STATE OF WEST VIRGINIA
Report of the Court of Claims 1944-1946
Volume 3
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the period from December 1. 1944
to November 30, 1946.
By
JOHN D. ALDERSON
Clerk
VOLUME III
(Published by
authority of an order of the State Court of Claims and as required by and
pursuant to Section 25 of the Court of Claims law. Code
14-2-25).
WM.
W. GAUNT & SONS, INC.
Reprint
Edition
Wm. W. GAUNT & SONS, INC.
3011
Gulf Drive,
Holmes Beach, Florida 33510
Printed
in the United States of America
by
Jones
Offset,
Inc., Bradenton Beach, Florida 33510
CONTENTS Ill
TABLE
OF CONTENTS
Awards allowed and disallowed by the
Legislature -
XXXVI
Cases (claims) reported, table of L
Claims classified according to statute, list of XXXVII
Court of Claims Law -
vir
Digest of opinions (opinion index) - - 271
Financial report of Court’s operating expenses XXXIII
Letter of transmittal V
Opinions of the Court XLIX
Personnel of the Court -
IV
Rules of practice and procedure XXI
Summary of claims and awards - - - XXXVI
Terms of Court -
VI
ERRATUM
Page 212, line one, first paragraph
should read “After completing his bookwork at Ripley on Saturday, July”
IV PERSONNEL OF
THE STATE COURT OF CLAIMS
PERSONNEL
OF THE
STATE
COURT OF CLAIMS
HONORABLE MERRIMAN S. SMITH Presiding
Judge
HONORABLE ROBERT L. BLAND .Judge
HONORABLE CHARLES J. SCHUCK 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
TR\NSMITTAL V
Letter
of Transmittal
To His Exceflencv
Honorable Clarence \V. Meadows
Governor of West Virginia
Sir:
In conformity wi:h the requirements of section twenty-five of the Court of
Claims law. apcrovcd March sixth. one thousand nine hundred forty-one. and an
order of the State Court of Claims entered of record on September twenty -third
one thousand nine hundred forty-six. I have the honor to transmit herewith the
report ot the Sta:e Le’urt ot Claims tor the period from December tirst. one
thousand nine hundreet tortv-tour to November thirtieth. one thousand nine
hundred forty-six.
Respec:ftillv submitted.
D ALDERSO.
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
I. Purpose.
2. D,nitions.
3. L-’roceedings against State officers.
1. Court of ciaims.
5. Court clerk.
6. Terms of court.
7. Meeting place of court.
B. Compensation of members.
9. Oath of office.
10. Qualifications of judges.
11. Attorney general to represent state.
12. General powers of the court.
13. The jurisdiction of the court.
14. Claims excluded.
15. Rules of practice and procedure.
16. Regular procedure.
17. Shortened procedure.
18. Advisory determination procedure.
19. Claims under existing appropriations.
2Q. Claims under special appropriations.
21. Limitations of time.
22. Compulsory process.
23. Inclusion of awards in budget.
24. Records to be preserved.
25. Reports of the court.
26. Fraudulent claims.
27. Repealer.
2S. 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 s ate 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. Delinitions.—For the purpose of this article “Court” means the state
court of claims established by section four of this article.
“Claim” means a claim authorized to be heard by the court in accordance with
this article.
“Approved claim” means a claim found by the court to be one that should be paid
under the provisions of this article.
“Award” means the amount recommended by the court to be paid in satisfaction of
an approved claim.
“Clerk” means the clerk of the court of claims.
“State agency” means a state department, board, commission, institution, or
other administrative agency of the state government: Provided, however, That a “state agency” shall not be considered to include county courts,
county boards of education, municipalities, or any other political or locar
subdivision of the state regardless of any sate aid that might be provided
Sec. 3. Proceedings Against State
Officers—The following proceedings
shall be brought and prosecuted only in the circuit court of Kanawha county:
1. Any suit in which the governor, any other state officer, or a state agency
is made a party defendant, except as garnishee or suggestee.
2. Any suit attempting to enjoin or otherwise suspend or affect a judgment or
decree on behalf of the state obtained in any circuit court.
This section shall apply only to such proceedings as are not prohibited by the
constitutional immunity of the state from suit under section thirty-five,
article six of the constitution of the state.
Sec. 4. Court of Claims—There is hereby created a ‘State Court of
Claims” which shall be a special instrumentality of the Legislature for the
purpose of considering claims against
STATE COURT OF
CLAIMS LAW IX
the state, which because of the provisions of section thirty-five, article six
of the constitution of the state, and of statutory restrictions, inhibitons or
imitations, cannot be heard in a court of law or equity, and recommending the
disposition thereof to the Legslature. 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 -f the regular
judge. Alternate judges shall be appointed for sx-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 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
X STATE COURT OF
CLAIMS LAW
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 beard 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 jut.tge 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 statemen’, 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
prepara‘ion of opinions. In no case, however, shall a judge receive
compensation 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
STATE COURT OF
CLAIMS LAW XI
by article four, section five of the constitution of the state. The oath shall
be flied 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 member shall
receive no other compensation from the state.
A judge shall not hear or participate in the consideration of a claim in which
he is personally interested. Whenever a member is thus disqualified, the clerk
shall notify the governor, and thereupon the governor shall assign an alternate
to act during such disqualification. Whenever a judge is unable to attend and
serve for any reason, the governor shall, when so notified by the clerk, assign
an alternate to act in the absence of the regular judge.
Sec. 11. Attornerj General to Represent State—The attorney general shall represent the
interests of the state in all claims coming before the court,
Sec. 12. General Powers of the Court—-The court shall, in accordance with this
article, consider claims which, but for the constitutional immunity of the
state from suit, or of some statuory resrictions, inhibitions or limitations,
could be maintained in the regular courts of the state. But no liability shall
be imposed upon the state or any of its agencies by a determination of the
court of claims approving a claim and recommending an award, unless the
Legislature has previously made an appropriation for the payment of a claim
subject only to the determination of the court. The court shall consider claims
in accordance with sections sixteen to twenty, inclusive, of this article.
Except as is otherwise provided in this article, a claim shall be instituted by
the filing of notice with the clerk. Each claim shall be considered by three
judges. If, after con:ideration, the court fnds 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
XII STATE COURT
OF CLAIMS LAW
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.
3. Arising out of the care or treatment of a person in a state institution.
4. For a disability qr death benefit under chapter twentythree of this code.
STAT[ COURT OF
CLAIMS I AW XIII
5. For unemployment compensatIon under
chapter twenty- one-a of this code.
6. For relief or public assistance under chapter nine of this code.
7. With respect to which a proceeding may he 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. I 6. Regular Procedure—The regular procedure for the consideration of claims shall
be substantially as follows:
1. The claimant shall give notice to the clerk that he desires to maintain a
claim. Notice shall be in writing and shall be in 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
requiremcnt of notice.
2. ‘T’hc clerk shall transmit a copy of the notice to the state agency
concerned. The state agency may deny the claim, or
XIV STATE COURT
OF CLAIMS LAW
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 hearing. If the parties are
unable to agree upon the facts, an attempt shall be made to stipulate the
questions of fact in issue.
4. The court shall so conduct the hearing as to disclose all material facts and
issues of liability. Any judge may examine or cross-examine witnesses. The
court may call witnesses or require evidence not produced by the parties; may
stipulate the questions to be argued by the parties; and may continue the
hearing until some subsequent time to permit a more complete presentation of
the claim.
5. After the close of the hearing the court shall consider the claim and shall
conclude its determination, if possible, within thirty days.
Sec. 1 7. Shortened Procedure—The shortened procedure authorized by this section shall
apply only to a claim possessing all of the following characteristics:
1. The claim does not arise under an appropriation for the current fiscal year.
2. The state agency concerned concurs in the claim.
3. The 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.
STATE COURT OF
CLAIMS LAW XV
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:
I. There shall be filed with the clerk the record of the claim including a full
statement of the facts: the contentions of claimant, and such other materials
as the rules of the court may require. The record shall submit specific
questions for the court’s consideration.
2. The clerk shall examine the record submitted and if he finds that it is
adequate under the rules, he shall place the claim on a special docket. If he
finds the record inadequate, he shall refer it back to the officer submitting
it with the request that the necessary additions or changes be made.
3. When the claim is reached on the special docket, the court shall prepare a
brief opinion for the information and guidance of the officer. The claim shall
be considered informally and without hearing. A claimant shall not be entitled
to appear in connection with the consideration of the claim.
4. The opinion shall be filed with the clerk. A copy shall be transmitted to
the officer who referred the claim.
XVI STATE COURT
OF CLAIMS LAW
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, i
shall certify the approved claim and award to the head of the state agency, the
state auditor, and the governor. The governor may thereupon instruct the auditor
to issue his warrant in payment of the award and to charge the amount thereof
to the proper appropriation. The auditor shall forthwith notify the state
agency that the claim has been paid. Such an expenditure shall not be subject
to further review by the auditor upon any matter determined and verified by the
court.
Sec. 20. Claims Under Special
Appropriations—Whenever the
Legislature makes an appropriation for the payment of claims against the state,
then accrued or arising during the ensuing biennium, determination of claims
and the payment thereof may be made in accordance with this section. But this
section shall apply only if the Legislature in making its appropriation
specifically so provides.
The claim shall be considered and determined by the regular or shortened
procedure, as the case may be, and the amount
STATE COURT OF
CLAIMS I AW XVII
of the award shall be fixed by the court. The clerk shall certify each approved
claim and award to the governor. The clerk shall issue his requisition to the
auditor who shall issue his warrant to the treasurer in favor of the claimant.
The auditor shall issue his warrant without further examination or review of
the claim except for the question of a sufficient unexpended balance in the
appropriation.
Sec. 21. Limitations of Time—The court shall not take jurisdiction over a claim unless
the claim is filed within five years after the claim might have been presented
to such court. If, however, the claimant was for any reason disabled from
maintaining the claim, the jurisdiction of the court shall continue for two
years after the removal of the disability. With respect to a claim arising
prior to the adoption of this article, the limitation of this section shall run
from the effective date of this article: Provided,
however, That no such claim as shall
have arisen prior to the effective date of this article shall be barred by any
limitation of time imposed by any other statutory provision if the claimant
shall prove to the satisfaction of the court that he has been prevented or
restricted from presenting or prosecuting such claim for good cause, or by any
other statutory restrictio.n or limitation.
Sec. 22. Compulsory Process—In all hearings and proceedings before the
court, the evidence of witnesses and the production of documentary evidence may
be required. Summons may be issued by the court for appearance at any
designated place of hearing. In case of disobedience to a summons or other
process, the court may invoke the aid of any circuit court in requiring the
evidence and testimony of witnesses, and the production of books, papers, and
documents, Upon proper showing, the circuit 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.
XVIII STATE COURT
OF CLAIMS LAW
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
Preseraed.-—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 re-examination
of the claim.
Sec. 25. Reports of the Court.—The clerk shall be official reporter of the court. He shall
collect and edit the approved claims, awards and statements, and shall prepare
them for publication and submission to the Legislature in the form of a
biennial report.
Claims and awards shall 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 therefor.
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.
STATE COURT OF
CLAIMS LAW XIX
The court shall transmit its biennial
report to the governor who shall transmit a copy thereof to the presiding
officer of each house of the Legislature. The biennial reports of the court
shall be published by the clerk as a public document.
Sec. 26. Fraudulent Claims—A person who knowingly and wilfully presents or attempts
to present a false or fraudulent claim, or a state officer who knowingly and
wilfully participates or assists in the preparation of a false or fraudulent
claim, shall be guilty of a misdemeanor. A person convicted, in a court of
competent jurisdiction, of violation of this section shall be fined not more
than one thousand dollars or imprisoned for not more than one year, or both, in
the discretion of such court. If the convicted person is a state officer he
shall, in addition, forfeit his office.
Sec. 27. Repeaier.—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)
XX1I RULES OF
PRACTICE AND PROCEDURE
TABLE
OF RULES
Rules of Practice and Procedure
RULE PAGE
1. Clerk’s Office, Location, etc XXIIJ
2. Clerk, Custodian of Papers, etc XXIII
3. Filing Papers XXIII
4. Records and Record Books XXIV
5. Form of Claims, Number of Copies XXIV
6. Copy of Notice of Claims to Attorney General and State
Agency XXV
7. Jurisdiction, Prima Facie XXV
8. Preparation of Hearing Docket XXV
9. Proof and Rules Governing Testimony - XXVI
10. Claims, Issues on XXVI
11. Stipulations of Fact; Interrogatories to Determine XXVII
12. Claimants, Appearances XXVIII
13. Briefs, Number of Copies - - - - XXVITJ
14. Amendments to Notices, Petitionc, etc XXVIII
15. Continuances; Dismissal for Failure to Prosecute - - XXVIII
16. Original Papers Not to he Withdrawn; Exceptions XXIX
17. Withdrawsl of Claims, Refiling, etc. XXX
18. Witnesses --.
XXX
19. Depositions --
- . XXX
20. Rehearings; Reopening, Reconsideration XXXI
21. Shortened Procedure Records XXXII
RULES OF
PRACTICE A\DPROCEDURE XXIII
Rules
of Practice and Procedure
OF THE
State
Court of Claims
RULE 1. CLERK’S OFFICE, LOCATION
AND HOURS.
The office of the Clerk of the Court
shall be at the State Capitol, in the City of Charleston, and shall be kept
open in charge of the Clerk, or some competent employee of the Court under
the direction of the Clerk, each weekday, except legal holidays, for the
purpose of receiving notices of claims and conducting the business of the
office, during the same business hours as other public offices in the State
Capitol are kept open. except when otherwise required by the Court during a
regular or special session of the Court.
RULE 2. CLERK, CUSTODIAN OF PAPERS, ETC.
