases, I)?iune?,?
Motor COTflJ)Ofly
v. State Tax Comrnision r, 2 Ct.
Claims (W. Va.) 417 and Tele wald,
Inc. v. State Tax Co ni
in isjonc r, 2 Ct. Claims (W. Va.) 418, this court upheld the
refund of gross sales taxes where they had been paid by mistake of fact, as in
the instant case. Both of these cases as required by statute were concurred in
by the state tax commissioner and approved by the attorney general. The
majority of this court is still of the opinion that the five-year statute of
limitations enacted by the Legislature for claims presented to the court
applies to the instant case and that the two-year statute applies to the tax
commissioner. but in those cases where there is a moral obligation upon the
state that the court of claims should invoke the five-year statute of
limitations.
In this claim the state is not required to pay out the public funds for private
use but is merely asked to repay monies which were mistakenly paid to the tax
commissioner and should never have been accepted by the tax commissioner.
A majority of the court is therefore of the opinion that an award in the amount
of four thousand six hundred sixteen dollars and ten cents (4616.1O) should be
allowed and recommend payment to the Legislature accordingly.
ROBERT L. BLAND. JUDGE, dissenting.
Claimant is a corporation having its principal office an(I place of business in
Bluefield. Mercer county, West Virginia. It was incorporated under the laws of
West Virginia in April 1942. It appears from a stipulation of agreed facts that
its Principal activity is the selling of coal produced 1w others, most of which
is produced in the state of Kentucky and soul by it in anil as a part of
interstate commerce, only a small quantity of the coal SO1(1 by it
W.VA.i
REPORTS STATE COURT OF CLAIMS 71
being sold within the state of West Virginia. When it began business in 1912 it
proceeded upon the assumption that since its office was located in West
Virginia it was liable to pay business and occupation taxes under the West
Virginia statute on all the commisisons which it derived from its sale of coal,
both interstate and intrastate, and accordingly made returns and paid taxes on
all such commissions until it discovered that it was in error in so doing, and
thereupon applied to the tax commissioner of the state of West Virginia for an
audit and check. Such audit was made in the latter part of December, 1946. At
the time of such audit commissions received from interstate and intrastate
business were segregated and a correct basis of accounting and payment
ascertained. The result of the audit disclosed an overpayment of business and
occupation taxes paid by claimant to the tax commissioner of $6,875.79.
Application thereafter was made to the tax commissioner for a refund of the
whole amount of said overpayment. A refund of $2,259.69 was made, but the tax
commissioner declined to refund the balance of said amount for the reason that
application therefor had not been made within the time prescribed by statute in
such case made and provided. To secure an award for the balance of such
overpayment of taxes, claimant has invoked the relief of the court of claims
and an award has been made to it for the sum of $4,616.10 by a majority of the
court. I do not concur in such award for the reason that by virtue of chapter
11, article 1, section 2(a) of the code of West Virginia, it is provided that
any taxpayer claiming to be aggrieved through being required to pay any tax
into the treasury of this state may, within two years from the date of such
payment, and not after, file with the official or department through which the
tax was paid, a petition in writing to have refunded to him any such tax, or
any part thereof, the payment whereof is claimed by him to have been required
unlawfully. This statute was in existence at the time of claimant?s creation
and organization as a corporation. It was its duty to take notice of such
statute and be governed by its terms and provisions. It
72 REPORTS STATE
COURT OF CLAIMS ?
[W. VA.
was not obliged to pay business and occupation taxes on interstate business
under West Virginia statute. The payment which it did make thereon was purely
voluntary on its part and not required by the tax commissioner. It made its own
returns to the tax commissioner without separating the interstate from the
intrastate transactions. It made its own computation of taxes due the state on
gross commissions received by it. The tax commissioner had no means of knowing
that such returns included both interstate and intrastate business. The money
which it paid to the tax commissioner was paid as taxes and upon such payment
became public funds. The remedy provided by the statute above cited to obtain a
refund of money improperly paid as taxes affords an exclusive remedy. Claimant
had an opportunity to pursue that remedy to obtain a refund of the taxes which
it had erroneously paid. It neglected to avail itself of the benefit of the
only statute in West Virginia, of which I have knowledge, that would entitle it
to a refund.
It seems to me that it is unnecessary to cite authorities or enter into any
discussion further than to cite the recent case of State v. Penn Oak Oil & Gas, Inc., 128 W. Va. 212; 36 S. E. 2nd. 595, decided November 20,
1945. In point three of the syllabi, our Appellate Court has declared:
?The provisions of Code, 11-14-19, as amended by Chapter 124, Acts of the
Legislature, 1939, relating to a refund of the excise tax on gasoline, create
the exclusive remedy which may be used to obtain such refund. Any refund
provided for therein must be based on an application for th return of a tax
theretofore paid.?
In the opinion, Judge Fox says:
?. .
. Where a statute imposing a tax provides
the taxpayer with a specific remedy against injustices arising thereunder, and
the taxpayer fails to avail himself of the remedy so provided, he cannot go
outside the statute for other and different remedies. . .
\\. \r\ it!1 ? ? S I
Ill WW
( thIS 1)ji(W I
I di, a ee how I
could give m (?Oi1S(H t? :111
a?.?::Ir?I to li? clainiieit ?Or the amount sought ti a- VVf1flt. iit\ cayers (?allnot sleep on thtir
right gu al I: si
iit. [hey are expected to be (Liliglilt iii see1
ig ?iii ?chef ,:
i?ded th&n by the Legislature. The Lc-giater
ie,,s I iuter act our court act, in i ?u
w iih power or authority to make an t?? ? i?
h?s-? iaxu.L:? cv has failed to pursue the mdv
rena dv ?u(?l-lI at ute
to ohtni ii relief. The award made in eis
ease, s ieainst all of I lie precedents of this taurt :-ie ihp bar, ??f its organZatm hitherto. The cases st I a
it sd is liii at ri
under t hi?
shortened i?roeedurt? alova. ?it 1 thE? t ui?f ict and
(?it V? in the majority 01)1111011 are in it tppl ira Isle. Those ?\ is? cases where it cleai?lv appt?a ?s front the ions this I:?, plication had been u1y male
to I lit? lax coulflhis?IiOfler hi? refunds, that is, withiH tue time ltresci?ibed by statute [or doing so, and the tax
Cominissioiler for some reason unknown to us failed to make such refund. 11
the court of claims would ignore
all of its precedents iii relation to
(leal? ing with refunds such
as in the instant case, and make refunds
as it has done in this case a ad iii
tie case of the Raleigh County Bunk versus S?stc T,i? (?otn itt issionri?, (IC?
termined at the present t?rm Ol? this c?)urt. t could eas!y destroy
the tax structure of the state.
It is my judgme:
that it is not only the duty (ii the eu itt () cml am to make careful and thorough iH\ ertigation
of all claims filed, )n to advise the Legislature, St) tar as
it is 1),tssihle to (10 so, with reference to the law go?, rn a?? such cifliflIs or it?,?iLl(ls or
determinations.
Since the Supreme (?ourt of Apie als has d??clared that the statute
hereinbefore cited afl?ords a exclusive
remedy for relief in cases such as the in tant
claim, I respectfully defer to that
court an(1 record my (la-S1?flt to the
action o my colleagues.
74 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 593?Claim denied)
A. J. THOMPSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 20, 1947
A claim for damages not sustained by
the evidence and an award refused.
Appearances:
Claimant, in his own behalf.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JuDGE.
Claimant A. J. Thompson prosecutes his
claim in the amount of $50.00 as damages to his truck caused by a branch of a
tree falling from the hillside on route 10, near Logan, West Virginia, on or
about April 1, 1947, and while claimant was passing or driving on said highway
in his truck. The testimony shows the weather was fine and visibility good at
the time of the accident, that employes of the state road commission were at
work on the cliff immediately above the place of the accident clearing the
cliff of decayed branches, brush and undergrowth likely to fall on, and cause
injury and damages to, travelers on the road, and by reason of the nature of
the work and its proximity to the highway, guards were stationed to warn
drivers and to direct them to the side or part of the highway away from and
opposite to the place or point where the work was being carried on.
Claimant denies that such guards had been stationed
W.
VA.i 1EPORTS STATE COURT OF CLAIMS - 75
for the purpose just mentioned, but we
are of the opinion that the evidence fully justifies the conclusion that guards
had been properly stationed to warn drivers on the road; that claimant had been
signalled by one of the guards to pass to the opposite side and out of the path
of danger, but paid no attention to the warning and continued on the side of
the highway next to the cliff to the place where the accident happened. In our
opinion claimant was negligent and by his negligence brought about the
accident. The damage to the truck was slight, and taken as a whole the
testimony rather weak and unsatisfactory as to the cost of repairing it.
However, as heretofore indicated, we are of the opinion that the employes of
the road commission were in no wise responsible for the accident and therefore
deny an award.
76 REPORTS STATE
COURT OF CLAIMS LYz VA.
(No. 594?Claim denied)
JESS P. RICHMOND, Claimant,
V.
STATE TAX COMMISSIONER, Respondent.
Opinion filed October 22, 1947
Chapter 11, article 13, section 2c, of the
code contemplates only sales of
tangible property and fixes the rate
of taxation accordingly. It does not include sales of services as such, nor
does it fix the rate of taxation for such services, but such services are
governed by the rate fixed and set forth in section 960(8) Michie?s code,
official code Section 2h.
Appearances:
Ashworth & Sa?ders, for claimant.
TV. Bryan Spillers, Assistant Attorney General, for the respondent.
CHARLES J. SCHUCK, JUDGE.
Jess P. Richmond, claimant, operates a
laundry and dry cleaning plant in the city of Beckley, Raleigh county, the
business extending into neighboring and contiguous coun ties, and in a large
measure consisting of services rendered in dry cleaning, pressing and
laundering the clothing and wearing apparel of miners employed by the various
coal companies in that section of our state. By arrangement and oral contracts
with the coal companies concerned. claimant, through his truck drivers, gathers
the clothing and laundry from the various coal company stores, renders the
necessary dry cleaning, washing, repairing and laundry services, and then
returns the clothing and apparel to thr stores from which the said articles
were first collected. In the due course of his business, he bills the coal
companies for the full or retail Price for the services so rendered and then
allows a twenty per cent reduction to the companies,
W.
VA.1 RFPORTS STTE COURT OF (1.IM5 77
making his collections on the l)asis of
eighty per cent of the invoice billing accordingly. He deals only with the
various coal companies or their proper representative and at no tim.e with the
miners personally. This method ot rendering the said services has been followed
by claimant from the year 1912 to the present time.
During the said period and for each year thereof he has paid his business and
occupation tax to the state tax commissioner based on the amount of his actual
collections from the coal companies (record pp. 26-27) at the retail rate as
fixed by statute, namely one half of one per cent of the gross income of his
business.
In the year 1946 claimant maintained that the business with the coal companies,
as heretofore outlined, was wholesale in its nature and that such portion of
his business should be reclassified; that in the future he should be taxed at
the wholesale rate and that a refund should be allowed him for the so-called
overpayment made by him to the tax commissioner for the years from 1942 to the
end of the year 1945 inclusive; these overpayments for the said period as
calculated by the claimant, amounting to $4,488.66 (record p. 21) being the
basis for the claim presented here.
Bearing in mind that only services were
rendered by claimant in the said business transactions, that the sale of
tangible property is not involved in any manner and that the services rendered
are not a part of nor incident to the sale of food, etcetera, as outlined by
the statute, what is or must be claimant?s classification and at what rate
shall he be taxed by the commissioner on his gross income from the business
with the said coal companies as heretofore detailed? Chapter 11, article 13,
section 2c of the code provides:
?Upon every person engaging or continuing within this State in the business of
selling any tangible property whatsoever, real or personal, including the sale
of food, and the services incident to the sale of food in hotels, restaurants,
cafeterias, confectioneries, and other public eating
78 REPORTS STATE
COURT OF CLAIMS [W. VA.
houses, except sales by any person engaging or continuing in the business of
horticulture, agriculture or grazing, or of selling stocks, bonds or other
evidences of indebtedness, there is likewise hereby levied, and shall be
collected, a tax equivalent to one-half of one per cent of the gross income of
the business, except that in the case of a wholesaler or jobber, the tax shall
be equal to fifteen one-hundredths of one per cent of the gross income of the
business.?
Claimant maintains that under the section just quoted he is a wholesaler so far
as his transactions with the coal companies are concerned, and that he should
have been taxed at the wholesale rate as provided for in said section and not
at the retail rate. We are not in accord with this conclusion. We feel, and so
hold, that the section in question applies only to the sale of tangible
property at wholesale or retail. The section bears the title ?Business of
Selling Tangible Property; Sales Exempt.? This title would clearly seem to
indicate that only sales involving tangible property were contemplated. Certain
exceptions are noted as to services, but the language employed again clearly
shows that the services rendered must be connected with and incident to the
sale of tangible property at wholesale or retail. Services as such and not
rendered in connection with the sale of tangible property are not included, and
in our opinion not to be taxed at the rates fixed in the section heretofore
referred to. So, too, do the other exceptions plainly indicate that they have
no relation whatever to such busines transactions as those shown to have been
carried on by claimant and the coal companies in question.
We repeat, the plain and obvious intendment of the Ianguage used unqualifiedly
means that a wholesaler can only claim classification as such when making sales
of tangible property. No such claim is made by the claimant in the instant
case. No tangible property is involved. A careful reading of the remaining
sections of said article 13 indicates in our opinion that section 960 (2h)
entitled ?Serv
W.VA.] REPORTS
STATE COURT OF CLAIMS 79
ice Business or Calling Not Otherwise
Specifically Taxed? applies to the transactions set forth in claimant?s
petition and fixes the rate of taxation to be charged.
The state by counsel has heretofore filed a motion to dismiss the claim.
As indicated by the foregoing opinion we deny an award and dismiss the claim.
(No. 599-S?Claimant awarded $17.50)
WILLIAM M. KNISELY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 28, 1947
MERRIMAN S. SMITH, JUDGE.
Employes of the state road commission
were making repairs to a secondary road in Marion county, West Virginia, on
November 1, 1946. William M. Knisely, the claimant, had occasion to interview
Earl Erskine, the foreman of the state road commission crew, who was standing
on a bridge at the time. As claimant was leaving the approach to the bridge, a
state road commission truck loaded with hot reddog came up and dumped it into a
hole in the roadway. Claimant was on the blind side of the truck and the steam
from the hot reddog burned his face, arm and legs. The doctor?s bill for
treatment thereof amounted to $17.50, which amount is the basis of this claim.
The state road commissioner concurred in the amount of this claim and it was
approved by the attorney general.
The facts produced as contained in the record and the
80 HEPORTS STATE
(?OURT OF (ThAIMS [W. VA.
report of the investigator fail to show whether or not any warning was
given by any of the state employes. On the other hand, it can be fairly well concluded that no warning or signal
was gi en that the cargo of hot
recidog was to be dumped at this
suot, and du to the ripe old age of the
claimant, and in the absence of any contributory negligence on his part, there is a moral obligation
on the part of the state to assume the
obligation for the medical services
rendered.
It is therefore the opinion of the majority of this court that an awar(l in tho sum of seventeen
dollars and fifty cents (17.5O) he
and is hereby granted to
the claimant, William M. Knisely.
ROBERT L. BLAND, JUDGE, dissenting.
In the case of Appalachion
Electric Power Compcwiy v. S&te Rood (?oni mission, in which I
wrote the majority opinion of the Court, found in 3 Ct. Claims (W. Va.) 150, I
stated
?The scheme for the
creation of the State Court of Claims
was carefully considered and worked uUl
by an interim committee
of the Legislature. ill its rel)ert to the Lgisiature that committee expressly slated:
?A shortened procedure is pro? vded for
smill claims woore no question of fact
or liability is iii issue.? Vor such
purpoas only should the -nO t-tene piuccdure provisioll of the court act
be used.??
I adhere to the above oxpressed views.
The instant c:im j5 mittiI to the
court of claims und(c the shortene I pi ocedure
pl?o\ ision of the court act. The record ?.i-
i -icd by the state ro?ad
commissioner and the claim eo
ui-red in by him aHd approved by an assistant attirney general of the state. The accident which is the li-is of the Ia n? was unfortunate. The amoui?t 1 econini?oed
r an award by this court is small
but the case a elves he se me
principle as if the claim
W. VA.J REPORTS STATE COURT OF? CLAIMS 81
were seventeen thousand dollars. It is obvious, I think, that both questions of
fact and liability are in issue. The effect of the award made by majority
members of the court is to ratify UOfl the meagre facts provided by the record
the conclusions reached by the head of the agency involved and the attorney general?s
oflice. 1 do not see the case in the light in which they view it or in which it
is viewed by majority members of the court. It cannot be said that the claimant
was not aware of the fact that the road commission truck was loaded with
reddog. He saw it. lie was charged with the exercise of prudence when
attempting to pass the truck. lie knew that the road commission was engaged in
the exercise of a governmental duty. The basis of the claim is negligence. No
prior statute authorizing this court to make an award upon the facts disclosed
by the record is shown.
I respectfully dissent.
(No. 600?Claimant awarded 100.00)
ALEX FARLEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 31, 1947
MERRIMAN S. SMITH, JUDGE.
On April 2, 1947, Alex Farley, the claimant, while returning to his home with a
bushel basket of groceries on his back, upon crossing a bridge spanning
Guyandotte River, on state route No. 3, at Chapmansville, Logan county, West
Virginia, stepped into a hole in the floor of the bridge and skinned his leg to
such an extent that the medical services rendered amounted to $20.00. He lost
twelve weeks work by virtue of such injury. It was about
82 REPORTS
STATE COURT OF CLAIMS [W.VA.
eight o?clock in the evening when
claimant was walking with the bushel basket of groceries on his back, and the
headlights of an approaching automobile were so bright that he became blinded
therefrom and stepped into a hole in the floor of the bridge which was about
two feet by ten inches in diameter, sustaining an injury to his right leg. He
therefore makes claim for $100.00 for medical services received and the loss of
twelve weeks work.
The state road commissioner concurred in the payment of this claim and it was
approved by the attorney general.
The state?s primary roads and all bridges should be maintained in a reasonably
safe condition at all times and a hole two feet by ten inches in diameter is an
unsafe condition for pedestrians, especially at nighttime. From the record
there was no act of contributory negligence on the part of claimant. Therefore,
an award in the sum of one hundred dollars ($100.00) is hereby granted to the
claimant, Alex Farley, by a majority of the court.
ROBERT L. BLAND, JUDGE, dissenting.
The basis of the claim, for which an award is made by majority members of the
court, is alleged negligence of one of the governmental agencies of the state.
I regret that I am constrained to file this dissenting statement, but as I
perceive my duty I am compelled to do so. The claim is considered informally
upon a meagre record prepared by the head of the agency involved. It does not
appear from such record that ?No question of fact or liability is involved.? On
the contrary I think very serious questions of both fact and liability are
involved. No independent investigation is made by the court. It is provided by
statute that the road commission shall inspect all bridges upon state roads. If
any bridge is found to be unsafe, the commission shall promptly condemn, close
and repair it. Chapter 17, article 4, section 33, code. Was such action taken
in the instant case? If not, why not? No such information is afforded by the
record. I have fixed notions
W.VA.1
REPORTS STATE COURT OF CLAIMS 83
about the appropriation of the public
funds. I think every case presented to this court should be carefully
considered by its three members. The report of the legislative interim
committee never contemplated that the shortened procedure provision of the court
act, provided for small claims, should be used in such a case as presented by
the record of this claim.
(No. 575??Claim denied)
JOHN W. BESS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 3, 1947
Where the evidence clearly shows
that claimant?s negligent acts were the cause of the accident for which he
seeks damages an award will be denied.
Appearances:
W. C. Haythe, for claimant.
14g. Bryan Spillers, Assistant Attorney General, for the
state.
CHARLES J. SCHUCK, JUDGE.
Claimant John W. Bess, of Montgomery,
West Virginia, prosecutes his claim against the state road commission for
personal injuries to himself and damages to his automobile occasioned by a
collision between his car and that of another automobile stopped on the highway
immediately in front of the claimant?s; said second automobile being in a line
of several cars, all stopped to permit a state road
84 REPORTS STATE
COURT OF CLAIMS [W. VA.
truck to turn on the highway at a point where it was to be loaded with ground,
dirt and debris being removed from a ditch adjacent to and parallel with the
highway. Ngligence and carelessness in the operation of the state truck is
alleged as the basis for the claim here presented. The accident happened on
highway route U. S. No. 60, near Dickinson, Kanawha county, on or about July
24, 1946, shortly after one o?clock p. M.
of the day in question.
The testimony shows that a line of four or five automobiles following the state
road truck and all traveling in an easterly direction on the said highway had
reached the place or point where the truck was to turn to be reloaded and while
said line of cars were stopped to allow the state truck to pull out of the line
of traffic, claimant?s automobile, also traveling eastward on the said highway,
crashed into the rear car of said line causing serious damages to both
automobiles and claimant alleges causing personal injuries to himself. Claimant
maintains that while he saw signs ?Men working? before he had reached the point
of collision, yet there was no flagman to warn him of the stopped line of
automobiles or to indicate that the state truck was about to make a turn on the
highway at a point shortly ahead.
We are of the opinion that the testimony of the several witnesses shows, first,
that a flagman was present to warn, and did warn, automobile drivers of the
road operations in question, and that the flagman was stationed at a proper
place to give the necessary warning to east bound traffic, and that claimant
seemingly paid no attention to him; second, that the day was bright, visibility
good and the highway dry, and that from the very nature of the accident, it
being a rear-end collision, claimant did not have his car under the proper and
necessary control and therefore was negligent and careless in its operation;
third, that there is no evidence before us upon which we could predicate the
charge of negligent and improper handling or operationg of the truck which, we
repeat, is the basis for this claim, but on the contrary we find the testimony
W.VAJ REPORTS
STATE COURT OF CLAIMS 85
to be that the truck was still in the line of traffic when the collision took
place and that its operation in no manner contributed directly or indirectly to
the claimant?s accident. In view of these findings, it is obvious that an award
must be refused. Fortunately claimant was not seriously injured. He so
testified himself; seemingly he suffered very little pain or inconvenience.
For the reasons herein set forth an award is refused.
(No. 602-S-?Claimant awarded $367.42)
EUREKA PIPE LINE COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent
Opinion filed November 3, 1947
CHARLES J. SCHUCK, JuDGE.
The Eureka Pipe Line Company, a corporation, claimant, was the owner of a
certain pipe line located on the E. C. Parks farm in Murphy district, Ritchie
county, West Virginia, which pipe line was used and operated for the purpose of
conveying and transporting oil, and known as a four-inch gravity line.
On or about July 3, 1947, while the employes of the state road commission were
engaged in repairing what is known as Indian Creek Road and located in the
immediate vicinity of said pipe line, rocks removed from said road were thrown
by the highway employes over and upon the pipe line in question, causing it to
break apart and allowing oil to leak and escape therefrom to the damage of the
claimant in amount of $367.42. A detailed account showing the items of loss and
the labor necessary to make the required repairs is filed with the claim.
Payment in the amount
86 REPORTS STATE
COURT OF CLAIMS [W.VA.
claimed is recommended by the authorities of the state road commission and
concurred in by the attorney general.
We are of the opinion that a moral obligation rests on the state to make
restitution, and an award in the amount of three hundred sixty-seven dollars
and forty-two cents ($367.42) is hereby recommended.
ROBERT L. BLAND, JUDGE, dissenting.
Since I do not think that claims against the state involving questions of fact
or liability should be submitted to the court of claims for determination under
its ?shortened procedure? provision as has been done in this instance, I do not
concur in the award of $367.42 made in the case. The ?shortened procedure? is
provided for small claims where no question of fact or liability is in issue.
(No. 603-S?Claimant awarded $38.00)
SIM McGRADY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 3, 1947
MERRIMAN S. SMITH, JuDGE.
Janet Lee McGrady, the daughter of claimant Sim Mc- Grady, a rural mail
carrier, was carrying the mail from Lester, Raleigh county, West Virginia, on
October 3, 194B, when crossing a wooden bridge about one mile from Lester, on
Maple Meadow secondary road in Hoo-Hoo hollow, the horse broke through the
wooden boards, straining and bruising the stifle joint on its right hind leg.
Sim McGrady, the owner of the horse, by way of a compromise
W. YA.1 REPORTS
STATE COURT OF CLAIMS 87
agreement made claim for $38.00, which covered a substitute horse used fourteen
days, at $2.00 per day, and veterinarian services of $10.00.
Payment of this claim was concurred in by
the head of the state road commission and approved by the attorney general.
The statute, Michie?s code section 1474(15), official code, chapter 17, article
4, section 33, provides for the inspection and safe maintenance of the bridges
in the road system of the state.
The record in this claim states that the bridge upon which this accident
occurred was in very bad condition. Therefore, the majority of this court
recommends an award for the sum of thirty-eight dollars ($38.00) in behalf of
the claimant Sim McGrady.
ROBERT L. BLAND, JUDGE, dissenting.
Since I do not think that claims against the state involving questions of fact
or liability should be submitted to the court of claims for determination under
its shortened procedure provision, as has been done in the instant case, I do
not concur in the award made. The ?shortened procedure? is provided for small
claims where no question of fact or
liability is in issue.
88 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 601-S?-Claim denied)
SYLVIA ORSINI, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 4, 1947
MERRIMAN S. SMITH, JUDGE.
During May, 1946, employes of the state road commission were making repairs to
a section of u. s. route No. 19, in the town of Worthington, Marion
county, West Virginia. The particular work being done was the laying of crushed
stone from the curb to the streetcar rails, in making a base preparatory to
blacktopping the surface. During this time a stone or stones were thrown
against the claimant?s store windows by passing cars or trucks in the normal
flow of road traffic, breaking two windowpanes, two jars of wax and lids to a
soft-drink cooler, damage for which amounted to $31.95,
and for which amount claim is made
against the state road commission. Claimant?s place of business parallels the
street.
In order to accommodate the public, traffic was not held up but allowed to
proceed in the normal course. This was a necessary work and for the public good
and benefit. The facts presented were that stones were thrown by ?person or
persons unknown? from the roadbed, and nowhere is any negligence attributed to
employes of the state road commission. Since the damage in the instant claim.
was caused by cars or trucks of unknown persons the state road commission is
not liable and accordingly an award is denied and the claim dismissed.
\V. VA.
1El?i?l.? SF \?1?F (ll Ji? (F (I. \l\IS
(Ne.
il (1 1flat iv.al ii d 1liliiJ,
J.
OTIS B()\VLING, (?laimant,
V.
STATE ROAT) rOMMISSION, Respondent.
U (1 V .;,
The state road conlmi-,ion ol \Vi-t Virrinia, in tLe uperaton of motor vehicles on the highway tie statr. i with
the duty of so equipping and uog vi iae a not to cau 101 uiy to the
property of other pci r. and a :aui e t o0erve soch duty. in circumstances, may warrant a. r?,vai
:r. the :ntret of tie puil:c welfare.
Richordsi?jo & K?,,;p? ,. for
claimant.
TV. B,yw,, Spdle. Assistant Attorney General, for the
state.
ROBERT L. BLAND. JUDGE.
Claimant J. Otis Bowling
seJis an award by Way of compensation for losses sustained and suffered by him
when a devastating fire. commumcated from
a steam shove owned by the state road
commission and onerated liv onc of its emploves. swept with terrific velocity O\ or a
bound? arv of one hundred and ton acros of land lvir.g adjacent to and on the northern
side of a portion of th state highway system. designatod as stnte route 12. and known
locally as Bluefield?Oakvale Cut Off. in Mercer ciunty. West Virginia. The road
commissou demos claimants right to such an award.
On or about the third day of May. l94, tilt stato rad commission had occasion to movc a steam
shovel from a point where it had been operating to another point where it was to be placed upon a trailer and taken to a garage. One G. W. Burton. an
employe of the uommission. was the
90 REPORTS STATE
COURT OF CLAIMS [W.VA.
operator in charge of the shovel. He was assisted by another employe by the
name of J. I. Taylor. Preparatory to starting the steam shovel Mr. Burton fired
it with wood and thereafter with coal. The vehicle moved slowly on its way. It
was not equipped with a spark arrestor. It did have, however, a screen over the
smokestack, insufficient, as the evidence shows, to prevent the emitting of
fire from the smokestack. Shortly after the shovel passed the corner of the one
hundred and ten acres of land owned by claimant, its driver looked back and discerned
smoke on the bank above the road and on claimant?s premises. He called to his
companion to see what could be done in order to extinguish what by that time
proved to be fire. A high wind was prevailing and the fire made such headway
that it soon spread over the entire area of claimant?s property. About seventy
rods of rail fence and from fifty to fifty-five rods of barbed wire fence were
quickly destroyed and rendered worthless. A vast number of growing young trees
of various dimensions, suitable for staves and props were quickly consumed by
the flames. Large trees, of recognized value, which had been felled were
entirely destroyed. The fire was so intense and so rapid in its movement that
it was out of the question to try to control it. Briefly, it may be said that
the timber on the area of one hundred and ten acres was totally destroyed and
even the larger trees standing were so badly burned as to render them of
inconsequential value. No one saw just how the fire originated, but the
circumstantial evidence is so strong and overwhelming that there can be no
doubt in the minds of the members of this court that it was caused by escaping
sparks from the smokestack of the steam shovel, a fact which might not have
occurred and probably would not have happened if the smokestack had been
properly equipped with a spark arrestor and not a makeshift network hastily
attached by the driver of the vehicle. Evidence was adduced tending to show
that the value of the property destroyed would be about $40.00 per acre. Some
acres, however, had fewer growing trees than other acres.
W. ii1?(H1?S lVI F m?ii u? (I\L\IS 91
Appraisement was made by clajmant 1 the
property and demand made upon he state road commissioner for compensation. The matter
has been held in abeyance sinCe 1943,
until the claim was filed in this court on
the twenty? third day of June 1917. No evidence was offered by the road commission to meet or
overcome the strong and convincing
proof offered by the claimant to support his
claim and fix responsibility for the
occurrence of the lire on respondent.