The Clerk shall be responsible for all papers. claims or demands filed in
his office; and will be required to properly file, in an index for that
purpose. any paper, pleading, document, or other writing filed in connection
with any claim or demand. The Clerk shall also properly endorse all such
papers, claims, or demands showing the title of the claim or demand, the number
of the same, and such other data as may be necessary to properly connect and
identify the document or writing, claim or demand.
RULE 3. FILING PAPERS.
(a) Communications addressed to the Court or Clerk and all notices, petitions,
answers and other pleadings, all reports, exhibits, depositions, trancripts.
orders and other papers or documents received or filed in the office kept by
the Clerk of this Court, shall be endorsed 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.
RJLE 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 Agency if any, that is involved. Technical
pleadings shall not be required. The Court, however, reserves the right to
require further information before
RULES OF PRACTICE
AND PROCEDURE XXV
hearing, when, in its judgment, justice and equity may require. It is
recommended that notices of claims be furnished in triplicate.
RULE 6. COPY OF NOTICE OF CLAIMS TO
ATTORNEY GENERAL AND STATE AGENCY.
Upon receipt of a notice of claim or
demand to be considered by the Court, the Clerk shall forthwith transmit a copy
of the notice to the State Agency concerned, if any, and a copy thereof to the
office of the Attorney General of the State, and the Clerk shall make a note of
the time of said delivery of such notice to the Attorney General’s office.
RULE 7. JURISDICTION,
PRIMA FACIE.
A reasonable time before the
printing of the docket, as provided by these rules, the Court will examine each
claim to ascertain whether it is prima fade within its jurisdiction. If
it is found that the Court has jurisdicton, the claim will then be ordered to
be placed upon the docket, If it is found that the Court is wihout
jurisdiction, the claimant or representative presenting the claim will be
notified accordingly, by letter from the Clerk; leave being granted the
claimant or his representative to appear before the Court at any time during a
regular or special session thereof, to show cause, if any, why the Court has ot
should assume jurisdiction of the claim.
RULE 8. PREPARATION OF HEARING DOCKET.
The Clerk shall prepare fifteen days
previous to the regular terms of the Court a printed docket listing all claims
and demands that are ready for hearing and consideration by the Court, and
showing the respective dates, as fixed by the Court, for the hearings thereof.
The said claims or demands shall appear on the said docket in the order in
which they were filed in the office of the Clerk. The Court, however, reserves
the right to rearrange or change the order of hearing, claims or demands at any
regular term, when in its judgment such rearrangement or change would help to
expedite and carry on the work of
XXVI RULES O
PRACTICE AND PROCEDURE
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 allegati&ns 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.
(5) ‘‘hile 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 tQ 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.
RULE 10. CLAIMS, ISSUES ON.
In order to promote a simple,
expeditious and inexpensive consideration of the claim made, the Attorney
General shall within ten days after a copy of the notice has been furnished his
office file with the clerk a formal or informal statement or notice in writing,
either denying the claim, requesting postponement
RULFS OF PRACTICE
AND_PROCEDURE__-__XXVII
of proceedings to permit negotiations with the claimant or otherwise setting forth
reasons for further investigation of the claim, otherwise after said ten-day
period the Court may order the claim placed upon its regular docket for
hearing, if found to be a claim prima fade within its jurisdiction.
RULE 11. STIPULATIONS OF FACT, INTERROGATORIES
TO DETERMINE.
(a) It shall be the duty of claimants
or their attorneys or representatives, in claims under the regular procedure,
to negotiate with the office of the Attorney General so that the claimant and
the State Agency and the Attorney General may be ready at the beginning of the
hearing of a claim to read, if reduced to writing, or to dictate orally, if not
reduced to writing, irito the record such stipulations, if any, as the parties
may have been able to agree upon, as for example, such factual data as the
following if material and applicable to the particular claim;
The control and jurisdiction over, location, grade, width, type of surface and
condition of particular roads, right of ways and bridges; exact or approximate
dates; identities of persons; identity, description and ownership of property;
and any and all other evidential facts directly involved or connected with the
claim, without regard to the foregoing enumeration of data, and which the
parties may be able properly and definitely to agree upon and stipulate, for
the purposes of expediting the hearing, simplifying and shortening the
transcript or record of the claim and to facilitate the labour of the Court in
arriving at and resolving the controverted questions and issues involved; and
to the further end, where the claim is small, to avoid, if possible, the
necessity for the introduction of evidence.
(b)
‘Where there is a controversy between
a claimant and any State Agency, the Court may require each party to reduce the
facts to writing, and if the parties are not in agreement as to the facts, the
Court may stipulate the questions of fact in issue and require written answers
to the said stipulated questions.
XXVIII RULES OF
PRACTICE AND PROCEDURE
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 wrilten authority of the claimant to act as such.
RULE 13. BRIEFS, NUMBER
OF COPIES.
(a) Claimants or their duly authorized representatives, as well as the
Attorney General or the State Agency concerned, may file with the Court for its
consideration a brief on any question involved, provided a copy of said brief
is also presented to and furnished the opposing party or counsel. The Court may
designate the time within which reply briefs may be filed.
(b) All briefs filed with, and for the use of, the Court shall be in
quadruplicate—original and three copies. As soon as any brief is received by
the Clerk he shall file the original in the Court file and deliver the three
copies, one each, to the Judges of the Court.
RULE 14. AMENDMENTS TO NOTICES, PETITIONS, ETC.
Amendments to any notice, petition,
or other pleading may be made by filing a new statement of claim, petition, or
such other pleading, unless the Court otherwise directs.
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 theref or, or when the State and the
claimant jointly move for a continuance.
RULES OP PRACTICE
AND PROCEDURE XXIX
(b) A party desiring a continuance should file a motion showing good cause
therefor, before the first daq of the
term, or otherwise at the earliest
possible date, so that if the motion be granted the opposing party may be
notified, if possible, in time to obviate the attendance of witnesses on the
day set for hearing.
(c) Whenever any claim regularly filed shall not be moved fox trial by the
claimant during the time that four regular terms of Court have been held at
which the claim might have been prosecuted, and the State shall be ready to
proceed with the trial thereof, the Court may, upon its own motion or that of
the State, dismiss the claim unless sufficient reason appear or be shown by the
claimant why such claim cannot be tried.
(d) Whenever a claimant shall fail to appear and prosecute his claim on the
day set for hearing and shall not have communicated with the Clerk or the Court
prior thereto, advising of his inability to attend and the reason therefor, and
if it further appear that the claimant or his representative had sufficient
notice of the docketing of the claim for hearing, the Court may, upon its own
motion or that of the State, dismiss the claim.
(e) Within the discretion of the Court, no order dismissing a claim under
either of the two preceding sections of this rule shall be vacated nor the
hearing of such claim be reopened except by a notice in writing filed not later
than the end of the next regular term of Court, supported by affidavits showing
sufficient reason why the order dismissing such claim should be vacated, the
claim reinstated and the trial thereof permitted.
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.
XXX RULES OF
PRACTICE AND PROCEDURE
RULE 17. WITHDRAWAL OR DISMISSAL
MOTION BY PARTY FILING CLAIM.
(a) Any claimant may move to withdraw
his claim and the same shall be dismissed. Should the claimant later refile the
claim, the Court shall consider its former status, such as previous
continuances and any other matters affecting its standing, and may redocket or
refuse to redocket the claim as in its judgment justice and equity may require
under the circumstances.
(b)
Any department or state agency, having
filed a claim for the Court’s consideration, under either the advisory
determination procedure or the shortened procedure provision of the Court Act,
may move to withdraw the claim and the same shall be dismissed, but without
prejudice to the right of the claimant involved to file the claim under the
regular procedure.
RULE 18. WITNESSES.
(a) For the purpose of convenience and in order that proper records may be
preserved claimants and State Departments desiring to have subpoenas for
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
therefor or mailed to the person designated.
(b)
Requests for subpoenas for witnesses
should be furnished to the Clerk well in advance of the hearing date so that
such subpoenas may be issued in ample time before the hearing.
(c)
The payment of witness fees, and
mileage where transportation is not furnished, of any witness subpoenaed by or
at the instance of either the claimant or the respondent state agency, shall be
the responsibility of the party by whom or at whose instance such witness is
subpoenaed.
RULE 19. DEPOSITIONS.
(a) Depositions to be read as part of
the record in any claim under the regular procedure shall not be taken,
recognized or allowed except In accordance with this Rule of the Court.
RULES OF PRACTICE
AND PROCEDURE XXXI
(b)
Before any deposition shall be taken,
permission shall be obtained from the Court if in session, or fro,m the
Presiding Judge, or one of the other regular Judges in the vacation of the
Court. Application for such permission shall be made in writing and show good
and sufficient reason why the designated witnesses, whose depositions are
sought to be taken, cannot appear and testify before the Court when such claim
shall come up in regular order for hearing and investigation.
(c) If such permission is granted to take the depositions of any
designated witnesses, reasonable notice of the time and place shall be given
the opposite party or counsel, and the party taking such depositions shall pay
the costs thereof and file an original and three copies of such depositions
with the Court. Extra copies of exhibits will not be required; however, it is
suggested that where exhibits are not too lengthy and are of such a nature as
to permit it, they should be read into the deposition.
RULE 20. REHEARINGS AND REOPENINGS OF
CLAIMS AFTER DETERMINATION.
(a) Rehearings may not be allowed
except where good cause is shown why the case should be reconsidered. Motions
for rehearings may be entertained and considered ex parte, unless the
Court otherwise directs, upon the petition and brief filed by the party seeking
the rehearing. Such petition and brief shall be filed within 30 days after
notice of the Court’s determination of the claim, and the filing of the Court’s
opinion therein, unless good cause be shown why the time should be extended.
(b)
Unless the petitioner expressly shall
seek that the case also be reopened upon the rehearing for the introduction of
new testimony, and unless such request for reopening the case appears proper
and is supported by affidavits showing good cause why the case should be
reopened, such petition shall be treated only as seeking a reconsideration of
the claim upon the record already made and before the Court. If a rehearing is
allowed it shall be only for the purpose of a reconsideration and redetermination
XXXII RULES OF
PRACTICE AND PROCEDURE
of the case upon the record already before the Court unless the Court, in its
discretion shall, by its order, otherwise direct.
RULE 21. RECORDS OF SHORTENED
PROCEDURE CLAIMS SUBMITTED BY STATE AGENCIES.
When claims are submitted under the
shortened procedure section of the Court Act, concurred in by the head of the
department and approved for payment by the Attorney General, the record
thereof, in addition to copies of correspondence, bills invoices, photographs,
sketches or other exhibits, should contain a full, clear and accurate
statement, in narrative form, of the facts upon which the claim is based. The
facts in such record, among other things which may be peculiar to the
particular claim, should show as definitely as possible that:
(1) The claimant did not through neglect, default or lack of reasonable care,
cause the damage of which he complains. In other words, it should appear he was
innocent or without fau-lt 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 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.
OPERATING
EXPENSES OF THE COURT XXXIII
OPERATING
EXPENSES OF THE COURT
REPORT OF THE CLERK OF THE COURT OF
CLAIMS.
ON THE COURT’S EXPENDITURES FOR THE FISCAL
YEAR JULY 1, 1944 TO JUNE 30, 1945, INCLUSIVE.
(SECOND YEAR OF 1943-1945 BIENNNIUM). PERSONAL SERVICES
Judges’ per diem $6,750.00
Court Reporter’s per diem 485.00
All other personal services - 2,951.33
Total $10,186.33
CURRENT EXPENSES
Judges’ expenses 1,435.63
Office supplies, dockets, telephone, ice,
record books, moving. 363.43
Transcripts of evidence 910.50
Court Report No. 2 (1000 copies) - 2,000.26
Total -
- 4,709.82
EQUIPMENT
Fixtures 211.70
Law Books 891.30
Total 1,103.00
Total expenditures for the year $15,999.15
Unexpended balance for the year 671.86
Total $16,671.01
XXXIV OPERATING
EXPENSES OF THE COURT
Total appropriation for the year $14,650.00 Revived and transferred from
preceding year of biennium
to expense account chiefly to
pay cost of printing Court
Report No. 2 2,021.01
Total $l6,67 1.01
OPERATING
EXPENSES OF THE COURT XXXV
OPERATING
EXPENSES OF THE COURT
REPORT OF THE CLERK OF THE COURT OF
CLAIMS,
ON THE COURT’S EXPENDITURES FOR THE FISCAL YEAR JULY 1, 1945 TO JUNE 30, 1946,
INCLUSIVE.
(FIRST YEAR OF 1945-1947 BIENNIUM).
PERSONAL SERVICES
Judges’ per diem $5,180.00
Court Reporter’s per diem 285.00
Clerk of the Court .
- . 3,600.00
All other personal services . 2,650.00
Total ..
- . . $11,715.00
CURRENT EXPENSES
Judges’ expenses .
1,621.71
Office supplies, dockets, telephone, ce
and other items 283.92
Transcripts of evidence 1,187.55
Total .
- 3,093.18
EQUIPMENT
Fixtures -
- 114.75
Law Books -
123.80
Total .
238.55
Total expenditures for the year - 15,046.73
Unexpended balance for the year 5,128.27
Total appropriations for the year 20,175.00
XXXVI SUMMARY OF
CLAIMS
SUMMARY
OF CLAIMS
Claims filed and awards made from the
organization of the Court, July 1, 1941 to December 1, 1946:
Number of claims filed 560
Amount claimed, in all claims reported - - $1,281,7
10.29
Amount of all awards, reported in Court Re port
Nos. 1, 2 and 3 -
-. 183,598.20
Awards certified to 1943 Legislature 102,127.39
Awards approved by 1943 Legislature 102,127.39
Awards certified to 1945 Legislature 57,093.63
Awards approved by 1945 Legislature 53,522.66
*Awards disallowed by 1945 Legislature - . 3,570.97
Awards certified to 1947 Legislature, to
12-1-46 reported herein 23,304.18
Awards satisfied out of regular appropria tions
not certified to the Legislature, but
reported in Court Reports Nos. 1, 2 and 3 1,073.00
NOTES:
* (1). The 1945 Legislature failed to allow the following
two awards, both versus the State Road Commission:
No. 354—Sam G. Polirio & Co., $2,070.97 2 Ct. Claims Reports 354.