It is true that what
purortcd to be an aflidavit made by the witness flu rton w a detitihed and offered for the court?s considernton. The contents of
this allidavit could have no
controllinr influence upon the determination now made of the claim. Moreover,
the witness Burton denied that he had ever sig zied
the allidavit or swoiii to the truth of its contents. An ernploye of
the road commission testified that he was a notary public before whom
the said witness, Burton, appeared and swore
to the truth of the contents. fle also
testified that the afh(lavit was in his own handwriting and prepared upon the basis of
information given him by Burton. Burton, on the contrary, positively anti
emphatically denied these statements. At the instance of the court he signed
his name on a blank sheet of paper. There is no comparison
between the signature appearing on the purl)orted affidavit
and the signature written by Burton for the
inspection of the court. There are other differences that neeti not be
further (Ictailed. We are persuade(l
from the evidene?? in the case that the
claim is meritorious and that it should he allowed. We are moreover of
opinion that if th? steam shovel had been properly and adequately equinped
the fire would not have occurred and the property of claimant would not have
been destroyed. It seems to us that under the circumstances it would be manifestly
improper to deny claimant relief in the premises, lie has established by ample and convincing
proof a good case and we believe that
it voUl(1 be in the interest of
the l)Ublic welfare to make, what in
our judgment is, an award reasonable in the premises. After due and careful consideration of all the growing
trees, timber
92 REPORTS STATE ?COURT
OF CLAIMS 1W. VA.
arid fences destroyed we find the loss
sustained by claimant to be $1500.00.
An award is therefore made in favor of claimant J. Otis Bowling for the said
sum of fifteen hundred dollars
($1500.00).
(No. 586?Claimant awarded $100.00)
KATHERINE PRESSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 6, 1947
The state is morally bound to use
reasonable care and diligence in the maintenance of a state controlled highway,
and failure to use such reasonable care and diligence in allowing a hole to
exist in the highway for several years, thereby causing injuries to a person
lawfully using said highway, presents a claim for which an award should be
made.
Appearances:
E. L. Cutup, for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JuDGE.
Claimant, a resident of Upper Glade, Webster county, West Virginia, sustained
personal injuries by stepping into a hole in state road No. 20 in the town of
Camden-on.. Gauley, Webster county, while shopping there on the night of
November 16, 1946. She had parked her car off the hard surface of the said
highway and on the berm thereof, and while returning to the car, in stepping
from the side-
W. VA.I REPORTS STATE COURT
OF CLAIMS 93
walk and not being able to see the hole in
the darkness, stepped into it and was thrown to the ground sustaining a
fractured rib and other injuries which incapacitated her for several weeks
thereafter. She had seen the hole on previous visits to Camden-on-Gauley but on
the night in question a number of automobiles were parked along the sidewalk or
close thereto, leaving little space for claimant to get to the highway in
endeavoring to reach her car. The night was dark and from the testimony it
would seem that the street lighting system of the town was not sufficient to
assist her or light her way as she stepped off the sidewalk at the time and
place in(licated. She testifies (record p. 14) that the only vacant place
between parked cars affording an opportunity to reach the highway was where she
stepped off the sidewalk. This statement is not contradicted. Bearing in mind
the foregoing facts and the attendant circumstances we do not feel that
claimant had such knowledge of the presence of the hole as would charge her
with contributory negligence and thus bar the prosecution of her claim. She
knew the hole was there somewhere, but in the darkness of the night and with no
light to guide her, having finished her shopping, she seemingly used the only
available place to get to her car on the highway which action on her part
cannot be construed as negligence or the lack of proper care when considEred in
connection with the surrounding facts and circumstances. The testimony shows in
our opinion that she was lawfully and properly using the highway at the time of
the accident. The hole extended from the edge of the berm of the highway and
immediately adjacent to the sidewalk, a distance of about eighteen or twenty
inches out, into and upon the highway, and was about eight inches deep. It is
used as a drainage point, to collect the water from the highway and direct it
under the sidewalk to what is known as Coon Run, and while it has been repaired
at times, yet, as shown in the instant claim, it is dangerous to those using
the highway in question at the place where the accident to claimant happened
while in its present state or condition, We believe a catch basin with grating,
as testi
94 REPORTS STATE
COURT OF CLAIMS [W. YA.
fled to by one of the witnesses (record p. 63) would remedy the condition and
thus prevent the happening of any other or future accidents. The state, of
course, is morally bound to make its highways reasonably safe for travel and to
keep them in proper repair for the use of the public. This, in our opinion, was
not done with the highway here involved, by reason of which neglect the hole in
question continued as dangerous and a menace to those obliged to use the
highway in the town of Camden-on-Gauley. Accordingly an award will be recommended.
Claimant some time after her accident, believing that the town of
Camden-on-Gauley was responsible or liable for her damages, agreed to settle
her claim, if paid then, for approximately thirty-three dollars. The town
disclaimed liability and she was obliged to present and prosecute her claim
here, involving, of course, additional time and expense as well as legal
services. She also maintains that she could not do all of her housework for
several months after she had made the offer of settlement to the town of
Camden-on-Gauley, which she could do before; and that her suffering at times
has continued for a longer period than she had expected. Taking into
consideration all these facts we are of the opinion that she has suffered
damages to the extent of $100.00
and that the state is morally bound to
reimburse her.
An award is recommended accordingly in the said sum of one hundred dollars
($100.00) in favor of the claimant Katherine Presson.
W. VA.] REPORTS
STATE COURT oF CLAIMS 95
No. 597?Claimant awarded $448.67)
BONDED OIL COMPANY, Claimant,
v
STATE TAX COMMISSIONER, Respondent.
Opinion filed ?ovember 7, 1947
Where gross sales tax is paid
voluntarily and without filing any protest, under a mistake of fact, and
erroneously paid to the state tax commissioner, and there is no question as to
the validity of the exemption, and such tax is improperly accepted, there is a
moral obligation imposed upon the state to refund the amount not barred by the
court of claims statute of limitations. Raleigh
County Bank v. State Tax Commissioner and Eastern
Coal Sales Company v. State Tax Commissioner
Appearances:
Fitzpatrick, Strickling & Marshall
(0. J. Rife, Jr.), for the claimant.
W Bryan Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JUDGE.
The Bonded Oil Company, a corporation existing under the laws of the state of
Ohio, files this claim in the amount of $448.67 for the refund of overpayment
to the state tax commissioner of business and occupation tax as levied by
chapter 11, article 13, code (W. Va.) for the years 1942, 1943 and 1944, and
which amount is admitted by the state agency after having made an audit of
claimant?s books. The state tax commissioner on petition heretofore filed
pursuant to code 11-1-2a, refunded similar overpayments for the years 1945,
1946 and the first quarter of 1947, but refused to refund the payments for
prior years on the ground that the payments had been made more than two years
REI?ORTS STA?I?I?
(?OTT WI? 01? (?LA I MS 1W. VA.
prior to the liii ng of the petition for a refund, and were there lore barre(I 1w the two?vent statute ai 11)1 ical)le to the state tax commissioner governing the return
of erroneously pai(I taxes.
[h oVerpa3?mellts were made because
ot au erroneous interpretation of the (leli tuition of ?gross proceeds of sales?? under chapter 11, article 13,
section i. in that amounts paid to the
federal and state govern metits as a gallonage tax Were inclu(le(l H (letermiuuing
the amou itt of the gross sales. The state
gal lounge tax, amounting
to five cents per gallon, as authorized in chapter 11. article 1 1, section 3, code,
and the federal gallonage tax, auto u nting to .01 5 cents per gallon, as
set out in 26 1J.S.( ?.A. section 3-112, as amended, should have beeui deduct ed
from the total retail price ot the gasoline, and the net figures use(l as a
basis for the comI)utation ot the business and occupation tax
(Inc
the state of West Virginia by the claimant.
An itemized list of refund for the
respective years are as follows:
Correct Amt. of
Amount amount overpay?
paid due ment
Year ending 12-31-1942 $681.58 $166.61 $214.94
Six Months ending 6-30-1943 223.23 153.41 69.82
Six Months ending 12-31-1943 164.03 111.57 52.46
Year ending 12-31-1941 359.44 247.99 111.45
making a total refund due of $448.67.
All of the overpayments for which claim is here made were paid within less than fix e years prior to the filing of this claim, and the only question
before this court is whether the five?year
statute of limitations under code 14?2?21,
the act creating the state court of claims, applies rather than the
two-year statute of limitations, code 11-1-2a,
which is applicable to the tax commissioner.
In conformity with the majority holding in former claims, namely, Rulcigh Countij Bank v.
State
Tax Commis?
W. VA.] REPORTS
STATE COURT OF CLAIMS 97
sioner, No. 579 and Eastern
Coal Sales Company v. State Tax Commissioner, No. 597, the opinion of the majority of the court in the
instant claim is that it is the duty of this court to consider each claim as
presented on its merits, and if there is a moral obligation upon the state
under equity and good conscience, such as there would be in a judicial
proceeding between private persons, that an award should be made and the
five-year statute of limitations, code 14-2-21 is applicable to this claim.
Therefore, an award in the amount of four hundred forty-eight dollars and
sixty-seven cents ($448.67) is hereby recommended to be made to claimant, the
Bonded Oil Company.
ROBERT L. BLAND, JUDGE,
dissenting..
The claim is filed for the refund of an overpayment of gross sales tax. The
reason assigned for such overpayment is the faulty interpretation by claimant
of the term ?gross proceeds of sale.? The amount of the refund originally
sought was $1147.43, the aggregate amount of alleged overpayments for the years
1939 to 1944. The petition was so amended as to reduce the amount to that for which
the award is made.
Chapter 11, article 1, section 2a of the code of West Virginia provides that
any taxpayer claiming to be aggrieved through being required to pay any tax
into the treasury of this state may, within two years from the date of such payment,
and not after, file with the official or department through which the tax was
paid, a petition in writing to have refunded to him any such tax, or any part
thereof, the payment of which is claimed by him to have been required
unlawfully. No application, under this statute, was made to the tax
commissioner, within two years from payments, for the refund of overpayment of
taxes for which the above award is made. The specific remedy afforded by such
statute for the refund sought was not pursued.
Section 21 of the court of claims act provides as follows:
98 REPORTS STATE
COURT OF CLAIMS [W. VA.
?Limitations of Tjme.?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 .
. .?
The single question presented by the
record in this case is by which of the two statutes of limitations aforesaid is
the claim controlled.
By its failure to make application to the tax commissioner for refund under
code chapter 11, article 1, section 2a, I think claimant has slept upon its
rights. It has exhausted a specific remedy provided by law.
In the opinion in the case of State v. Penn Oak
Oil & Gas Company, Inc. 128 W.
Va. 212; 36 S. E. (2d) 595, Judge Fox says:
?When a statute imposing a tax provides the taxpayer with a specific remedy
against injustices arising thereunder, and the taxpayer fails to avail himself
of the remedy so provided, he cannot go outside the statute for other and
different remedies.?
I refer to my dissenting statements in Raleigh
County Bank v. State Tax Commissioner and Eastern Coal Sales Company v. State Tax Commissioner, in both of which awards were made by a majority of the
court at its present term, for further elaboration of my opposing views.
W. VA.l REPORTS
STATE COURT OF CLAIMS 99
(No. (11-S?--Clairnant awarded $209.31)
EUREKA PIPE LINE COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
fil(d JLtn?Ulry 16, 1948
MERRIMAN S. SMITH, JUDGE.
The maintenance crew of the state road commission was engaged in relocating a
section of the highway along Rush Creek, secondary road No. 50 in Roane county,
West Virginia, on August 25, 1947. They excavated a ledge of hard stone which
necessitated setting off a blast of dynamite. The Eureka Pipe Line Company had
relocated their four-inch oil line running it parallel with the newly located
highway, but it had not been buried so was exposed when the blast was put off.
Claimant had no notice that the shot was to be put off and as a consequence the
pipe line was broken when the stone was thrown over the side of the road.
An itemized statement of man-hours for labor, replaced pipe, use of truck and
nineteen barrels of oil was presented by the Eureka Pipe Line Company, in the
sum of $209.31, this being the amount claimed.
The head of the agency involved, the state road commissioner, concurred in and
recommended an award, which was approved by the attorney general.
A majority of this court hereby recommends an award in the sum of two hundred
nine dollars and thirty-one cents ($209.31) to be made to claimant, the Eureka
Pipe Line Company.
ROBERT L. BLAND, JUDGE, dissenting.
Since this case embraces questions of fact and liability
100 REI?ORTS STATE COURT OF CLAIMS 1W. VA.
and comes to the court of claims under section 17 of the court act for informal
consi(leration upon a record rna(le and filed by the state road commissioner,
and no opportunity is afforded the court to make an independent investigation
of the facts attending the claim. I cannot see my way clear to concur in the
award ma(le by majority members of the court. It is, however, obvious to my mind that the
amount of the award made represents a compromise agreement made by the head of
the agency concerned, and the court has merely ratified that settlement. This
is apparent from the record. The claim is not established by evidence. The
award ratifies admitted negligence of the state.
(No. 612-S?Claimant awarded $40.00)
ZACKWELL COCHRAN, Claimant,
V.
STATE ROAD COMMISSION, Respondent
Opinion filrd January 16, 1948
MERRIMAN S. SMITH, JUDGE.
The state road commission, in October 1946, established a rock quarry at Turkey
River on route 20, about seven miles east of New Martinsville, Wetzel county,
West Virginia, which it maintained over a period of eight months, or until June
9, 1947. During this time road commission employes blasted the rock with
regularity.
Claimant Zackwell Cochran?s store building, service station and dwelling were
situated about two hundred fifty feet away from the quarry and on the same
strata of rock. By reason of this blasting over such a long period of time the
walls of his store building, which were built of concrete blocks, shook loose
from the foundation. There also were
W. VA.] REPORTS
STATE COURT OF CLAIMS 101
holes and near-holes on the roofs of the buildings, which necessitated repair
and paint.
After a thorough investigation by the state agency involved an agreement was
entered into wherein claimant, Zackwell Cochran, for the sum of forty dollars would
release the state road commission for all damages to his property by virtue of
the blasting operations.
The state road commission concurred in the payment of this claim and it was
approved by the attorney general. Therefore, a majority of this court recommends
that an award in the sum of forty dollars ($40.00) be made to claimant,
Zackwell Cochran.
ROBERT L. BLAND, JUDGE, dissenting.
The constitution of West Virginia provides that the state shall never be made
defendant in any court of law or equity. However, on March 6, 1941, the
Legislature passed an act creating the state court of claims as a special
instrumentality of that body, for the purpose of providing a simple and
expeditious method for the consideration of claims against the state, which, by
reason of its constitutional immunity from suit, cannot he determined in a
court of law or equity, and recommending the disposition thereof to the
Legislature. The jurisdiction of the court is limited to the consideration of
such claims and demands against the state as it should, as a sovereign
commonwealth, in equity and good conscience discharge and pay. I do not regard
the present claim as one belonging to that category. If the state were suable
the claimant could have no recovery in a court of law. There is no evidence in
the record to support the claim or give it dignity or standing in any court.
Only by the widest stretch of fanciful imagination can it be held that the
state sho?ld be responsible for the alleged damages sustained by claimant on account
of the atomic reverberations of the blasting operations of the road commission.
Seemingly the award made overlooks the inferior and insecure construction of
claimant?s concrete
102
REPORTS STATE COURT OF CLAiMS [W. VA.
block buildings, and the effect of the
elements upon them. The road commission is without authority of law to enter
into a contract providing for the payment of the claim before it is considered
by the court of claims or the Legislature. A state is not bound by the
unauthorized acts of public officers. S&te
v. Chilton, 49 W. Va. 453. The
head of a state agency may concur in a claim against the state, but the court
of claims is not obliged to be bound by such concurrence, especially when it
appears from the record that it is not one for which the Legislature should
make an appropriation of the public funds. My conception of duty in the
premises forbids my concurrence in the award in this case made by majority
members.
(No. 613-S-?Claimant awarded $239.62)
LUCILLE II. MOORE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 16, 1948
CHARLES J. SCHUCK, JUDGE.
On May 27, 1947, claimant Lucille H. Moore, a school teacher living at Wallace,
West Virginia, driving over and along what is known as Gregory?s Run road, a
secondary road in Harrison county, met with an accident, having her car
overturned and damaged to the extent of the claim here presented, namely
$239.62, Fortunately she suffered no personal injuries.
The record as submitted to us for our consideration reveals that the road in
question was being resurfaced with tar and no notice of any kind, either by watchman?s
signals or warning signs, had been given to those using the highway on the
morning in question. The statement of the
W. VA.] REPORTS
STATE COURT OF CLAIMS 103
safety director contains the significant statement that claimant?. . . was on the tar before she knew it and as the result
the accident occurred.? Claimant herself makes the statement that she ran into
the fresh oil on the road surface and traveling a distance then slid to the
side, hit a dry spot and turned over. We repeat, no warning of any kind was
given to the travelers of oncoming automobiles.
Under all the facts as revealed, we feel that either flag- men should have been
properly stationed to warn automobile drivers of the condition of the road, or
that some warning signs or notices of some kind should have been used, and that
the failure to do so was the immediate cause of the accident and that claimant
is entitled accordingly to the sum asked for, namely $239.62, for repairs to
her car and labor incident to make said repairs. It is admitted that the road
was dangerously slick, but no explanation is given why the foreman in charge
did not use the necessary precaution when he first discovered that he was
making the road highly dangerous for travel. Experience has shown that even the
most careful driver will often find himself in trouble when passing from a dry
rqadway onto a freshly tarred surface of the road.
The state road department recommends payment of the claim and the attorney
general of the state approves the claim. We feel, therefore, that there is a
moral obligation devolving upon the state of West Virginia to make restitution,
and an award, by a majority of the court, in amount of two hundred thirty-nine
dollars and sixty-two cents ($239.62) is hereby made to the claimant.
ROBERT L. BLAND, JUDGE, dissenting.
The record of this claim, prepared by the state road commissioner, with his
concurrence therein and recommendation for payment thereof, consists of six
pages intended to show grounds sufficient to warrant this court in making an
award of $239.62 of the public funds and
104
- REPORTS SL\TE COURT OF CLAIMS [W.VA.
justify the Legislature in making an appropriation of that amount of the
people?s money. Not one of these pages contains an affidavit to verify the
truth of its contents. Mere ex parte, unverified statements do not constitute evidence or
proof. The validity of every claim filed in the court of claims against the
state, seeking money allowance, should be established by legal proof. In no
other way can the merit of such claims be properly determined. This court is an
investigating body, charged with the duty of acquainting itself with all the
facts concerning the claim presented and recommending to the Legislature the
proper disposition thereof. It must necessarily place the court in an
embarrassing situation to recommend to the Legislature the wisdom of
appropriating the public funds when such claim is not shown by valid and
satisfactory proof that it is possessed of merit.
The claim under consideration involves both questions of fact and liability. In
its consideration of the claim the court is precluded from examining and cross
examining the claimant. The court is asked to act in making its determination
as a mere ratifying body. Such action is repugnant to my way of thought. I am
constrained to perform my duty as I see it.
At the time of the accident alleged to have occurred, the road commission was
engaged in the performance of a governmental function. It was acting in
pursuance of mandatory, lawful authority. Claimant in the use of the highway
possessed no right or privilege superior to the right of the state. She was
charged with the duty of having her automobile under control. The court has had
no opportunity to investigate the extent, if any, to which she may have been
guilty of contributory negligence. The main part of the road is built of
asphalt. It is a straight road for a short distance, with grade. Its width is
eighteen feet, with berm on the east of two feet and berm on the west of five
feet. The claimant, I think, by the exercise of proper discretion could have
avoided the accident. Within the meaning of the rule announced by the Supreme
W.VA.1 REPORTS
STATE COURT OF CLAIMS 105
Court of Appeals of West Virginia in the case of State, cx rel, Cashman v. Sims, Auditor, as to what constitutes a moral obligation of the state,
I perceive no such duty in this case. I recognize the binding effect of that
decision.
For the reasons herein set out and others that might be easily assigned, I
dissent from the judgment of my esteemed colleagues and would disallow the
claim.
(No. 614-S?Claimant awarded $50.00)
CLARK BAILEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 16, 1948
CHARLES J. SCHUCK, JUDGE.
Claimant, Clark Bailey, presents his claim in the amount of $50.00, based on
the following facts as revealed by the record submitted for our consideration.
On April 29, 1947 the state?s patrol grader, while working on state road No. 20
in Calhoun county, cut a hole in the galvanized culvert constructed over and
across said highway near Beech in the said county. The following day, April 30,
claimant?s horse, while being ridden along said highway and while passing over
the said culve?t, stepped into the hole made by the patrol grader and severeiy
injured his right hind leg. No negligence on the part of the claimant is shown
and as the state is charged with the duty of keeping the highway in a
reasonably safe condition for travel, the failure to do so, in the instant
claim, makes it liable for the damages incurred. The claim i recommended for
payment by the state road commission and approved by the attorney general.
106 ? REPORTS STATE COURT OF CLAIMS [W. VA.
Claimant was obliged to expend the sum of eighteen dollars for veterinary services,
and an additional sum of ten dollars for the use of a horse to take the place
of the injured animal. The balance of his claim is for damages to the horse,
impairing its ability to work as it could and did before the accident and
thereby affecting its value. The appearance of the horse is somewhat marred.
The cut was half around the ankle and the hide was cut off the ankle. The horse
for a time at least could not be worked on frozen ground or in the mud for if
so worked the injured ankle would bleed and become irritated.
In view of these facts we feel that the amount of the claim, to wit $50.00, is
reasonable and that a moral obligation devolves upon the state to pay the same.
An award is accordingly made in the sum of fifty dol lars ($50.00) by a majority
of the court.
ROBERT L. BLAND. JuDGE, dissenting.
I do not see in this case any moral obligation of the state to compensate the
claimant.
?To constitute a valid declaration by the Legislature of the existence of a
moral obligation of the State for the discharge of which there may be an
appropriation of public funds in the interest of the public welfare, it is
necessary, as a general rule, that there be an obligation or a duty by prior
statute created or imposed upon the State, to compensate a person for injury or
damage sustained by him by reason of its violation by the State or any of its
agencies .
. .? State cx rd C?cshmart v. Sims,
Avditor, 43 S.E. 2d 805.
The state road commission was engaged in the exercise of a governmental
function when a puncture or hole was cut in the galvanized culvert by the
patrol grader. This fact was not known to the operator of the vehicle during
the day that he was employed in the grading work. On
W.VA.1 - REPORTS STATE COURT OF CLAIMS 107
the following day claimant?s horse stepped into the hole and was injured. The
incident was thereupon reported to an employe of the state road commission, and
the next day after this report was made, and after the road cornmisnion?s first
knowledge of the existence of the hole, the culvert was promptly repaired.
Certainly no negligence is shown on the part of the road commission. It was
alert in making the necessary repairs to the culvert. Necessarily, highways, by
the continuous use thereof, will frequently get out of order or repair. It
cannot be said that sufficient time may not be allowed for such repair work.
I find in the report of the court of claims of Michigan for the biennium ending
December 31, 1942, wherein it held in the case of Manion v. State Highway Department as follows:
?The State may not be held liable for injures sustained by an engineer while
off duty on ferry operated by State highway commissioner because of negligence
of operators of defendant?s ferries since the operation of such ferries was a
governmental function in the absence of statutory liability for negligent
operation of such ferries (1 Comp. Laws 1929 Secs. 4698-4702, as amended).?
(No. 596?Claim denied)
IDA MAE KING, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed Januai1j
111,
1(148
When a pedestrian while crossing a
culvert or bridge on a highwa of the state steps off thereof and falls T1to a creek or
run and sustains personal inj TiCS and it appeins
upon the hearing of the claim prosecuted by her for damages on the grounds of
negligence
105 REPORTS STATE
COURT OF CLAIMS [W.VA.
on the part of the road commission that she could easily have avoided the
accident by stepping ofT the pavement of the road onto the berm on either side
thereof and that no negligence on the part of the road commission or the state
is disclosed by the evidence in the case, an award will be denied.
W. Hayes Pettry, for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
ROBERT L. BLAND, JuDGE.
In this case Ida Mae King seeks an award of $25,000.00 to compensate her for
personal injuries alleged to have been sustained on a secondary highway known
as state route No. 79, leading from the Appalachian Power Plant at the mouth of
Cabin Creek on Kanawha river, near Cabin Creek Junction in Kanawha county, West
Virginia and running and extending upon said Cabin Creek for a distance of
several miles to the town of Leewood in said Kanawha county. Said road is paved
and is sixteen feet in width. It is extensively used for both vehicular and
pedestrian traffic.
Claimant maintains that on said highway there are several bridges, including a
culvert or bridge thereon which crosses what is known and designated as Bears
Creek or Ohley Hollow, a tributary of Cabin Creek, at or near the town of Ohley
in said Kanawha county.
Claimant and her husband reside in a small cottage in said village or town of
Obley, a short distance from said culvert or bridge. About a quarter of a mile
from th home of claimant and across said culvert or bridge a gentleman by the
name of Stone lives, where he discharges the duties of a barber for the
accommodation and benefit of his neighbors and friends.
On the evening of August 31, 1916, claimant?s husband had gone to the home of
Mr. Stone for the purpose of
W.VA.} REPORTS
STATE COURT OF CLAIMS 109
having his hair cut. While he was there claimant concluded to go over to the
house to obtain milk and butter. The highway is comparatively straight,
conducive to speed of motor vehicles traveling on the road in both directions
in the vicinity of the bridge or culvert. This fact was particularly observed
when the members of the court inspected the location of the point at which
claimant?s accident occurred. When claimant got perhaps halfway over said
bridge or culvert two automobiles approached from opposite directions. The
light from the vehicle traveling in the direction of Ohley was so brilliant
that it seemingly dazed and blinded her. For the purpose of safety and to avoid
accident claimant, who was walking on the left side of the highway, stepped as
she thought off the pavement of the road and fell for a distance of some seven
or eight feet into the creek or run spanned by the culvert or bridge, suffering
painful personal injuries. She was conveyed by ambulance to a hospital in the
city of Charleston where she remained for a period of thirteen days. Upon her
arriva at the hospital she was placed in a cast which she was obliged to wear
for five weeks. After the removal of this cast she was provided with a brace
which she was wearing at the time of the hearing before this court. There can
be no doubt about the fact that claimant was seriously injured and suffered a
severe nervous shock.
In her petition claimant charges that the state road commission failed to
provide guardrails or any other means of protection for pedestrians traveling
on the highway culvert or bridge, although the said culvert or bridge had been
made for the purpose and use of persons who found it necessary to travel on
said highway. She also charges that the road commission failed to provide a
wide shoulder or berm sufficient in which to permit and allow pedestrians to
step off the paved portion thereof to permit oncoming vehicular traffic to
pass. Claimant prosecutes her claim against the road commission on the ground
of its alleged negligence in the premises.
As above indicated the members of the court visited the
110
REPORTS STATE COURT OF CLAIMS [W.VA.
scene of the accident and made careful inspection of the road, the bridge or
culvert and the general surroundings. We are unable in view of the evidence
presented in support of the claim and our personal observations to recommend to
the Legislature an appropriation in favor of claimant to compensate her on
account of her accident and suffering. It was apparent to us at the time we
inspected the culvert, and as shown by the engineer who testified upon the
hearing on behalf of claimant, that there was sufficient berm on either side of
the pavement of the road on which claimant could have stepped and been out of
the way of either approaching car. We are unable to perceive any negligence on
the part of the road commission either in the construction or maintenance of
said bridge or culvert.
In view of recent decisions of the Supreme Court of Appeals relative to the
responsibility of the state and the extent to which the Legislature is
authorized to appropriate public funds to compensate persons by way of damages
resulting from accidents on the highways of the state, we are unable upon due
consideration of all of the evidence before the court in the present case to
make an award in favor of claimant.
An award is therefore denied and the claim dismissed.
(No. 536?Claimant awarded 240.62)
UTILITIES COAL COMPANY, a Corporation, Claimant,
V.
DEPARTMENT OF UNEMPLOYMENT
COMPENSATION, Respondent.
Opinion filed January 22, 1948
1. Checks mailed to the unemployment
compensation department
W. VA.] REPORTS
STATE COURT OF CLAIMS 111
and received into the custody of an employe duly authorized to receive them,
which checks were in payment of contributions due the unemployment compensation
fund from an employer, and which were subsequently fraudulently embezzled and
uttered by the said authorized employe, are nevertheless payment to the state
by the employer for the amounts of the checks and for the purpose intended.
2. Where the employer complying with the demands of the department of
unemployment compensation makes a second or further payment under protest of
the amounts of the said original checks, it is entitled to be reimbursed in the
full amount thereof, in a claim properly and duly presented in this court, and
an award will be made for any unpaid balance not paid back to the employer by
the state.
Appearances:
Peyton & Winters, for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant, the Utilities Coal Company, is a corporation engaged in the coal
mining business in Logan county, West Virginia, and as such is governed by the
provisions of chapter 21A, code of West Virginia, and is obliged to contribute
and pay into the West Virginia Department of unemployment compensation from
time to time certain sums of money as determined by law and set out in the said
chapter.
In the due course of its business and as required by the law, claimant sent to
the said unemployment compensation department two certain checks, one for the
month ending May 31, 1941, in the sum of $900.65 and the other for the month
ending September 30, 1941, in the sum of $983.77, making a total of $1884.42
for the said two months. Both checks were payable to the West Virginia
department of unemployment compensation, mailed to the aforesaid department at
its offices in the capitol building, Charleston,
112 REPORTS ST\TE
COrJRT OF CLAIMS [W. VA.
West Virginia, and received in the regular course of business by one Charles
Summers, a junior auditor of the department, duly authorized to receive the
checks in question and to give proper credit therefor to the claimant. Shortly
after the receipt of the said checks the said Summers stole, embezzled, altered
and uttered them and a period of several months elapsed before the theft,
embezzlement and uttering was discovered, and thereafter the department of
unemployment compensation upon numerous afl(l divers occasions demanded of
claimant that it again pay the amount of said checks, with which demands
claimant finally complied, and on April 23, 1916, sent to the department two
checks aggregating the sum of $1881.42, said payments having been made under
protest by claimant. Subsequently Summers was indicted for the theft and
uttering of the checks dated May 31, 1941 and September 30, 1941, respectively,
and upon a plea of guilty was sentenced to the penitentiary. Summers was and
had been under bond in the amount of $2000.00 which bond was executed by the
Continental Casualty Company and which company denied liability in a suit
brought against it by the unemployment compensation department to recover and
collect upon the bond in question.
In State v. Covitineiitul
Casualty Company, 42 SE (2d) 820, the
Supreme Court of our state in determining most of the issues and questions here
involved, held, inter cilia, that:
?The provisions of the statute having been complied with, the checks having
been paid, and the proceeds of the checks having come into the custody of an
employe of the department who, by virtue of his employment, was authorized to
receive them, the liability of the employers to the department for the payment
of the contributions in the amounts represented by the checks has been fully
satisfied and discharged. Their obligations in that respect have been paid in
full and any claim of the department notwithstanding its failure or refusal to
credit the amounts of the checks
VA.i REPORTS
STATE COURT OF CLAIMS 113
to their accounts, or
its contention that the contributions have not been paid, has been legally satisfied and
extinguished.?
After the department had recovered and been paid a judgment against the bonding company it applied the amount of $1643.80 to
claimant, thus leaving a balance of $240.62 or the difference of the amounts of
the first two checks, namely $1884.42 and the amount of $1643.80, leaving the
said balance of $240.62 for which claimant asks an award at the hands of this
court.
In view of all the circumstances and facts presented for our consideration we
are of the opinion and so hold that there is a moral obligation devolving upon
the state to return to claimant the full amount of the checks embezzled and the
state having returned or applied the sum of $1643.80, the balance of $240.62 is
justly due and payable to claimant. The original checks were sent in due time,
mailed to the office of the department in Charleston, were rcceived by the
proper and duly authorized officer or agent of the state as provided by law and
thereafter claimant was not responsible for the fraudulent acts of the officer
ui agent in question. The checks were paid in due course and the state in due
time having received the amount of the tax payable by claimant should now make
restitution of the balance not yet paid to claimant. Claimant should not be
penalized for the fraudulent acts of an authorized state agent after fully complying
with the provisions of the act requiring such payment to be made and after
discharging every obligation that devolved upon it.
An award in the amount of two hundred forty dollars and sixty-two cents
($240.62) is accordingly recommended in favor of the claimant.
lii REPORTS
ST.\TE COURT OF CLAIMS [W. VA.
(No. 37?Claimant awarded $52.05)
BUFFALO-WINIFREDE COAL COMPANY,
a corporation, Claimant,
V.
DEPARTMENT OF UNEMPLOYMENT
COMPENSATION, Respondent.
Opinion filed January 2l, 1948
The facts as shown by the record and
stipulations filed herein are identical with those disclosed in the claim of Utilities Coal Company
v. Department of Uflemployment Corn
pcnsation, except as to the amount of the check involved, and the
opinion of the court rendered in Utilities
Coal Company, so pro, therefore
controls in the instant case.
Appearances:
Peyton & Winters, for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JuDGE.
The record and stipulations tending to support the instant claim reveal that
the facts relied upon by claimant, except as to the amount of the check
involved, are identical in all other respects with the facts presented by the
claim of Utilities Coal Company, a.
corporation, v. Department of Unemployment Compensation, decided by this court during the present term.
A check in the amount of $408.25 was mailed to and received by a duly
authorized employe at the office of the department in question at Charleston,
West Virginia; the check was subsequently fraudulently embezzled and uttered by
the said employe and in due course was paid. A
W.VA.i REPORTS
STATE COURT OF CLAIMS 115
second payment of the amount set forth in the original check was subsequently
made, under protest, to the department, after several requests so to do; and
after collection of the judgment by the department from the insurance company
involved, the department returned or paid back to claimant the amount of
$356.20 leaving a balance of $52.05 unpaid, or the difference between the
amount of $408.25 and the amount repaid to claimant, namely $356.20.
For the reasons assigned in the opinion of Utilities Coal Company, supra, which
control in determining our conclusion in the instant claim, we find that the
claimant is entitled to the sum of $52.05 and accordingly recommend an award in
the amount of said sum, fifty-two dollars and five cents ($52.05).
116 REPORTS
STATE COURT OF CLAIMS [W.VA.
(No. 607?Claimant awarded $250.80)
EVENING JOURNAL PUBLISHING COMPANY,
incorporated, Claimant,
V.
STATE AUDITOR, Respondent.
Opinion filed January 23, 1948
When a publishing company publishes
legal notices contracted for by constitutional authority, as prescribed by
statute, and the Legislature in regular session by special act authorizes and
appropriates money from the general school fund for the payment of said legal
notices, it becomes a just obligation and an award will be recommended.
Appearances:
Harry M. Byrer, Jr., for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JUDGE.
The Evening Journal Publishing Company, Inc., a corporation, incorporated under
the laws of the state of West Virginia and authorized to do business in the
said state and its principal place of business being at 207 West King Street,
Martinsburg, Berkeley county, West Virginia, publishes, at that location, a
daily newspaper known as the Martinsburg Journal.
It appears from an agreed stipulation of facts that during the months of
February and March, 1943, said claimant published in its said newspaper eleven
(11) separate legal notices to redeem land from sale, under the acts of the
West Virginia Legislature of 1941, chapter 117, dealing with the collection of
delinquent land taxes, and presented
W. VA.1 REPORTS
STATE COURT OF CLAIMS 117
the said notices to Charles G. Gain, deputy commissioner for the collection of
delinquent land taxes for the county of Berkeley, state of West Virginia, for
confirmation of publication, and that the said Charles G. Gain refused to confirm
said publications on the grounds of the unconstitutionality of said act of the
West Virginia Legislature of 1941, chapter 117, a part of which was held to be
unconstitutional by the Supreme Court of Appeals of the state of West Virginia.
The advertising charges as set out in an itemized statement for the publication
of the eleven separate legal notices total $250.80, which amount is the subject
of this claim.
This court in a similar claim in re
Berkeley Printing & Pulilishing Company, Inc. v. State Auditor,
3 Ct. Claims (W. Va.) 231, made an
award and recommended payment under date of July 1, 1946.
Since the ruling in the Berkeley
Printing & Publishing Company claim, supra, the Legislature in regular session in March 1947 passed an act, senate
bill No. 337, chapter 26, advance copy of acts of the forty-eighth Legislature
of West Virginia, finding the claims of various newspapers for publications of
ordei-s and notices of sale of forfeited and delinquent lands to be moral
obligations, and appropriated funds from the general school fund to pay the
said moral obligations. Section 3 of said act provides in part:
?. .
. that there is and will be in the
general school fund of the state treasury revenue, in excess of all other
appropriations sufficient to pay the amounts hereafter appropriated, there is
hereby appropriated from the general school fund of the state treasury for the
remainder of the fiscal year one thousand nine hundred forty-six?one thousand
nine hundred forty-seven and for the fiscal year one thousand nine hundred
forty-seven
?one thousand nine hundred forty-eight, an amount sufficient to pay the moral
obligations described in sections one and two herein, which
118 REPORTS
STATE COURT OF CLAIMS FW.VA.
moral obligations cannot now he
ascertained in
sums certain.?
An award is therefore now made in favor of the claimant, the Evening Journal
Publishing Company, Inc., for the sum of two hundred fifty dollars and eighty
cents ($250.80) payable out of the appropriation as provided for in the act as
cited above.
(No. 609?Claimant awarded $333.40)
CRESCENT BRICK COMPANY, Claimant,
V.
STATE AUDITOR, Respondent.
Opison filed Jtnary !6, 1948
When a foreign corporation pays its
license tax in advance of its due date for the fiscal tax year and prior to the
beginning of the license tax year said corporation dissolves and ceases to do
any operations within the state a refund of the amount so paid will be
recommended.
Appearances:
Thorp, Bostwick, Reed & Armstrong,
for the claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JUDGE.
In April, 1946, the Crescent Brick
Company, a Delaware corporation, and duly registered in West Virginia, filed
its annual license tax report and paid to the auditor of the state of West
Virginia the sum of $333.40 for the year from July 1, 1946 to June 30, 1947.
W. VA.I IUP()RrIS STATE CUIJRT OF CLAIMS ? 119
In the meantime and prior to July 1, 1946 the Crescent Brick Company sold all
of its holdings in West Virginia to the Crescent Brick Company, Inc.,
incorporated in the state of West Virginia on June 21, 1946. On July 1, 1946 the new company succeeded to the operations formerly
carried on by the old company.
The new Crescent Brick Company, Inc, also paid its annual license tax for the
year beginning July 1, 1946, to June 30, 1947 inclusive, the same period for
which the old corporation, the Crescent Brick Company, had made payment.
From the stipulation of facts as agreed upon by the claimant and the assistant
attorney general as presented to this court, it appears that the claimant
corporation did not do any business in the state of West Virginia after July 1,
1946 except for final liquidation and dissolution proceedings which were
carried on outside of the state of West Virginia, all of its business and
operations being carried on by its successor within this state after July 1,
1946.
Since the claimant had paid its license tax before it had anticipated
withdrawing from the state of West Virginia, and did withdraw and ceased
operations before the beginning of the fiscal license tax year, it now asks for
the refund of the tax paid to the auditor of the state of West Virginia, that
is $333.40.
The license tax for the year beginning July 1, 1946 to June 30, 1947 was not
due the state until July 1, 1946 and since the claimant corporation could not
and did not anticipate its withdrawal from the state prior to the beginning of
the tax year, the opinion of this court is that this is a just obligation and a
refund of the tax paid should be made to the claimant.
There is no statutory remedy provided in such case for refund, but we are of
opinion that this is a just and mentorious obligation imposed upon the state
and the claimant
120
REPORTS STATE COURT OF (?LAIMS [W.VA.
should be reimbursed, otherwisp it
would he imposing a penalty for prompt payment of taxes whereas such practice
should be encouraged rather than penalized.
An award in the amount of three hundred thirty-three dollars and forty cents
($333.40) is hereby recommended to be paid to the claimant, Crescent Brick
Company.
(No. 610?Claimant awarded $2000.00)
ROBERT RAY ROBINSON, an infant, Claimant,
V.
STATE CONSERVATION COMMISSION,
Respondent.
Opinion filc(l JUn flU ?/ 7, 2948
One who is summoned or drafted by a state
forester or protector to assist in fighting a forest fire is entitled to all
reasonable protection when complying with such summoni, and if injured while so
engaged without fault or negligence on hi part is entitled to an award. See Bailey v.
State CoosLevatio,L
(onunission, 2 Ct. Claims (W. Va.) 70.
J. M. Ellis, for claimant.
W. Bryan Spillei?s, Assistant
Attorney General, for the state.
CHARLES J. SCHUCK, JuDGE.
Robert Ray Robinson, an infant aged fifteen years, was summoned on or about
November 9, 1946 to assist in fighting a forest fire in Fayette county, West
Virginia. On the evening of that day (about six o?clock) he, together with a
number of other boys and young men, was transported by truck from his home
community to the scene of the fire, and sometime after midnight while engaged
in what
W.VA.i RIPORTS
STATE COURT
OF CLAIMS - 121
the foresters term ?mopping up? meaning thereby quenching or smothering the
burning embers and tree stumps after the fire itself has passed over the area,
Robinson was struck by a burning log, his left leg crushed and the femur bone
fractured. He was carried to a house nearby and about two o?clock A. M. on the
following day was removed in an ambulance to a hospital where he was confined
for a period of three weeks. His leg was kept in a cast for several months and
his last examination revealed a fairly good union of the bone, with the leg,
however, about one- half inch shorter than the other or normal leg. He
complains of pain in the injured leg from time to time and there is no doubt
that he is permanently injured and will suffer some inconvenience by reason of
his condition throughout his life. So, too, did he suffer much pain at the time
of the injury and for some time thereafter. The hospital bill of approximately
$284.00 is, so far as we know, still unpaid and held against the boy?s father
who prosecutes the pending claim as next friend.
The facts as presented reveal a rather startling condition or situation
surrounding the drafting of this immature boy and make us wonder why one so
young, without any parental consent or knowledge, should have been summoned to
take part in the rather hazardous undertaking of helping to fight a forest fire
that was at that time covering several thousand acres. The evidence shows that
it was understood among the boys that they would be fined or punished if they
failed to respond. We are convinced by the testimony that this impression
prevailed in the community from which this boy was recruited. The department
involved recognized his employment by paying him the usual wage paid so-called
?fire fighters? in the county or vicinity where the fire was raging, checks
covering the amount of wages due him, $2.50, having been sent to him a short
time after he was injured.
The evidence as a whole shows conclusively that he was summoned by an agent or
fire protector of the department to assist in fighting the fire; that he was
transported to the
12 REPORTS SL\ FE ((1URT OF (LAIMS [W. VA.
scene of the lire in a truck provided for
that purpose; that he was under the iniprossioll he would be 11110(1 if he re?
fused to respond, notwithstanding his age and slender physical build; that the
department treate(1 him as one duly employed or recruited to hell); that the
work was highly dangerous ; that he was paid according to the scale of wages
paid for such work in that vicinity ; that he was permanently injured while
engaged in assisting to extinguish the fire, through no fault or carelessness
on his part; that there is a large hospital bill to pay and that he will always
suffer some inconvenience and impairment by reason of his injuries.
We, therefore, are of the opinion that one so young and immature should not have
been called upon ti perform such a hazardous and dangerous task but having been
summoned and responded as requested, should be compensated accordingly. We feel
than an award of two thousand dollars ($2000.00) should he made to this infant
claimant, and recommend that the Legislature make an appropriation in the
aforesaid amount and that a full release be executed both by him and his father
when the award is paid.
(No. 398?Claim dismissed)
THOMAS SAUNDERS, Claimant,
V.
STATE ROAD COMMISSION, Respondent,
Opinion filed January 28, 1948
MERRIMAN S. SMITH, JuDGE.
Claimant?s petition, seeking an award of $1500.00, was filed under the
regular procedure on September 4, 1947.
On August 1, 1947, claimant Thomas Saunders was
W.VA.I REPORTS
STATE COURT OF CLAiMS 123
riding his five-gaited saddle horse across bridge No. 2 between the towns of
Ilighcoal and Garrison, in Sherman district, Boone county, West Virginia, which
bridge was under the control and supervision of the state road commission and
while riding across said bridge the horse broke through a rotten floor board
and broke his left hind leg and it became necessary to destroy the horse. The
claimant also alleged that his left hand and left ankle were dislocated, and
asked for a sum of $1500.00 for injuries sustained by himself and the horse.
On January 12, 1947 the state road commission submitted a shortened procedure
record for $300.00, the value of the horse, together with an aflidavit signed
by the claimant Thomas Saunders rehasing the state for any and all personal
injuries and making no claim therefor. The shortened procedure recoi d, as
provided for under section 17 of the act creating the court of claims, was
concurred in by the state road commissioner and approved by the attorney
general as one that, in view of the purposes of the court of claims should be
paid.
It is the opinion of this court that the record as submitted is inadequate and
that the members of the court should have the opportunity of que-tioning the
witnesses and that more information relative to the market value of the horse
should be ascertained.
Under the circumstances the claim is rejected without prejudice to the
claimant. The court act provides: ?The rejection of a claim under this section
shall not bar its resubmission under the regular procedure.?
Without passing on the general merits of the claim in question, an award is
denied and the claim is dismissed.
124
REPORTS STATE COURT OF CLAIMS 1W. VA.
(No. 605?Claimants awarded $500.00)
GEORGE WISMAN, JAMES WISMAN, GARNETT
WISMAN, HAZEL WOOD and ED WOOD,
Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Janntry 29, l94
The evidence presented in support of
the claim under consideration and the facts adduced show such a breach of the
contract by the department involved as to justify an awarad to claimants.
Appearances:
Kay, Casto & Amos, for claimants.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimants, George Wisman and others, are the owners of a tract of land
comprising approximately seven and one- half acres located on what is known as
Brown?s Creek Road, in Jefferson district, Kanawha county, West Virginia. As
such owners claimants entered into several agreements in 1940 with the state
road commission, culminating in a final contract executed on October 21, 1940,
between claimants and the road commission, known as a ?Borrow Pit Agreement,?
whereby, among other provisions, for the consideration of $500.00 to them to be
paid, claimants as the first parties to the said contract agreed to grant to
the state road commission the right to enter on said tract to quarry and remove therefrom
approximately 50,000 cubic yards of earth and stone (or a greater or lesser
amount if necessary) together with the
W. VA.] REPORTS
STATE COURT OF CLAIMS 125
right of ingress and egress, and to operate any machinery and equipment
necessary for the purpose of quarrying and removing the stone in question. The
said contract also sets forth that a further consideration for the rights and
privileges granted by claimants shall be ?. . . the improvements and benefits that will accrue to the said First
Parties? property by reason of the improvement of said Browns Creek Road.? The
project was to be carried on by the road commission in conjunction with the aid
and assistance of the Federal w.
P. A.
The agreement executed October 6, 1938, and to be in force until October 1, 1939, contains
no provisions inconsistent with the conditions set forth in the final contract,
upon which this claim is based and need not be further considered in arriving
at our conclusion or decision. The second agreement, dated March 18, 1940, so
far as the record before us is concerned, was never executed, except that on
its face there is a notation in ink as follows: ?It is 0. K. with me for you to
use rock from this quarry on Tornado Upper Falls Road??signed ?George Wisman,
August 22,
1940,? and witnessed by several
witnesses. Consequently this exhibit (No. 2 state) is of no value whatever in
determining the merits and justice of the claim submitted. in addition there
was introduced by the state exhibit No. 3, purporting to be a letter from the
assistant district right of way agent to the district engineer, which on its
face shows it to be wholly self-serving and hearsay and not worthy of serious
consideration on our part. However, it contains the recital that the orchard
located on the tract in question and nearby to the quarry from which the stone
was to be taken contained thirty-three bearing apple trees, and then proceeds
with the following language which we quote:
?Many of these trees have already been totally destroyed through careless
construction of approach roads and blasting and other quarry operations. It is
unlikely that any of these trees will
126 REPORTS ST
TE C OUll? 1? CLAIMS LW. VA.
have any value after th i qua cry ha c
en completely \\O1ked.?
As the state was the only
agency that carried on the quarrying
operations the refrence made in the letter to careless construction, bi:isting
and quarry falls wholly upon the state and the agency involved, and in these
respects supports fully the evidence sul)mitted by claimants with reference to
the damagcs (lone to their orchard and other parts of the property. This
exhibit (No. 3 state) contains the statement (aaiii self-serving) that the
payment of $500.00 to tne ow ncr of the tract is br all damages to the residue
of the premises, as well as for the quarry, and it is upon this Provision Ill the
exhibit that the state partly relies in its defense to the claim. We repeat,
the letter would be of no value whatever iii
the usual judicial proceeding. It was
never seen by the claimants before it was presented in the hearing before us;
is hearsay anti self-serving and therefore not binding on them. It is
significant, however, that with this letter (exhibit 3) there was transmitted
the identical ?Borrow Pit Agreement? dated October 21, 1940 upon which the
claim before us is based; that the agreement had already been signed by the
claimants and at that time awaited the signatures of and execution by the road
commission officials to make the contract binding and complete. Having been
duly executed by all parties concerned the interpretations of its provisions
and the construction thereof in the light of subsequent events connected with
the quarrying operations must necessarily form the l)asis upon which the claim
before us will fall or be sustained. The evidence clearly shows and a view of
the premises by two members of the court proves that the allegations set forth
in claimants? petition are substantially true. The orchard appears to have been
destroyed; stone weighing many tons has been allowed to remain on the slope
immediately below the quarry, undoubtedly causing the slide of earth, which, if
it continues, may in time involve all of the tract and seriously impair its
value; a water well at the foot of the
W. VA.] REPORTS STATE COURT OF CLAIMS 127
slope has been completely destroyed, and in other respects much of the property
rendered useless for the purposes for which it was used before the quarrying
operations began. The road (Browns Creek Road) was not improved as contemplated
and intended by the contract, but on the contrary was made a gravel road, and
not stone based with stone from the quarry, because of economic reasons and
because the improvement of the road as contemplated by the contract had to be
abandoned before reaching claimants? land since there was no further
appropriation of funds available and cheaper construction had to be used. In
the opinion of a majority of the court these actions on the part of the agency
concerned constitute a breach of the contract and were detrimental to
claimants? rights in the premises. Furthermore, it appears from the evidence
that after the execution of the contract quarrying operations continued for
several months but no stone was removed from th property used on the road as
intended, but on the contrary the stone was allowed to accumulate in piles on
the upper part of the property and eventually by its weight caused the slide
and the damages complained of by claimants. All of the stone quarried after the
signing of the contract is still on the premises, notwithstanding the protests
made to the road authorities by claimants to have it removed. Damages are
continuing to accrue caused by the careless and negligent acts of the agents
and employes of the department, and in our opinion are not contemplated or
covered by the clause relating to ?damages to the residue? as set forth in the
contract, and considered in connection with all the attendant circumstances.
These negligent acts were unnecessary and not merely incidental to the
quarrying of the stone; therefore, were not contemplated by the clause of the
contract just referred to.
Claimants wanted a worthwhile road and were ready and willing to give and
furnish the necessary stone not only for the road immediately adjacent to their
tract of land, but for other roads as well; to all of which purposes the state
agreed, but failed to do or carry into effect.
128 REPORTS STATE
COURT OF CLAIMS [W.VA.
A majority of the court is therefore of the opinion, after weighing and
considering all the facts involved, that claimants are entitled to damages in
the sum of five hundred dollars ($500.00) in addition to any sum or sums
heretofore paid, and recommend an award accordingly for payment as a full
settlement for all damages past, present or future.
ROBERT L. BLAND, JUDGE,
dissenting.
I cannot give sanction to the award in this case made by majority members of
the court. I cannot endorse or agree to the correctness of the statement in the
majority opinion that ?The evidence presented in support of the claim under
consideration and the facts adduced show such a breach of the contract by the
department iflVOiVe(l as to justify an award to claimants.? There hasbeen no
breach of the contract in the premises. rfhe majority members, in their
determination of this claim, have lost sight of the polestar in the case. They
have failed to see and follow the unerring guiding light of truth so brightly
reflected throughout the record. Wandering in the darkness they have overlooked
the impregnable defense made to the claim by the state road commission.
A proper analysis of the whole evidence must necessarily lead to the conclusion
and show that the claim should be denied and the case dismissed.
In 1938 persons residing in the vicinity of Browns Creek, in Kanawha county,
West Virginia, were desirous of having a secondary road built in their
neighborhood. About that time the state road commission was sponsoring a
federal works progress administration project in Kanawha county. Before the
road commission could build a road it was necessary for rights of way and so
forth to be obtained. The people in the Browns Creek section arranged with a
gentleman by the name of Knapp, then mayor of St. Albans, to secure such rights
of way. The road commission needed a quarry for the W.P.A. forces to
W. VA.] REPORTS
STATE COURT OF CLAIMS 129
start the road work. There were two quarries in the neighborhood available, one
on the Mason Arbaugh property and one on the seven and one-half acres of land
owned by the claimants. Mr. Knapp deemed the quarry on the Arbaugh property
inadequate. He was therefore directed to get a contract for the claimants?
quarry before the road work was begun. By an agreement in writing bearing date
of the sixteenth of October, 1938, claimant George Wisman granted to the road
commission the right to quarry and remove rock from the quarry on the property
of claimants until October 1, 1939. The said agreement provided, however, that
such rock should be used on the Browns Creek Road. The road project was then
started and prosecuted until funds available for the purpose ran out. At this
time about one and one-half miles of the Browns Creek road had been built. For
a period the W.P.A. forces remained idle, but in a short time another project
was started on the Tornado or Upper Falls road. In order to use rock from
claimants? quarry on the Upper Falls road it was deemned necessary to obtain a
further agreement from claimants. Accordingly an agreement dated March 19,
1940, was prepared and submitted for execution. Claimant George Wisman wrote an
endorsement thereon assenting to the use of rock from claimants? quarry on the
Upper Falls road. Work was done on the latter road for a while and claimant
George Wisman complained about damages on the Wisman property. Some apple trees
in the orchard had been destroyed. His claim was duly considered by the road
commission officials and in order to effect full, complete and final settlement
of all matters in difference and all damages then or thereafter to be done on
account of or resulting from quarry operations on claimants? property, an
agreement bearing date on the twentyfirst day of October, 1940, called the
?Borrow Pit Agreement? was executed. The three paper writings in question
should be read and considered together. That the ?Borrow Pit Agreement? was
intended to take care of all damages which had been done to the property of
claimants and all future damages that might be done thereon as a
130 REPORTS
STATE COURT OF CLAIMS [W. VA.
result of quarry operations was clearly understood by all parties concerned.
The majority opinion challenges this proposition and quotes partially from a
letter written by an assistant district right of way agent to the district
engineer of the commission and asserts the said letter to be ?Wholly self-serving
and hearsay and not worthy of serious consideration.? Section 15 of the act
creating the court of claims provides in part as follows:
?Under its rules, the court shall not be bound by the usual common law or
statutory rules of evidence. The court may accept and weigh in accordance with
its evidential value any information that will assist the court in determining
the factual basis of the claim.?
Since this provision in the statute is not self-executing it was formally
adopted as a court rule, i.e. rule IX, subsection (c), by the court of claims.
In view of an excerpt from the above mentioned letter used in the majority
opinion, a quotation that does not give or set forth all of the information
furnished to the court by that letter, the said letter, dated October 26, 1940,
is now set forth in its entirety as follows:
?Mr. Ray Cavendish
District Engineer
Charleston, West Virginia
Re: Borrow Pit Agreement
George Wisman, et als
Browns Creek Road
Dear Mr. Cavendish:
We enclose herewith a Borrow Pit Agreement, in triplicate, executed by George
Wisman, et als, and covering the stone quarry previously used to secure
material for the Browns Creek and Coal River Road.
The purpose of this agreement is to cover any or all damages sustained by the
Wisman property,
W.VA.]
REPORTS STATE COURT OF CLAIMS 131
and to extend the privilege of further quarrying until October 1, 1942.
The consideration of Five hundred ($500.00) dollars to be paid may seem
excessive, but I wish to point out that this quarry is situated immediately
above an orchard containing in all 33 bearing apple trees. Many of these trees
have already been totally destroyed through careless construction of approach
roads and blasting and other quarry operations. It is unlikely that any of these
trees will have any value after this quarry has been completely worked.
With this in mind, I have agreed to a consideration of Five Hundred ($500.00)
dollars for the quarry and all damages to the residue of the premises and
recommend that this agreement be approved and passed for payment.
I will check the title to this property at the earliest possible time, and
advise you of my finding.
Very truly yours,
/s/ George A. Wilson
GEORGE A. WILSON
Assistant District Right of
GAW:bb Way Agent?
Reading this letter in conjunction with the ?Borrow Pit Agreement? it is
made manifest that the payment of $500.00 made to claimants under the terms of
said ?Borrow Pit Agreement? was intended to be in full settlement of all
damages which might result to claimants on account of quarry operations. The
evidence introduced upon the hearing of the claim shows that the said sum of
$500.00 was paid by the road commission to the claimants. They are bound by
that agreement. What advantage would a solemn agreement be if it could be so
easily disregarded at the will and pleasure of any of the parties thereto? What
use would there be for the road commission to enter into
132
REPORTS STATE COURT OF CLAIMS [W. VA.
an agreement at any time if the party or parties with whom it is made could
disregard and evade its binding provisions at their will and pleasure?
It was shown upon the hearing that the entire parcel of land owned by claimants
on which the ledge or quarry is located is and has for several years past been
assessed at $100.00.
The taxes thereon are seventy-eight cents
for each half year or $1.56 per annum. There are no improvements on the land.
On the entire parcel there is only approximately 100 X 100 feet of level land.
There is no fence on the property so far as the evidence discloses. What apples
grew in the orchard were given away to the Salvation Army and anybody else who
wanted them. It was shown by the testimony introduced by the claimants that the
land is not worth more than $600.00. The claimants have heretofore been paid
$500.00 by the road commission. The award made by majority members of the court
gives them an additional sum of $500.00. Certainly there is some duty resting
upon the court of claims to protect the interest of the state.
With becoming deference to the action of my esteemed colleagues I most
respectfully record my dissent to their judgment in this case.
(No. 621-S----Claimant awarded $615.00)
DUNCAN W. DAUGHERTY, Claimant,
V.
STATE AUDITOR, Respondent.
Opinion filed April 1i, 1948
CHARLES J. SCHUCK, JUDGE.
This claim, in the amount of $615.00, is for services
W.VA.l REPORTS
STATE COURT OF CLAIMS 133
rendered as special judge in Cabell county, in the cause of F. 0. Lamb, Receiver, etc. v. Huntington
Securities Corporation. The services
extended over a period from May 7, 1940 to July 1, 1945, and no objection is
made by the auditor or the state authorities to the amount claimed, and in view
of the fact that the services were continuing in their nature and effect and
not ended until July 1, 1947, seven years after they began, no objection is
made nor could one be maintained that payment of any part of the amount
involved is barred by the statute of limitations governing the disposition of
claims filed in this court. The state auditor and the attorney general both
recommend an award.
The claim as first presented to the state auditor was in the amount of $675.00,
as allowed by the regular circuit judge of Cabell county, and duly certified
for payment to the auditor. Both the circuit judge of Cabell county and
claimant as special judge, had agreed that the charge for the services to be
rendered in the cause referred to should not be presented until the work was
fully completed and the services ended. This agreement was carried out and the
bill for services rendered accordingly.
Upon presentation of the certified order or bill for the services to the
auditor he allowed and paid the amount of $60.00, being the amount accruing
after July 1, 1945, and refused payment of the balance on the ground that it
was not payable from the current appropriation and that the appropriations had
expired out of which said balance might properly have been paid. As stated by
the auditor in his communication to the claimant, payment was not refused
because the claim lacked merit but because the auditor felt and maintained that
he was inhibited by the laws of the state from making payment for the balance
of the services which had been rendered previous to July 1, 1945. The auditor
states in his communication that the claimant should be paid. An itemized
statement at the rate of fifteen dollars per day showing the days and dates
during which
134
REPORTS STATE COURT OF CLAIMS [W.VA.
the services in question were rendered is filed for our consideration.
We are of the opinion that the state having benefited by the services rendered,
that the amount asked is reasonable and just, that no objection to an award is
offered by any state official or agency, but rather that recommendation of
payment is made, and that the only reason payment has been withheld is because
the period during which the services were rendered overlapped the
appropriations from which payments could have been made, and which
appropriations have expired, that an award should be made to claimant.