No. 208—Lon E. Upton, $1,500.00 2 Ct. Claims Reports 134.
(2). As to the requirement that the Legislature, when appropriating money to
pay a claim, make an express declaration or finding of fact that a moral
obligation exists on the part of the State, see the opinion of the State
Supreme Court of Appeals in Adkins v. Sims
127W. Va 786; 34 S. B. 2d 585.
REPORT OF THE COURT OF CLAIMS
For Period Deceilber 1, 1944 to November 30, 1946
(i-a) Approved claims and awards
referred t the 1945 Legislature, for the period from December 1. 1944, to
February 2, 1945, after Report No. 2 had gone t press; allowed by the 1945
Legislature; opinions therein included in this
Report: ________
______ __________________________ ___________ ___________ _________________
Name of Respondent
Amount Claimed
Amount Awarded
No.
452
447
428
420
421
455
429
433
445
458
427
436
446
Date o Determination
Name of
Claimant
Adams, Phillip
Africano, John
Atkins, R. C.
Bennett, Jacob F
Bennett, Jacob .
(The latter amount o 936.00 to be paid in
monthly installments of $52. each frfl 7-1-45 to 12-31-46).
Bowles, Dr. Roy 0.
Bowman, Doris C., infant by Mary Margaret 4ilbêrt, her next friend
Brown, Clarence
Clark, Okey
Columbian Carbor Company
Coonts, Gene
Crihfield, Nathan
Custer, KathrynE.
$
92.28
75.00
15.00
312.00
936.00
February 2, 1945
February 1, 1945
January 11, 1945
January 11, 1945 January 11, 1945
State Road
Commission
State Road Commission
State Road Commission
State Road Commission State Road Commission
State Road Commission
State Road Commission State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Road Commission
$ 92.28
75.00
15.00
312.00
936.00
7.50
72.00
1,500.00
16.75
30.62
15.00
451.00
42.84
()
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7.50 February 1, 1945
72.00
250,00
16.75
30.62
15.00
451.00
42.84
January 12, 1945
F’ebruar, 2, 1945
January 18, 1945
February 2, 1945
January 15, 1945
January 19, 1945
January 18, 1945
REPORT OF THE COURT OF CLAIMS (Continued)
(1-a) Approved claims and twards
referred to the 1945 Legislature, for the period from December 1, 1944, to
February 2, 1945, after Report . 2 had gone to
press; allowed by the 1945 Legislature; opinions therein included in this
Report:
Amount Amount Date of
C,,
No. Name of Clanant Name of Respondent
Claimed Awarded Determ!natjon
444 Dempsey, H. C. State Road
Commission 149.00 149.00 January 18, 1945
434 Emerick, Mary Alice, .ifant, by Z
William P. Bradford, ter next
Friend State Road Commission 500.00 100.00 February
2, 1945 -
n
396 Fairchild, Roy, trustee fo Hot-
coal Coal Co. State Auditor 40.00 40.00 January 19, 1945 >
441 Gemrose, Bettie T. State Road Commission 69.62 69.62 January 22, 1945 C’
442 Hailer. 1. Frank State Road Commission
39.99 39.99 January 12, 1945 Z
457 Headley, Jack State Road Commission 8.16 8.16
February 2, 1945
451 Hoard. Mrs. Sallie Slate Road Commission 15.00 15.00 February 2, 1945
431 Halbert, A. R. State Road Commission 179,93 179.93 January 15, 1945
443 Hranka, F. J. State Road Commission 19.50 19.50 January 18, 1945
453 Hughart, Mayford State Road Commission 32.13 3.13 February 1, 1945
Cl)
438 Jarrell, Roy I State Road Commission 34.82 34.82 January 15, 1945
422 McCiung, Alice E. state Road Commission 720.00 720.00 January 23, 1945
REPORT OF THE COURT OF CLAIMS (Continued)
(1-a) Approved claims and awards
referred to the 1945 Legislature, for the period from December 1, 1944, to
February 2, 1945, after Report No. 2 had gone to press; allowel by the 1945
Legislature; opinions therein included in this
Report:
No. Name of Claimant Name of Respondent Amount Amount Date of
Claimed Awarded Determination
(To be paid in monthly install ment
of $30.00 each from
1-1—45 to 12—31—46). —
409 McKinney, J. A. State Road Commission
200.00 150.00 January 18, 1945
435 Means, J. F. State Road Commission 50.00 50.00 January 15, 1945
430 Neff, J. E. State Road Commission 40.80 40.80 January 12, 1945
448 Ofsay, Sam State Road Commission 75.00 75.00 February 1, 1945
450 Ohio Valley Bus Company State Road Commission 57.82 57.82 February 2, 1945
424 Pratt, Effie Savage State Road Commission 240.00 240.00 January 22, 1q45
(To be paid in monthly in staliment
of $10.00 each from
1-1-45 to 12-31-46
425 Preirer, B., Co. Inc. State Board of Control 50.00 50.00 January 19, 1945
432 R-rae, Robert State Road Commission 4,000.00 I 1,500.00 February 2, 1945
440 Robertson, R. 0 State Road Commission 161.26 161.26 January 15, 1945
454 Spence, L. D. State Road Commission 97.60 97.60 February 2, 1945
423 Stewart, Lottie State Road Commission 10.00 10.00 January 23, 1945
Totals 10,356.62 6,156.62
No.
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not
satisfied but referred to the 1947 Legislature for anal consideration and
appropriation:
Name of Claimant
Name of Respondent
500
489
548
479
495
531
553
551
481
521
527
512
514
476
486
469
466
515
Aetna Casualty
and Surety Co. Anderson, Melvin 0.
Appalachian Electric Power Co. Archer, H. D.
Baltimore & Ohio Railroad Co. Berkeley Printing & Publishing Co.
Bond, J. F.
Buchanan, Herman
Burke, Leo R.
Cashman, Harold H., M. D.
Charleston Mail Association
Checker White Cab, Inc.
Clark, Martha
Cogar, Bobby L., infant, by Ward Huffman, his guardian
Colonial Glass Co.
Cremeans, Frances
Davis, Harry E.
Davis Trust Co., adm. estate of Lucy Ward. deceased
State Road
Commission State Conservation Commission
State Road Commission State Road Commission
State Road Commission
State Auditor
State Road Commission
State Road Commission
State Road Commission
State Board of Control
State Health Department
State Road Commission
State Road Commission
State Board of Control State Road Commission State Road Commission State
Conservation Commission
State Board of Control
Amount
Claimed
$30.28
91.27
252.06
13.60
1,850.00
462.00
150.00
85.87
9.44
123.20
50.00
200.00
10,000.00
335.35
1,500.00
29.64
10.000.0O
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Amount
Awarded
$30.28
91.27
252.06
13.60
1,850.00
462.00
150.00
85.87
9.44
2,000.00
123.20
50.00
200.00
3,000.00
335.35
300.00
29.64
2.500.00
Date of
Determination
March 21, 1946
October 16, 1945
November 7, 1946
October 15, 1945
May 8, 1946
July 17, 1946
October 19, 1946
October 19, 1946
October 15, 1945
November 14, 1946
May 3, 1946
January 16, 1946
April 9, 1946
December 17, 1945
October 16, 1945
July 19, 1945
July 12, 1945
July 16. 1946
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not satisfied but referred to the 1947 Legislature for final consideration and ap.propriation:
O
C,,
“Ii
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0
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Cd,
0
Cd,
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Cd,
>,
|
No. |
. |
me of Respondent |
Amount |
Amount |
Date of |
|
|
552 |
DeMilia, Alfred F. Ellison, Roy L. |
State tion |
Department Probaand Parole Road Commission |
950.00 |
300.00 |
November 7,
1946 |
|
529 |
Fankhouser,
Mrs. R. R. |
State |
R.oad Commission Road Commission |
20.00 |
20,00 |
April 10, 1946 April 10, 1946 |
|
532 |
Gantzer, William G. Grirver, B. F. |
State |
Road Commission Road Commission |
47.75 |
47.75 |
July 8, 1946 |
|
462 |
Halstead, E. H.
|
State |
Road Commission
|
13.01 |
13.01 |
October 15,
1945 |
|
509 |
Jamerson, T. L.
|
State |
Road Commission
|
3.06 3.06 |
January 15,
1946 |
|
REPORT OF THE COURT OF CLAIMS (Continued)
(1-b) Approved claims and awards not
satisfied but referred to the 1947 Legislature for final consideration and
appropriation;
No. Name of Claimant Name of Respondent
555 Lemasters, Rose State Road Commission 72.75 72.75 October 19, 1946
C,
470 Main Street News State Road Commission 40.75 40.75 July 12, 1945
545 Marks, Jimmie, infant, by Charlie
Marks. his next friend State Road Commission 500.00 400.00 November 7, 1946 z
484 Mylius, L. C. State Road Commission
46.95 46.95 October 16, 1945 o
‘Ti
492 McClure, Earl C. State Road Commission
60.00 60.00 October 9, 1945
520 McCuskey, Dr. Wm. C. State Health Department 383.75 383.75 April 9. 1946
491 McVey, E. Y. State Department of Mines 106.71 106.71 December 18, 1945
460 Neal, William H.. Jr. State Road Commission 200.00 200.00 July 12, 1945
493 Neel, W. C. State Road Commission 34.28 34.28 October 9, 1945
2
471 Pappalardo, Lui State Road Commission 30.60 30.60 July 12, 1945
508 Queen, Clarence State Road Commission 49.27 49.27 January 15, 1946
513 Randolph, Russell State Road Commission 300.00 100.00 April 15, 1946
522 Reynolds, James State Board of Control 5,000.00 550.00 May 8, 1946
534 Roberts, Le Roy State Board of Control 3,341.52 3,341.52 July 19, 1946
463 Ronk, Francis State Road Commission 123.44 123.44 July 12, 1945
465 Shafer, Hazel M. State Roaa Commission 24.38 24.38 July 12. 1945
REPORT OF THE COUR OF CLAIMS (Continued)
(1-h) Approved claims and awards not
satisfied but referrd to the 1947 Legislature for final consideration and
appropriation:
A A Dateof
No. Name of Claimant Name of Rpondent moun
Clauned Awarded Determination
_____
__________ -
378 Shepherd, Elma State Departmeit of
Public
Assistance 925.00 865.00 December 17, 1945
494 Smith, Cleo State Road Comnission 115.67 115.67 January 15, 1946
549 Stukey, Charles A. State Road Comnission 24.48 24.48 October 19, 1946 H
467 Utterback, A. W. State Road Commhsion 1,500.00 500.00 July 19. 1945
468 Utterback, Mrs. A. W. State Road Comminion 15,000.00 2,000.00 July 19, 1945
535 Valvoline Pipe Lines Co. State Road Commissn 95.19 95.19 July 9, 1946
550 Van Camp, E. L. State Road Commisskn 25.00 25.00 October 19, 1946 r-
377 Wilson, Virginia State Department of
lublic
Assistance 960.00 900.00 Dec. 17, 1945
C,,
Totals $56,600.68 $23,30418
REPORT OF THE COURT OF CLAIMS (Continued)
(4) Claims rejected by the Court:
(3) Approved claims and awards satisfied by payment out of a specia appropriation made by the Legislature to pay claims arising during the biennium: (None.)
n
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(2) Approved claims and awards satisfied by payments out of regular appiopriations for the biennium: |
|
|
No. Name of
Claimant Name of Respondent |
Amount
Amount Date of |
|
--——— |
|
|
|
|
|
|
No. Name of
Claimant |
Name of Respondmt |
Amount
Claimed |
Amount I
Date of |
||
|
State Road
Commiion |
|||||
|
474 |
Brady, Henry R. Brann, 0. P. |
State Road Comslission State Road Con’mission |
15,000.00 |
Denied Denied |
April 18, 1946 July 26, 1945 |
|
483 |
Charlton Pauline L., admx. estate of Kenneth 0. Chariton, |
|
|
|
|
|
402 |
deceased |
State Road
C,mmission |
11,150.00 |
Denied |
April 29, 1946 |
(4) Claims rejected by the Court:
REPORT OF THE COURT OF CLAIMS (Continued)
C,,
C,)
‘TI
H
0
z
0
‘TI
Cd,
|
No. |
Name of Claimant |
Name of Respondent |
|
|
|
|
503 |
Dariington, B. F. |
State Road Commission |
1,000.00 |
Denied |
June 17, 1946 |
|
504 |
flarlington, Margaret Darlington, Margaret Ann Dillon, James |
State Road
Cothmissiofl |
5,000.00 |
Denied |
June 17, 1946 |
|
408 |
Charles Fuller, infant R. H. Fuller |
State Road
Commission 5,304.50 |
Withdrawn |
October 19, 1945 October 19, 1945 |
|
|
379 |
Garda, Jessie
E. |
State
Department of Public |
Denied January
17, 1945 |
||
|
477 |
Hagedorn, Harry
W. |
State Road
Commission Dismissed Ju’y 20, 1945 |
|||
|
499 |
Jordon, W. B |
State Road Commission . - Denied May 7. 1946 |
|||
|
426 |
Kattong, Mis. John P. (Ida) Langford, elsie B. |
State Road
Commission 15000 Denied July 26, 1945 |
|||
(4) Claims rejected by the Court:
REPORT OF THE COURT OF CLAIMS (Continued)
n
C,,
Cl,
H
0
z
0
O
Cl,
z
|
No. |
Name of Claimant |
|
Name of Respondent |
|
‘a°z’ii |
Dete:min:tion |
|
546 |
Lent, S. E. |
estate |
State Road
Commission |
500.00 308.65 |
Denied |
November 8, 1946 |
|
556 |
Morgan, Mae |
|
State
Conservation Commission |
825.00 |
Denied |
November 18, 1946 July 17, 1946 |
|
497 |
McGhee, John B. McVey, E. Y. |
|
State Board of Control State Department of Mines |
255.9 |
Denied Dismissed |
January 29, 1946 July 18, 1946 |
|
488 |
Parsons,
Bernard L. |
|
State Board of
Control |
38.00 |
Denied |
January 21,
1946 |
|
383 |
Queen Insurance
Co. and Theresa Brindis |
State Road Commission State Road Commission |
243.43 |
Denied Denied |
‘ebruary 2, 1945 June 17, 1946 |
|
(4) Claims rejected by the Court
REPORT OF THE COURT OF CLAIMS (Continued)
n
C,)
C,,
n
H
C
z
0
C,)
z
(I,
x
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.
|
No. |
. |
|
Name of Respondent |
Amount |
Amount Date of |
|
|
393 |
Robison,
Achillis T. Richards, J. C. |
J. |
State Road
Commission |
26,988.35 |
Denied |
February 2,
1945 |
|
475 |
Thompson, Lois Thrift, R. J., Jr. |
|
State Board of Control State Auditor |
5,000.00 |
Denied Denied |
July 27, 1945 January 16, 1945 |
|
507 |
Ward, Nancy Lynn Ward. William |
|
State Road Commission State Road Commission |
10,000.00 |
Denied Denied |
June 17, 1946 June 17, 1946 |
|
374 Yoak, R. G.
|
State Road
Commission 7,070.00 Denied January 15, 1945 |
|||||
OPiNiONS
Ixuxi
TABLE OF CASES
REPORTED LI
TABLE
OF CASES REPORTED
Page
Adams, Phillip v. State Road Commission 60
Aetna Casualty and Surety Company v.
State Road Commission 158
Africano. John v. State Road Commission 57
Anderson, Melvin 0. v. State
Conservation Commission —
131
Appalachian Electric Power Company v.
State Road Commission
(No. 511) -
-. 150
Appalachian Electric Power Cornprnv v. State Road Commission
(No. 548) 248
Archer. H. D. v. State Road Commission 126
Arrick. ma v. State Board of Control - - 141
Athey-Brooks Motors. Inc. v. State
Road Commission -
79
Atkins, R. C. v. State Road Commission
- 8
Baltimore & Ohio Railroad Company v. State Road Commission - - 176
Bennett. Jacob F. v. State Road Commission
(No. 420) -
5
Bennett, Jacob F. v. State Road
Commission (No. 421) 7
Berkeley Printing & Publishing Company v. State Auditor 231
Bond. J. F. v. State Road Commisson 242
Bowles, Dr. Roy v. State Road Commission 59
Bowman. Doris C. v. State Road Commission 11
Brady. Henry B. v. State Road
Commission 167
Brann, 0. P. v. State Road Commisson - -. 118
Brown, Clarence v. State Road
Commission 64
Buchanan. Herman v. State Road Commission 241
Burke. Leo R. v. State Road Commission 128
Cashman. Harold H., M. I). v. State Board of Contrel 259
Charleston Mail Association v. State Health Department 174
Chariton, Pauline L.. adm.r. v. State
Road Commission 132
Checker White Cab, Inc. v. State Boa? Commission 146
Clark, Martha v. State Road Commission 161
Clark, Okev v. State Roac Cot isson 39
LII
TABLE OF CASES REPORTED
Cogar, Bobby L., infant
v. State Board of Control 99
Colonial Glass Company v. State Road Commission 130
Cohambian Carbon Company v. State Road Commission 63
Coonts, Gene v. State Road Commission 13
Coy, George, Jr., infant v. State Board of Control 49
Cremeans, Frances v. State Road Commission — 96
Crihfleld, Nathan v. State Road Commission 44
Custer, Kathryn E. v. State Road Commission 40
Darlington, B. F. v. State Road Commission 205
Darlington, Margaret v. State Road Commission 205
Dariington, Margaret Ann, infant v State Road Commission 205
Davis, Harry E. v. State Conservation Commission 89
Davis Trust Company, adin. v. State Board of Control 188
DeMillia, Alfred M. v. State Department of Probation and Parole 246
Dempsey, H. C. v. State Road Commission 38
Dillon, James v. State Road Commission 93
Ellison, Roy L. v. State Road Commission 157
Emerick, Mary Alice, infant v. State Road Commission 64
Fairchild, Roy, trustee v. State Auditor 42
Fankhouser, Mrs. R. R. v. State Road Commission 163
Fankhouser, Mrs. R. R., admx. v. State Road Commission 163
Gantzer, William G. v. State Road Commission 221
Garcia, Jessie E. v. State Department of Public Assistance 35
Garver, B. F. v. State Road Commission 127
Gemrose, Bettie T. v. State Road Commission 45
Grogan, Dorothea v. State Board of Control 169
Hailer. I. Frank v. State Road Commission 10
Haistead, E. H. v. State Road Commission 126
Hamrick, Elvin v. State Road Commission 129
Headley, Jack v. State Road Commission 62
Hendricks, Lee Roy v. State Road Commission 258
Henry. Blame D. v: State Road Commission 223
TABLE OF CASES REPORTED
LIII
Hoard, Mrs.
Sallie v. State Road Commission
Holbert, A. R. v. State Road Commission
Hranka, F. J. v. State Road Commission
Hudson, Charles A. v. State Road Commission - --
Huflman, Ward, gdn. v. State Board of
Control
Hughart, Mayford v. State Road Commission
Hutchinson, Joe M. v. State Road Commission
Hutchison, Earle v. State Road Commission
Jamerson, T. L. v. State Road Commission
Jarrell, Roy v. State Road Commission
Johnson, Mildred, infant v. State Road Commission
Jordan, W. B. v. State Road Commission
Kattong, Mrs. John P. (Ida) v. State Road Commission
King, Bessie L. v. State Road Commission
King, Leah v. State Road Commission
Lanham, James G. v. State Road Commission
Lent, S. E. v. State Road Commission -
Lemasters, Rose v. State Road Commission
Logan, Nelvina, admx. v. State Road Commission
Long, Hilda S. v. State Tax Commissioner
Long, Jennie Eloise v. State Tax Commissioner
Long, Joseph Harvey v. State Tax Commissioner
Long, Paul Walker v. State Tax Commissioner
-
60
13
37
146
99
58 172 - 217
144
:15
88 224 198
253 243
238
25
- - 25 25 25
Main Street News
v. State Road Commission
Marks, Jimmie, infant v. State Road Commission
Means, J. F. v. State Road Commission --
Morgan, Mae v. State Conservation
Commission
Morrow, Margaret Gilpin v. State Road Commission
Mylius, L. C. v. State Road Commission
McClung, Alice E. v. State Road Commission
McClure, Earl C. v. State Road Commission
McCuskey, Dr. Wm. C. v. State Health Department -
McGhee, John B v. State Board of Control
• 121
122
142
89
250
14
266
- 229
130
47
124
162 154
LIV TABLE OF
.2ASES REPORTED
McKinney. J. A. v. State Road Conuuissioa
41
MeVey. E. Y. v. State Department of Muies 4t1 —
13t1
McVey. E Y. v. State Department of Mines No. 540 233
Neal. William H.. Jr.
v. State Road Conitmsszon 90
Neel, W. C. v. State Road Commission 125
Neff, J. E v. State Road Commisaon .. 12
Ofsav. Sam v. State Road
Crnnission . .. 58
Ohio Valley Bus Compar.y v. State Roai
Cozmssion ..
.. 60
Paptalardo. Lul v. State Road
Conirniasiort ..
92
Parsons. Bernard L v. State BoarI o Cor.tro’ 147
Peters. Eva v. State Road C. nias:on No. 473 .. 149
Peters. Eva v. State Road Cornmiss-.:or. No. 51S 183
Pratt. EEe Savage State Road Comrnissior. .. 46
Preiaer B. Company v. State 3.ard of Ccn:ro: . . - 9
Queen, Ciarer.ce v. State Roaci
Crnmisa:ort .
143
Queer. Ins’arance Crv and Theresa Br:nci:s v. State Road Cornmiss:rsr. . . -
Quick. Emma and jdred and Har—. M.er v. State Road Corn
rttzs.sior 203
P.agase. Roert v. State Roti Ctmrrt,.r-.
64
Russe: v. State Po (nrn:on 1G4
RevnHs. James ‘;.
State B’r’i C’rttro 185
Richards. J. C. v. State ar.d a*or C’.i;nt; rni r,f F,iucaton 2]
Robertson, P. 0. ‘.
State Rta-tt Co’- -.:
..r. 16
Roberta, Le Roy ‘.‘. State Br’i f Cr’,trr
23.
Robison, Achi1s T. ‘. State Peao Cor, be
Ronk,
Francis v. State
Road
Comrni:in
Se-hlrLi. Peter arri : ç. ,J
v. State
ite ‘1 Corn rr s:,or
200
Shafer. Hazel M. v. Stats’ Poai Cornrni,-.jor 87
Shopi’.ord. E!ma v. State Departrnrt f
f’? A’,’:rn’e
Srritn, Betty Jane ‘:. State Road Corr,rn,’,son
I
TABLE OF CASES
REPORTED LV
Smith, Cleo v. State Road Commission 145
Snee, William E. v. State Tax Commissioner 94
Spence, L. D. v. State Road Commission - 61
State Construction Company v. State Tax Commissioner 85
Stewart, Lottie v. State Road Commission 48
Stukey, Charles A. v. State Road Commission 240
Thompson, Lois v. State Board of Control -- - 111
Thrift, R. J., Jr. v. State Auditor - 18
Utterbach, A. W. v. State Road Commission 96
Utterbach, Mrs. A. W. v. State Road Commission 96
Valvoline Pipe Lines Company v State Road Commission 222
Van Camp, L. E. v. State Road Commission 240
Ward, Nancy Lynn infant
v. State Road Commission 205
Ward, Wffliam v. State Road Commission 205
Wilson, Virginia v. State Department of Public Assistance 34
Yoak, R. G. v. State Road Commission - 17
Cases Submitted and Determined
in the Court of Claims in the
State of West Virginia
(No. 406—Claim denied)
BETTY JANE SMITH, Claimant
V.
STATE ROAD COMMISSION, Respondent
Opnicrn filed January 11, 1945
Where the evidence offered in support
of a claim against the state fail. to establish by a preponderance of proof its
merit as a claim for which an appropriation should be made by the Legislature, an
award will be denied.
E. W. Salisbury. for claimant;
W. Bryan Spillers, Assistant Attorney General, for respondent.
ROBERT L, BLAND, JuIx3E.
Driving a 1937 model Packard automobile,
Mrs. Frank Warner Knight, wife of Corporal Gale Knight of the West Virginia
department of public safety, left her home at New Cumberland, Hancock county,
West Virginia, about eight o’clock on the morning of July 20, 1940, to Visit
her sister at West Union, Doddridge county, in said state. She was accompanied
by claimant Betty Jane Smith, her daughter by a former marriage, at that time
seventeen years of age. The distance between the two towns was approximately
one hundred and twenty miles. The two ladies were the only occupants of
2 REPORTS STATE
COURT OF CLAIMS [W. VA.
the automobile and sat in the front seat of the vehicle, which was driven by
Mrs. Knight at an average rate of speed of about thirty-five miles per hour.
While driving on state route No. 18 in Tyler county, and when within one-half
mile from the county line of Tyler and Doddridge counties, the automobile
skidded, left the highway and went over a fifty-foot embankment on the
right-hand side of the road. There were no witnesses to the accident. Claimant
suffered a broken back. Dr. E. Bennette Henson, a bone and joint specialist of
Chariston, made an examination of her condition on November 14, 1944. He “found
she had a broken back— the residuals of a broken back in the dorsal spine, that
is, the seventh and eighth dorsal vertebrae.”
Claimant now seeks an award by way of damages for the injuries which she has
received and asks that her hospital and doctor bills may be paid.
It is the contention of claimant that it was the legal duty of the state,
acting by and through its road commission, to “keep and maintain said state
public highway in a reasonably safe condition for vehicular traffic.” She says
that the road commission negligently and carelessly failed to keep said highway
in a reasonably safe condition for vehicles to travel over and upon, in that
employees of said road commission negligently and carelessly piled a large
amount of loose gravel upon said highway at the point where the car in which
she was a guest was being driven and that said employees negligently and
carelessly failed to spread the gravel along and upon said public highway in a
proper and safe manner and negligently and carelessly permitted said gravel to
remain in a large pile. She attributes the cause of the accident to these
alleged acts of negligence on the part of the road commission.
The evidence in the case is in sharp conflict. Corporal Knight, Mrs. Knight,
his wife, claimant and Madge Schmidt, who had made her home in the Knight
family for ten years, testified in unmistakable terms to the effect that there
was a large pile of gravel on the right-hand side of the road and that by
reason of
W. VA.] REPORTS STATE COURT OF CLAIMS 3
the car running into it the accident occurred. Mrs. Knight, mother of claimant
and driver of the automobile, said: “Well, as I hit this gravel my car swerved
to the right, and I, of course, tried to keep it in the road, and it swerved to
the left and started to skid sideways and almost upset in the middle of the
road, and then—I don’t know what made it—I think I must have got my foot on the
gas thinking I was on the brake.” After the occurrence of the accident Corporal
Knight was notified at New Cumberland and immediately drove to the scene. He
testified: “Just prior—about a hundred feet before the car went over the
embankment—all of this road was gravelled road
—there were a pile of gravel on the righthand side traveling toward West Union,
south, about 12 feet long and about six or seven or eight inches deep. Gravel
had been dumped there on the traction of the road on the righthand side.” Mrs.
Schmidt visited the scene of the accident on the day following its occurrence
and corroborated the testimony given by Corporal and Mrs. Knight. The testimony
of claimant herself was not enlightening, but was to the same substantial
effect of that given by the other witnesses, The car skidded for one hundred
feet from the point where claimant’s mother said it struck the pile of gravel
before going over the embankment. Both ladies were rendered unconscious.