Accordingly, an award in the amount of six hundred and fifteen dollars
($615.00) is hereby made and allowed and the necessary and proper appropriation
by the Legislature is recommended.
No. 606-S?Claimant awarded $210.73)
JOHN H. BREEDLOVE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied April O, 1948
MERRIMAN S. SMITH, JUDGE.
On June 20, 1947, claimant John H. Breedlove was driving his privately owned
one and one-half ton Chevrolet truck, loaded with coal, along secondary road
No. 50-9, near Grafton, Taylor county, West Virginia. Upon crossing a wooden
bridge (culvert type) the said bridge collapsed causing damages in the amount
of $210.73 to the
W. VA.] REPORTS
STATE COURT OF CLAIMS 135
tires, tubes, spring and body of the truck.
The claimant had paid license fee for overload of six tons gross and at the
time of the accident the gross weight of the cargo and truck was well within
the limits allowed by law. There was no ?load limit? sign posted at the bridge
and no warning of any kind was given to the public as to the unsafe condition
of the bridge. Michie?s Code of West Virginia, 1943, chapter 17, article 4,
section 1474(15) provides:
?The commissioner shall inspect all bridges upon state roads. If any bridge is
found to be unsafe, the commissioner shall promptly condemn, close and repair
it.?
It seems from the record in this case that the statute above cited was
disregarded in this instance, thereby making the state guilty of negligence.
The failure of the state road commission to perform its statutory duty was the
proximate cause of the damage to the said truck. No negligence of any kind was
shown on the part of claimant.
The state road commission made proper investigation as to the merit of this
claim and concurs in the claim and the claim is approved by the special
assistant to the attorney general as one that should be paid.
From the record as filed before this court it appears that claimant, John H.
Breedlove, carried a one hundred dollar deductible collision policy with the
State Automobile Mutual Insurance Company of Columbus, Ohio, which took
subrogation to the extent of its payment.
It is the opinion of the majority of this court that an award be made in the
amount of two hundred ten dollars and seventy-three cents ($210.73) to be paid
jointly to
John H. Breedlove and the State Automobile Mutual Insurance Company of
Columbus, Ohio.
ROBERT L. BLAND, JUDGE, dissenting.
136 REPORTS
STATE COURT OF CLAIMS [W.VA.
The facts which constitute the basis of this claim are set forth by the state
road commissioner, the head of the agency involved, as follows:
?A privately-owned 1? ton truck (Chevrolet) of John Breedlove, Taylor County,
hauling a load of coal on Secondary Road No. 50/9 and crossing wooden bridge
(culvert type) when rear wheels crashed through bridge. SRC did not have bridge
posted for any gross load limit and truck was issued overload license of 6
tons. The toad traveling over the bridge at the time of the accident was less
than what trucker was permitted to haul by law.?
By reason of the accident claimant?s truck was damaged, as he maintains, to the
extent of $210.73, and the road commissioner concurs in the claim for that
amount, afl(l it is approved by the attorney general?s office ?as one that, in
view of the purposes of the Court of C?aims Statute, should be paid.?
I do not think the facts relied upon for an award in this case warrant or
justify the making of such an award. Certainly it cannot be seriously
maintained upon the meagre showing made by the record that if the state were
suable there could be recovery in a court of law. How heavy was the load of
coal that was being transported over the bridge? To what extent was claimant
acquainted with the bridge? How frequently did he cross over the bridge in the
hauling of coal? These and other pertinent questions could have been propounded
if the case had been heard under the regular procedure and not under the
shortened procedure. Was the claimant in any way guilty of contributory
negligence? In the recent case of Jacob F. Bennett v. State Road
Commission, not yet reported, the Supreme Court of Appeals of West Virginia
held that an award made by this court was based upon manifestly insufficient
facts. The record in the instant case certainly falls far short of the facts
set forth in the Bennett record.
I respectfully dissent from the award made by majority members of the court.
W. VA.] REPORTS
STATE COURT OF CLAIMS 137
(No. 616?Claimant awarded $685.96)
I. S. DAVIS, d/b/a FAIRMONT LINEN SUPPLY
COMPANY, Claimant,
STATE TAX COMMISSIONER, Respondent.
Opinion filed April 21, 1948
When the State Supreme Court rendered
a decision exempting the furnishing of linens, towels and similar articles from
the provision of the business and occupation tax, there is a moral obligation
imposed upon the state to refund the amount not barred by the state court of
claims statute of limitations.
Appearances:
Claimant, pro se.
J47 Bryan. Spillers, Assistant
Attorney General, for the
state.
MERRIMAN S. SMITH, JUDGE.
I. S. Davis, doing business as Fairmont Linen Supply Company, operates a linen
and towel supply business in the city of Fairmont, Marion county, West
Virginia. Since 1939 he has paid annually to the state tax commissioner under
the business and occupation tax statute. In 1944 the Supreme Court, in Harper v. State Tax
Commissioner, 126
W. Va. 707, held that the furnishing of linen and towels was not a ?service?
within the meaning of the statute, and such receipts were exempt as to
individuals engaged in such activity. Since there was no controversy between
the state and claimant as to the amount of overpayment, the sole question for
this court is to determine whether the twoyear statute of limitations
applicable to the state tax commissioner or the five-year statute of
limitations applicable
138
REPORTS STATE COURT OF CLAIMS [W. VA.
to the state court of claims shall
prevail in the instant claim.
It is the opinion of the majority of the court that there is a moral obligation
imposed upon the state to refund the amount overpaid not barred by the state
court of claims statute of limitations. Raleigh
County Bank v. State Tax Commissioner; Jess P. Rich mond v. State Tax
Commissioner, not yet reported.
The amount of refund, including tax and penalties for the respective years as
filed by the claimant and audited by the state tax department, is as follows:
Second half of 1942 $106.11
First half of 1943 98.28
Second half of 1943 94.14
Entire year 1941 242.90
First half of 1945 68.46
Second half of 1945 76.07
making a total refund amounting to six hundred eighty- five dollars and ninety-six
cents ($685.96) which amount is hereby awarded to claimant, by a majority of
the court.
ROBERT L. BLAND, JUDGE, dissenting.
I cannot concur in the award made in this case by majority members of the court
for the reason that I believe it to be in direct conflict with the law as
interpreted and announced by the Supreme Court of Appeals of West Virginia. See
State v. Penn Oak
Oil & Gas, Inc., 128 W. Va.
212. For further reasons upon which I base my dissent I respectfully refer to
my dissenting statement filed in the case of Raleigh County Bank v, State Tax Commissioner and my further dissenting statement filed in the case
of Eastern Coal Sales Company v. State Tax
Commissioner, not yet reported.
W. VA.] REPORTS
STATE COURT OF CLAIMS 139
(No. 615?Claimant awarded $67483)
AMERICAN OIL COMPANY, Claimant,
V.
STATE TAX COMMISSIONER, Respondent.
Opinion filed April 21, 1948
Syllabus in re Eastern Coal Sales
Company, a corporation, v. State Tax Commissioner, decided by this court September 17, 1947, adopted and
affirmed.
Appearances:
Oscar Hoth, for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant seeks refund of $322.28 for
the year 1943 and $352.55 for the year 1944, making a total of $674.83,
representing overpayment of its business and occupation (gross sales) taxes for
the two years in question. The state admits the payments and their amounts as
correct, but objects to the refund on the ground that the statute of
limitations bars recovery, since no action was commenced by claimant within two
years of the time the several payments had been made. That the state was not
entitled to any of the payments made at the time they were received is admitted
and the only question for our consideration is whether the payments of the tax
having been made within less than five years prior to the filing of this claim,
claimant should have the overpayments refunded or whether refund of the amount
should be refused on the ground that no claim or petition was filed or
presented, within two years after the payments had been made, as provided by
code
11-1-2a.
During the war years claimant was obliged to pay to the
140 REPORTS
STATE COURT OF CLAIMS [W.VA.
Defense Supplies Commission, a federal agency created for the purpose of taking
care of excess transportation costs in the oil industry occasioned by land
shipments of oil rather than by the cheaper method of shipping by water, and
rather than pass the increased costs to the consumer directly, claimant was
obliged by the said federal commission to collect and turn over to the
commission the excess amounts so collected and as then required by the state
tax commissioner to pay the gross sales tax to the state of West Virginia on
said excess collections, notwithstanding that claimant received no benefit
whatever from such excess sales. In due time the matter was called to the
attention of the state tax commissioner, who ruled that claimant was not
required under the law to pay a tax on the said excess costs and at the time
made a refund of $180.14, refusing, however, to refund any other overpayments
on the ground that such repayments were barred by the statute of limitations
(two year rule). A similar quesiton was presented to this court in re the
claim of Eastern Coal Sales Company, a corporation, v. State Tax
Commissioner, decided September 17, 1947, a majority of the court holding
that the statute giving the court of claims the right to hear and determine a
claim for refund of erroneously paid taxes, filed within five years after said
erroneous payment, governed as against the two-year statute of limitations
referred to and relied upon by the state.
The act creating the court of claims allowing a claim to be filed within the
five-year period also contains the following language:
?Sec. 13. .
. . 1. Claims and demands, liquidated,
and unliquidated, cx 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.?
What is the significance of the language so employed? What does the term or
phrase ?equity and good conscience? as set forth in the act really mean? Is the
language
W. VA.] REPORTS
STATE COURT OF CLAIMS 141
susceptible of several interpretations or are we restricted in its application
when confronted with the merits of a claim such as we have under consideration?
In its general signification the term ?equity and good conscience? must denote
the spirit and habit of fairness, justice and right dealing, which would
regulate the intercourse of men with men, simply the rule of doing to all
others as we desire them to do to us; as Justinian has said, ?To live honestly,
to harm nobody and render to every man his due.? The term or phrase is the
synonym of the natural right of justice. In this sense its obligation is
ethical rather than jural and it belongs rightfully in the sphere of morals and
therefore in the realm of moral obligations.
The facts presented show conclusively a moral obligation on the part of the
state to refund the amount of the tax erroneously paid, and the Legislature
having definitely fixed the period of five years, during which claims could be
presented and prosecuted, to the definite
exclusion of any other statute of
limitations, we feel we are bound by such provision and make an award
accordingly in favor of the claimant in the amount of six hundred seventy-four
dollars and eighty-three cents ($674.83), and recommend that an appropriation
by the Legislature be made to cover the said refund or overpayment of the said
tax.
ROBERT L. BLAND, JUDGE, dissenting.
In my judgment the claimant by reason of its failure to make application for
refund within the time prescribed by the two-year period of limitation has
exhausted its remedy for the recovery of such refund. In the case of State v. Penn Oak Oil & Gas, Inc., 128 W. Va. 212, it is held in point three of the syllabi:
?The provisions of Code, 11-14-19, as
amended by Chapter 124, Acts of the Legislature, 1939, relating to a refund of
the excise tax on gasoline, create the exclusive remedy which may be used to
obtain such refund. Any refund provided for
142
REPORTS STATE COURT OF CLAIMS 1W. VA.
therein must be based on an application for the return of a tax theretofore
paid.?
It is expressly provided by statute that application for
a refund such as involved in this case must be made within
a period of two years. That is the exclusive remedy provided by law. In the Penn Oak case,
supra, Judge Fox in
the opinion, at page 222, says:
?Where a statute imposing a tax provides the taxpayer with a specific remedy
against injustices arising thereunder and the taxpayer fails to avail himself
of the remedy so provided, he cannot go outside the statute for other and
different remedies.?
I do not agree with Judge Schuck?s views with respect to the exercise by this
court of the function of equity and good conscience. The language in relation
to equity and good conscience found in the act creating the court of claims of
West Virginia merely relates to the jurisdiction of the court and does not
create a remedy. Such is the view of the court of claims of Illinois, in which
state the court of claims act is very similar to the West Virginia court act.
Because I am firmly of opinion that the two-year period of limitation controls
in the claim in question I respectfully dissent from the award made by majority
members. -
W. VA.] REPORTS
STATE COURT OF CLAIMS 143
No. 60?Claimant awarded $300.00)
THOMAS SAUNDERS, Claimant,
V.
STATE ROAD COMMISSiON, Respondent.
Opinion
filed April 26, 1948
The statute requiring inspection and
proper maintenance of bridges controlled by the road commission is mandatory,
and failure to inspect and keep in repair a bridge so controlled and
maintained is negligence, making the state liable in case of an accident, if
caused by such negligence.
Appearances:
P. W. Hendricks and John Mark
Stephens, for claimant.
W. Bryan Spillers, Assistant Attorney General, for the
state.
CHARLES J. SCHUCK, JUDGE.
Claimant?s horse, while being ridden across bridge No. 3, spanning a tributary
of Big Coal River located near Highcoal in Boone county, broke through the
floor thereof and was so badly injured that it had to be destroyed. The horse
was very valuable, being a five-year old, five-gaited saddle horse, sometimes
used to perform light farm work, and seemingly sound and healthy in all
respects. The uncontradicted testimony shows the animal to have been worth the
sum of $300.00 at the time of the accident. An inspection of the bridge by the
road authorities, after the accident, showed the bridge to have been in bad
condition and in need of repair. The state admitted liability and submitted to
the court the question of determining the value of the horse at the time it
broke through the bridge floor and was injured as herein stated.
144 REPORTS
STATE COURT OF CLAIMS IW.VA.
Claimant had also in his first
presentation of the claim asked for an award for personal injuries. He was
riding the horse across the bridge in question at the time and place of the
accident. However, he withdrew his claim for personal injuries and the claim
was accordingly dismissed and we have now before us only the question of the
value of the horse. As before stated, the evidence as to value is
uncontradicted. That it was an unusually valuable animal, suited not only for
saddle purposes but for work as well, is likewise proven, and we are of opinion
that an award of three hundred dollars ($300.00) should be made to claimant;
that there is a moral obligation on the part of the state to pay claimant, arising
out of the facts and circumstances as presented, and we therefore make a r
commendation accordingly.
ROBERT L. BLAND, JuDGE, concurring.
The evidence offered in this case in support of the merit of the claim involved
consists of the testimony of the claimant, that of his father, who had given
the horse to his son, and one other witness. The state filed a plea contesting
the right of the claimant to an award and upon the hearing an assistant
attorney general stipulated that the bridge on which the accident occurred, and
where claimant?s horse was so badly injured and crippled that it became
necessary for it to be shot, was in a defective condition and produced no
evidence in opposition to the claim. The evidence offered by the claimant
showed the horse to be of the value of $300.00. In view of the manner in which
the claim i presented to the court and the failure of the state to offer any
evidence in opposition to the claim, I reluctantly concur in the determination
made. I may add, however, that personally I do not feel that the hands of the
court, as an investigating body, should be tied by stipulation of fact where
issues are involved. If a claimant and the attorney general?s office may agree
upon a valid award of the public funds, it would seem to me that there would be
no occasion to have a court of claims.
W. VA.] REPORTS
STATE COURT OF CLAIMS 145
(No. 618?Claim denied)
JOHN R. HARTLEY, Admr. of the estate of DONALD
LEE HARTLEY, deceased, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed April 30, 19I8
To justify the Legislature in making
an appropriation of the pub- lie funds in favor of a claimant he must show a
state of facts from which it appears that such appropriation would be for a
public and not a private purpose.
Pinsky & Mcthan,
for claimant.
W. Bryai?i Spillers, Assistant Attorney General, for the
state.
ROBERT L. BLAND, JuDGE.
The Wellsburg American Legion Post, sponsoring a baseball field which it
maintained near the southern corporate limits of the city of Wellsburg, on the
WellsburgBethany Pike, in Brooke county, West Virginia, entered into an
arrangement with a representative of the state road commission whereby it was
permitted to borrow from said commission a road scraper, for the purpose of
scraping and leveling the said baseball field. No consideration was paid by the
legion post to the road commission for the use of said scraper, but it was
stipulated and agreed that when the said scraper was to be employed on the work
of said baseball field it should be operated by an employe or servant of the
commission, who was acquainted with that particular piece of machinery.
Accordingly, on the nineteenth day of April, 1947, the said scraper was
operated on the baseball field by one Nolan Green, an employe of the commission.
However, the nineteenth of April, 1947,
14 REPORTS STATE
COURT OF CLAIMS [W.VA.
fell on a Saturday, a time when the said Green was not on duty for the road
commission, but acting wholly on his own account and responsibility. For the
service rendered by him on that day in operating the scraper he was paid by the
Wellsburg American Legion Post the sum of eight dollars by check drawn on a
Wellsburg bank by J. K. Taylor, an official of the post, which said check was
duly cleared and is filed and made a part of the record iii this action.
During the time that said scraper was being operated on said baseball field a
number of young folks who had congregated at the scene of the work climbed upon
the scraper from time to time. One of these youths was Donald Lee Hartley. He
was past seventeen years of age, six feet tall and weighed one hundred and
eighty pounds. He had, prior to the nineteenth day of April, 1947, been in the
employ of the state road commission and had also worked in Ohio for a period. The
evidence offered in support of the claim upon the hearing clearly showed that
he was a young man of understanding and discretion, fully capable of
appreciating the danger to which he was subjected in riding upon the scraper.
lie fell, or was thrown, from said scraper and sustained injuries which
resulted in his death. Claimant John R. Hartley, father of the deceased, was
duly appointed and qualified as administrator of the personal estate of his
said intestate. By the claim prosecuted by him in this court he seeks an award
of $10,000.00. His said claim is prosecuted upon the theory that the said
scraper, during the time it was employed in service on said baseball field by
said Nolan Green, was being operated by the said Green within the scope of his
authority and that there was such negligence on his part as would render the
state responsible for the accident and death of claimant?s said intestate.
We have duly considered the evidence offered for and against the claim in
question, and are of opinion that the theory upon which the said claim is
prosecuted cannot be sustained. In Blashfield?s Cyclopedia of Automobile Law
W. VA.1 REPORTS
STATE COURT OF CLAIMS 147
and Practice, volume 5, section 3005, at page 129, this pertinent authority is
stated:
?The test, therefore, for determining whether the owner of an automobile is
liable to strangers for the wrongful and negligent acts or omissions of his
servant in operating the machine is whether the servant, at the time of the
accident, was engaged in furtherance of the master?s business or enterprise
concerning which he was employed and acting within the scope of his
employment.?
We readily concede that the general rule of agency is that the principal is
liable civilly for the tortious acts of his agent which are done in the scope
of the agent?s employment. In the instant case, however, it is very clear to
our minds that the said Nolan Green, at the time the accident occurred, was not
acting within the scope of his employment as an employe of the state road commission.
No essential purpose would be subserved by a further discussion of the record.
The claim is not one for which the Legislature would be warranted in making an
appropriation of the public revenue.
An award is therefore denied and the claim dismissed.
148
REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 619?Claim denied)
RUTH C. DUKE, Claimant,
V.
DEPARTMENT OF PUBLIC SAFETY,
Respondent.
Opinion filed April 30, 1948
The Legislature is without power to
make an appropriation of the public funds that would amount to the bestowal of
a gratuity.
Claimant, pro se.
W. Bryan Spillers, Assistant Attorney
General, for the state.
ROBERT L. BLAND, JUDGE.
Claimant Ruth C. Duke is the widow of Milton R. Duke, deceased, a former member
of the department of public safety of West Virginia. She prosecutes her claim
against the department of public safety in the sum of $300.00 to reimburse her
for that amount paid to the Huntington Memorial Hospital on the twenty-sixth
day of February, 1943, for hospitalization and treatment rendered her said
husband in said hospital. She maintains that the said Milton R. Duke suffered a
compound fracture of his left leg in the line of duty while an enlisted trooper
in said department of public safety in a motorcycle accident on September 6,
1930. Following said injury osteomyelitis developed and numerous treatments
over a period of years thereafter were paid for by said department of public
safety, but the claim in question was never paid by the said department.
The said trooper, Milton R. Duke, died February 18, 1943. Claimant filed her
claim in this court exactly five years after the death of her said husband, but
the payment
W.
VA.] REPORTS STATE COURT OF CLAIMS 149
made by her to the hospital, for which she seeks reimbursement, was eight days
after the trooper?s death. No itemized statement from the hospital showing the
dates of the trooper?s hospitalization and medical attention has been furnished
to us. Our investigation of the claim, however, discloses that the department
of public safety actually paid for Trooper Duke?s hospitalization and medical
treatment, independent of the sum of $300.00 for which an award is now sought,
a total sum of more than $4000.00. We do not perceive any authority of law
warranting such payments. In addition, Trooper Duke was paid the maximum amount
which he might receive under statute from the death and disability fund for a
considerable period of time.
Claimant and one dependent child are now receiving the maximum pension that may
be paid under authority of law.
In our judgment the granting of an award to claimant for the said sum of
$300.00 would be equivalent to the bestowal of a gratuity. The Legislature may not
under any authority of law bestow a gratuity. We are of opinion, from a careful
investigation of the claim, that the department of public safety dealt most
generously with the trooper after his accident, and actually paid him money
without authority of law so to do.
re are unable to see our way clear from the record before us to recommend to
the Legislature the payment to claimant of the amount she seeks, or any amount.
- An award is, therefore, denied and the claim
dismissed.
150 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 595?Claim denied)
S. D. ALBRIGHT and F. V. ALBRIGHT, d/b/a
ALBRIGHT OIL COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed May 3, 1948
To sustain a claim for damages caused
by alleged negligence of a state road crew, the evidence must be clear and
convincing and that the negligence of the said crew was the proximate cause of
the injury to claimant.
Appearances:
Milford L. Gibson, for claimants.
W. Bryan Spillers, Assistant Attorney General, for the
state.
CHARLES J. SCHUCK, JuDGE.
S. D. Albirght and F. V. Albright, partners, doing business as the Aibright Oil
Company, and located at Aibright, Preston county, West Virginia, maintain that
on or about July 12, 1946, a certain oil or pipe line, leading from the B.
& 0. station or sidetrack down the hill and across the Cheat River to
claimants? tanks, was broken by reason of stone being dumped and thrown on the
said line by state road employes working at and near the place in question. The
claimants maintain the pipe line in question for the purpose of carrying
gasoline from railroad tank cars on the B. & 0. siding or switch and which
is located at a considerable elevation across the river and above the town of
Albright, and the gasoline is conducted by gravity to the tanks of claimants
situated in the town of Albright, said pipe line being about one-quarter of a
mile in length and
W. VA.] REPORTS
STATE COURT OF ?CLAIMS 151
for the greater portion of that
distance being above the ground. The breaking of the pipe caused the loss of
many hundreds of gallons of gasoline and entailed a financial ioss of
approximately $631.18 to claimants. Claimants specifically aver that on the
twelfth day of July, 1946, a maintenance and repair crew then employed near the
town of Aibright, on route No. 26, did dump and throw, from the said state
route No. 26 over and through a row of guard posts, several large trucks of
dirt, debris and rocks which fell over, against and upon the said gasoline or
oil pipe line causing the breaking thereof and the loss of the gasoline in
question.
If this allegation had been sustained by the proof, there could be no question
of recovery. However, we look in vain for any evidence that definitely fixes
the blame for the breaking of the pipe line in question upon the state road
commission or its employes and agents. It is true that there are suspicious
circumstances, namely, the pipe line was broken; there were marks of violence
on the line itself at the point where it was broken; there were several stones
lying around near the break and the crew of the state road commission had been
working at or near the point in question. The evidence, however, so far as the
record is concerned definitely shows that the dumping of the dirt and stone was
lower down the hill than the point where the pipe line was broken and,
consequently, if this was true, the dumping of the stone and debris itself
could not have been the cause of the breaking of the pipe line and .the
consequent loss of gasoline. The pipe line is located near the state highway,
approximately some forty to fifty- five feet away, and is on a lower level as
it descends the hillside down the roadway in question. No witnesses, at least
none present before the court, saw the accident nor the dumping of any stone on
the said pipe line and the break was not discovered until late in the evening
of the day on which the pipe line is supposed to have been broken. Taken as a
whole, claimants assume that the pipe line was broken in the manner alleged in
their petition or dec
152 REPORTS STATE
COURT OF CLAIMS [WI. VA.
laration, but present to the court no evidence upon which a finding in their
favor could be made, premised on alleged negligence of the state road
commission crew working at that point on the day in question. It is purely a
matter of speculation, and as heretofore held by our Court of Appeals we are
obliged at least to have some tangible, positive evidence upon which we can
base a finding and make an award accordingly. Considering the evidence as a
whole, it is contradictory and not convincing, and an award is therefore
refused.
(No. 008?Claim denied)
JAMES A. MORRISON and ONEIDA MORRISON,
Claimants,
V.
STATE ROAD COMMISSION. Respondent.
Opinion filed May 4, 1948
Where the evidence in a claim seeking
an award for damages to private property on the alleged ground that a bridge
crossing a state highway was inadequate to take care of the water flowing
thereunder and caused such water to overflow and inundate such private property
shows that the source of the trouble was not at the bridge but due to natural
causes for which the state is in no way responsible an award will be denied.
Appearances:
Lucian 14g. Blankenship, for claimants.
W. Bryan Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JUDGE.
James A. Morrison and his wife, Oneida Morrison, live
W.
VA.] REPORTS STATE COURT OF CLAIMS 153
at Winslow, Wayne county, West Virginia.
They have lived there for over fifty years. The home place is owned by James A.
Morrison, and is situated on about one acre of ground on the east side of
Grassy Lick Branch and on the western side of state route No. 13. Another tract
of bottom land on the south side of state route No. 13 and bordering on the
east side of said Grassy Lick Branch, which is a tributary of Beech Fork Creek,
is owned by both James A. Morrison and Oneida Morrison, his wife.
For the past five years upon several occasions flash floods or unusual rises
have caused the waters of Grassy Lick Branch to overflow and inundate the
property of the claimants, damaging the foundation of the dwelling, and emptied
and discharged filthy and unsanitary water into their well, and otherwise
damaged the cellar house, flowers and landscaping to the extent of $1000.00,
for which the claim is made.
A short time prior to 1933 the Wayne County Court built a concrete bridge
across Grassy Lick Branch along what is now state road No. 13, the bridge
having two arches each about ten feet wide with a pier in between about three
feet wide, making a total length of twenty-three feet. The uncontradicted
evidence is that for years prior to the erection of said concrete bridge that
the water from Grassy Lick Branch did get up in the Morrison yard but did not
overflow the well, cellar or toilet. Grassy Lick Branch is a sluggish stream,
and it meanders for a distance of three or four hundred feet north of the
bridge and all the way Louth of the bridge until it reaches Beech Fork Creek
about 1981 feet south of the bridge. The evidence of the engineers showed the
drainage area north of the bridge to be 1088 acres (geographical map, state?s
exhibit 15) and they figured a rainfall of 2? inches, which is one-half inch
above normal, would require 78.85 square feet to go through, whereas the
clearance of the bridge totals 98.06 square feet (record p. 83). The roof of
the bridge is 598.34 elevation. The elevation of the top of the south wall in
front of the Morrison home, paralleling road 13, is
151 REPORTS
STATE COURT OF CLAIMS [W.VA.
599 and the elevation of the top of the wall on the west side of the home,
facing Grassy Lick Branch, is 597.88, which is five-tenths lower than the roof
of the bridge. The heavy rainfall on Monday, April 12, 1948, was 2.57 inches
and on Tuesday, the thirteenth, .98 inches and on Wednesday, the fourteenth,
.53 inches, making a total of 4.08 inches during the three-day period. (Record
p. 84). The engineers were on the scene on Thursday, the fifteenth of April,
and their observation was that the high water on the bridge was 7? inches below
the roof of the bridge which was about two inches lower than the west retaining
wall around the Morrison yard, which elevation is 597.88. The bottom land owned
by claimants to the south of the bridge through which Grassy Lick Branch flows
and forms the western boundary of the Morrison property is crooked and
meandering; it is also sluggish since the drop there is .513, which is a little
over a half a foot in 100 and it is 1981 feet from the bridge to the waters of
Grassy Lick Branch at Beech Fork, so a rise of ten feet in Beech Fork Creek
would cause the water in Grassy Lick Branch to backwater. Furthermore, to the
east and to the rear of the Morrison residence the lot runs back gradually to a
hillside. The drainage from this hillside is by a ditch along the northern
boundary of Morrison?s lot, also another ditch to the south of Morrison?s
dwelling which parallels state road 13 and drains into Grassy Lick Branch.
There is a concrete walkway from the house to the road which crosses the ditch
and there is a pipe line under the walk which is totally stopped up. The water
comes off this hillside at a one and one-half to two per cent grade. The state
road is higher than the Morrison lot which parallels it on the north side. At
no time has the surface of the roadway been damaged by the high waters of
Grassy Lick Branch.
After a view of the Morrison property the bridge over Grassy Lick and the
adjoining area by members of the court, we are of the opinion that the building
of the concrete bridge over Grassy Lick Branch is not the cause of the water
damage to the Morrison property. The house
\?A.I
IIPO1?i?X
S?I??il (1)11 l?i? 01? (i.A1 11S
and oidbiiildings :ti?e l)LIiIt jll :t lov, SW?tfllflV Lfld
poorly (1I?Iifl(?(l tl(?l, lfl(l I lie I)Ii(1e(?
(!l)(?Iliiil is nllIj)1(? (hiring 1101?? iii:il rainfall, and it is iiot
(?iI(?IiflhlH?li( upon the Slate to
eon? si rtict, its roa(ls
:111(1 l)t-i(1e5 to l:ike re of hash floods or Ckni(lL)IIrst vliich I reqiieiit
IlO)Sl11?(?15 (?5l)(?CIflIIY in I h1(?
priiig an(l sliniltiet? nont
hs. If a l?r:-1i1 lniilds his honie Oil iD(?k fOlili(Ial loll :111(1 on an (?leval ion it vi1I vitiist:iinl the 1100(1 1111(1 (?l(?lli(?IiIS. Oii I Ii!? of li(?r liaIi(l,
if lie builds
his home oti S:Lfl(I :Lml in SWaflhl)V soil I lie (?lellWflls Will
iii I ime iinderniiiie, ititi late aii(l wislI away the results of his labor.
An award is
(len it?d a iid the
cia i m
(lislnisse(1.
(No. 4.t ( iii im
isnlsiO?(i)
IILJN?l?IN(?l?()N IX(?i\?i\?I?lN(
(?()MI4ANY, (?lniiii:tnl,
V.
S?I?i\ ?F
l ?l?A X ( ?Ori
ll I SS ION I l , leSlk)li(I(?liI
JOn!)))!
filed
.1140
C
IS, I $115
Al owoid viil not he
mo)h? to 0 person foiliiig to tile !lppllC!Ii ill!! for roll! ml of
to xos pOol eli isol rn? wit bin si t v 4ioVo oft or dote (11 l4IIli?10i5 or
(leiiV(?!?,? 441 gioc(,lll)i?, H? i)1OV1(le)i by
reneroi low, wile!!
ii O))!(?iii- Ire!!) till? eiioro1 low I hot it is the
policy of tin? I i?gioiotiin?
)i)?lly J)iIVIil)llt
lIt
54i)?li r)lilnll 1101)55 0II4?ll
211)1)Il4?!lt lIlt)
1S bled as l)i?0led by till? slot ito io?llnit
t ing n?fiiiols on gosolilit? 110(141 for COlt ill!) 5J))(?itl)?
illiill5l5_
( ?!ui,i,ui,f,
Oil
it S OWil heli:ui I?.
II?. lrqiin ??.i!1?is,
Axsist:iiil i\t I oriiev (
t?in?i?nl, for i?e? Sl)il(l(?ilt
IOIlIF I. lli\ NI), ,Ji1ii.
(1:1
iill:l iii se(?kS ii ;iv:t iii fIll- I h tm of $:797f for
156 REPORTS STATE
COURT OF CLAIMS IW.VA.
?fuel oil? taxes paid on eight invoices purchased from the Pure Oil Company, of
Huntington, West Virginia. The account was due in I)ecember 1947, but payment
for the gasoline was not made until February 27, 1948, on account of ?financial
difficulties? of claimant. Within five days after such payment, claimant made
application to the state tax commissioner for refund of taxes but such refund
was denied on the ground that more than sixty days had elapsed from the date of
the original purchases. The application for refund was made on March 1, 1948,
including purchases made on December 3, 5, 10, 12, 17, 19 and 23, 1947, the
more recent having been made sixty-nine (lays prior to the date of filing claim
for refund on March 1, 1948.
Section 20, chapter 11, article 14 of the code of Test Virginia of 1943,
authorizing refunds of taxes under certain conditions, reads in part as
follows:
Provided, however, That the tax commissioner shall cause refund to be made
under authority of this section only when application for refund is filed with
the tax commmissioner, upon forms prepared and furnished by the tax
commissioner, within sixty days from the date of purchase or delivery of the
gasoline.?
It will thus be observed that all purchases made more than sixty days prior to
March 1, 1948, were deleted from the claimant?s application.
In the case of Del Ralso Construction
Company v. State Tax Commissioner, 1 Ct. Claims (W. Va.) 15, we held as follows:
?An award will not be made to a person failing to file application for refund
of taxes paid on gas-. oline within sixty days after date of purchase or
delivery of gasoline as provided by general law, when it appears from the
general law that it is the policy of the Legislature to deny payment of
W. VA.] REPORTS
STATE COURT OF CLAIMS 157
such refunds unless such application is filed as prescribed by the statute
permitting refunds on gasoline used for certain specific purposes.?
Such holding was followed in re claim No. 404, State
Construction Company v. State Tax
Commissioner, 3 Ct.
Claims (W. Va.) 85, and William E.
Snee v. State Tax
Commissioner, 3 Ct. Claims (W. Va.)
94.
In re claim No. 324, Joseph
Harvey Long, et als v. State Tax Commissioner, 3 Ct. Claims (W. Va.) 25, we held:
?The court of claims is without jurisdiction to extend the time fixed by
statute to make application for refund of excess income tax paid. Such income taxpayer
is obliged to avail himself of the remedy provided by law for relief.?
When preparing the docket for hearing of claims at the present term of this
court it was ascertained and so held that the instant claim was not prima facia within
its jurisdiction, and therefore the court declined to place it upon the trial
calendar.
158 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 627?Claim dismissed)
J. W. HARTIGAN, M. D., Claimant,
V.
STATE DEPARTMENT OF PUBLIC ASSISTANCE,
Respondent.
Opinion
filed June 18, 1918
Appearances:
W. Bryan Spillers, Assistant Attorney General, for the
state.
CHARLES J. SCHUCK, JuDGE.
This claim is for medical services rendered to one Ross Lemly while confined in
the Monongalia General Hospital at Morgantown, and to one Frank Bujous, also of
Monongalia county, and likewise for medical services, the total claim amounting
to $1170.00. The state, by its assistant attorney general, has moved the court
to dismiss the claim and to refuse to docket it for consideration on the ground
of insufficient facts presented by the record to warrant any consideration of
the claim at this time.
An examination of the record fails to show any authorization for the services
so rendered, by either the state department of public assistance or any other
state department. So far as we are able to ascertain, from the claim as
submitted, the services were voluntarily rendered by the claimant, and while no
doubt necessary for the benefit of the afflicted persons, yet we feel that to
entertain this claim at the present time would be a usurpation on our part and
would be taking from the state department of public assistance the right to
investigate and determine in the first instance whether or not the whole or any
part of
W. VA.] REPORTS
STATE COURT OF CLAIMS 159
the amount in question should be paid by the state and whether or not in the
opinion of those in charge of public assistance there is any merit in the claim
for the services so rendered.
We are of the opinion to and accordingly do sustain the motion dismissing the
claim, without any prejudice to the claimant?s rights and advising that the
claimant should first seek redress from the state department of public
assistance after properly presenting his claim for services to that department
before being considered by the court of claims. The motion to dismiss is
sustained.
(No. 628?4Dlaim dismissed)
J. W. HARTIGAN, M. D., Claimant,
V.
STATE COMPENSATION DEPARTMENT,
Respondent.
Opinion filed June 18, 1948
Appearances:
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
This claim, presented by Dr. J. W.
Hartigan of Morgan- town, West Virginia, is for medical services rendered to
one Lonnie Newbraugh for some fifty-three visits extending from August 28, 1945,
to November 6, 1946, amounting to $265.00, together with medical attendance
rendered William Newbraugh amounting to $40.00, making a total of $305.00. The
medical services in question seem to have
160 REPORTS STATE
COURT OF CLAIMS [NV. VA.
been made necessary by reason of injuries sustained by the said Lonnie
Newbraugh and William Newbraugh while employed as miners near Morgantown, West
Virginia.
A careful reading of the record before this court reveals that it is a claim
that should be presented to and considered by the state compensation commission
or department.
The state, by its assistant attorney general, accordingly moved to dismiss the
claim on the ground that the state court of claims was without
jurisdiction.
The act creating the court of claims, under the title ?Claims Excluded?
specifically provi(les that any claim for disability or death benefits under
chapter 23 of the West Virginia code (workmen?s compensation act) is excluded
from consideration by this court and deprives us of any jurisdiction to
consider and determine matters arising under the compensation act in question.
The motion by the state is therefore sustained and the claim dismissed from
further consideration by this court.
(No. 629-S-?- Claimants awarded .$ 1193)
R. C. WHITAKER, and AMERI(?AN (?ENTRAL
INSURANCE COMPANY, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed July 11, 1918
MERRIMAN S. SMITH, JUDGE.
Claimant R. C. Whitaker was traveling on U. S. route
50, September 15, 1947, and upon crossing a steel bridge
(Fetterman Bridge) in Taylor county, West Virginia, his
1947 Packard sedan was spotted with aluminum paint.
W. VA.] REPORTS
STATE COURT OF CLAIMS 161
The painters, employed by the state road commission, were spraying the overhead
structure of the bridge at the time with the aluminum paint which was blown
around in the air and settled on the ground. At the time of his crossing the
bridge there were no warning signs nor any watchman and traffic was permitted
to travel the span without any notice of the painting operation. Under such
circumstances there was no contributory negligence on the part of the claimant
and the sum of $41.93 appearing to be a fair assessment for the damages
sustained and the said amount having been concurred in by the state road
commission and approved by the attorney general, the majority of the court
hereby makes an award and recommends the payment of forty-one dollars and
ninety-three cents ($41.93) to claimants R. C. Wihtaker and the American
Central Insurance Company.
ROBERT L. BLAND, JUDGE, dissenting.
As I view this case the meagre facts relied upon do not warrant an
appropriation of the public funds. Meagre facts present controversial
questions, yet the case is submitted under section 17 of the court act. The
road cornmissiod was engaged in the exercise of a public function. Was the
driver of the automobile guilty of contributory negligence?. What, if any,
precaution did he employ to avoid the accident? Did he see the employes of the
road commission at work and fail to stop before proceeding through the bridge?
According to the facts as stated in the record claimant R. C. Whitaker?s
automobile ?Passed through the bridge and while passing small mist of aluminum
paint carried by the wind fell on car, spotting or dotting the body,
fenders and top.? (Italics ours.) If warning signs had been installed could the
result have been different? Evidently the award sought is one way of
subrogation.
Since I cannot see the case in the same light of my colleagues I most respectfully
record my dissent.
162 - REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 617?Claimant awarded $500.00)
MATJD CLARK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 23, 1948
The state is obliged to compensate a
landowner from whose property sand, gravel and other materials were wrongfully
taken, to be used in the building of a nearby secondary public road.
L. R. Morgan, for claimant.
W. Bryan Spillers, Assistant Attorney General for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant Maud Clark, the owner of a tract of land comprising about one and
three-tenths acres, located at Avon- dale, McDowell County, West Virginia, and
having erected thereon a three-room cottage, alleges that employes of the state
road commission, notwithstanding her protests and while engaged in constructing
and rebuilding a nearby secondary public road, wrongfully took and removed from
her said property and premises a large amount of sand, gravel, stone and
ground, which materials were used in the building and construction of said
road, and for which she was never compensated. Her claim for materials and
damages as alleged is in the amount of $3,769.00. The work on the road in
question, and the taking of the said materials, was carried on during the
months of October and the beginning of November, 1947, and embraced a period of
from four to six weeks. That the said materials were improperly and wrongfully
taken is virtually admitted and the sole question for our determination is the
amount of the dam-
W.VA.1 REPORTS
STATE COURT OF CLAIMS 163
age due claimant, and which should be paid in full settlement of her claim.
The testimony as offered showed a marked variance in the amount of materials
taken, their value, and further damages, if any, to claimant?s property.
Several witnesses maintained that over 9000 cubic yards of said building
materials had been removed, while others testified that approximately 1000
cubic yards had been taken; so, too, did the price or worth of the materials
differ approximately from twenty cents to $1.00 per cubic yard. Claimant also
claimed $1000.00 for future damages caused by the wrongful actions of road
commission agents and employes, although in this respect her testimony seemed
to be a mere hazard or guess. The property when purchased some years ago cost
slightly in excess of $1000.00 and the part of the tract under cultivation was
not interfered with in any manner by the actions of the state?s agents and
employes. A splendid, strong concrete bridge had been erected, within the last
few years, by the state, close to claimant?s property, which undoubtedly has
enhanced its value and made it more accessible for all purposes than before.
Appreciating the problems presented by the testimony and desiring to learn at
firsthand the real facts, the members of the court took a view of the land
involved and of the surrounding conditions, and from such investigation and
again considering the testimony as a whole, determined that the sum of $500.00
would be a just and full compensation to claimant for all damages suffered by
her. We are of the opinion that a fair I)rice per ton based on claimant?s
selling price to others generally, for the same materials as shown by the
testimony, would be about forty cents, and that approximately 1000 to 1200 tons
had been taken or removed, thus fixing the value of the claim at $500.00.
Accordingly, we are of the opinion, in the light of all facts and testimony
presented and governed further by
164 REPORTS
STATE COURT OF CLAIMS [W.VA.
our own personal view and investigation, that the state is bound to make
restitution to claimant, and recommend an appropriation to her in the sum of
five hundred dollars ($500.00) in full settlement of all past, present and
future damages or claims caused by said wrongful acts of the said agents and
employes of the state.
(No. 625?Claimant awarded $944.27)
BEN CAPLAN, d/b/a NATIONAL TOWEL
SUPPLY,
Claimant.
V.
STATE TAX COMMISSIONER, Respondent.
Opinion filed July 26, 1948
Syllabus in re I. S. Davis, d/b/a Fairmont Linen Supply Company
v. State Tax Commissioner, decided April 21, 1948, reaffirmed and adopted.
Appearances:
Rummel, Blagg & Stone (Donald 0. Blagg), for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant Ben Chaplan, doing business
as the National Towel Supply, operates a linen and towel supply business in the
city of Charleston, Kanawba county, West Virginia. Before and since 1942
claimant has paid annually to the state tax commissioner under the business and
occupation tax statute, certain specific amounts for each year, as reported on
forms used for that purpose and supplied by the
W. VA.i
REPORTS STATE COIJRT OF CLAIMS 165
state to the taxpayer. In 1944 our Supreme Court, in Harper v. State Tax Commissioner, 126 W. Va. 707, held that the furnishing of linen and
towels was not a service within the meaning of the statute, and that persons so
engaged were not subject to taxation under the business and occupation tax statute of the state. It is admitted by
the state that the tax payments made by claimant were exempt and not
collectible but that a refund should only be allowed under the two-year statute
of limitations as provided, and that such refund having already been made by
the tax commissioner that claimant is not entitled to any further refund by the
state or by the agency involved.
In the opinion of the majority of the court there is a moral obligation imposed
upon the state to refund all taxes so improperly paid and illegally collected,
not barred by the statute of limitations, to wit, five years, governing
consideration of claims by this court. A majority of the court so held in Davis v. State Tax Commissioner, decided April 21, 1948, and we reaffirm and readopt
the opinion rendered in that claim as governing in the determination of the
instant claim.
Claimant filed an itemized statement detailing the tax payments made for the
years 1942 to 1944 inclusive and totaling $1,514.89, which statement was not
contradicted by the state; however, the payment of $570.62, made for the year
1942, is barred by the statute of limitations governing consideration of this
claim and cannot be included in any award made herein.
Therefore, a majority of the court is of the opinion that a ref!und should be
made to the claimant for the taxes paid for the years 1943 and 1944, and
amounting to the sum of $944.27.
Accordingly, an award in the sum of nine hundred fortyfour dollars and
twenty-seven cents ($944.27) is made in
166 REPORTS
STATE COURT OF CLAIMS [W.VA.
favor of claimant and recommended to
the Legislature for appropriation and payment.
ROBERT L. BLAND, JUDGE, dissenting.
The majority opinion reaffirms the syllabus
in Case No. 616, 1. S. Davis, d/b/a. Fairmont Linen & Supply Corn
puny,
v. State Tax Commissioner. The syllabus in
that case reads as follows:
?When the State Supreme Court rendered a decision exempting the furnishing of
linens, towels and similar articles from the provision of the business and
occupation tax, there is a moral obligation imposed upon the state to refund
the amount not barred by the state court of claims statute of ?imitations.?
I fail to perceive how, when a claimant neglects and fails to file application
with the state tax commissioner for a refund of taxes paid within two years
from the date of such payment as provided by chapter 11, article 1, section 2a
of the code providing an exclusive remedy for obtaining such refund, there
should be a moral obligation of the state to make such refund.
In volume 51, American Jurisprudence, under the subject Taxation, Sec. 1167, I
find the following well understood and recognized rule of law stated:
?On grounds of public policy, the law discourages suits for the purpose of
recovering back taxes alleged to be illegally levied and collected. Taxes
voluntarily paid without compulsion, although levied under the authority of an
unconstitutional statute, cannot be refunded or recovered back without the aid
of a statutory remedy.?
See Annotation 94 Am. St. Rep. 425; Stratton v. St. Louis Southwestern R. Co.
284 U. S. 530, 76 L. ed. 465, 52
W. VA.1 REPORTS
STATE COURT OF CLAIMS 167
S. Ct. 222; Brunson v. Crawford County Levee Dist. 107 Ark. 24, 153 S. W. 828,
44 L. R, A. (NS) 293, Ann. Cas. 1915A 493; Roberts v. Boise City, 23 Idaho 716,
132 P.
306, 45 L. R. A. (NS) 593; People ex rel Eitel v. Lindheimer, 371 Ill. 367, 21
N. E. (2d) 318, 124 A. L. R. 1472, appeal dismissed in People ex rel Eitel v.
Toman, 308 U. S. 505, 84, L. ed. 432, 60 S. Ct. 111, rehearing denied in 308
U. S. 636, 84 L. ed. 529, 60 S. Ct. 137; Wilson v. Philadelphia School Dist.
328 Pa. 225, 195 A. 90, 113 A. L. R. 1401; Philadelphia & R. Coal & I.
Co. v. School Dist. 304 Pa. 489, 156 A. 75, 76 A. L. R. 1007; Putnam v. Ford,
155 Va. 625, 155 S. E. 823, 71 A. L. R. 1217.
In further support of my dissent to the award made in this case by majority
members of the court, I refer to my dissenting statement in Raleigh County Bank v. State Tax Commissioner,
Eastern Coal Sales Company v. State Tax Commissioner and Pinnell
& Pfost v. State Tax Commissioner.
(No. 623?Claimants awarded $907.72)
W. L. PINNELL, SR., and W. M. PFOST, d/b/a
PINNELL & PFOST, Claimants,
V.
STATE TAX COMMISSIONER, Respondent
Opinion filed July 27, 1948
A claim properly filed with the court
for refund f gross sales tax mistakenly and erroneously paid to the state tax
commissioner will be allowed where in equity and good conscience there is a
just obligation on the part of the state to make refund for the payment
168 REPORTS STATE
COURT OF CLAIMS IW.VA.
so made, provided of course that it is filed within the five-year rule
governing the consideration of claims by the court.
Appearances:
W. L. Pinnell, Sr., and F. G.
Wade, for claimants.
W. Brya.n Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JuDGE.
Claimants operated a general contracting business, also sold lumber and mill
supplies at retail, in Ripley, Jackson county, West Virginia. During the year
1943 and especially the year of 1944 the partnership ceased contract operations
and rented most of its equipment to other companies and individuals.
Under the terms of the lease agreements the lessees paid the cost of
transportation of the leased equipment from claimants? storage yard and
returned the equipment to such point at the expiration of the agreement, and
had undisputed control over all equipment during the term of the lease.
During the years 1943 to 1946 inclusive the claimants paid business and
occupation taxes as a partnership, under chapter 11, article 13, section 960
(2i), Michie?s code. The overpayments are as follows for the years ending:
December 31, 1943 $135.54
December 31, 1944 772.18
December 31, 1945 346.22
December 31, 1946 297.06
Amended forms 301-A for the years ending December 31, 1945, and December 31,
1946, were filed with the state tax commissioner as of May 16, 1947, and refund
payments were properly received. Amended forms 301-A, for the
W. VA.]
REPORTS STATE COURT OF CLAIMS 169
years ending December 31, 1943, and
December 31, 1944, were filed with the state tax commissioner as of July 11,
1947, and refund was requested for the overpayments for the years 1943 and 1944
in the total amount of $907.72. The tax commissioner was unable to refund the
taxes overpaid for the years 1943 and 1944 since the general statute prohibits
the tax department from making refund for any period prior to two years from
date of application for refund. Since the departments of the state operate on a
two-year basis because the Legislature only appropriates funds for each
biennium the general statute limits the tax commissioner to two years prior to
the date of application for tax refunds.
The statute creating the business and occupation tax does not contain any
specific limitation on refund of tax payments. Howevqr, the Legislature in
creaiing the court of claims enacted a five-year statute of limitations on all
claims for which it has prima facie jurisdiction. Code 14-2-16. Since
the instant claim is one in which the court of claims has prima facia jurisdiction
it is a claim in which in equity and good conscience the claimants should be
reimbursed for monies paid to the state tax commissioner through a mistake of
fact and of law, because under code 11-13-2i money received for lease of
personal or real property by an individual or a partnership is exempted from
such tax and it was not until January 1947 that the claimants were informed by
an auditor of the state tax commissioner?s office that the tax which they had
been paying was exempt. Whereupon the claimants duly filed for a tax refund and
such refund for the years 1945 and 1946 was made by the state tax commissioner
as provided by the statute. On the other hand if it was a case wherein the
claimants had failed to pay the proper amount due as provided by statute they
would have had to make payment for an unlimited period since there is no
statute of limitation against the state for collection of the business and
occupation tax.
170
REPORTS STATE COURT OF CLAIMS [W. VA.
This is a claim for money paid into the state coffers through mistake and in
equity and good conscience it should be returned to the rightful owners since
it is no burden on the taxpayers of the state and does not deplete the legally
held resources of the state tax department and the period covered for the
refund is within the five-year statute of limitation applicable to the court of
claims. It is a meritorious claim, since it would be judicially recognized as
legal or equitable in cases between private individuals.
It is the opinion of the majority of this court, as now constituted, and so
held in the cases of Raleigh County Bcunk v. State Tax
Coivmi.qsioer, Ea.qtern Coal Sales Company v. State Tax
Commissioner and I. S. Davis, d/b/a Fairmont Linen Supply Company V. State Tax
Commissioner, that this is a claim
which should be paid.
Therefore, an award in the sum of nine hundred seven dollars and seventy-two
cents ($907.72) is hereby recommended to be paid to the claimants W. L.
Pinnell, Sr., and W. M. Pfost, d/b/a Pinnell & Pfost.
ROBERT L. BLAND, JUDGE.
Claimants sole remedy to obtain a refund of taxes paid, for which an award is
made in this case by a majority of the court, is provided by chapter 11,
article 1, section 2a of the code of West Virginia, which reads as follows:
?Refund of Taxes Erroneously Collected.?On and after the effective date of this
section, any taxpayer claiming to be aggrieved through being required to pay
any tax into the treasury of this state, may, within two years from the date of
such payment, and not after, file with the official or department through which
the tax was paid, a petition in writing to have refunded to him any such tax,
or any part thereof, the payment whereof is claimed by him to have been required
un
W.VA.] REPORTS
STATE COURT OF CLAIMS 171
lawfully; and if, on such petition, and the proofs filed in support thereof,
the official collecting the same shall be of the opinion that the payment of
the tax collected, or any part thereof was improperly required, he shall refund
the same to the taxpayer by the issuance of his or its requisition on the
treasurer; and the auditor shall issue his warrant on the treasurer therefor,
payable to the taxpayer entitled to the refund, and the treasurer shall pay
such warrant out of the fund into which the amount so refunded was originally
paid: Provided, however, That no refund shall be made, at any time, on any
claim involving the assessed valuation or appraisement of property which was
fixed at the time the tax was originally paid.?
The remedy thus furnished by general law is exclusive. The intendment of the
Legislature is clearly manifest. The statute establishes a policy to be
followed in all cases. No other construction can reasonably be given to its
meaning.
?The provisions of Code 11-14-19, as amended by Chapter 124, Acts of the
Legislature, 1939, relating to a refund of the excise tax on gasoline, create
the exclusive remedy which may be used to obtain such refund. Any refund
provided for therein must be based on an application for the return of a tax
theretofore paid.? State v. Penn Oak Oil & Gas, Inc., 128 W. Va. 212; 36 S.
E. (2nd) 595.
?An award will not be made to a person failing to file application for refund
of taxes paid on gasoline within sixty days after date of purchase or delivery
of gasoline as provided by general law, when it appears from the general law
that it is the policy of the Legislature to deny payment of such refunds unless
such application is filed as prescribed by the statute permitting refunds on
172 REPORTS STATE
COURT OF CLAIMS [W.VA.
gasoline used for certain specific purposes.? Del Balso Construction Corporation v. State Tax Commissioner, 1 Ct. Claims (W. Va.) 15.
In that case two of the present members of the court of claims participated and
concurred in the determination made and the rule stated in the syllabus. The
holding of the court in this case was followed in the case of State Construction Company v. State Tax
Commissioner, 3 Ct. Claims (W. Va.)
85. Two of the present members of the court participated in the determination
made in the case, and in the rule stated in the syllabus.
?The court of claims is without
jurisdiction to extend the time fixed by statute to make application for refund
of excess income tax paid. Such income taxpayer is obliged to avail himself of
the remedy provided by law for relief.? Long,
et als., v. State Tax Commissioner, 3 Ct. Claims (W. Va.)
25.
Two of the present members of the court participated in the determination of
the claim involved in the case last cited.
At the present term of court an opinion was filed in the case of Huntington Excavating Company v. State Tax
Commissioner, reaffirming the rule
stated in the syllabus in the Del
Balso case, supra. In the
opinion in the Huntington case, the case of Long, et als, 3 Ct. Claims (W.
Va.) 25, is cited. All three of the present members of the court concurred in
the rule stated in the syllabus in said case of Huntington
Excavating Company v. State Tax Commissioner.
It has been the consistent policy of
the court of claims from the time of its organization until the determination
of the case of the Raleigh County Bank
v. State Tax Commissioner to
follow the rule stated in the syllabus
in the Del Balso case,
supra. The court is now divided and there are two distinct
lines of holding.
W. VA.]
REPORTS STATE COURT OF CLAIMS 173
In the Penn Oak case, supra, Judge Fox says in the opinion, on page 222:
?Where a statute imposing a tax provides the taxpayer with a specific remedy
against injustices arising thereunder, and the taxpayer fails to avail himself
of the remedy so provided, he cannot go outside the statute for other and
different remedies.?
A specific remedy was afforded claimants in the instant case by chapter 11,
article 1, section 2a of the code. It was claimants? duty to pursue that
remedy. By their failure so to do they are not entitled to be heard in this
court under section 21 of the court act, being the five- year period of
limitation. In my judgment, where it appears from a declaration or petition
filed by a claimant in this court seeking a tax refund that application was not
made to the tax commissioner for such refund within two years from the date of
such payment of taxes, there would be no prima
facie jurisdiction of the court to
entertain such claim.
For the reasons herein set forth and further grounds stated jn my dissenting
opinions in the cases of Raleigh
County Bank v. State Tax Commissioner and Eastern
Coal Sales Company v. State Tax Commissioner, and especially in view of the holding of the West
Virginia Supreme Court of Appeals in the Penn
Oak case, above cited, I most
respectfully dissent from the action of majority members in making an award in
the instant case.
I prefer to follow and be guided by the holding of our own State Court of
Appeals.
174 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 639-S?Claimant awarded $l67O.)
ELIZABETH YOUNG, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 18, 1948
MERRIMAN S. SMITH, JuDGE.
Claimant Elizabeth Young, of Marietta, Ohio, was driving her automobile across
the Williamstown-Marietta bridge, in Wood County, West Virginia, on June 2,
1948. The wooden floor at that time was in very bad condition and one of the
spikes penetrated the left front tire and tube and damaged them beyond repair.
By statute, code
17-4-33, Michie?s code 1474(15), provision is made for regular inspection of
all bridges and for proper repairs to be made.
It is apparent from the record before this court that the floor of the bridge
was in bad condition and not safe for the traveling public, and no contributory
negligence was shown on the part of the claimant, and since this claim was
concurred in by the state road commissioner and approved by the attorney
general, an award in the amount of sixteen dollars and seventy cents ($16.70)
is hereby granted by a majority of the court to claimant Elizabeth Young.
ROBERT L. BLAND, JuDGE, dissenting.
The state road commissioner concurs in the claim involved in this case. It is
approved by the attorney gen eral?s office.
The facts certified to this court by the state road corn-
W. VA.l REPORTS
STATE COURT OF CLAIMS 175
missioner to support his concurrence in the claim are stated as follows:
?On June 2, 1948, while crossing the Williams- town-Marietta bridge, one of the
spikes in the floor of the bridge pierced the left front tire of car ruining
the tire and tube.?
If the state were suable could the claimant successfully maintain his action
against the state road commission upon the above facts? I think not.
I respectfully dissent to the award made by majority members of the court.
(No. 641-S?Claimant awarded $100.00)
DEE JACKSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 19, 1948
CHARLES J. SCHUCK, JuDGE.
On the night of September 15, 1947, between the hours of eight and nine o?clock,
claimant, while crossing a bridge on the secondary route spanning Buffalo
Creek, near Lundale, in Logan county, stepped into a large hole in the flooring
of the bridge, causing him to be thrown, injuring his leg and suffering
considerable pain therefrom, which pain has continued, according to claimant?s
statement, to the present time, nearly a year after the accident. Claimant is
sixty-nine years of age; was unemployed at the time he was hurt, and is still
unemployed, though not by
176 REPORTS STATE
COURT OF CLAIMS [W, VA.
reason of his accident. Claimant maintains that he seldom crossed the bridge in
question and that when he did he walked on the opposite side from that on which
he was walking when injured. These statements are uncontradicted so far as the
record of the claim reveals.
An x-ray was ordered by the physician to whom claimant was taken by the
companions accompanying him at the time of the accident, but not having the
necessary funds an examination was refused by the hospital authorities.
The road department, through its safety director, made an investigation of the
facts and has recommended a compromise settlement of $100.00 in full payment
and satisfaction for all injuries and pain suffered by the claimant, and to
this amount or settlement the claimant agrees. The attorney general?s office
has approved the p?oposed settlement. In view of the facts as presented, the
nature of the injuries received, the pain suffered and the further fact that
claimant was free from any negligence on his part, a majority of the court
feels that the sum of $100.00 is a just and proper settlement and accordingly
recommends to the Legislature that an appropriation be made in the said sum in
favor of the claimant, and that upon the payment of the aforesaid sum, a
receipt in full of all damages arising by reason of the said accident be
executed by the claimant to the state.
ROBERT L. BLAND, JuDGE, dissenting.
The facts certified to this court by the state road commission in support of
its concurrence in the claim involved in this case are as follows:
?On Sept. 15, 1947, between 8:00 and 9:00 o?clock P. M., in company of James
Vaughn, Buster Clay and Rev. W. E. Jackson, Claimant, while crossing a bridge
on Secondary Rt. No.
W.VA.] REPORTS
STATE COURT OF CLAIMS 177
spanning Buffalo Creek, near Lundale, Logan County, stepped into a large hole
in the flooring, causing his left foot, leg and upper rart of his body to drop,
injuring his leg, which still causes him pain. Doctor bills amounting to $
plus compromise figure of $ - - for injuries, bring claim to $100.00 which will be in
full settlement of injuries sustained.?
Upon the above facts the case is informally considered by the court of claims
and an award made in favor of claimant by majority members. In view of the
holding of the Supreme Court of Appeals of West Virginia in the recent mandamus
action of Jacob F. Bennett v. State
Auditor, I regard the above facts as
insufficient to warrant an appropriation of the public funds and most
respectfully dissent to the award made.