Neither Corporal Knight nor Mrs. Schmidt saw the accident occur. When a
gentleman from West Union went to the scene of the accident to transport
claimant and her mother to West Union neither told him anything about having
run into a pile of gravel.
The evidence offered by the road commission in opposition to the claim makes it
plain to the court that the accident could not have occurred for the reason and
under the circumstances relied upon by claimant. All of this evidence is
positive, direct and persuasive. F. R. Amos, maintenance superintendent of
roads in Tyler county, and so employed for seven years, and familiar with state
route 18 in Tyler county, said that no accident of claimant had been reported
to him and that if an obstruction had existed on the highway it would have been
reported to his department, which was never done. He said
4 REPORTS STATE
COURT OF CLAIMS [W. VA.
that no gravel was placed upon state route 18 in July, 1940, and that if any gravel
had been placed upon the road he would have known about it. He said there was
never heavy traffic on that road.
Harvey Graham, maintenance foreman for the road commission in Tyler county, who
has been employed on the highway in question for twenty-one years, Russell
Ashe, foreman and truck driver for the road commission, John W. Headley,
employee of the road commission, and Roy Rhodes, a former truck driver,
testified in such particularity as to make it obvious to the court that the
road on which the accident occurred was in good condition for public travel and
that no pile of gravel was on the road in the month of July, 1940, at the point
where it is contended by claimant that there was a pile of gravel. No good
purpose will be served by detailing the testimony of these several witnesses.
It is sufficient to say that the claimant has failed to establish the merit of
her claim as one for which the Legislature should make an appropriation.
‘We repeat what we have heretofore said that the state does not guarantee the
safety or freedom from accidents of persons using its public highways.
It is unfortunate that the accident in question should have occurred, but we
are unable to find anything in the record that would warrant an award in favor
of claimant. An award will therefore, be denied and the claim dismissed.
W. VA.’ REPORTS STATE COURT OF CLAIMS 5
(No. 420-S—Claimant awarded $312.00)
JACOB F. BENNETT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion liled January 11, 1945
Appearances: The claimant in his own
behalf;
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK. JUDGE.
Claimant, Jacob F. Bennett, was permanently injured by a dynamite explosion on
March 20, 1934, while working for the state road commission in Nicholas county,
West Virginia, and this court at its January term, 1943, in an opinion rendered
by The Honorable Walter M. Elswick, one of the judges of the said court, held
that claimant had been injured through no fault of his and without any
negligence whatever on his part, and was therefore entitled to an award.
Accordingly, as shown by the records of this court, an award of $1,248.00 was
made for the biennium 1943-1945, payable at the rate of $5 2.00 per month.
The Legislature had on previous occasions made appropriations to pay the claim
of said claimant for a period from June 30, 1935 to 1941.
The state road commission was not a subscriber to the workmen’s compensation
fund at the time claimant was injured. It has been the apparent policy of the
Legislature to award compensation to claimant in the nature of payments similar
to those payable by the workmen’s compensation commission. The claimant in this
case has expressed his desire to receive compensation in this manner rather
than to receive a lump-sum award. His reason for this is prompted by his
inability to attend to
6 REPORTS
STATE COURT OF CLAIMS [W. VA.
any business affairs due to deranged mental condition caused by the explosion.
By reason of the specification that the amount was to be paid claimant at the
rate of $52.00 per month, beginning January 1, 1943, but specifying further
that it was for the “Biennium” which did not begin until July 1, 1943, there
was a period of six months for which no payments were made to claimant. The
road commission now recommends that the sum àf $312.00 be paid to claimant to
compensate him for the six months period, viz: from January 1, 1943 to July 1,
1943, not covered by the award of February 10, 1943, in re claim
No. 223, 1 Ct. Claims (W. Va.) 108, and the said recommendation is concurred in
by the office of the attorney general of the state of West Virginia.
In view of the evidence heretofore submitted, and the decision heretofore
referrd to and renderd by this court, as well as the expressed desire of
claimant to have compensation paid in monthly instalments, we recommend an
award of three hundred and twelve dollars ($312.00) for the said period from
January 1, 1943 to July 1, 1943, during which no payments had been made and
during which time, to such payments, as shown by the evidence heretofore taken
and the recommendation of the state road commission, concurred in by the
attorney general’s office, daimant was entitled.
An award of three hundred and twelve dollars ($312.00) is accordingly made.
W. VA.] REPORTS
STATE COURT OF CLAIMS 7
(No. 421-S—Claimant awarded $936.00)
JACOB F. BENNETT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion tiled January 11, 1945
CHARLES J. SCHUCK, JuDGE.
As heretofore indicated in an award made at the present term, as well as an
award made by this court to claimant on February 10, 1943, to which reference
has been made in claim No. 420-S. and for the reasons appearing in said
opinion, heretofore filed in claim No. 223, 1 Court of Claims (W. Va.) 108,
claimant filed his claim herewith for $936.00, payabk at the rate of $52.00 per
month, beginning July 1, 1945 and continuing to December 31, 1946; this claim being in
effect a continuation of the award made February 10, 1943, in case No. 223, supra.
The state road commision, through its officials, recommends the
continuation of the payment for the period indicated, at the rate of $52.00 per
month and the attorney general, through the assistant attorney general, W.
Bryan Spillers, concurs in the said recommendation.
In view of the action heretofore taken by the Legislature in honoring and
allowing said monthly payment for the periods indicated, we make a further
award of nine hundred and thirty- six dollars $936.0O) for the period from July
1, 1945, to December 31, 1946, payable to claimant at the rate of $52.00 per
month.
8 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 428-S—Claimant awarded $15.00)
R. C. ATKINS, Claimant
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January Ii, 1945
CHARLES J. SCHUCK, JUDGE.
On September 6, 1944, while driving along route No. 2, near Dunbar, West
Virginia, claimant was obliged to drive off the road onto the berm thereof to
allow another car to pass, and in so doing the rear right tire of his car was
cut by a piece of road sign or peg left sticking out of the ground by the
employees of the road commission who had removed the sign proper but had failed
to take out and remove the iron peg which seemingly was sharp enough to cut and
ruin the tire of the claimant while on the berm of the road as aforesaid.
The claim is in the amount of $15.00, and settlement of the said amount is
agreed to by the road commission and approved by the attorney general’s office
through the assistant attorney general.
An award in the sum of fifteen dollars ($15.00) is therefore made in favor of
claimant and we recommend payment accordingly.
W. VA.] REPORTS
STATE COURT OF CLAIMS 9
(No. 425-S—Claimant awarded $50.00)
B. PREISER COMPANY, Inc., Claimant,
V.
BOARD OF CONTROL. Respondent.
Opinion filed January 1/, 1945
CHARLES J. SCHUCK, JUDGE.
Claimant presents its claim in the amount of $50.00 for transportation charges
occasioned by making a shipment of certain equipment from Charleston to
Huntington, West Virginia, and the return of same to Charleston upon rejection
of the equipment at Huntington.
From the record it seems that the equipment was intended for Marshall College
and for some reason, not apparent, the authorities at Huntington repudiated the
contract or order theretofore entered into or given through the board of
control, and claimant was obliged to pay freight charges to Huntington and
return on the equipment in question. The board of control, through its
officers, in a communication sent to this court, stated substantially that the
claim should be paid and that the board of control feels that it is a just
claim and that compensation should be made accordingly to the company claimant.
The position of the board of control in the matter is affirmed by the office of
the attorney general hrough its assistant, in the approval that is likewise
submitted with the communication of the board of control. Under the
circumstances and the facts presented to us we therefore m& e a
recommendation that the sum of fifty dollars ($50.00) be paid in full
settlement of the claim and recommend to the Legislature that the appropriation
be made in accordance with the said findings.
10 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 442-S-——Claimant awarded $39.99)
I. FRANK HALLER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Md January 12, 1945
CHARLES J. SCHUCK, JUDGE.
On December 4, 1944, claimant, while driving his automobile on U. S. highway
19, in Harrison county, West Virginia, at 7:30 A. M. on the date in question,
and while the weather was foggy, had a collision with a state road truck
operated by an employee of the state road commission.
From the record and facts submitted it seems that the state road truck in
question was attempting to enter upon said highway and had pulled on the
highway with the front bumper of said truck extending over and upon the highway
for a distance of about six feet. Claimant was traveling north on the highway
at the time of the said collision. The investigation, as conducted by the
safety director for that particular district, shows that the driver of the
state truck was at fault, and that by reason of the said negligence the
accident in question occurred. No negligence is imputed to claimant. The
damages to claimant’s car amounted to $39.99.
The state road commission recommends payment of the aforesaid amount in full
settlement for all damages incurred by the claimant by reason of the accident,
and the claim is approved for payment by the assistant attorney general. We
therefore make an award in the sum of thirty-nine dollars and ninety-nine cents
($39.99) and recommend that payment be made accordingly in the said amount.
VJ. VA.] REPORTS
STATE COURT OF CLAIMS 11
(No. 429-S-—--Claimant awarded $72.00)
DORIS C. BOWMAN, Acting for her
daughter.
Mary Margaret Gilbert, infant,
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fi1ei January 12, 1945
CHARLES J. SCHUCK, JUDGE.
The facts as submitted in this claim show that on October 15, 1944, Mary
Margaret Gilbert, age twelve years, while running across the Third avenue
bridge on state route No. 2 in the city of Huntington, West Virginia, stepped
on a board which broke, causing the said infant’s leg to go down through the
sidewalk and injuring her in such a way as to require medical attention. She
was treated by Dr. J. S. Hayman and Dr. Cole
D. Genge, of Huntington, and an X-Ray was taken and according to the report of
the state road investigation there were no permanent injuries. The medical
bills amounted to $22.00 for both physicians. The mother of claimant has agreed
to settlement in the sum of $50.00 plus the $22.00 for medical services in full
for all damages that may have been suffered by said infant and incurred by
reason of the said occurrence. The state road commission recommends the payment
of the amount in question, to Wit: $72.00, and this conclusion is concurred in and
approved by the attorney general’s office through the assistant attorney
general.
We approve the claim as one that should be paid, but desire to call attention
to the fact that as the real claimant is an infant, a guardian should be
appointed by the county court of Cabell county, who would be empowered to
receive the amount involved and give to the state road commission a proper and
sufficient receipt. An award of seventy-two dollars ($72.00) accordingly is
made.
12 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No, 430-S-—Claimant awarded $40.80)
J. E. NEFF, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 12, 1945
CHARLES J. SCHUCK, JuE.
Claimant filed his claim in the sum of $40.80 for damages alleged to have been
caused to his truck by being struck by state road commission truck No. 730-76.
The accident occurred on state route
No. 5, in Trubota, Gilmer county, West Virginia, on July 19, 1944.
From the record as submitted for our consideration it appears that the state
road truck, preceding or ahead of claimant’s truck, stopped suddenly without
any warning whatever to claimant, or without any hand signal being used by the
operator of the state road truck, causing a collision between the two trucks
and bringing about the damages in question.
Claimant originally presented a claim for $75.00, but has agreed to accept the
amount of $40.80 in full settlement of all damages occasioned by the accident
referred to.
Payment of the claim is recommended by the state road commission and approved
by the attorney general’s office through the assistant attorney general, and
we, therefore. recommend an award of forty dollars and eighty cents ($40.80) to
claimant in full settlement of all damages occasioned by the said collision.
W. VA.] REPORTS
STATE COURT OF CLAIMS 13
(No. 431-S—Claimant awarded $ 179.93)
A. R.. HOLBERT, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fried January 15, 1945
G. H. A. KUNST, JUDGE.
In October, 1944, claimant’s Chevrolet truck loaded with logs, broke through
Stockton Run No. 35-8 bridge, in Calhoun county, West Virginia, and fell into
the creek. The bridge was unsafe by reason of a rotten sill, and no notice of
capacity of bridge or warning signs were posted.
The cost of repairing the damage so occasioned amounted to $179.93, for which
claim is made. Respondent recommends and the attorney general approves its
payment.
An award of one hundred and seventy-nine dollars and ninety-three cents ($ 179.93) is made to claimant.
(No. 427-S—Claimant awarded $15.00)
GENE COONTS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion tiled January 15. 1945
ROBERT L. BLAND, JUDGE.
While state road commission truck No. 730-72, operated by one Lee Cross, on a
state road in Barbour county, on June 1, 1944, was making a right turn at the
road intersection, its
14 REPORTS STATE
COURT OF CLAIMS [W. VA.
right rear wheel caught the right rear fender of a 1941 Buick automobile owned
by claimant, then lawfully traveling upon the highway. Investigation of the,
accident discloses that claimant’s vehicle had been damaged to the extent of
$15.00, which amount was found to be necessary to pay for costs of repair.
Claimant filed his claim with the road commission for that amount. The head of
that agency, deeming the claim to be meritorious, concurred in its payment, and
made and flIed a record thereof with the clerk of this court on December 8,
1944. An assistant attorney general approved the claim as one for which an
appropriation should be made by the Legislature. We are of the same opinion.
An award is therefore made in favor of claimant, Gene Coonts, for fifteen
dollars ($15.00).
(No. 435-S-—Claimant awarded $5 0.00)
J. F. MEANS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Orinion filed January 15. 1945
G. H. A. KUNST, JUDGE.
On November 13, 1944, the driver of state road truck No. 330-55, at East Street
Bridge, route 21, in Parkersburg, West Virginia, under the jurisdiction of
respondent, to avoid a streetcar pulled off its track. Because of the heavy
frost on the steel plate of the bridge the truck skidded and struck claimant’s
automobile, causing damage to the car, the cost of repairing which amounted to
$84.77.
Respondent recommends and the attorney general approves an award of fifty
dollars ($50.00), which is made to claimant.
W.VA.] REPORTS
STATE COURT OF CLAIMS 15
(No. 438-S-—Claimant awarded $34.82)
ROY JARRELL, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 15, 1945
ROBERT L. BLAND, JUDGE.