It will be observed that the actual settlement of the claim is made by
respondent and the attorney general?s office. The award in question is merely a
ratification of their action.
Why was the hole in the bridge allowed to exist by the
- - road commission? How long had it existed before the
accident? Why was it not repaired? Did the claimant know of the presence of the
hole? Was he guilty of contributory negligence?
The public funds are not to be indifferently appropriated by the Legislature.
I respectfully record this my dissent to the award made.
178 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 622?C1aim denied)
DELLA J. McGRAW, admx. of the estate of GEORGE
T. McGRAW, deceased, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion fIled October 20, 1948
Evidence to sustain a claim that
death was caused by exposure to silicosis must be certain and definite,
otherwise an award will be denied.
Appearances:
D. Grove Moler, for claimant.
W. Bryan Spillers, Assistant Attorney General, for respondent.
CHARLES J. SCHUCK, JUDGE.
Claimant?s deceased husband entered Pinecrest Sanitarium, a state institution
located near Beckley, West Virginia, on or about August 29, 1943, seemingly
suffering from tuberculosis; at least his affliction seems to have been so
diagnosed by the medical authorities in charge of the sanitarium. About
September 1, 1944, he was discharged from the said institution and thereafter
entered a veterans hospital at Oteen, North Carolina, where he died on August
8, 1945. An autopsy was performed at the North Carolina hospital and in some
manner, whether by correspondence or otherwise, claimant got the impression
that her husband had been afflicted with silicosis, a compensable disease under
the laws of the State of West Virginia, and that she was therefore entitled to
compensation ac
MT. VA.] REPORTS
STATE COURT OF CLAIMS 179
cordingly. On or about April 10, 1946, as the widow and administratrix of her
deceased husband?s estate she presented her claim to the West Virginia
compensation commission, but was denied relief on the technical ground that her
application had not been filed within one year after the last exposure (about
August 29, 1943) as required by law, and therefore could not be considered by
the commission. Subsequently, and after the workmen?s compensation appeal board
had affirmed the action of the commission, she filed her claim in this court alleging,
among other matters, that a wrong diagnosis had been made of her husband?s
illness by those in charge of the Pinecrest sanitarium, upon which diagnosis
she had reasonably reJied, until after a sufficient time had elapsed to bar the
workmen?s compensation commission?s jurisdiction, under section 9, article 6,
chapter 23, code of West Virginia; and that therefore in equity and good
conscience this court should make an award in her favor.
It will readily be appreciated that in view of the facts as heretofore recited,
claimant must first show by competent evidence, certain and convincing, that
her husband had been afflicted with the disease known as silicosis, and that
this disease was in fact the real cause of his ailment and subsequent death.
Failure to do so must, of course, be fatal to her claim as presented for our
consideration. A review of claimant?s own testimony does not help us, since she
had no knowledge herself as to the nature of her husband?s illness and
affliction other than that he was suffering from tuberculosis as she had been
informed by the doctors at Pinecrest. The testimony as to her husband?s
employment during the last years of his life and his possible exposure as a
miner to silicosis is likewise vague and indefinite. Doctor William Paul Elkin,
a member of the West Virginia Silicosis Medical Board and an expert in
radiology, having devoted the last ten years exclusively to x-ray work and
having had occasion during that time or period to read and study many x-ray
pictures of the
180 REPORTS
STATE COURT OF CLAIMS LW. VA.
lungs to interpret them with
reference to whether or not they disclosed silicosis, was the only other
witness presented. Upon Dr. Elkin?s testimony claimant must necessarily rest
her claim, and upon his testimony the claim must stand or fall. With the report
and findings of the autopsy before him, as submitted by the medical officials
of the North Carolina hospital and which report was offered as evidence and
admitted as such during the hearing of the claim, Dr. Elkin testified (record
p. 28) that the autopsy report failed to show silicosis as the cause of death
or as a disease involved in the death of claimant?s husband. No testimony to
the contrary was offered. Dr. Elkin seems to have carefully examined the seven different
causes or findings as detailed in the autopsy report and then testified as
herein set forth.
Since we must conclude, then, that the disease of silicosis was not in any
manner involved in the death of claimant?s husband, we are not called upon to
consider or question the diagnosis made at the Pinecrest sanitarium and must
refuse to make any award to claimant in view of all the testimony, records and
exhibits as submitted.
An award is denied and the claim dismissed.
(No. 640-S?Claimant awarded $19.81)
A. R. SIDELL, M. D., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 20, 1948
MERRIMAN S. SMITH, JUDGE.
On June 21, 1948, Dr. A. R. Sidell,
of Williamstown,
W. VA.]
REPORTS STATE COURT OF CLAIMS 181
Wood county, West Virginia, was driving across the state- owned
Williamstown-Marietta bridge, about 8 :45 o?clock in the morning, and the
wooden floor boards being loose, one flew up and cut in two the right rear tire
and tube of claimant?s automobile, damaging the same in the amount of $19.81.
The bridges along the state highways should be maintained in a safe condition
at all times; for this reason the Legislature has enacted a statute, code
17-4-33, Michie?s code 1474(15), which provides for regular inspection of all
bridges and proper care and maintenance of them.
From the written evidence of the district engineer of the state road
commission, the bridge in the instant claim was in bad condition, and due to
the negligence of the state road commission and no apparent negligence on the
part of the claimant this is a meritorious claim.
The state road commission concurred in and submitted the claim to this court
and it was approved by the attorney general.
An award by majority of the court is hereby granted to claimant Dr. A. R.
Sidell, in the amount of nineteen dollars and eighty-one cents ($19.81).
ROBERT L. BLAND, JuDGE, dissenting.
The facts supporting this claim, for which an award is made by majority of the
court, are set forth in the record prepared by the state road commission and
filed in this court on September 9, 1948, as follows:
?On June 9, 1948, about 8 :45 A. M., while crossing the Williamstown-Marietta
bridge, a short loose board flew up under the car striking the right rear tire,
cutting it in two.
?Concurrence by State Road Commission because it is our duty to maintain and
keep the
182 REPORTS STATE
COURT OF CLAIMS [W. VA.
bridges of highways in reasonably good repair and this we failed to do because
of facts set forth in letter of District Engineer E. M. Cottle.?
The letter referred to reads as follows:
?Mr. Harry Bell
State Claims Agent
The State Road Commission
Charleston, West Virginia
Dear Mr. Bell:
I am transmitting herewith Form M-503-Re- vised, the Shortened Procedure Claim
Form, which has been submitted to this office for further handling.
The claim in the amount of $19.81 covers damage due to cutting a tire in two on
the car operated by Dr. A. R. Slidell,
200 Highland Avenue, Williamstown,
West Virginia.
The other claim in the amount of $16.70 covers the claim of Elizabeth Young,
Muskingum Drive, Marietta, Ohio.
It is my recommendation that these claims be presented to the Court of Claims
for consideration, due to the fact that the wooden floor on the
Williamstown-Marietta Bridge has been, and still is, in very bad condition, due
to the fact that the wooden stringers to which the transverse wooden floor is
nailed have deteriorated to the point where they will no longer hold a nail
when driven in same.
The State Road Commission awarded a contract for the erection of a new concrete
steel grid floor on this bridge in 1947, but due to shortage of material the
contractor has just started the work a few days ago., and according to the
terms of his contract, it is entirely up to the contractor
W.VAJ REPORTS
STATE COURT OF CLAIMS 183
to maintain traffic in a satisfactory matter until the contract is completed.
Very truly yours,
/s/ E. M. Cottle,
EMC :P District Engineer?
Respondent cites and relies upon the case of William G. Gantzer v. State Road Commission, 3 Ct. Claims (W. Va.)
221.
It may be observed before proceeding further that since a determination in that
case was made by this court the Supreme Court of Appeals of West Virginia has
decided the mandamus proceeding of Jacob
F. Bennett v. State Auditor, in
which the facts stated by the state road commission in support of a claim in
which that agency had concurred were held to be insufficient to sustain an
appropriation of public funds made by the Legislature; and, of course, this court
is bound by that decision.
I cannot give my consent to the award made in the instant case. The facts
relied upon do not in my judgment warrant an award of the public funds. The
case is not strengthened or in any respect aided by respondent?s frank admission
that concurrence by the state road commission is ?because it is our duty to
maintain and keep the bridges of highways in reasonably good repair and this we
failed to do.? It does not appear from the records that the bridge was closed
to travel or that it was not safe for use. As a matter of fact the
determination of the claim in question is actually made by the state road
commissioner and an assistant attorney general, and the award made is simply a
ratification of their action. I am impressed with the fact that it is the duty
of the road commission officials in the county in which the accident occurred
to examine bridges from time to time and see that they are in condition for
public use.
I respectfully record my dissent to the award made in favor of claimant.
184 REPORTS
STATE COURT OF CLAIMS LW. VA.
(No. 642-S?-Claimant awarded $69.86)
BRODHEAD-GARRETT COMPANY, INC.,
Claimant,
V.
WEST VIRGINIA BOARD OF EDUCATION,
Respondent.
Opinion filed October 21, 1948
ROBERT L. BLAND, JUDGE.
Claimant asserts a claim for $69.86
against the West Virginia board of education for merchandise duly purchased and
delivered to the West Virginia state college at Institute, in the year 1945.
The claim consists of four invoices, as follows:
March 21 -
$44.06
April 13 6.70
July 25 11.00
October 10 --
- - 8.10
The college failed and neglected to transmit invoices for payment of the bills
rendered by claimant until after the then current appropriations had expired
and reverted to the state treasury, and claimant has all the while been
deprived of the money justly due it. In its petition addressed to this court
claimant says: ?We just can?t understand why the business department of West
Virginia College cannot have some system that would keep track of these invoices
and compel clerks to present them for payment within a reasonable length of
time.? The negligence exhibited in this case constitutes a reflection upon the
integrity of the state and should not be allowed to pass unnoticed. The claim
is concurred in by the governmental agency involved and its payment approved by
the attorney general of the state. It is manifestly a meritorious claim
W. VA.] REPORTS
STATE COURT OF CLAIMS 185
and one for which the Legislature should make appropriation.
An award is therefore made in favor of claimant Brodhead-Garrett Company for
the sum of sixty-nine dollars and eighty-six cents ($69.86).
(No. 636?Claimant awarded $1250.00)
S. P. CATRON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 4, 1948
An award may be made for the payment
of public revenues to a private person in discharge of an obligation or duty of
the state, legal or equitable, not imposed by statute, but created by contract
or resulting from wrongful conduct, which would be judicially recognized as
legal or equitable in cases between private persons, and the Legislature is the
judge of what is for the public good.
Appearances:
Townsend & Townsend (John T.
Keenan) ,
for claimant.
W. Bryar Spillers, Assistant
Attorney General, for the state.
ROBERT L. BLAND, JuDGE.
Claimant S. P. Catron asserts his claim against the state road commission, a
governmental agency of the state of West Virginia, for the sum of $62,240.00,
which amount he contends is due him by way of compensation for the property
loss sustained by him as the direct result of the
186 REPORTS STATE
COURT OF CLAIMS [W. VA.
wrongful conduct of employes of the said state road commission. He represents
to the court that he is the lessee and in possession of a boundary of land
containing seventy acres, more or less, lying adjacent to and on the northerly
side of a portion of that part of the state highway system designated as West
Virginia-United States route No. 60, and located on the westerly side of the
town of Milton in Cabell County, West Virginia, and commonly known as the
Malcolm Springs Farm, pursuant to a lease originally executed by C. P. Nelson
and wife, and subsequently by James Houghton Nelson and Richard H. Williams, as
trustees. Said boundary of land is presently owned by said James Houghton
Nelson and Richard H. Williams, as trustees, under a certain indenture of trust
dated the 28th day of December, 1938. Upon said property approximately 141,000
valuable evergreen Christmas trees were growing, all of which were owned by
claimant and the said. James Houghton Nelson and Richard H. Williams, as
trustees.
Claimant states that on or about the 17th day of April, 1947, the state road
commission of West Virginia, acting through its servants and employes, was
engaged in clearing the right of way by removing from the area on each side of
said West Virginia-United States route No. 60 the trees and brush thereon
accumulated adjoining said lands leased by him. He further contends that in
order t clear said right of way fires were maintained for the purpose of
destroying the said trees and brush collected along said right of way adjoining
his leased premises. He maintains that it was the duty of the state road
commission, acting through its servants and employes, in clearing said right of
way and maintaining fires thereon to provide the same with proper protection so
that fires could not be communicated from said right of way to his said leased
premises, whereby said evergreen trees would be consumed and destroyed, and to maintain
and supervise said fire in r prudent, careful and proper manner, having due
regard for the safety of the property of other persons, including
W.VAJ REPORTS
STATE COURT OF CLAIMS 187
himself, but that such precautionary
measures were not taken. Claimant charges that on the contrary the state road
commission negligently, carelessly and in reckless disregard of the safety of
the property of other persons, inc1udirg himself, along and adjacent to said
highway, permitted and caused said fire situate on said right of way to be
managed and supervised so that the same did communicate from said right of way
to his said leased property and evergeen Christmas trees, thereby starting and
causing said land to be set on fire, which quickly spread into a conflagration
and burned over nearly the entire boundary of land, thereby consuming and
destroying hi evergreen trees.
The court of claims conducted a careful and thorough investigation of
claimant?s said claim. It is made clear by the evidence that he has suffered a
distinct and severe loss of property. It is shown that he had a market for his
growing Christmas trees, many of which were several years of age. The record
discloses that he furnished and sold these trees on the land for sixty-five
cents for each tree. Claimant showed that he had evergreen trees growing on the
premises as follows:
1935 83,000 1942 15,000
1939 15,000 1943 5,000
1940 10,000 1944 11,000
1941 10,000 1945 2,000
It is also made to appear that he had from time to time made various sales of
said growing trees.
After the taking of the evidence in the case the members of this court visited
the scene of the fire and made personal inspection of the extent of the damage
done. They beheld a vast area of devastation and destruction.
A feeble attempt was made to show that the state was in no way responsible for
the fire, and that such fires as had been maintained along the right of way of
the thor-
188 REPORTS STATE
COURT OF CLAIMS [W. VA.
oughfare had been a week earlier than the time when the conflagration occurred
that destroyed claimant?s property. We are of opinion that it is abundantly and
very satisfactorily shown by the evidence that the fire which destroyed
claimant?s Christmas trees originated from the point on the road or highway
where brush and other debris was burned by employes of the state road
commission. The fire on the highway was within six feet of claimant?s growing
trees. It would seem to us that the employes of the road commission would be
charged with notice of the inflamability of evergreen or pine trees. No
precaution whatever is shown to have been taken by the state in order to
prevent the fire on the road right of way from communicating to the premises of
claimant. After the fire on the right of way had been started the road
supervisor left two employes to watch it. One of those employes has since died.
The survivor testified in the case. He stated that he and his companion
remained on the highway until everything placed on the fire had burned to
ashes. A witness for claimant who testified impartially but very positively
said that at the time the fire was raging on the premises of claimant he saw
burning embers of logs at the point where the fire was started on the highway.
The deposition of Richard L. Weaver, at U. S. Naval Training Center, Great
Lakes, Illinois, was taken on behalf of claimant. This witness resided on the
leased land at the time the evergreen Christmas trees were destroyed. We are of
opinion that his deposition very clearly establishes the origin of the fire.
Having found and being firmly of opinion that the fire which destroyed the
growing evergreen Christmas trees of claimant in such vast numbers was due to
the wrongful and negligent conduct of employes of the state road commission,
the question immediately arises whether or not in view of recent holdings of
the Supreme Court of Appeals in West Virginia an award in this case may be
properly made; and if so in what amount in should be.
W.VA.] REPORTS
STATE COURT OF? CLAIMS 189
In the case ol Stut?
(cc cel. AdIci,n v. Sims, Auditor,
34 S.E. 2d 585, it is held by our Court of Appeals as follows:
?In Or(ler to validate a legislative appropriation of public money for private
use it must affirmatively appear that the Legislature in making the
appropriation has found that it was necessary in order to (liseharge a moral
obligation of the State.?
In the case of State
e iel. Cahynu,,. v. Sims, State Au? dito,, 43 S. E. 2d 805, it is held by the Court as follows:
?To constitute a valid declaration by the Legislature of the existence of a
moral obligation of the State for the discharge of which there may be an
appropriation of public funds in the interest of the public welfare, it is
necessary, as a general rule, that there be an obligation or duty by prior
statute created or imposed UOfl the State, to compensate a person for injury or damage
sustained by him by reason of its violation by the State or any of its
agencies, or to compensate him for injury, damage or loss incurred by him in or
by his performance of any act authorized or required by such statute; or an
obligation or a duty, legal or equitable, not imposed by statute, but created
by contract or resulting from wrongful conduct, which would be judicially
recognized as legal or equitable in cases between private persons.?
It is also held by our Supreme Court, in the case of Woodall v. Darst, Auditor, 71
W. Va. 350:
?The Legislature is without power to levy taxes or appropriate public revenues
for purely private purposes; but it has power to make any appropriation to a
private person in discharge of a moral obligation of the State, and an
appropriation for such purpose is for a public, and not a private purpose.?
190 REPORTS
STATE COURT OF CLAIMS [W.VA.
The Supreme (?ourt of Appeals of West
Virginia has not at any time held that the Legislature is without power to
ascertain, find and declare the existence of a moral obligation of the state
that will support and warrant its appropriation of public revenues. What the
Court has held is set forth in point two of the syllabi iii
the case of State ex rel. Adkins v. Sims,
Auditor, 46 S.E. 2(1 81, reading as
follows:
?2. Whether an appropriation is for a public or a private purpose depends upon
whether it is based upon a moral obligation of the State; whether such moral
obligation exists is a judicial question; and a legislative declaration,
declaring that such moral obligation exists, while entitled to respect, is not
binding on this Court.?
We find further in the case of Guil/ord
v. Cheiuingo County,
13 N. Y. 113, at
page 119, the following pertinent language:
?The legislature is not confined in its appropriation of the public moneys, or
of the sums to be raised by taxation in favor of individuals, to cases in which
a legal demand exists against the state. It can thus recognize claims founded
in equity and justice in the largest sense of these terms, or in gratitude or
charity. Independently of express constitutional restrictions, it can make appropriations
of money whenever the public well being requires or will be l)rornote(l by it;
and it is the judge of what is for the public good.?
The Legislature is not prevented from recognizing claims founded on equity and
justice though they are not such as could have been enforced in a court of law
if the state had not been immune from suit. The basis for such allowance is the
moral obligation or the equity arising out of the facts. Munro v. State, 22% N.
Y. 208.
We understand that the appropriation of public revenues
W.VA.1 REPORTS
STATE COURT OF CLAIMS 191
for public purposes is within the police power of the state.
After the fire in question Mr. George I. Simons, then state claims agent, made
an investigation as to its origin and extent. By appointment he met and
discussed the situation with claimant. On the hearing of the case he testified
on behalf of the respondent as follows:
?Q. When next did you discuss or confer with the claimant,
Mr. Catron, in regard to this fire?
A. Mr. Catron was at my office on two or three occasions as he would be in
Charleston. I made arrangements to meet him and talk with Commissioner
Worthington and Mr. Radcliffe concerning a settlement. I talked to Mr. Catron,
went to Huntington, met him, and we went from there to the office of the Nelson
Trust, realty owners, and there met Mr. Williams, who is listed as trustee?R.
H. Williams. That was in June, 1947.
Q. What was the result of that interview?
A. We reached an agreement as to the amount of damages that the State Road
Commission would pay. It was reached in the presence of and with the approval
of Mr. Williams and Mr. Catron. Mr. Williams stated that the property, the
trees themselves, had been managed by Mr. Catron, and, therefore, he was in
position that whatever he would do would be perfectly all right with him.
JUDGE BLAND: Q.
Was Mr. Williams one of the trustees?
A. He was, or he was at that time.
MR. SPILLERS: Q.
What figure, if any, did you and Mr.
Catron or any of the others interested arrive at at that time?
A. One thousand dollars.?
We think it appears from the record that Mr. Simons,
192 REPORTS STATE
COURT OF CLAIMS [W. VA.
as state claims agent, made investigation of the origin and damage done by the
fire in question, and with knowledge of all the facts was of opinion that the
state was responsible for the damage suffered by the claimant in the burning
and destruction of his evergreen trees and offered the sum of $1000.00 in full
settlement of such damage, and that his offer was accepted by claimant; and
that steps were accordingly made to make such payment through the office of the
road commission. It appears, however, from the records that after such
agreement was made Mr. Simons and Mr. Spillers, of the attorney general?s
office, visited the state auditor for the purpose of learning whether he would
pay or issue his warrant for the payment of such agreement. Why this was done
is not made clear to the court. While we recognize that the opinion in the case
of Woodall v. Darst, 71 W. Va. 350, concedes the right of the auditor to
challenge the validity of an appropriation made by the Legislature, it is
strange that he would (lefly the right of payment before an appropriation is
made and without knowledge of the facts involved in a particular case. The
court of claims was created for the purpose of investigating the merits of
claims asserted against the state and making recommendations accordingly to the
Legislature. The Legislature is the only tribunal in the state that has power
under the law to make apprporiations of the public revenues. The Legislature
has unquestioned power, in circumstances and within the limitations of law, to
make appropriations of public moneys in discharge of moral obligations of the
state, subject, however, to the right reserved by the Supreme Court of Appeals
to declare what constitutes a moral obligation of the state.
We are of opinion from our investigation of the instant case that the effect of
the negligence of employes of the state road commission and their failure to
employ proper precautionary measures to prevent the fire that destroyed
countless hundreds of claimant?s evergreen Christmas trees amounted to a
confiscation of his property, sufficient
W. VA.] REPORTS
STATE COURT OF CLAIMS 193
to warrant an appropriation by the Legislature in his favor in discharge of a
moral obligation on the part of the state in the interest of public welfare. Such
an award would not, we think, amount to a gift of the state?s money to the
claimant. It would not constitute or be a gratuity. Rather it would be a
reasonable compensation to him for the unwarranted confiscation of his
property. The amount of the award which we shall make is based on what we
conceive to have been an agreement made by the parties themselves in settlement
of all damages suffered and sustained. There are other facts in the case which
we have fully considered such as the planting of thousands of the evergreen
trees by an agency of the government without cost to claimant. We may observe
at this point that after the agreement of settlement had been made between Mr.
Simons and claimant, with the approval of Mr. Richard
H. Williams, trustee, and after the visit to the auditor?s office, above
referred to, and his statement that he would not pay the claim, Mr. Williams
addressed a letter to Mr. Simons inquiring why the agreement had not been
consummated. To deny to claimant an award in the premises and to say that he
should bear the tremendous loss of property which he has sustained would be
shocking to the public conscience. We think that his claim is meritorious and
that the Legislature should make an appropriation in his favor and ascertain
and declare that it is in discharge of a moral obligation of the state.
An award is therefore made in favor of claimant S. P. Catron for the sum of
twelve hundred and fifty dollars
($1250.00).
a
194 lEPORTS Si?ATE COURT OF CLAIMS IW.VA.
(No. tt laiinant awarded $510.00)
SIBYL C. LIGhT, Claimant,
V.
STATE ROAI) COMMISSION, Respondent.
Opinioa fIled November 5, 19-IS
The state is morally bound to
reimburse an owner of property for damages thereto caused by blasting
operations in a road improvement and the deposit of rocks and dirt over and
upon claimant?s property causing a spring theretofore used to be destroyed and
of no further value to claimant.
Appearances:
Ben H. Light, for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant Sibyl C. Light prosecutes her claim against the state road commission
for damages to a tract of land located on primary route No. 3, near Pence
Springs, West Virginia; said damages as alleged, having been caused by the
improvement ma(le to a secondary road leading from said route No. 3 to the town
of Clayton in the county of Summers, and immediately adjacent to claimant?s
land. The petition of claimant further alleges that rocks and dirt were
deposited on her property causing a spring on said premises to he destroyed and
the destruction of trees then growing on the said tract in question.
Claimant purchased the whole tract, comprising fifteen aifd one-half acres, on
or about April, 1947, paying
W. VA.] REPORTS
STATE COURT OF CLAIMS 195
$4200.00 therefor. The main portion, or approximately twelve acres, is not
involved in the question of damages here presented, but a smaller portion,
comprising about three and one-half acres, and lying in a triangle between said
route 3 and the secondary road to the rear of said parcel is involved in the
claim as submitted. This smaller parcel is very precipitous and steep and many
parts thereof could not be used advantageously for the erection of houses or
homes thereon.
The members of the court took a view of this property and carefully examined it
with reference to the damages alleged and the cause for said damages, and we
are therefore in a position by reason of this firsthand information to give to
the testimony the benefit of our personal inspection and examination and to
better determine what damages, if any, the claimant sustained.
Based upon the cost price of the whole tract, the tract here involved was
probably worth $800.00 to $900.00, or approximately one-fifth of the price paid
for the whole tract; the remaining twelve acres were much more desirable in all
respects than the tract in question. Upon the said twelve-acre tract the
claimant has since erected her home and generally this part is level and much
more available for all purposes. Claimant alleges that the said blasting
operations, as well as the throwing or dumping of large ro?ks from the said
secondary road, destroyed a sprii which claimant had incased at a cost of
$540.00 previous to the time that the said road improvement took place. The
testimony reveals that the said spring was being used by claimant to supply her
home for domestic purposes, but claimant has since dug and built a water well
on the lower or larger portion of said tract, which well, aided by a refining
process which claimant has installed, now supplies her with water for all
domestic purposes and the spring in question is no longer used. Claimant
alleges further that the said spring by reason of the interferenc with its
operation by the blasting and the dumping of th
196 REPORTS
STATE COURT OF CLAIMS [W. VA.
said rock and dirt is, as stated, no
longer available.
The testimony also shows that the well on the lowe tract and located near the
home of claimant was started on the said premises before any damage was done to
the reservoir or spring on the smaller tract which, in our opinion, would
indicate that the well and not the spring in question was to be used in the
future by claimant for her own uses and purposes. There is plenty of water from
this newly dug well to satisfy the claimant so far as the enjoyment of her home
is concerned.
As heretofore stated the members of the court made a careful investigation and
examination of all attendant conditions when viewing these tracts referred to,
and we conclude that the improvement of the secondary road to the rear of the
precipitous tract had a tendency to improve its value rather than to lessen it.
However, in view of the fact that claimant maintains and there is no
contradiction so far as the record reveals, that she spent $540.00 in
constructing the cement encasement of the spring, she should be reimbursed for
that outlay and accordingly an award is made in the sum of $540.00.
We repeat that, in our opinion, outside of the destruction of the said spring,
the tract involved, if anything, has been enhanced in value and consequently
the only clam- ages of any kind which in our opinion have been sustained by the
claimant is the cost of the spring for which an ward, as indicated, is made. We
therefore recommend to the Legislature that the necessary appropriation be made
for the benefit of the claimant in the amount aforesaid, to wit, five hundred
and forty dollars ($540.00) in full settlement of all claims for damages caused
by the improvement of said secondary road and by the acts of the state road
commission complained of in the petition.
W. VA.] REPORTS STATE
COURT OF CLAIMS 197
(No. 633?Claimant awarded $52.50)
ELITE LAUNDRY COMPANY, a corporation,
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 9, 1948
A
case in which, upon the facts disclosed by
the evidence, an appropriation of public funds should be made by the
Legislature.
Hark & Moore (I. R. Hark) for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
ROBERT L. BLAND, JUDGE.
Claimant Elite Laundry Company, a corporation, of Charleston, West Virginia,
experienced great difficulty in securing the kind of light delivery truck which
it desired for use in its business and had made application to numerous
different dealers to furnish the particular type of motor vehicle which it
wished to obtain. The first one it was able to secure since the late war was
purchased from the Valley Motor Sales, which was described and registered as a
one-ton truck. However, this truck was too large to place in the building and
it was necessary for it to be parked outside and exposed to changing weather
conditions. The next effort made to purchase a truck was to obtain a smaller
vehic1e. When the Capitol Motor Sales informed claimant that it had a
three-quarter-ton Ford truck equipped with the same kind of body, it assumed
that it was the same kind of truck and instructed the seller to deliver the
same to its place of business. This
198 REPORTS STATE
COURT OF CLAIMS [W.VA.
was done but the delivery was made in the evening after Mr. Walter McNeal, chairman
of the board, who conducted the transaction, had retired to his home, and
therefore he did not have an opportunity to see the truck until the fo1 lowing
morning when he returned to claimant?s place of business.
It is shown that the seller of the truck in question obtained a title from the
state road commission and delivered it with the truck to claimant. The purchase
price of the truck was to be $2,625.00 and the tax payable to the state was 2%
of that amount, or $52.50. Upon the delivery of the truck and title to
claimant?s office someone there gave the seller of the vehicle a check for the
purchase price of the vehicle including the amount which it had pai(l for the
title. When Mr. McNeal came to the office he immediately perceived that there
was an error in the description, of the truck. Instead of being a
three-quarter-ton vehicle it was a truck which registration papers showed had a
capacity of five thousand pounds. There had been some alteration in the factory
description which misled him. The Capitol Motor Sales agreed to reclaim the
truck and did so. It offered to return the money which had been paid for the
truck by claimant or give claimant credit therefor on any truck which it might
thereafter purchase from the cow nany, but it could not refund to claimant the
2 % tax which it had paid to the state road commission.
Claimant then applied to respondent for such refund but was advised 1w the
state road commission that it had no way of refunding
it. The claimant thereafter filed its claim in this court to obtain an award
for the amount of the tax paid as aforesaid to the respondent.
Claimant maintains that since no actual sale of the truck was completed and
because the title was transferred through error, the amount of such tax should
be refunded to it. It further maintains that the said tax is similar to what is
known as consumers? sales tax and based upon the actual consideration paid on a
consummated purchase, and
W. VA.) REPORTS
STATE COURT OF CLAIMS 199
that if no sale has been consummated, no tax is collectible, and in the instant
case such tax should not have been co lected for the reason that the actual
purchase of the truck was not made by claimant.
It does not appear that the Capitol Motor Sales had any express authority from
claimant to obtain on its behalf a title to the truck from the state road
commission, but acted voluntarily in the premises.
We are of opinion that upon the showing made by the record that claimant is
entitled to an award in this case.