On September 23, 1944, claimant Roy Jarrell, of Point Lick, West Virginia, was
driving his automobile on the state highway on Campbells creek, near Tad, in
Kanawha county, West Virginia. A state road commission shovel was engaged in
work on the road. An employee of respondent, acting in the capacity of flagman,
permitted claimant to pass by the shovel. The shovel was so operated that it
struck claimant’s automobile and caused such damage thereto that he was obliged
to pay the sum of $34.82 to have necessary repairs made thereto. For this
amount claimant filed a claim with the road commission for reimbursement. The
head of the agency concerned concurred in the claim, made and filed a record
thereof with the clerk of this court on December 15, 1944. An assistant
attorney general, having examined the record, approves the claim as one for
which payment should be made by the state.
Under the facts appearing in the record we are of opinion that the claim is
meritorious and that an award should be made therefor.
An award is, therefore, made in favor of claimant, Roy Jarrell, for thirty-four
dollars and eighty-two cents ($34.82).
16 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 440-S—Claimant awarded $16126)
R. 0. ROBERTSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Januarj 15, 1945
ROBERT L. BLAND, JurxE.
The claim filed in this case is for repairs made to a damaged automobile.
On November 30, 1944, Emily P. Robertson, wife of claimant, R. 0. Robertson, of
222 Holswade Drive, Huntington, West Virginia, was driving an automobile owned
by her husband, bearing West Virginia license No. 8790, in the city of
Huntington, West Virginia and was traveling south on Tenth street. The street
was slippery and wet. Mrs. Robertson had the right of way. State road
commission truck No. 229-19 failed to stop at the stop sign, as a result of
which it collided with claimant’s car and caused serious damage thereto. An
investigation made by the road commission shows that the state-operated vehicle
was at fault and responsible for the accident. An itemized estimate of the
necessary costs of repairs to claimant’s car fixes the amount at $161.26. The
head of the department concerned concurs in the claim filed for that amount. An
assistant attorney general, whose duty it is to familiarize himself with the
record, has approved the claim as one which, within the meaning of the court
act, should be paid by the state.
An award is now made in favor o.f claimant, R. 0. Robertson, for one hundred
and sixty-one dollars and twenty-six cents ($161.26).
W. VA.) REPORTS
STATE COLRT OF CLAIMS 17
(No 34—Cla:m denied
R. G. YOAK. Claimant
V.
STATE ROAD COMMISSION. Respondent.
Opin:ou Ced Janucrc, 15,
1 45
An award will be refused, where
re:sonble care has no: been exercised by a claimant in driving an
automobile over a— uneven rock s:ratum in the road, causing an accident. in
which claimant is inured and fr which, an award is asked agains: respondent.
Appearances:
J. Worleu Potoe?1. for claimant:
W. Braoit Sp?!ens.
Assistant Attoritev General. for the state.
G. H. A. KUXST. Jms.
Claimant. R. G. leak, a Methodisr
Minister, at about 7:30 oclock. P. M. on the Oth day of October. 1Q42.
started to drive in a Ford coupe from his home in Farmington. \1arion county, ‘\Vcst Virginia. to hod services at Bethel Methodist
Church in said county. When at a roint about one-half a mile distant
from the church. his car left the road. overturned and rolled
down a steep embankment on the left side of the road. as a result of which he was severely in ured. which he alleges was caused by
rcst’ondcnt’s negligence in permitting an
uneven rock stratum forming part of
the road bed to remain as an
obstruction in the road. cauin thic accident
and for which alleged negligence, claimant asks an award aga:nst resnondent
for the sum of
This secondary road in Lincoln district of said county of Marion is
called the Dunkard Mill Creek Road and ic under
the jurisdiction of rcsiondcnt.
At the place where the accident occurred the road was from twelve to fifteen
feet in width. the stratum of uneven rock cx-
18 REPORTS
STATE COURT OF CLAIMS [W. VA.
tended over half the distance from the upper right side of the road across it,
but not leaving sufficient space between the rock formation and the embankment
on the left for a car to pass. The preponderance of evidence of a number of
witnesses, thoroughly familiar with the uneven surface of this place in the
road, from constantly driving over it, was that with reasonable care in driving
no serious danger or unusual hazard resulted from this condition and that had
claimant exercised such care the accident would not have occurred. A careful
examination of this place made by the court confirmed this conclusion. An award
is refused and the case dismissed.
(No. 311—Claim denied)
R. J. THRIFT, Jr., Claimant,
V.
EDGAR B. SIMS, State Auditor and ex
officio Commissioner
of Forfeited and Delinquent Lands, Respondent.
Opinion filed January 16, 1945
Compensation for duties performed and
services rendered by a deputy commissioner of forfeited and delinquent lands is
payable out of the operating fund for the land department in the aujitor’s
office; and the Court of Claims will not recommend to the Legislature an
appropriation for such compensation when a claimant fails to allege and prove
that compensation for such services claimed by him and to which he might show
himself to be justly entitled is not available in the said fund for the
satisfaction of his claim.
Arnold M. Vichers, for claimant;
Ira J. Partlow, Attorney General, Eston B. Stephenson, and W. Bryan Spillers, Assistant Attorneys General, for respondent.
ROBERT L. BLAND, JUDGE.
On the 13th day of October, 1942, by authority of chapter 117 of the Acts of
the Legislature of the state of ‘West Virginia,
W.VA.] REPORTS
STATE COURT OF CLAIMS 19
1941, regular session, claimant R. J. Thrift, Jr., was duly appointed a deputy
commissioner of forfeited and delinquent lands for Fayette county, West
Virginia, by Edgar B. Sims, the state auditor, as ex officio commissioner
of forfeited and delinquent lands of West Virginia. He maintains that as such
deputy commissioner he made and completed “basic” abstracts of title on six
hundred and sixty-two separate and distinct tracts and parcels of property, of
which number thirty—two tracts were abstracted completely. Pursuant to his
appointment as such commissioner claimant applied to the circuit court of
Fayette county, West Virginia, on November 2, 1942, for an order fixing the
date of sale and the date of first publication of the list and notice of sale
as was provided by said act, and on that date secured the entry of an order of
said court setting the date of sale for January 25, 1943, and the date of first
publication for November 12, 1942. Prior to the sale ninety—four tracts were
redeemed from the deputy commissioner and two tracts were suspended from sale,
leaving a total of seven hundred and forty-seven tracts which claimant offered
for sale on January 25 and 26, 1943. Of this total number seventy-five tracts
were sold to individuals and six hundred and seventy-two tracts were sold to
the public land corporation of West Virginia. Ten of these tracts sold to the
public land corporation were redeemed by the owners before any abstracts
thereof were made by the deputy commissioner.
Claimant says that he performed said work in good faith and under authority of
the statute of West Virginia in effect at that time. - He maintains that said statute provided in effect that
he should be paid $5.00 for each abstract completed, which would entitle him to
the sum of $160.00 for the thirty-two abstracts completed, and that in addition
to those completed he made “basic” abstracts on six hundred and sixty-two additiial
tracts of property in complete good faith and under authority of the statutes
of West Virginia in effect at that time, and that for such work he should be
entitled to a minimum of one-half of the fee allowed for completed abstracts,
which would entitle him to an additional fee of $1575.00, which
together with the
20 REPORTS STATE
COURT OF CLAIMS [W. VA.
said $160.00 would entitle him to the gross payment of $1735.00 for work and
labor performed. Claimant contends that all of this work was done and completed
about one week prior to March 26, 1943, on which date the Supreme Court of the
state of West Virginia held the act above mentioned and under which he
performed his services to be unconstitutional. He says that he has been paid
nothing, directly or indirectly, for his said services. He asks that his claim
for the sum of $1735.00 for work and labor done as deputy commissioner of
forfeited and delinquent lands of Fayette county, prior to March 19, 1943, be
allowed, approved and confirmed and that the same be recommended to the
Legislature for appropriation and approval.
The attorney general has moved to dismiss the claim on the following grounds:
“(1.) That the facts and allegations of Claimant’s petition
do not state a valid cause of action on a claim sufficient in law against
respondent or the state within the meaning of chapter 20, Acts of the
Legislature, 1941, known as the State Court of Claims law;
“(2.) No liability exists against the state since claimant is not entitled to
compensation for services rendered under an unconstitutional statute.”
In the case of Sims, Auditor, et al v. Fisher,
Judge, decided March 26, 1943,
reported in 25 5. E. 2nd series, page 216, 125 W. Va. 512, the Supreme Court of
Appeals of West Virginia determined that the provisions of the statute under
which claimant contends that he performed services . . . with reference to the creation of the office of
commissioner of forfeited and delinquent lands, and his deputies in the several
counties of the State, and for the certification of delinquent and forfeited
lands to the circuit courts of the counties, and which provide the method by
which lands may be redeemed from the deputy commissioners, are valid exercises
of legislative powers .
. .
W. VA.] REPORTS
STATE COURT OF CLAIMS 21
but held .
. . the act unconstitutional, first, so
far as it fails to provide for a judicial ascertainment, prior to any order of
sale, that lands proceeded against are, in fact, subject to sale; and, second,
because as the act now stands it attempts to impose upon circuit courts
administrative powers, in connection with such sales, in violation of the
several constitutional provi sion partcularly referred to In the opinion.
Section 33, article 4, chapter 117, enacted by the Legislature of 1 941, reads
as follows:
‘‘Immediately after the sale the deputy commissioner shall, as to each sale of
forfeited or delinquent land to the public land corporation, proceed with the
examination of title and with preparation of the list of persons to be served
with notice to redeem. Before the sale may be confirmed, he must complete the
list and apply to the circuit court or judge for an order directing the clerk
to prepare and serve the notice as provided in sections thirty-seven and thirty-eight
of this article. For such seroices in respect to each sale, the deputy commissioner shall
be entitled to a fee of five dollars, plus such additional compensation as the
auditor may recommend and the court or judge approve, to be paid out of the operating
fund for the land department in the auditor’s office.” (Italics ours.)
This statute makes no express provision for the payment of compensation for
basic” abstracts. It does not expressly provide for the payment of a fee of
five dollars for a completed abstract and other services to be performed. It is
true that it does provide that for all of the services therein directed to be
performd by a deputy commissioner of forfeited and delinquent lands he shall be
entitled to a fee of five dollars and such additional compensation as the
auditor may recommend and the court or judge approve. It is not contended by
claimant that he did more than make basic abstracts on 662 tracts of land and
complete abstracts on 32 parcels of that number Claimant maintains that he was
engaged approximpately two months in performing the services and doing the work
for which he claims
22 REPORTS SLATE
COURT OF CLAIMS {W. VA.
in this case an award should be made in his favor of $1735.00. He says that
none of his abstracts or data have been furnished to the auditor as ex officio commissioner
of forfeited and delinquent lands. When asked, “Was this data turned over to
the auditor?” claimant replied, “No, sir, and it won’t be until I get paid for
it. Until I am paid for it it is my own personal property.” When asked if he
had been paid any fees or commissions as deputy commissioner, he answered, “I
have, but not for this particular work.” We presume that he had reference to
the sum of one dollar paid to him for every tract certified to the circuit
court of the county of his appointment, as provided by section 5, article 4, of
the statute. Since 747 tracts were offered for sale, 2 suspended from sale and
94 redeemed, making a total of 843, it is assumed that claimant has already
been paid that much money, even though he may not have been paid any additional
compensation for the partial work done by him under section 33 of article 4, chapter
117.
We have no hesitation in expressing the opinion that there can be no valid
cause of action against the state. There may however, be meritorious claims
prosecuted for which appropriations should properly be made against the state
as a sovereign commonwealth, We are not prepared to concede that a claim
against the state is synonymous with a cause of action. There is much authority
to sustain the proposition that no liability exists for services performed
under an unconstitutional statute. 43 Am. Jur. section 341, at page 135. We
deem it unnecessary to make further citation. We are of opinion, however, that
under circumstances where services have been rendered in good faith under a
statute subsequently declared to be unconstitutional compensation could
properly be made.
We have examined what are called “basic abstracts” in this case as well as an
original completed abstract, In view of the determination which we have
concluded to make of this claim we deem it unnecessary to discuss whether or
not these abstracts, basic and complete, are of any or such value to the state
or to the public land corporation as would warrant and justify this
W. VA.] REPORTS
STATE COURT OF CLAIMS 23
court in making a recommendation to the Legislature for an appropriation such
as that prayed for in claimant’s petition. In our judgment compensation for
duties performed and services rendered by a deputy commissioner of forfeited
and delinquent lands is payable out of the operating fund for the land
department in the auditor’s office. Section 33, article 4, chapter 117, Acts of
the Legislature of West Virginia, 1941.
An award is denied and the claim dismissed.
CHARLES J. SCHUCK, JUDGE, dissenting.
The majority opinion reviews in detail the facts upon which this claim Is based;
the act under which claimant was employed by the auditor to do the abstracting
in question, and a review of the decision by our Supreme Court declaring the
act unconstitutional, the said court’s decision having been rendered shortly
after the claimant had performed and finished his services.
The attorney general moved to dismiss the claim upon the grounds:
“1.
That the facts and allegations of
claimant’s petition do not state a valid cause of action on a claim sufficient
in law against respondent or the state within the meaning of chapter 20, Acts of the Legislature, 1941, known as the State Court
of Claims law;
“2.
No liability exists against the state
since claimant is not entitled to compensation for services rendered under an
unconstitutional statute.”
Without entering upon a discussion of the law applicable to the proposition
whether or not a legal or so-called valid cause of action is presented, I feel
that claimant is entitled to at least reasonable compensation for the services
rendered. He was retained by the auditor to do the work. He rendered his
services in good faith; a fact evidently admitted, at least indirectly, in the
majority opinion as shown therein, where the opinion recites: “We are of
opinion, however, that under circum
24
REPORTS STATE COURT OF CLAIMS
{W. VA.
stances where
services have been rendered in good faith under a statute subsequently declared
to be unconstitutional compensation could properly be made.”
He discharged his obligation to the state in full before the rendering of the
Supreme Court’s decision, and to deny him compensation for his services is in
my opinion unjust and unwarranted, especially so, when technicalities must be
resorted to in order to deny his claim. There was, at the very least, a moral
obligation on the part of the state to pay, and if the clause “equity and good
conscience” in the act creating the Court of Claims mean anything, then, in my
opinion, this is a claim which ought to be paid. The fact that the act under
which he rendered the services was declared unconstitutional cannot control
since many courts hold that liability does exist for services rendered under an
act which is afterward declared unconstitutional. In fact I firmly believe that
the majority of the courts so hold. If this were not true then we can readily
contemplate that many state officers and employees could, at some time or
other, he denied pay of salaries, in whole or in part, because they had worked
or rendered services under an act later declared unconstitutional. It is
obvious that to deny them pay under such circumstances would be a gross
injustice and an irreparable wrong.
I repeat, the claimant acted in good faith; he rendered the desired services
for which the auditor had retained him; the services may yet be beneficial to
the state at some future time; equity and good conscience are beyond question
on the claimant’s side, and demand that he be paid.
I would therefore favor an award.
W. VA.] RI PORTS
S’FATP COURT OPCI.AIMS 25
(Nos. 324, 325, 326, 327—Claims denied.)
JOSEPH HARVEY LONG, PAUL WALKER LONG,
JENNY ELOISE LONG and HILDA S. LONG, Claimants,
V.
STATE TAX COMMISSIONER, Respondent
Opinion tiled January 16, 1045
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.
Appearances:
Scott & Ducker(H. L. Ducker) for claimants:
Ira 1. Pat-flow, Acting Attorney General, Eston B. Stephenson, and W. BrlJan
Spillers, Assistant Attorneys General
for respondent.
ROBERT L. BLAND, JuDc,E.
Claimants, residents and taxpayers of the city of Huntingston, Cabell county,
West Virginia, made and filed with the state tax commissioner of the state of
West Virginia, on March 15, 1938, regular income tax returns and paid taxes to
the state for the year of 1937, in accordance with the law in such case made
and provided. After making and filing these returns and the payment of taxes
thereon they discovered that by reason of their failure to take into
consideration, in determining the amount of their respective incomes for the
year 1937, the fair market value of the stock of the Charleston Broadcasting
Company, a West Virginia corporation, as of January 1, 1935, which said company
was being liquidated in the years 1936 and 1937, theypaid to the state the
following sums in excess of the amounts which they were obligated to pay to the
state as income taxes for said year 1937:
Joseph Harvey Long, $617.31.
26 REPORTS STATE
COURT OF CLAIMS [W. VA.
Paul Walker, Long, $308.65.
Jenny Eloise Long, $308.65.
Hilda S. Long, $308.65.
Subsequent to two years after filing by claimants of their said income tax
returns for the year 1937, but within three years from the time they so filed
their 1937 income tax returns, they respectively filed with the state tax
commissioner requests for and claims of refunds in the said excess sums so paid
by them respectively, with interest from the date of said payments. which
requests and claims were refused and denied by the state tax commissioner for
the reason that under the regulations promulgated by the state tax commissioner
the said requests and claims were not presented or made within two years from
the date of the filing by claimants of their income tax returns for the year
1937 and because .
the hereinafter specified three year
limitation upon so doing was not applicable to such requests or claims of
refund.
Claimants direct the court’s attention to chapter 128 of the Acts of the
Legislature, regular session, 1939, amending and reenacting article 13-a of
chapter 11 of the code of West Virginia of 1931, which provides as follows:
“Sec. 54. Refunds. A taxpayer who has paid in any manner, except under the
provisions of subsection three or four of section fifty-three, an amount of tax
for any taxable period in excess of the amount legally due for such period, may
file with the commissioner a claim for refund of such excess.
“Unless a claim for refund is filed by the taxpayer within three years from the
time the tax was due or within two years from the time the tax was paid,
whichever shall be the later date, no refund shall be allowed.
“The amount of the refund shall not exceed the
portion of the tax paid during the three years immediately preceeding the
filing of the claim, or, if no claim was filed, then during the three years
immediately preceeding the allowance of the refund. A refund under this section
shall be with interest at
W. VA.] REPORTS
STATE COURT OF CLAIMS 27
six per cent from time of payment. Interest payments on refunds heretofore made
under this article are hereby authorized and approved.”;
and to the regulations relating to the West Virginia Personal Income Tax Act,
promulgated by the state tax commissioner, which includes the original income
tax act of 1935, as amended by the Acts of the Legislature of 1937 and as
further amended by the Acts of the Legislature of 1939, which contains, in
section 54 thereof, page 155, the same provisions as are above set forth, with
section 61 of said regulations of the state tax commissioner reading as
follows:
“Sec. 61. This article shall take effect as of January first, one thousand nine
hundred thirty-five, and the first tax to be assessed under this article shall
be computed upon income received during the calendar year one thousand nine
hundred thirty-five.”
Claimants say that relying upon the provisions of section 6 1 as set forth in
the regulations of the state tax commissioner they were informed and believed
that they could make such requests for and claim of refund of the said
overpayments of taxes for 1937, in the said sums of $617.31, $308.65, $308.65.
and $308.65, within a period of three years after the date of the filing of
their respective income tax returns for the year 1937 on or before March 15,
1938, that is, that they could make such requests or claims for refunds at any
time prior to March 15, 1941, and that they did so make such requests ad claims
for refund within that time, and that although it may be true that they have no
strictly legal right to have refunds on account of the said provisions of the
said regulations of the state tax commissioner, yet they contended that they
relied upon the information furnished by the state tax commissioner in his said
pamphlet of regulations as to the law and to the regulations relating thereto
and as to the time within which they could apply for such refund, and
consequently they have been unduly and unfairly prejudiced and damaged on that
account in the premises, and have suffered the loss of the amount of refund
claimed, with interest thereon, which loss and damages they maintain they
should not in equity and in fairness suffer.
28 REPORTS STATE
COURT OF CLAIMS [W. VA.
In this proceeding claimants seek awards for said alleged over- payments, with
interest thereon from March 15, 1938.
Respondent admits the filing of 1937 income tax returns and the payment of
taxes thereon on March 15, 1938 by claimants, but has moved to dismiss all four
of the claims. Respondent contends that under the law applicable (section 53,
article 13-a, chapter 11 of the code as amended by chapter 89, Acts of the
Legislature of 1935) claimants were required to make application to the
commissioner for revision of the taxes assessed against them at any time within
one year from the filing of the returns, whereupon the tax commissioner would
be required by statute to refund to the taxpayers the amount, if any, paid in
excess of the tax found by him to be due; and that likewise any refund under
the provisions of the general approiation of chapter 1, Acts of the
Legislature, 1937, title 2, section 8 expired as of June 30, 1939, the end of
the second fiscal year (chapter 1, title 1, section 2, Acts of the Legislature,
1937). It is maintained that the claims for refunds for everpayrnent expired
and were barred by the statute of limitations at least eight months prior to
the circulation of the regulation containing the alleged misrepresentation as
complained of by the claimants, which regulations were not given public
circulation until at least February 15, 1940, and that therefore no injury or
prejudice to the rights of claimants could have occurred from any alleged
misrepresentation occurring after the claimants were legally barred from filing
applications for income tax refunds for overpayment of taxes.
Respondent further defends the four several claims on the theory that claimants
had an adequate remedy under section 53, article 13-a, chapter 11 of the code
as amended, chapter 89, Acts of the Legislature, 1935, whereby they could have
paid the tax under protest and then made application to the tax commissioner
for refunds of the amounts paid within one year from the filing of the return,
and if refused refunds they could have brought mandamus proceedings in the
circuit court of Kanawha county against the tax commissioner asking that the
W. VA.] REPORTS
STATE COURT OF CLAIMS 29
correct amount of their tax liability be extended and that any excess paid by
them beyond the proper charge be refunded as authorized by the decisions of the
Supreme Court of Appeals of West Virginia in Dickinson v. James, 120 W.
Va. 222. It is argued that
claimants had an adequate remedy within the meaning of subsection 7, section 14, article 2, chapter 14 of the code providing
that the jurisdiction of the State Court of Claims shall not extend to any
claim with respect to which a proceeding may be maintained by or on behalf of
the claimant in the courts of the state.
Upon careful consideration of the record we conclude that claimants could not
have been misled by anything contained or appearing in the regulations
promulgated by the tax commissioner. Their failure to make application for
refunds within the time prescribed by statute to do so was doubtless the result
of misapprehension or inadvertence on the part of the person charged by
claimants with the responsibility and duty of making application for refunds on
their behalf. The evidence offered by claimants upon the hearing in support of
their claims seems to us to warrant this conclusion.
Claimants admit that they have no strictly legal right to refunds but argue
that in equity and good conscience awards should be made in their favor. This
court has no power to extend the time for making application for refund of
taxes paid beyond that fixed by statute. Under the facts disclosed by the
record we are unable to perceive that claimants are entitled to redress against
the state, either at law or in equity.
Claimants had a remedy afforded them by statute. By pursuing that remedy and
making application for refunds of excess income taxes paid by them within the
period fixed by law to do so it would have been the duty of the tax
commissioner to make such refunds to them as they might have shown themselves
to be entitled to receive, This court must deal with the statute as it finds
it. We have no power to afford claimants relief in the premises.
An award is denied in each case.
30 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 378—Claimant awarded $865.00 upon rehearing)
ELMA SHEPHERD, Claimant,
V.
DEPARTMENT OF PUBLIC ASSISTANCE, Respondent.
Opinion filed Januarg 17, 1945
Opinion on rehearing filed December 17, 1945
An employee of the department of
public assistance engaged in the work of investigating applications for relief
and commonly termed a “visitor” and whose position and salary are based upon
seniority and service ratings and who is one upon the preferred eligible list
when appropriations for the said department are curtailed or decreased, cannot
be dismissed without just cause and if so dismissed without such just cause is
entitled to her salary during the period of such dismissal.
Appearances:
W. S. Pettigrew, and R. K.
Talbott, for the claimant;
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JuDGE.
The claimant, Elma Shepherd of Huntington, West Virginia was heretofore an
employee of the Cabell county council of the department of public assistance
and was so employed for a long period prior to the 27th day of June, 1943. She
was known as a “visitor” and had accumulated 15 and 9/12 points based on
seniority and service ratings. On the first day of July, 1943, seemingly with
no reason assigned therefor, she was dismissed from the said service and on the
31st day of October, 1943, she was formally notified of her dismissal with the
following charges preferred to wit:
“Inefficiency, does not cooperate with other workers of the department;
unsatisfactory in attitude toward clients.”
W. VA.] REPORTS
STATE COURT OF CLAIMS 31
Subsequently, claimant appealed said dismissal to the merit system council of
the state of West Virginia and the charges preferred as aforesaid not having
been substantiated she was on the first day of March, 1944, reinstated and has
been since said time performing her duties as a “visitor’’ for the Cabell
county council of the department of public assistance. She presents her claim
in the amount of $1020.00 less a credit of $95.00 in the nature of vacation
pay, claiming a net amount of
$925.00 for her illegal dismissal during the period from July
1, 1943, to March 1, 1944: six months of said period being calculated at the
rate of $120.00 per month and two months at the rate of $130.00, and $40.00 for
four months increase in salary at $10.00 per month involving the period from
March 1, 1944, to July 1, 1944. So far as the salary claimed is concerned, the
amount thereof, if due and payable, seems to be correct.
In performing her services as such “visitor” claimant was governed by the rules
and regulations of the West Virginia merit system by virtue of which certain
ratings are given based upon the efficiency of the employee, term of service
and other qualifications fixed and defined by the department having charge of
the said public assistance department. The employees in the said department are
practically under civil service and while governed and controlled by certain
regulations and requirements, are likewise protected in their employment and
cannot be dismissed after a certain time without 5ust cause.
By reason of the reduction in the appropriation for public assistance in the
year 1943, it became necessary for the agency in charge to reduce its staff.
The West Virginia merit system rule provides for a special way of reducing a
force where it is necessary because of lack of funds. The rule provides that
reduction of the force shall be made on the basis of the formula promulgated by
the merit system supervisor and which takes into consideration the service
ratings and seniority so far as employment by the agency is concerned. Such
formula was submitted to the council or agency of Cabell county; was fully
32 REPORTS
STATE COURT OF CLAIMS [W. VA.
agreed to and the “layoff” or reduction of employees was to be made by all the
dependent agencies in accordance with the rule so promulgated. The department
of public assistance at the time the emergency arose sent to the different
county agencies in the state the formula showing how the different county
forces were to be reduced and listed as well the names of the persons who were
eligible and how many should be retained in each county together with the
stipulation that the persons at the top of the list were to be retained and
indicating the number of said persons so to be retained.
In the case of Cabell county where claimant was employed, there were eighteen
names submitted to the agency of that county, together with the instructions
that the first seven persoxis so named were to be retained. Claimant was among
the first seven and according to the instructions given from the department at
Charleston ought to have been retained. However, the local agency of Cabell
county seemingly refused to comply with the formula as promulgated by the state
department and shortly thereafter following a conference with the state agency
officials preferred charges against claimant alleging inefficiency, failure to
cooperate and unsatisfactory attitude toward clients. From this dismissal so
made, claimant appealed to the state agency at Charleston and after a hearing,
was fully vindicated and the appeal upheld by the state council. The agency of
Cabell county in changing the “layoff” to dismissal acknowledged that it had
improperly and irregularly dismissed claimant from her employment. Claimant was
fully reinstated and has continued to work in the department since that time.
She was “laid off” from July 1, 1943, to March 1, 1944, or a period of eight
months, during which time she received no compensation so far as the record
reveals.