An award is, therefore, made in favor of claimant Elite Laundry Company, a
corporation, for the sum of fifty-two dollars and fifty cents ($52.50).
(No. 643?Claimant awarded $27.95)
GALPERIN MUSIC COMPANY, Claimant,
V.
WEST VIRGINIA BOARD OF EDUCATION,
Respondent.
Opinion filed November 10, 1948
Where purchases are made by a state
institution and the state derives the benefit from such purchases, an award
will be made although the requisitions were not made in the prescribed form or
manner.
Appearances:
L. A. Dudding, for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JuDGE.
During the years 1943 to 1946 the West Virginia state
200 ii:i?OiTS
STArK (LR?I? OK (1,AIMS 1W. VA.
(?OlleL!e, :it Inst it itte.
Kainiwha c4)IIflI v, VesI Vi rgiiiia,
H1L(I( several purchases of nuisical accessories oti er(?(IiI, front the
clainiaiil .
(aIl?riI1 11 ((sic ( ?onittiv, a \Vest Virgiiiit corporal ion, doing retail iintsical nwrcIlatl(Iisit(g ill the (?it ol Clia
nest on, Vest Vi rgi
i ia. The ?aro HIS lOt fl?hS(?S were covered by iii voices si gi ted by P no lessons
Will
i;tms and IThiflips. as follows
I iiVoice
Pat ?
Nti inbe r it ( III I? lit (I Ii
t
7?27?13 1073 Heeds $2.16
10?27?13 3991 II eeds .10
2?23? 11 7185 Repair to 1 tist . 2.05
2?23?1.1 7181 Repair to Inst. 1.00
3?11?15 19308 IThono Needle 1.50
4?10?46 5.18.1 i\litsie I ooks
8? 2?16 8830 Phono
Nee(lIes 3.00
8 ?3?16 8836 IThono N(lle 1.00
10 -7-46 9883 Music Books 5.00
11-29-46 18329 Music Books 3.10
11-27-46 18934 Lynn 5.20
All of the above enumerated purchases were made within the five-year statutory
period except purchase made on July 27. 1943, amounting to S2.16, and which is barred by the statute of limitations. While these
purchases were not made in conformity with the rules governing the handling of
purchases made in behalf of the state, on the other hand the state received the
benefit of the merchandise so purchased and the claimant relied upon the credit
of the state when furnishing the merchandise. The credit of the great state of
West Virginia should not be impaired by some oversight of its employes in
carrying out in detail the rules and regulations of the department.
The court is in favor of an award to the claimant Gal- penn Music Company, in
the amount of twenty-seven dollars and ninety-five cents ($27.95).
W. VA.] REPORTS
STATE COURT OF CLAIMS 201
(No. 631?Claimant awarded $35.00)
LENA J. WEBB, Claimant,
V.
STATE CONSERVATION COMMISSION,
Respondent
Opinion filed November 10, 1948
Where the employes of the state conservation commission willfully destroy
and despoil property belonging to another, the state is morally obligated to
make restitution for such damage and an award will be recommended to the
Legislature.
Appearances:
Claimant, pro Se.
W. Bryan Spillers, Assistant Attorney
General, for the state.
MERRIMAN S. SMITH, JUDGE.
On the night of December 5, 1947, there was a forest fire on the property of
Lena J. Webb, which property was located at Ramage, Boone county, West
Virginia. A Mr. Paxton, an employe of the conservation commission, accompanied
by approximately ten teen-age boys, went to the scene of the fire. However,
since there was another fire of greater magnitude in this area, Mr. Paxton left
the Webb property and went to give his attention to the other fire, the boys
remaining to prevent the spreading of the fire on claimant?s property. By this
time it was apparent that the fire had about spent itself in the drain or
hollow some distance away from any buildings on claimant?s farm. Several
hundred yards from the fire claimant had a tobacco barn, filled with corn
fodder. Also there was fodder stacked around the outside of the barn, and there
were
202 REPORTS STATE
COURT OF CLAIMS [W.VA.
four mine car wheels near the barn. During the night the boys rolled the four
mine car wheels away, tramped down the fodder and burned some of it to the
extent that it was of no further use or benefit to the said owner.
The statute provides that in preventing the spreading of a fire the state fire
fighters have the right to burn fences and plow ground. However, there is no
statute, or rules and regulations of the conservation commission that gives
anyone the right to willfully destroy the property of another. In the instant
case the four mine car wheels and fodder were destroyed and rendered useless to
the rightful owner. This was a willful taking or destroying of the property of
the claimant by employes of the state conservation commission, who were
employed for the express purpose of protecting the property of the claimant.
From the evidence, they greatly exceeded their authority and the state of West
Virginia is morally bound to reimburse the legal owner for the depredation and
destruction of such property. Therefore an award of thirty-five dollars
($35.00) is hereby granted to claimant, Lena J. Webb.
(No. 632?Claimant awarded $1600.00)
ISAAC HAYES, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opivion filed November 12, 1048
Where one afflicted with silicosis, a
compensable disease under our law, is denied compensation because of his
failure to apply to the workmen?s compensation commissioner within one year
after the last exposure to the disease as required by statute, but whose
application for relief and compensation was filed within one year
W. VA.] REPORTS
STATE COURT OF CLAIMS 203
from the date he was first informed of the nature of his disease by attending
state physicians, a moral obligation is created on the part of the state and
compensation should be allowed accordingly.
Appearances:
Capehart & Miller, for claimant.
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant Isaac Hayes was for many years employed as a coal miner in mines
located in southern West Virginia, and thus by reason of the very nature of his
employment was exposed to the hazards incidental to the work he was called upon
to perform. The testimony shows that especially during the last year of his
work as such miner he worked on machines, drilled and shot rock and stone, the
nature of which employment brought him in contact with large volumes of dust so
thick and heavy at times that he could hardly see to continue with his labors.
(Record pp.
5-6).
On February 28, 1946, he was obliged to quit his employment and work,
apparently suffering from tuberculosis. The coal company physician advised him
to consult another physician, without indicating to him the nature of his disease
or ailment, and after an examination and further treatment by the second
physician, he was advised to apply for admission to the Denmar sanitarium, a
state institution, for the treatment of pulmonary afflictions, where no doubt a
more detailed examination of his condition could be made, his ailment diagnosed
more thoroughly, and treatment given him accordingly.
He entered this institution on April 25. 1946, and remained there as a patient
until May of 1947, when he was
204 REPORTS STATE
COURT OF CLAIMS [W. VA.
dismissed, and for the first time (luring all the period of his illness was
informed that he was afflicted with and suffering from silicosis. Shortly after
his admittance into the Denmar sanitarium, to be exact April 29, 1946, the
first x-ray examination was made of claimant?s lungs and chest, and showed
moderately advanced pulmonary tuberculosis with silicosis. 1-Towever, no
information of his condition or the nature of his disease was imparted to the
claimant at that time. Subsequently, and during the period of thirteen months
that he was a patient in the Denmar institution, more x-rays were made, all
tending to confirm the diagnosis of silicosis, but in no instance was the
nature of his ailment revealed to him until May, 1947, a short time before his
dismissal from the sanitarium.
Within a few months, or July 19, 1947, after he had learned the true nature of
his trouble he applied to the workmen?s compensation commissioner for relief,
silicosis being a compensable disease, but his application was denied because
it had not been made within one year after he was last exposed to the hazards
of the disease, he having ceased work, by reason of his ailment, in February,
1946, and not having worked since.
Upon the foregoing facts and the theory that he was not at fault or in any
manner remiss in filing his application for relief with the workmen?s
compensation commissioner, he applies to this court for an award commensurate
with what he might have received if he had not been barred by the technical
provision of the statute governing payments to employes from the compensation
fund.
We are of the opinion, from all the facts adduced and presented for our
consideration, that had claimant?s aplication been presented to the
compensation commission within the year from his last exposure to silicon
dioxide dust, as required by the statute, assuming of course that the nature
and character of his disease had been known in time, that an award would have
been made in accordance
W. VA.] REPORTS
STATE COURT OF CLAIMS 205
with the statutes governing and controlling such payments to employes. He was
suffering from silicosis, a compensable disease; he was exposed by the very
nature of his work as a miner to conditions that produce silicosis; for many
years before he was obliged to quit work his only employment was that of a
miner with the coal companies named in the testimony; he worked in rock and
stone dust, especially the last year of his employment, and there is every
indication that he is the victim of his employment and work, the very nature of
which was at all times highly conducive to his contracting the disease from
which he now suffers. We have no doubt of the foregoing conclusions.
There remains then the proposition of whether or not a moral obligation rests
on the state to make some restitution to claimant or wether the technical
provisions of the statute in question shall be strictly followed and an award
refused. Surely an application for relief could not have been made before May,
1947, because claimant, up to that time, hac no information upon which his
claim as a victim of silicosis could be based. Nobody, including all the
physicians who had attended him had ever even hinted to him the nature of the
disease before May, 1947. They seemingly did not know positively themselves. He
had no right to voluntarily assume that he was so afflicted, and upon that
assumption base an application for relief; nor could he assume that he would
make much progress with his application until such time as he had been definitely
informed by the doctors in charge and could have the benefit of theii testimony
accordingly. In our opinion a more liberal construction should be given to the
statute in question, i. e., a construction which would bar an applicant for
compensation only if he did not apply for relief within one year after being
informed of the nature and character of his disease and ailment.
Repeating again that in our opinion claimant would have been given compensation
had he been in a position
206 REPORTS STATE
COURT OF CLAIMS [W. VA.
to comply with the provisions of the statute involved, we find that he was not
at fault in any manner, nor remiss in any duty that devolved on him and that he
acted with due diligence in making his application to the compensation
commission after being actually informed of the nature of his ailment and
having been denied compensation, and that a moral obligation rests on the state
to make payment commensurate with that allowed if the application to the
compensation commission had been considered on its merits. An award is made to
claimant accordingly.
In silicosis cases three classifications prevail as to the amount of
compensation paid or to be paid, the second class authorizing a gross sum
payment of $1600.00. We are of opinion and so find that claimant is properly
placed in the second class of the said division, and make an award in the
amount of sixteen hundred dollars ($1600.00) for his bene fit, and recommend
the same to the Legislature for its consideration and action.
(No. 646?Claimant awarded $10,000.00)
J. W.
COOLE, Claimant,
V.
STATE OF WEST VIRGINIA, Respondent.
Opinioz filed November 12, 1948
When by a miscarriage of justice an innocent person is tried and convicted of a
felony and subjected to imprisonment in the peniten
W. VA.i REPORTS
STATE COURT OF CLAIMS 207
tiary, the state is morally bound to answer in damages and so far as possible
to right the wrong that has been done.
Appearances:
Salisbury, Hackney & Lopinsky
(Emerson W. Salisbury and John G. Hackney) for claimant.
Easton B. Stephenson and W. Bryan
Spillers, Assistant Attorneys
General, for the state.
CHARLES J. SCHUCK, JuDGE.
Claimant Junior Coole was tried and convicted on the charge of obtaining money
under false pretenses by uttering and passing worthless checks. His trial and
conviction took place in Jackson county, West Virginia, in November of 1939,
and after refusal by the trial court to set aside the verdict of the jury and
grant a new trial, the claimant was sentenced to the state penitentiary for a
term of from two to ten years. An appeal to the Supreme Court having failed,
claimant was conveyed to and received at the penitentiary on or about March 26,
1940, and remained confined there as a prisoner for a period of six months, at
which time he was released on parole, and, subsequently, on the seventeenth day
of June, 1948, he was granted a full pardon by The Honorable Clarence W.
Meadows, Governor of the state of West Virginia. The pardon sets forth the
reasons for the Governor?s action and contains the statement, in effect, that
an investigation, made after the conviction of claimant and his confinement in
the penitentiary, indicates a miscarriage of justice which justifies his
release and full pardon. Claimant had also been confined in the county jail at
Ripley from the time of his arrest in November, 1939, to the day he was taken
to the penitentiary, a period of approximately five months, during all of which
time he was, of course, treated as a
208 REPORTS STATE
COURT OF CLAIMS [W. VA.
prisoner and subjected to all the rules and discipline of the jail authorities.
The checks in question, and used as the basis for the conviction of claimant,
were similar in handwriting and bore every evidence of emanating from the same
source and as having been written by one and the same person. This fact is
highly important in the light of subsequent events and the investigation by the
state police authorities that had been set in motion prior to the conviction of
claimant and continued after his confinement in the penitentiary, and which
finally led to his pardon and release. It must also be borne in mind that for
several years after claimant was released on parole, and before his pardon, he
was subjected to all the rules and regulations applicable to the actions and
freedom of a parolee, and was obliged to report to and keep in touch with the
proper parole officer and to limit his travel or work to the territory fixed by
the parole authorities, all of which added to his disgrace and degradation.
We come now to the startling and extraordinary facts that developed from the
investigation heretofore refered to, and which ultimately led the Governor to
grant a full and complete pardon to claimant, and which facts have since become
the foundation on which claimant bases his claim before this court.
Among the state police officers called to assist in bringing about the arrest
and conviction of the person circulating the worthless checks in Jackson county
at the time was one R. I. Boone, by rank a master technical sergeant,
specializing in firearms, identification and document examination, and commonly
known as the handwriting expert of the state police department. He had seen and
examined the questionable checks before the trial of the claimant, was subpnaed
as a witness by the state, and yet, for some unaccountable reason, was not used
as such by the prosecuting attorney in charge. He had not seen
W. VA.]
REPORTS STATE COURT OF CLAIMS 209
claimant?s handwriting until the day
of the trial at Ripley, and after obtaining specimens thereof concluded that
the checks had not been written by claimant, and he is now of the opinion that
this information was conveyed to the prosecuting attorney at the beginning of
or during the trial. (Record pp. 62-63). In any event he was not called as a
witness and was dismissed from further attendance.
During the incarceration of claimant in the jail at Ripley and before he was
taken to the penitentiary, worthless checks were uttered and passed on several
merchants in Ravenswood, located in Jackson county. The then sheriff of Jackson
county, one Clarence F. Myers, and a witness before this court, as such sheriff
in charge of the custody of claimant, took claimant to Ravenswood, West
Virginia, where he was identified as the man who had uttered and passed the
worthless checks, when in fact he was then and had been confined in jail at the
very time, and it would have been absolutely impossible for him to have
committed the acts in question. (Record p. 8). That the merchants at Ravenswood
were honestly mistaken there can be no doubt, but that the prosecuting attorney
should fail to heed or consider the information obtained by the then sheriff,
Myers, and which he imparted to the prosecuting attorney, is beyond our
comprehension. Several more such bogus checks made their appearance and were
uttered and passed during the period when claimant was confined either as a
prisoner at the jail or at the Moundsville prison, and, as testified to by C.
A. Hill, the circuit clerk of Jackson county, all this information was passed
to the proper authorities, but to no avail. (Record pp. 54-
55-56-57).
Another witness, Paul R. Pritchard, a corporal in the state police department,
who arrested claimant and later found, as he stated (record p. 121) that the
checks ?still came out after he went to the penitentiary? concluded that
claimant could not possibly be guilty of the crime or crimes for which he was
indicted in Jackson county, and has since
210 REPORTS
STATE COURT OF CLAIMS [W. VA.
concluded, from the investigations
made, that the man guilty of the crimes for which claimant was convicted is now
confined in the Ohio state penitentiary, at Columbus, Ohio. (Record pp.
115-116).
Returning now to the witness Boone, he testified, in answer to the question as
to whether the checks in question had been written by claimant, ?That in my
opinion he never did. It has always been my opinion that he could not have
written them or endorsed them? (Record p. 67). And so, with this opinion in
mind, and being an able and conscientious officer, as he must have impressed
all who heard him testify before us, he went to the Ohio prison to interview
and obtain specimens of the handwriting of the man under suspicion of having
uttered and passed the worthless checks in and about Jackson county in our own
state, and he unequivocally stated and testified (Record pp. 67-68) that the
man who wrote and uttered the checks on which claimant was convicted is now a
prisoner in the Ohio penitentiary, and known as Edward Allen, thus exonerating
claimant from all guilt insofar as the Jackson county charges were concerned
and showing clearly, when connected with the mass of other testimony, that he
was unjustly, wrongfully and improperly convicted, and that the witnesses who
testified against him though honestly convinced were, nevertheless, honestly
mistaken, and that his testimony to the effect that he had never been in Ripley
or Jackson county before the day of his arrest is fully borne out by the
testimony presented.
Giving due consideration to the foregoing facts, we are forced to the
conclusion that the claimant was wrongfully convicted, that he was innocent of
the charges set forth in the indictment, and that the person who actually
uttered and passed the checks has not as yet been apprehended by the state of
West Virginia, but is at the present time an inmate of the Ohio state
penitentiary, and that, consequently, claimant was obliged to undergo long
imprisonment for a crime he never committed.
W. VA.] REPORTS
STATE COURT OF CLAThIS 211
We are therefore now concerned in
determining whether the foregoing undisputed facts create an obligation on the
part of the state sufficient to warrant an award in money which may, in a
degree, give some satisfaction and compensation to the claimant for the
grievous wrong that has been done to him. The state, being protected by the
so-called ?immunity? clause of our constitution and not subject to suit in our
courts of law except indirectly within very narrow limitations, created the
state court of claims as a special instrumentality to hear and determine claims
and demands which the state as a sovereign commonwealth should in equity and
good conscience discharge and pay; in other words, the payment and discharge of
a claim by reason of a moral obligation resting on the state and because of its
very nature requiring an award in justice, equity and good conscience.
Our Supreme Court of Appeals in the case of State ex rel. Cashman V.
Sims, 43 S.E. (2d) 805, at page 814, in considering this
all-important question now under consideration, states the rule as follows:
?The sound and just general rule by which a moral obligation of the State in
favor of a private person may be recognized, and for the payment of which a
valid appropriation of public funds in the interest of the public may be made
by the Legislature, requires the existence of at least one of these components
in any particular instance:
(1) An obligation or a duty, by prior statute created or imposed upon the
State, to compensate a person for injury or damage resulting to him from its
violation by the State or any of its agencies, or to compensate him for injury,
damage, or loss sustained by him in or by his performance of any act required
or authorized by such statute; or (2) an
obligation or a duty, legal or equitable, not imposed by statute but created by
contract or resulting from wrongful conduct, which would be
212 REPORTS STATE
COURT OF CLAIMS [W. VA.
judicially recognized as legal or
equitable in cases between prirate perso?i..? (Italics supplied.)
Now, there being no prior statute created to compensate one for injury or
damage as outlined in the Cashman decision, supra,
we must necessarily look to the second
part of the rule as stated, namely, ?An obligation or a duty, legal or
equitable, not imposed by statute . . .,? to determine whether or not in the instant case a moral obligation is
created, sufliciently founded in justice and equity and by the very nature of
the case or claim and the facts upon which it is based, requiring an award for
the injuries done. We (10 net believe that the Supreme Court in the Gashman. case,
spi?o, meant to say that wrongful conduct to create a moral obligation must be
vicious and evil in its intent, but rather that an irreparable injury done one
by the state or any of its agencies without any element of malice or feeling
may be suflicient to impose a moral obligation on the state to make some
restitution if possible for the wrongful act complained of by a claimant
against the state. If the state commits an act which injures a person and which
act is afterward shown to have been wrong, erroneous and unjust, and if the act
or acts complained of had occurred between private persons or individuals for
which the aggrieved person would have an action at law, then a moral obligation
is created which the state should be called upon to discharge and satisfy. Can
there be any element of doubt as to a moral obligation having been created by
the facts here under consideration? Deprived of his liberty and freedom for a
long period of time?---a liberty and freedom constituting the greatest and most
precious heritage of man in a democracy such as ours, subjected to the lowest
form of degradation, branded by the felon?s indelible mark, he forever enters
the class of the ?untouchables?; shunned, avoided and despised by his fellow
men and ostracized from the society of those who had hitherto been his
companions and friends. No greater harm or more serious
W.VA.] REPORTS
STATE COURT OF CLAIMS 213
injury could befall any man than the unwarranted, improper conviction of the
claimant, innocent as he was of the charges brought against him.
In the case of State ex rel. Acikins v. Sims,
Auditor, 34 S.E. (2d), 585, the
Supreme Court held as follows:
?In order to validate a legislative appropriation of public money for private
use it must affirmatively appear that the Legislature in making the
appropriation has found that it was necessary in order to discharge a moral
obligation of the State.?
Again we may ask, what, then, is a moral obligation? And the answer seems to be, one
that cannot be entorced by action but is binding on the persons who incur it in
conscience and according to natural justice. An obligation which one owes in
equity and good conscience but which cannot be enforced at law. A duty which
would be enforceable at law as between man and his fellow man were it not for
some positive rule which exempts the party in that particular instance from
legal liability. Longstreth v. City of
Philadelphia, 91 A. 667, 245 Pa. 233;
MacDonald v. Tefit-Weller
Co., 128 F. 381, 385, 63 C.C.A. 123,
65 L.R.A.
106. Words and Phrases, Vol. 27, pp. 551-552, and cases cited.
We repeat that in our opinion a consideration of the facts fully justifies the
finding of a moral obligation devolving upon the state which in equity and
justice should be discharged. Can the Legislature make a valid appropriation to
cover an award, if made, in favor of the claimant? Courts generally have held
that while the Legislature may not sanction a gift of public moneys for private
purposes, it may in certain instances acknowledge the justice of a private
claim against the state and provide for its audit and allowance by a court of
claims, providing that the claim appears to the judicial mind and conscience to
belong to a class of claims concerning which in the exer
214 REPORTS STATE
COURT OF CLAIMS [W. VA.
cisc of a wide discretion the Legislature might reasonably say are founded in
equity and justice and involve a moral obligation upon the part of the state
which the state should satisfy. Farrington
v. State, 248 N. Y. 112. To the
same effect are Williamsburq Savings
Bank v. State, 243 N.
Y. 231; Mnnroe v. State, 223 N. Y. 208.
With the foregoing decisions we are constrained to agree and feel that courts
generally throughout our country sustain this view.
The state relies upon and has submitted for our consideration the case of Allen v. Board of State Auditors, 122 Mich. 324, a case in some respects resembling the
one under consideration. However, there are a number of distinguishing
features, namely, in the Michigan case no appeal was asked for after
conviction; the pardon granted was not on the ground of the innocence of the
accused as in the instant matter; the application for relief was made nine
years after claimant was released; it was an apparent attempt to have the board
of auditors find whether or not claimant was guilty or innocent, whereas in the
instant case the innocence of the claimant is definite and unquestionable and
so regarded by all, including the Governor and officers an(l officials who have
had any contact with the case or claim in any way or manner.
We come now to the matter of damages, and while in our judgment no award can be
suflicient to pay the claimant for the unwarranted, deplorable and irreparable
injury that has been (lone to him, we feel that a substantial award is required
to satisfy the ends of justice. In considering the amount of the award we are
not unmindful of claimant?s subsequent plea of guilty, conviction and
imprisonment in Ohio for failure to have sufficient funds on deposit to meet
the amount of a check drawn thereon, and while this conviction may mitigate
damages it cannot relieve the state of West Virginia of its obligation to
claimant. It is within the range of possibility to assume from all the facts
that if claimant had not been falsely charged
W. VA.] REPORTS
STATE COURT OF CLAIMS 215
and convicted in Jackson county he would perhaps not have been called upon to
answer the charge in Ohio, but would have been allowed to settle for the
difference between the amount on deposit in the bank on which the check was
drawn and the amount of the check itself.
After a most careful consideration of all questions and matters involved,
reviewing the facts, the nature of the charges, the conviction, sentence and
imprisonment of claimant, the great and irreparable injury to him, and his
absolute innocence, we are of the opinion that an award in the amount of ten
thousand dollars ($10,000.00) should be made, and we therefore recommend to the
Legislature (1) either the necessary appropriation to cover the amount of the
award, or (2) the passage of a special act, as was done in New York state
recently in a case based on similar facts. Bertram M. Campbell v. State of New York.
ROBERT L. BLAND, JUDGE, concurring.
This claim presents a case of first impression in West Virginia. Bearing in
mind the rule that taxes may be levied and collected only for public purposes,
after a rather extended examination of authorities relating to the power of the
Legislature to make appropriations of public revenues and due consideration of
the record of the trial court in which claimant was convicted of a felony as
well as the record made in this court upon the investigation and hearing of the
claim under consideration, I have reached the conclusion that an award should
be made in favor of claimant, for the reasons hereinafter set forth, and
accordingly agree with my colleague, Judge Schuck, to that extent and effect.
I deem it advisable to observe at this juncture that claimant is a nonresident
of West Virginia and a citizen of Ohio. He was arrested in that state, confined
in prison there, and subsequently brought to this state by West Virginia
officers and placed in the Jackson county jail. He was indicted by a grand jury
of that county and later
216 REPORTS STATE
COURT OF CLAIMS [W. VA.
convicted of an offense alleged to have been committed there, and sentenced to
a term of imprisonment in the penitentiary at Moundsville. Upon his trial in
the circuit court of Jackson county he testified that he had never been in that
county prior to the time he was brought there to the jail. He gave like
testimony in this court.
After claimant was incarcerated in the Jackson county jail and before his
trial, investigation was made by members of the West Virginia department of
public safety, leading them to believe that claimant was innocent of the
offense charged against him and upon which he was to be prosecuted, and they so
informed the prosecuting attorney of Jackson county. That official had definite
information as to the findings and conclusions of the West Virginia officers.
If their information had been allowed to be considered by the jury it is
possible, and it seems to me also probable, that the verdict rendered would
have been one of acquittal rather than conviction. If the prosecuting attorney
of the county, an officer of the sovereign state of West Virginia, failed in
the discharge of his duty to give the defendant, the claimant here, that
consideration to which he was entitled, when charged with so heinous an
offense, and his failure may have been a determining factor in the
verdict rendered by the jury, then is the state not responsible? All of the
people within its boundaries constitute the state?the state is actually
the people.
In 23 Corpus Juris Secundum, at page
276, we find the following pertinent authority:
?While officials connected with detection and prosecution of crime should be
diligent iii ferreting out and prosecuting the guilty, they should be fair to
accused and evidence pointing to his innocence should not be suppressed. People v. Reed, 81 P.2d
162, 27 Cal. App. 2d 484.?
I am persuaded that a great and irreparable wrong has been done to claimant by
the state of West Virginia,
W. VA.] REPORTS
STATE COURT OF CLAIMS 217
by reason of his conviction in a West Virginia court and his imprisonment in
the West Virginia penitentiary. He suffered not only the stigma and ignominy
incident to a felon?s conviction, but in addition thereto the loss of an
established business which theretofore had yielded him an income of from five
to seven thousand dollars annually.
His pardon, after due investigation as to his innocence of the offense for
which he was tried in this state, was recommended by the superintendent of the
department of public safety, and an unconditional pardon was given to him by
the Governor of West Virginia.
To my mind it seems clear that the claim is based upon the strongest ground of
equity and justice.
May the Legislature make a valid appropriation to claimant, a private person,
within the meaning of the law authorizing it? I think it may. In 51 Am. Jur.
Taxation, Sec. 326, this broad rule is laid down:
?It is stated generally that a tax may not be levied to pay a claim for which
no legal or moral obligation exists. However, the public necessities are not
the sole purposes to which the public reveues may be applied, but, on the
contrary, considerations of natural equity, gratitude, and charity are never
out of place, even in determining the imposition of the public burdens. Claims
against the state founded in equity and justice in the largest sense, or in
gratitude or charity, will support a state tax, provided the payment thereof is
directly in the public interest.? (Italics supplied.)
In the case of Ogden v. Saunders, 25 U.S. (12 Wheat.) 213, 318, 6
L. Ed. 606, Mr. Justice Trimble, in his opinion on page 317, defines the
far-reaching meaning of a moral obligation in this language:
?Moral obligations are those arising from the admonitions of conscience, and
accountability to the Supreme Being. No human law-giver can
218 REPORTS
STATE COURT OF CLAIMS [W. VA.
impair them. They are entirely foreign from the purposes of the constitution.?
In Fairfield v. Huntington,
reported in 205 Pac. 814 and 22
A.L.R. at page 1438, the Supreme Court of Arizona held that a statute to
reimburse a state employe for an accidental injury arising out of and in the
course of his employment is not special legislation, since it is to satisfy an obligation resting upon all the
people who constitute the state.
On the power of the Legislature to
make an appropriation to satisfy an award in favor of claimant, it is pertinent
to cite the New York case of Williumsbvrg
Savings Bank v. State, 243
N. Y. 231, wherein it is held:
?The State may voluntarily recognize just obligations which it fairly and
honestly ought to pay even though they do not constitute purely legal claims.
When a claim is presented which securely rests upon a foundation of equity and
justice and which involves a moral obligation, it may be recognized without
infringing upon constitutional provisions protecting taxpayers against waste
and extravagance. But the decision to pursue this course is a privilege and not
an obligation, and the State alone, through its Legislature, can decide which
course it will pursue. It cannot delegate to the courts or some other agency
the duty of determining what its decision ought to be.?
May it not be said that the instant case or claim is one which rests upon a
foundation of equity and justice? And does not an obligation rest upon all of
the people of the state to make some reparation for the great wrong which
claimant has suffered?
Our own Supreme Court in the Cash man case, cited by Judge Schuck, lays
down the rule that a moral obligation is an obligation or a duty, legal or
equitable, not imposed by statute but created by contract or resulting from
wrong-
W. VA.] REPORTS
STATE COURT OF CLAIMS 219
ful conduct which would be judicially recognized as legal or equitable in cases
between private persons. If the claimant is entitled to recover in this case
his award must be based on some wrongful act done by the state. We thus come to
the point where we must decide what is meant by the term wrongful act. As
between individuals there is certainly no necessity for the existence of
an evil intent in order for one individual to commit a wrong upon another.
Should there then be any distinction between state and individual as
to what is meant by a wrongful act? I think not. It is true that the state is
sovereign in its power. It is also true that the individual is supreme in his
right.
Fiat justitia ruat coelum!
MERRIMAN S. SMITH, JUDGE, dissenting.
Thanks to American jurisprudence this is a claim that rarely ever confronts our
courts, however, it is one of momentous importance. I do not know of any
circumstance except the taking of life itself that would create a greater
appeal to the heartstrings than the conviction and incarceration of an innocent
victim. Oftentimes we are prone to let our heart get the best of our better
judgment.
I have a deep and profound respect for the experienced and learned opinions of
the majority of this court, and it is with reluctance that I cannot concur in
an award in the instant claim. However, in all fairness and justice to myself
and the great state of West Virginia in this particular class of claim no award
should be made unless there be a prior statute. After a careful and diligent search
of the authorities I do not find a single instance of reparation being made by
the state in such cases except where there is a prior statute. There is at
least one claim, and doubtless more in former years, that was introduced in the
1931 regular session of the West Virginia Legislature?house bill No. 14,
wherein the Legislature was asked to pass a claim in the sum of one thousand
dollars to compensate
220 REPORTS
STATE COURT OF CLAIMS [W. VA.
Frank Howell of New Martinsville, West
Virginia, because he was wrongfully convicted and confined in the penitentiary
at Moundsville for fourteen months, after which the guilty party made a
voluntary confession of the crime, which has not been done in the instant
claim. The bill was killed in the senate.
The majority opinion of this court bases its finding of an award largely upon
what constitutes a moral obligation as defined in our Court of Appeals in Cashman v. Sims, cited
in the majority opinion, ?.
. or an obligation or a duty, legal or
equitable, not imposed by statute but created by contract or resulting from
wrongful conduct, which would be judicially recognized as legal or equitable in
cases between private persons.? There is no analogy in the instant claim
between a private person and a sovereign state where an obligation arises in
the performance of this governmental function. The sovereignty of the state
must be upheld and maintained at all times. It cannot be sucessfully denied
that claimant was given a fair and impartial trial. He had the benefit of his
self-employed private counsel and was tried before a jury of twelve men
selected among his peers. There is no evidence of any persecution by the state
and no rights under the constitution or laws of the state were denied him. I
repeat I do not think an awar(l can be made unless there be an obligation
imposed by prior statute, where there has been absolutely no negligence on the
part of the agency involved in the regular performance of its governmental
function, which power in this instance is the very essence of the sovereignty
of the state. Tf a reward be bestowed UOfl an innocent person
convicted of a crime, by the same token by whom and to whom is a penalty to be inflicted
when a guilty person is acquitte(l?
An award in the instant claim would be the bestowal of a gratuity out of the
public revenue for a private purpose, unless such moral obligat ion be so
recognized by a prior statute.
REFERENCES
ASSUMPTION OF RISK
A person in accepting an assignment in a state mental institution, knowing he
would be placed in contact with mentally deranged and incapacitated patients
?assumed risk? of injury which might result from such association. Goins
v. Board of Control 25
AUTOMOBILES
Where a guest passenger who, with
another passenger, protested to the driver regarding the speed of the truck,
after having made several stops affording him ample occasion to alight from the
truck, fails to avail himself of such opportunity, thereby assumes the risk,
and an award will
be denied. Neville v. State Conservation 32
Negligence in maintaining the traveled portion of a highway in a reasonably
safe condition, thereby causing claimant?s automobile to be wrecked and
damaged, without any contributory negligence on his part, entitles claimant to
an
award. O?Connor v. State Road 23
Where the evidence clearly shows that claimant?s negligent acts were the cause
of the accident for which he seeks
damages an award will be denied. Bess v. State Road 83
A case in which the evidence introduced upon the investigation of the merits of
a claim asserted against the state shows the existence of a moral obligation on
the part of the state to make reparation by way of motley compensation in view
of the purpose of the act creating the state
court of claims. Short v. State Road 40
See also
Moore v. State Road 102
Thompson v. State Road 74
Whitaker v. State Road 160
BILLS (invoices) unpaid, see Contracts
BLASTING OPERATIONS
The state is morally bound to
reimburse an owner of property for damages thereto caused by blasting operations
in a road improvement and the deposit of rocks and dirt over and upon
claimant?s property causing a spring theretofore used to be destoyed and of no
further value to
222 REPORTS STATE
COURT OF CLAIMS 1W. VA.
claimant. Light v. State Road 194
See also
Beanett v. State Road 21
Cochran v. State Road 100
Hendrickson v. State Road - 39
BRIDGES AND CULVERTS
When a pedestrian while crossing a
culvert or bridge on a highway of the state steps off thereof and falls into a
creek or run and sustains personal injuries and it appears upon the hearing of
the claim prosecuted by her for damages on the grounds of negligence on the
part of the road commission that she could easily have avoided the accident by
stepping off the pavement 01 the road onto the berm on either side thereof and
that no negligence on the part of the road commission or the state is disclosed
by the evidence
in the case, an award will be denied. King v. State Road. 107
Where the evidence in a claim seeking an award for damages to private property
on the alleged ground that a bridge crossing a state highway was inadequate to
take care of the water flowing thereunder and caused such water to overflow and
inundate such private property shows that the source of the trouble was not at
the bridge but due to natural causes for which the state is in no way
responsible
an award will be denied .
ilIor risen v. State Road. 152
The statute requiring inspection and proper maintenance of bridges controlled
by the road commission is mandatory, and failure to inspect and keep in repair
a bridge so controlled and maintained is negligence, making the state liable in
case of an accident, if caused by such negligence.
Saunders v. State Road. - 143
An award will be denied upon failure to prove by a preponderance of the
evidence the justness and merit of a
claim against the state or any of its governmental agencies.
Loveless v. State Road 19
See also
Breedlove v. State Road 134
Davis v. State Road 4
Fancy v. State Road 81
Jackson v. State Rood 175
McGrady v. State Road 86
Meeker v. State Road 10
Sidell v. State Road 180
Slayton v. State Road 38
Weir-C?ove v. State Road 1
Young v. State Road 174
W. VA.) REPORTS
STATE COURT OF CLAIMS 223
CONTRACTS
Where purchases are made by a state
institution and the state derives the benefit from such purchases, an award
will be made although the requisitions were not made in the
prescribed form or manner. Galperin v. Board Education 199
Checks mailed to the unemployment compensation department and received into the
custody of an employe duly authorized to receive them, which checks were in
payment of contributions due the unemployment compensation fund from an
employer and which were subsequently fraudulently embezzled and uttered by the
said authorized employe, are nevertheless payment to the state by the employer
for the amounts of the checks and for the purpose intended.
Where the employer complying with the demands of the department of unemployment
compensation makes a second or further payment under protest of the amounts of
the said original checks, it is entitled to be reimbursed in the full amount
thereof, in a claim properly and duly presented in this court, and an award
will be made for any unpaid balance not paid back to the employer by the state.
Util itie Coal v. Unemployment Compensation 110
The facts as shown by the record and stipulations filed herein are identical
with those disclosed in the claim of Utilities Coal Company v. Department
of Unemployment Compensation, except as to the amount of the check
involved, and the opinion of the court rendered in Utilities Coal Company,
supra, therefore controls in the instant case.
Buffalo-Winifrede v. Unemployment Compensation - -- 114
When a publishing company publishes legal notices contracted for by
constitutional authority, as prescribed by statute, and the Legislature in
regular session by special act authorizes and appropriates money from the
general school fund for the payment of said legal notices, it becomes a just
obligation and an award will be recommended.
Evening Journal v. Auditor - -- - 116
The evidonce presented in support of the claim under consideration and the
fects adduced show such a breach of the contract by the department involved as
to justify
an award to claimant. Wisman, Ct al v. State Road 124
See also
Alt v. Auditor ? 11
Brodhead-Garrett v. Board Education ? 184
Daugherty v. Auditor 132
Kings, Inc. v. Public Safety ? 15
Musgroves Wholesale v. Board Control 64
COUNTY BOARDS OF EDUCATION?See also
Jurisdiction
The court of claims is without
jurisdiction to hear and
224 REPORTS STATE
COURT OF CLAIMS [W.VA.
determine or to make an award in any matter or claim involving a county board
of education. Reaffirming Dillon v. Board of
Education, 1 Ct. Claims (W. Va.) 366; Richards v. Board of Education, 3 Ct. Claims (W. Va.) 251.
Brigode v. State Board
Education, et al 16
The court of claims is without jurisdiction to hear and determine or to make an
award in any matter or claim involving a county board of education. Reaffirming
Dillon v. Board of
Education, I Ct. Claims (W. Va.) 366; Richards v. Board of E?dueatiou, 3 Ct. Claims (W. Va.) 251.
Morris v. State Board Edcatio, et iii - 12
COURT ACT, Effective date
The effective date of the court of
claims is held to be the date, after the appointment and qualification of its
members, that the court convened and organized and proceeded to function in
accordance with the purposes of its creation, namely, July 14, 1941. Goini v.
t?oard Control 25
DRAINAGE OF ROADS, INUNDATiON
Where by reason of an inadequate
drainage system, as maintained by the state road commission, surface water is
collected and cast in a mass or body on adjoining property, the owner of such
property is entitled to an award.
Wilson v. State Road 56
Where it is shown by the evidence that property damage sustained by the
claimant, if any, was not caused by any act or acts of the state road
commission, an award will be
denied. Mize v. State Road 62
Where the evidence in a claim seeking an award for damages to private property
on the alleged ground that a bridge crossing a state highway was inadequate to
take care of the water flowing thereunder and caued such water to overflow and
inundate such private property shows that the source of the trouble was not at
the bridge but due to natural causes for which the state is in no way
responsible
an award will he denied. v. State Rood 152
FIRES
One who is summoned or drafted by a
state forester or protector to assist in fighting a forest fire is entitled to all
reasonable protection when complying with such summons, and if injured while so
engaged without fault or negligence on his part is entitled to an award. See Bailey
v. State Conservation Commission, 2
Ct. Claims (W. Va.)
70. Robinson v. State Conservation 120
The state road commission of West Virginia, in the operation of motor vehicles
on the highway of the state, is chargeable with the duty of so equipping and
using such
W. VA.1 REPORTS
STATE COURT OF CLAIMS 225
vehicles as not to cause injury to the property of other persons, and a failure
to observe such duty, in circumstances, may warrant an award in the interest of
the public welfare.
Bowiivg v. State
Rood 89
An award may he made for the payment of public revenues to a private person in
discharge of an obligation or duty of the state, legal or equitable, not
imposed by statute, but created by contract or resulting from wrongful conduct,
which would be judicially recognized as legal or equitable in cases between
private persons, and the Legislature is the
judge of what is for the public good. Catron v. State Road 185
Where the exnployes of the state conservation commission willfully destroy and
despoil property belonging to another, the state is morally obligated to make
restitution for such damage and an award will be recommended to the
Legislature. Webb v. State Conservation 201
IMPRISONMENT, FALSE
When by a miscarriage of justice an
innocent person is tried and convicted of a felony and subjected to
imprisonment in the penitentiary, the state is morally bound to answer in
damages and so far as possible to right the wrong
that has been done. Coole v. State 206
JURISDICTION
The court of claims is without
jurisdiction to hear and determine or to make an award in any matter or claim
involving a county board of education. Reaffirming Dillon v. Board of
Education, 1 Ct. Claims (W. Va.) 366; Richard8 v. Board of
Education, 3 Ct. Claims (W. Va.) 251. Brigode
v. State Board of Education, et al 16
The court of claims is without jurisdiction to hear and determine or to make an
award in any matter or claim involving a county board of education. Reaffirming
Dillon v. Board of Education, 1 Ct. Claims (W. Va.) 366; Richards
v. Board of Education, 3 Ct. Claims (W. Va.) 251. Morris
v. State Board of Education, et al 12
See also
Hartigan v. Public Assistance 158
Hartigan v. Workmen?s Compensation. 159
MORAL OBLIGATION
If the state commits an act which
injures a person and which act is afterward shown to have been wrong, erroneous
and unjust, and if the act or acts complained of had occurred between private
persons or individuals for which the aggrieved person would have an action at
law, then a moral obligation is created which the state should be called
226 REPORTS STATE
COURT OF CLAIMS [W.VA.
upon to discharge and satisfy. Cook v. State 206 at page 212
A claim properly filed with the court for the refund of gross sales taxes
mistakenly and erroneously paid to the state tax commissioner, will be allowed
where there is a moral obligation on the part of the state to refund the
payment so made and where in equity and good conscience, and upon the facts as
presented, the claim should be allowed; provided, of course, that it is filed
within the five year rule governing the consideration of claims by the court. East-
Coal Sales v. State Ta ? 68
Where one afflicted with silicosis, a compensable disease under our law, is
denied compensation because of his failure to apply to the workmen?s
compensation commissioner within one year after the last exposure to the
disease as required by statute, but whose application for relief and
compensation was filed within one year from the date he was first informed of
the nature of his disease by attending state physicians, a moral obligation is
created on the part of the state and compensation should be allowed accordingly.
Haye8
v. State Board Control 202
When a publishing company publishes legal notices contracted for by
constitutional authority, as prescribed by statute, and the Legislature in
regular session by special act authorizes and appropriates money from the
general school fund for the payment of said legal notices, it becomes a just
obligation and an award will be recommended.
Evening Jaurnal v. Auditor 116
An award may be made for the payment of public revenues to a private person in
discharge of an obligation or duty of the state, legal or equitable, not
imposed by statute, but created by contract or resulting from wrongful conduct,
which would be judicially recognized as legal or equitable in cases between
private persons, and the Legislature is the
judge of what is for the public good. Catron
v. State Road 185
The state is morally bound to reimburse an owner of property for damages
thereto caused by blasting operations in a road improvement and the deposit of
rocks and dirt over and upon claimant?s property causing a spring theretofore
used to be destroyed and of no further value to
claimant. Light v. State Road - 194
When by a miscarriage of justice an innocent person is tried and convicted of a
felony and subjected to imprisonment in the penitentiary, the state is morally
bound to answer in damages and so far as possible to right the wrong
that has been done. Coole v. State 206
A case in which the evidence introduced upon the investigation of the merits of
a claim asserted against the state shows the existence of a moral obligation on
the part of the state to make reparation by way of money compensation in view
of the purpose of the act creating the state court
of claims. Short v. State Road 40
W. VA.] REPORTS
STATE COURT OF CLAIMS 227
The Legislature is without power to make an appropriation of the public funds
that would amount to the bestowal
of a gratuity. Duke v. P2thlk
Safety 148
To justify the Legislature in making an appropriation of the public funds in
favor of a claimant he must show a state of facts from which it appears that
such appropriation would be for a public and not a private purpose. Hartley
v. State Road 145
Where a gross sales tax is paid voluntarily and without filing any protest
since there was no question as to the validity of the exemption and such tax
was improperly accepted by the state tax commissioner there is a moral
obligation imposed upon thh state to refund the total amount
of the exempted tax. Raleigh County
Bank v. State Tax 42
A case in which the facts justify the finding of a moral obligation on the part
of the state to reimburse claimants
for their loss. Starcher, et als v. State Road 54
NEGLIGENCE
To sustain a claim for damages caused
by alleged negligence of a state road crew, the evidence must be clear and
convincing and that the negligence of the said crew was the approximate cause
of the injury to claimant. Aibright v.
State Road ? 150
Where the evidence clearly shows that claimant?s negligent acts were the cause
of the accident for which he
seeks damages an award will be denied. Bess
v. State Road 83
To justify the Legislature in making an appropriation of the public funds in
favor of a claimant he must show a state of facts from which it appears that
such appropriation would be for a public and not a private purpose. Hartley
v. State Road 145
Where a guest passenger who, with another passenger, protested to the driver
regarding the speed of the truck, after having made several stops affording him
ample occasion to alight from the truck, fails to avail himself of such
opportunity, thereby assumes the risk, and an award will
be denied. Neville v. State
Conservation 32
The state is morally bound to use reasonable care and diligence in the
maintenance of a state controlled highway, and failure to use such reasonable
care and diligence in allowing a hole to exist in the highway for several
years, thereby causing injuries to a person lawfully using said highway,
presents a claim for which an award should be
made. Pre88on
v. State Road 92
The statute requiring inspection and proper maintenance of bridges controlled
by the road commission is mandatory, and failure to inspect and keep in repair
a bridge so controlled and maintained is negligence, making the state liable in
case of an accident, if caused by such negligence. Saun
228 lEPORTS STATE
COURT OF CLAIMS LW. VA.
ders v. State Road J 43
See also
Bailey v. State Road_.
105
Hayes v. Board
Control ?
202
Knisely v. State Road 79
Whitaker v. State Road 160
PRIVATE PROPERTY, damaged, etc.
An award may be made for the payment
of public revenues to a private person in discharge of an obligation or duty of
the state, legal or equitable, not imposed by statute, but created by contract
or resulting from wrongful conduct, which would be judicially recognized as
legal or equitable in cases between private persons, and the Legislature is the
judge of what is for the public good. Catron v. State Road 185
The state road commission of West Virginia, in the operation of motor vehicles
on the highway of the state, is chargeable with the duty of so equipping and
using such vehicles as not to cause injury to the property of other persons,
and a failure to observe such duty, in circumstances, may warrant an award in
the interest of the public welfare. Bowling
.
State Road 89
The evidence presented in support of the claim under consideration and the
facts adduced show such a breach of the contract by the department involved as
to justify an award
to claimants. Wisman, et al v. State Road -- - 124
The state is obliged to compensate a landowner from whose property sand, gravel
and other materials were wrongfully taken, to be used in the building of a
nearby
secondary public road. Clark v. State Road 162
An award will be made when the evidence shows that the employes of the state
road commission entered upon private property without authority and felled some
twenty trees and
otherwise damaged the property. Guibble
v. State Road --
17
The state is morally bound to reimburse an owner of property for damages
thereto caused by blasting operations in a road improvement and the deposit of
rocks and dirt over and upon claimant?s property causing a spring there-
? tofore used to be destroyed and of no further value to claim ant Lightv. State Road 194
Where it is shown by the evidence that property damage sustained by the
claimant, if any, was not caused by any act or acts of the state road
commission, an award will be
denied. Mize v. State Road 62
The mere loss by theft in a state emergency hospital of personal belongings of
a registered nurse employed in such hospital does iiot constitute ground or
warrant for the ap
W. VA.l REPoRTS
STATE COURT OF CLAIMS 229
propriation
by the Legislature of public funds to reimburse such
ii Lirse for the value of the stolen property. McNeil v.
Roard Control 65
A case in which the facts justify the
finding of a moral obligation on the part of the
state to reimburse claimants
for their loss. Ste re/icr, et 015, v. State Road 54
Where
the employes of the? state
conservation commission
will fully destroy and despoil property belonging to another, the state is morally obligated to make restitution for
such damage and an award will
l)e recommended to the Legislature. Webb
v. Stale Conservation 201
Where by reason of
an inadequate drainage system, as inaintai ned by the state road commission,
surface water is collected and cast in
a mass or body on adjoining
property, the owner of such property
is entitled to an award. Wilson
v. State Road - -- 56
See also
Eureka l?ipe Line v. State Road -.- 85
hull v. State Real - 9
Ilenc(rjekgon v. Stale Road 39
Orsini v. State Road 88
S. C. ill. Gas Co. v. State
Road ----
2
Short v. Slate
Foad 40
7lioinpson
v. State 1?oad - ? 74
PROOF OF CLAIM
An award will be denied upon
failure to prove by a pro? ponderance of the evidence the justness
and merit of a claim against the state
or any of its governmental agencies.
Love1es v. State Road 19
To justify the L(gislatn re in making an appropriation of the puN ic funds
in favor of a claimant he must show a state of facts from which it ;L)pears that such
appropriation would he or a public and not a private purpose. hartley v.
State
Road 145
r1?0
sustain a claim for damages caused l)y alleged negli? gince
of a state road clew, the evidence must be clear and convincing and that
the negligence uf the said crew was the proximate cause of the injury to claimant. Aibright v
State
Roa(l 150
Evi(leiIce to sustain a claim that
death was caused by cx? p0511 ri to xiii cos is ni tist I Ic certain and (1dm i te, otherwise an
award viil he denied. McGraw v.
Board Control 178 A claim
for (lamages not sustained by the evidence and an
230 REPORTS STATE
COURT OF CLAIMS [W. VA.
award refused. Thompson v. State Road
74
PROSECUTING ATTORNEYS, duties of
See Coole v. State 206 at page .... .. 216
RIGHT OF WAYS AND ROADS
When a pedestrian while crossing a
culvert or bridge on a highway of the state steps off thereof and falls into a
creek or run and sustains personal injuries and it appears upon the hearing of
the claim prosecuted by her for damages on the grounds of negligence on the
part of the road commission that she could easily have avoided the accident by
stepping off the pavement of the road onto the berm on either side thereof and
that no negligence on the part of the road commission or the state is disclosed
by the evidence
in the case, an award will be denied. King
v. State Road -
107
Where by reason of an inadequate drainage system, as maintained by the state
road commission, surface water is collected and cast in a mass or body on
adjoining property, the owner of such property is entitled to an award. Wilson
v. State Road -
56
The state is morally bound to use reasonable care and diligence in the maintenance
of a state controlled highway, and failure to use such reasonable care and
diligence in allowing a hole to exist in the highway for several years, thereby
causing injuries to a person lawfully using said highway, presents a claim for
which an award should be made. Pres so v. State Road 92
Negligence in maintaining the traveled portion of a highway in a reasonably
safe condition, thereby causing claim- an?s automobile to be wrecked and
damaged, without any contributory negligence on his part, entitles claimant to
an
award. O?Connor v. State Road . . - - - 23
An award will be made when the evidence shows that the employes of the state
road commission entered upon private property without authority and felled some
twenty trees and
otherwise damaged the property. Gribble
v. State Road -
17
A case in which the facts justify the finding of a moral obligation on the part
of the state to reimburse claimants
for their loss. Starcher, et als v. State Road 54
The state is obliged to compensate a landowner from whose property sand, gravel
and other materials were wrongfully taken, to be used in the building of a
nearby
secondary public road. Clark v. State Road 162
See also
Bailey v. State Road 105
Knisely v. State Road - 79
W. VA.] REPORTS
STATE COURT OF CLAIMS 231
Moorev.StateRoad 102
Orsini v. State Road 88
Thompson v. State Road --------- 74
SILICOSIS
Evidence to sustain a claim that death
was caused by exposure to silicosis must be certain and definite, otherwise an
award will be denied. McGraw v. Board
Control 178
Where one afflicted with siricosis, a compensable disease under our law, is
denied compensation because of his failure to apply to the workmens?
compensation commissioner within one year after the last exposure to the
disease as required by statute, but whose application for relief and
compensation was filed within one year from the date he was first informed of
the nature of his disease by attending physicians, a moral obligation is
created on the part of the state and compensation should be allowed
accordingly. Hayes v.
Board Control ? ?------ 202
STATE EMPLOYES
The mere loss by theft in a state
emergency hospital of personal belongings of a registered nurse employed in
such hospital does not constitute ground or warrant for the appropriation by
the Legislature of public funds to reimburse such nurse for the value of the
stolen property. McNeil v.
Board Control ? 65
A person in accepting an assignment in a state mental institution, knowing he
would be placed in contact with mentally deranged and incapacitated patients
?assumed risk? of injury which might result from such association.
Goins v. Board
Control -
25
One who is summoned or drafted by a
state forester or protector to assist in fighting a forest fire is entitled to
all reasonable protection when complying with such summons, and if injured
while so engaged without fault or negligence on his part is entitled to an
award. See Bailey v. State
Conservation Commission, 2 Ct. Claims (W Va.) 70. Robinson
v. State Conservation Commission 120
See also
Bennett v. State Road 21
Daugherty v. Auditor 132
MeClung v. State Road 6
Pratt v. State Road 7
232 REPORTS STATE
COURT OF CLAIMS [W. VA.
STATE INSTITUTIONS
See
Brodhecid-Garrett v. State Board
of Education 184
Hayes v. Board
Control 202
McNeil v. Board Control 65
STATUTE OF LIMITATIONS
A claim properly filed with the court
for refund of gross sales tax mistakenly and erroneously paid to the state tax
commissioner will be allowed where in equity and good conscience there is a
just obligation on the part of the state to make refund for the payment so
made, provided of course that it is filed within the five-year rule governing
the consideration of claims by the court. Pinnell, et al v. State
Tax -
167
Where a gross sales tax is paid voluntarily and without filing any protest
since there was no question as to the validity of the exemption and such tax
was improperly accepted by the state tax commissioner there is a moral
obligation imposed upon the state to refund the amount not barred by the state
court of claims statute of limitations. Raleigh
County Bank v. State Tax 42
Where purchases are made by a state institution nnd the state derives the
benefit from such purchases, an award will be made although the requisitions
were not made in the
prescribed form or manner. Galperin v. Board Education 199
When the State Supreme Court rendered a decision exempting the furnishing of
linens, towels and similar articles from the provision of the business and
occupation tax, there is a moral obligation imposed upon the state to refund
the amount not barred by the state court of claims statute of
limitations. Davis v. State Tax . 137
Where gross sales tax is paid voluntarily and without filing any protest, under
a mistake of fact, and erroneously paid to the state tax commissioner, and
there is no question as to the validity of the exemption, and such tax is
improperly accepted, there is a moral obligation imposed upon the state to
refund the amount not barred by the court of claims statute of limitations. Raleigh Connty Bank v. State Tax Commissioner and Eastern Coal Sales Company v.
State
Tax Commissioner. Bonded Oil v. State
Tax --
95
An award will not be made to a person failing to file application for refund of
taxes paid on gasoline within sixty days after date of purchase or delivery of
gasoline, as provided by general law, when it appears from the general law that
it is the policy of the Legislature to deny payment of such refund unless such
application is filed as provided by the statute permitting refunds on gasoline
used for cer
W. VA.] REPORTS
STATE COURT OF CLAIMS 233
tam specific purposes. Huntington
Excavating v. State Tax 155
See also
Brodhead-Garrett v. Board
Education 184
Galperin v. Board
Education 199
TAXES
1. Checks mailed to the unemployment
compensation department and received into the custody of an employe duly
authorized to receive them, which checks were in payment of contributions due
the unemployment compensation fund from an employer, and which were
subsequently fraudulently embezzled and uttered by the said authorized employe,
are nevertheless payment to the state by the employer for the- amounts of the
checks and for the purpose intended.
2. Where the employer complying with the demands of the department of
unemployment compensation makes a second or further payment under protest of
the amounts of the said original checks, it is entitled to be reimbursed in the
full amount thereof, in a claim properly and duly presented in this court, and
an award will be made for any unpaid balance not paid back to the employer by
the state. Utilittes
Coal v. Unemployment Compensation 110
The facts as shown by the record and stipulations filed herein are identical
with those disclosed- in the claim of Utilities
Coal Company v. Department of Unemployment Compensation, except as to the amount of the check involved, and the
opinion of the court rendered in Utilities
Coat Company, supra, therefore
controls in the instant case. Buff
aloWinifrede v. Unemployment Compensation 114
A claim properly filed with the court for the refund of gross sales taxes
mistakenly and erroneously paid to the state tax commissioner, will be allowed
where there is a moral obligation on the part of state to refund the payment so
made and where in equity and good conscience, and upon the facts as presented,
the claim should be allowed-; provided, of course, that it is filed within the
five year rule governing the consideration of claims by the court. Ha8t.
em Coal Sales v. State Tax - 68
An award will not be made to a person failing to file application for refund of
taxes paid on gasoline within sixty days after date of purchase or delivery of
gasoline, as provided by general law, when it appears from the general law that
it is the policy of the Legislature to deny payment of such refund unless such
application is filed as provided by the statute permitting refunds on gasoline
used for certain specific purposes. Huntington
Excavating v. State Tax 155
When the State Supreme Court rendered a decision exempting the furnishing of
linens, towels and similar articles from the provision of the business and
occupation tax, there
234 REPORTS STATE
COURT OF CLAIMS [W.VA.
is a moral obligation imposed upon the state to refund the amount not barred by
the state court of claims statute of
limitations. Davis v. State Tax 137
Where gross sales tax is paid voluntarily and without filing any protest, under
a mistake of fact, and erroneously paid to the state tax commissioner, and
there is no question as to the validity of the exemption, and such tax is
improperly accepted, there is a moral obligation imposed upon the state to
refund the amount not barred by the court of claims statute of limitations. Raleigh County Bank v. State Tax Commissioner and Eastern
Coal Sales Company v. State
Tar Commissioner. Bonded Oil v. State Tar 95
Syllabus in re Eastern Coal Sales
Company, a corporation, v.
State Tax Commissioner, decided by this court September
17, 1947, adopted and affirmed. American
Oil v. State Tax 139
When a foreign corporation pays its license tax in advance of its due date for
the fiscal tax year and prior to the beginning of the license tax year said
corporation dissolves and ceases to do any operations within the state a refund
of the amount so paid will be recommended. Crescent Brick
v. Auditor 118
A claim properly filed with the court for refund of gross sales tax mistakenly
and erroneously paid to the state tax commissioner will be allowed where in
equity and good conscience there is a just obligation on the part of the state
to make refund for the payment so made, provided of course that it is filed
within the five-year rule governing the consideration of claims by the court. Pinnell, et at v.
State Tax 167
Chapter 11, article 13, section 2c, of the code contemplates only sales of ta-n gible property
and fixes the rate of taxation accordingly. It does not include sales of
services as such, nor does it fix the rate of taxation for such services, but
such services are governed by the rate fixed and set forth in section 960(8)
Miehie?s code, official code section 2h. Rich-.
mondv.StateTax 76
Where a gross sales tax is paid voluntarily and without filing any protest
since there was no question as to the validity of the exemption and such tax
was improperly accepted by the state tax commissioner there is a moral
obligation imposed upon the state to refund the amount not barred by the state
court of claims statute of limitations. Raleigh
County Bank v. State Tax - 42
Where a gross sales tax is paid voluntarily and without filing any protest
since there was no question as to the validity of the exemption and such tax
was improperly accepted by the state tax commissioner there is a moral
obligation imposed upon the state to refund the total amount of the
exempted tax. Raleigh County Bank v. State Tax 42
Syllabus in re I. S. Davis, d/b/a Fairino?nt
Linen Supply Company, v. State Tax Commissioner, decided April 21,
1948, reaffirmed and adopted. Caplan v. State Tax 164
W. VA.] REPORTS
STATE COURT OF CLAIMS 235
A case in which, upon the facts disclosed by the evidence, an appropriation of
public funds should be made by the Legislature. Elite Lo,undry v. Motor
Vehicler 197
WORKMEN?S COMPENSATION
See
Hortign v. Workmen?s Corn pensction 159
Htyes v. Board Control 202