In view of the nature of the employment in which claimant was engaged, the
rules and regulations governing her employment, the fact that she was virtually
under civil service and could only be dismissed for just cause; and the further
fact that the actions of the local agency of Cabell county in dismissing
W. VA.]
REPORTS STATE COURT OF CLAIMS 33
claimant being wholly unwarranted and improper impels us to conclude that if
the rules and regulations as promulgated by the state department mean anything
at all, then claimant is entitled to her salary for the period during which she
was laid off by reason of the improper and illegal action of the Cabell county
agency.
The particular state agency involved is one of great importance to the welfare
of the state, taking care of citizens who by reason of old age, physical
incapaciy or ailments, or for other reasons, are entitled to help and
assistance from the state. The very nature of the work required of employees in
this department makes special fitness so far as ability and personality are
concerned the very essentials necessary to successfully carry on the work of
the department; and it seems to us that the establishment of the merit system
which in effect in this particular department means civil service, would bring
about a higher and greater degree of efficiency and ability in the discharge of
the duties and obligations of the employees of that department. It was
therefore, right and proper that employees in the department known as
“visitors” should be protected and continued so long as their services were
satisfactory and beneficial, not only to the department and the state, but to
clients as well. The department of Cabell county having acted without authority
or justification and the claimant not having been guilty of inefficiency or any
lack of cooperation as alleged by that agency, is under the rules and
regulations of the West Virginia merit system as promulgated, entitled to her
salary. We therefore, make an award to the claimant in the sum of nine hundred
and twenty-five dollars ($925.00) and recommend that it be paid accordingly.
CHARLES J. SCHUCK, JUDGE, upon petition for rehearing.
In the matter of the claim of Elma Shepherd, the court having heretofore
granted a rehearing and having again considered the facts adduced at the former
hearing, as well as those presented at the subsequent hearing the court,
including Judge Smith sitting for the first time during the regular October
term,
34 REPORTS STATE
COURT OF CLAIMS [W. VA.
again holds that the said claimant is entitled to an award, with the
deducation, however, of $60.00 from the original award, which said amount of
$60.00 was heretofore included in the first award and is now deducted because
the testimony offered at the second hearing shows that the said amount,
covering a period from January 1, 1944 to July 1, 1944, as an increase at the
rate of $10.00 per month, was not allowed to any worker in Cabell county
similarly engaged, and therefore the claimant would not be entitled to the
increase, and her original award is accordingly reduced from $925.00 to
$865.00, for which amount of eight hundred and sixty-five dollars ($865.00) an
award is now made and recommended.
(No. 377—Claimant awarded $900.00 upon rehearing)
VIRGINIA WILSON, Claimant,
V.
STATE DEPARTMENT OF PUBLIC ASSISTANCE,
Respondent.
Opinion filed January 17. 1945
Opinion o, rehearing filed December 17, 1945
S!Jllabus in re the claim of Shepherd v. Department of Public Assistance reaffirmed and adopted.
Appearances:
W. S. Pettigrew, and R. K.
Talbott, for the claimant;
W/. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JuDGE.
The facts upon which this claim is predicated are similar in all respects to
those presented in the claim of Elma Shepherd against the department of public
assistance decided at the present
W. VA.] REPORTS
STATE COURT OF CLAIMS 35
term, except that the claimant. Virginia Wilson, had a slightly higher rating
on the preferred eligible list when dismissed without cause by the local agency
of Cabell county, West Virginia. Upon appeal from said dismissal she was
likewise reinstated by the state department and is entitled to her salary
accordingly during the period of the said dismissal.
In accordance with the opinion heretofore filed in Shepherd v. Depanment of Public Assistance, we find for the claimant and make an award in the sum
of nine hundred and sixty dollars ($960.00).
CHARLES J. SCHUCK, JUDGE, upon petition for rehearing.
For the reasons heretofore set forth in the supplemental opinion filed in the
matter of the claim of Elma Shepherd against the department of public
assistance, the award heretofore made to claimant, Virginia Wilson, is reduced
in the amount of $60.00, and consequently an award is now made and recommended
in the amount of nine hundred dollars ($900.00).
(No. 379—Claim denied)
JESSIE E. GARDA, Claimant,
V.
DEPARTMENT OF PUBLIC ASSISTANCE,
Respondent.
Opinion filed January 17, 1945
Claimant not having been on the preferred eligible list at the time of her
dismissal by the Cabell county unit is not entitled to a salary during the
period of dismissal, even though the reasons for said dismissal are not
sustained and claimant was fully exonerated. The preferred eligible list and
ratings must control and govern in a period during which an emergency arises
caused by the curtailment of the appropriation for the department and when it
is found necessary to lessen the number of employees or ‘Visitors.
Appearances:
36 REPORTS STATE
COURT OF CLAIMS [W.VA.
W. S. Pettigrew, and R. K.
Talbott, for the claimant;
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
The claimant, Jesse B. Garda, seeks an award in the sum of $1,380.00 for twelve
months salary from July 1, 1943, to July
1, 1944, during which time she was not employed at her usual work of a
“visitor” of the state department of public assistance having been dismissed
July 1, 1943, without cause and then on October 31, 1943, having been formally
charged with inefficiency and incomplete reporting. She was upon appeal to the
merit system council fully exonerated and presents her claim in this court for
her salary accordingly.
The basis of this claim is identical with that presented in the claims of Elma Shepherd and
Virginia Wilson against the involved department, except that in
claimant’s case she was not on the preferred eligible list at the time of her
dismissal on July 1, 1943.
As indicated in our opinions in re Wilson and Shepherd,
the controlling feature governing favorable
awards after the charges of inefficiency had not been sustained, was the fact
that both the claimants Shepherd and Wilson were on the preferred eligible list
by reason of their ratings and should have been employed in case any “visitors”
were employed by the local board of Cabell county. This is upon the assumption
that the rules, regulations and ratings of the merit system council, in fact,
constitute civil service for the department’s employees and that the employment
of “visitors” must be governed accordingly. It may be true that others not
rated as highly even as the claimant had some employment during the period in
question, and while such employment was wrong and highly improper so far as the
Cabell county unit’s actions were concerned, yet this fact of itself does not
entitle claimant to a rating sufficient to warrant making an award in her
favor. We repeat, that we are governed by the ratings established by the merit
system council and
W. VA.] REPORTS
STATE COURT OF CLAIMS 37
especially so by the preferential eligible list as established during the
emergency out of which these claims grew. Claimant was not on the preferred
eligible list and consequently in our opinion is not entitled to an award.
Accordingly an award is refused.
(No. 443-S—Claimant awarded $19.50)
F. J. HRANKA, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Jcrnuarg 18, 1945
CHARLES J. SCHUCK, JUDGE.
Claimant’s automobile, while being driven by his wife in the city of Wheeling,
at and near Eleventh and Market streets, on October 11, 1944, was struck by a
state road truck and injured to the extent of $19.50, as shown by the invoice
filed with the claim.
It appears that the state road truck in question, starting from the
intersection of Eleventh and Market streets, after waiting for a green light in
order to proceed, pulled to the right causing the rear wheel thereof to strike
and damage claimant’s car thaX stopped immediately beside and to the right of
the said state road truck. The statement of the managing engineer of the prison
labor division (the truck having been operated by a prisoner) contains the
statement that the state road truck driver was negligent.
The state road commission recommends settlement in the amount of $19.50 and
this recommendation is concurred in by the attorney general’s office, through
the assistant, W. Bryan Spillers. ‘We, therefore, make an award in the sum of
nineteen dollars and fifty cents ($19.50) in full settlement of the said claim.
38 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 444-S——Claimant awarded $149.00)
H. C. DEMPSEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled January 18, 1945
CHARLES J. SCHUCK, JUDGE.
On October 12, 1944, at about 10:30 P. M. on a dark, rainy night, with limited
visibility, the claimant was returning to his home from a neighbor’s house,
both located along U. S. route No. 119, Grafton, West Virginia. The claimant
stepped off the highway and over the berm of the same, and in so doing stepped
into an unprotected open catch basin and was injured to the extent of being
obliged to lose three weeks of his work and to spend the sum of $35.00 in
medical bills and medicines, making a total of $149.00.
No warning sign had been erected at and near the culvert and so far as we are able
to determine, from the record as submitted, claimant had no notice whatever of
the presence of the catch basin in question. A warning sign was later erected.
The state road commission recommends the payment of the aforesaid amount of
$149.00 in full settlement of the claim as presented by the said H. C. Dempsey,
claimant; the attorney general’s office agrees to the said recommendation of
payment. Accordingly, we make an award in favor of the claimant in the sum of
one hundred forty-nine dollars ($149.00).
W. VA.] REPORTS STATE COUR F OF CLAIMS 39
(No. 445-S-—Claimant awarded $16.75)
OKEY CLARK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Januarq 18, 1945
CHARLES J. SCHUCK, JUDGE.
From the record as submitted to us in this claim it appears that on September
7, 1944, while working on a secondary road in Doddridge county, known as No.
17, said work or grading being carried on by the employees of the state road
department, a small section of pipe was uncovered in the said road, not removed
from the highway but allowed to protrude therefrom, seemingly a hazard to the
traveling public. Claimant’s automobile, while being driven over the said
portion of the said road under repair, struck the said pipe damaging his tire
and tube and causing him to be obliged to expend the sum of $16.75 for repairs
to the automobile. The report as submitted shows that the workmen employed in
grading the said road passed over the said pipe but did not remove it,
notwithstanding the fact that it was a hazard to travel at the time.
The state road commission recommends payment, and this recommendation is
concurred in by the attorney general’s office through his assistant, W. Bryan
Spillers.
We, therefore, make an award in the sum of sixteen dollars and seventy-five
cents ($16.75).
40 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 446-S—Claimant awarded $42.84’
KATHRYN E. CUSTER. Claimant.
V.
STATE ROAD COMMISSION. Respondent.
Opirnot, filed Januaru 18, 1 .‘4
CHARLES J. SCHUCK. JUDGE.
This is a claim in the amount of $42.84, claimed as damages for injuries to
claimant’s automobile caused by being struck or backed into by a state road
truck, the accident happening at and near the intersection of Twenty-seventh
and Chapline streets, in the city of Wheeling. October 3. 1944.
Ftom the statement filed it appears that claimant’s car was to the rear of the
state road truck in question at the time and place mentioned. evidently waiting
for the green light to show which would allow both cars to proceed. While
claimant’s car or automobile was to the rear of the said road truck as stated,
the said truck started sliding backward for some reason and collided with and
injured claimant’s car to the extent of the damages heretofore mentioned.
Seemingly there was no warning given to claimant until it was too late for her
to move her car out of the path of danger. The report of the state road
commission contains the statement that the driver of the state truck was at
fault. The road commission recommends payment, and this recommendation is
concurred in by the attorney general’s office by his assistant, W’. Bryan
Spillers.
We, accordingly, make an award in the sum of forty-two dollars and eighty-four
cents ($42.84).
W. VA.] REPORTS
STATE COURT OF CLAIMS 41
(No. 409—Claimant awarded $150.00)
J. A. McKINNEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent,
Opirnorz filed Januarq 18. 1945
Appearances:
J. A. McKinney. in his own behalf;
W. Bryan Spillers, Assistant Attorney General, for respondent.
G. H. A. KUNST, JUDGE.
In the spring of the year 1944, employees of respondent engaged in blasting
stone from the road near claimant’s home at Crickmer, West Virginia, damaged
his barn, chicken house, fence, beehives, killed twenty-one stand of bees, and
threw approximately ten truckloads of rock into his field, for which damage
claimant asks an award of $200.00.
The assistant attorney general stated that respondent did not contest its
liability and that the only matter in issue was the amount of damages. After
the introduction of the evidence of claimant and of several witnesses for
respondent, claimant and representatives of respondent agreed that $150.00 was
a reasorcable and fair estimate of the damage, and respondent recommends and
the attorney general approves its payment.
An award of one hundred and fifty dollars ($150.00) is made to claimant.
42 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 396—Claimant awarded $40.00)
ROY FAIRCHILD, Trustee FOR HOTCOAL COAL
COMPANY, a corporation, Claimant,
V.
STATE AUDITOR, Respondent.
Opinion ifled January 19, 1945
Appearances:
D. Grove Moler, for the claimant;
W. B. Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
The Hotcoal Coal Company, a corporation, organized and doing business under the
laws of the state of West Virginia, pursuant to a corporate charter duly issued
to it on October 30, 1941, engaged actively in business from the day of its
incorporation until June 2, 1944, when, so far as the record reveals, it ended
its business and began the process of dissolution. The certificate of
dissolution was duly issued by the secretary of state dated the 7th day of
July, 1 944. In the petition claimant alleges that the corporation was not
engaged in any business during the fiscal year beginning July 1944, and this
allegation is not controverted in any manner. All the assets of the company
were assigned to Roy Fairchild as liquidating trustee.
On May 5, 1944, the company paid a license tax of $40.00 to the state for the
fiscal year beginning July 1, 1944, which payment, as alleged in claimant’s
petition, was made by a mistake on the part of the company officials and which
allegation is also not controverted in any manner.
Under the circumstances, the payment in question having been made for a fiscal
year during which the claimant was not in
W. VA.1 REPORTS
STATE COURT OF CLAIMS 43
existence or had not done any business and before the beginning of which fiscal
year steps had already been taken to liquidate the company’s affairs, the
claimant is asking for a refund of the $40.00 paid as the license tax for the
fiscal year beginning July 1, 1944. A claim was made to the state auditor for
the refund or return of the said amount, but as the payment had been lawfully
mingled with other funds the auditor could not make any refund or payment to
claimant and consequently claimant seeks redress in this court.
Ordinarily the claimant would be without redress as has been heretofore held by
this court in the matter of tax refunds, but we feel that unusual circumstances
are presented which in equity and good conscience require that an award in the
sum of $40.00 should be made and a recommendation made to the Legislature that
the said amount as a refund be returned or paid to the claimant accordingly.
On June 13, 1944, at a called meeting of the stockholders, all stock being
represented in person or by proxy, it was unanimously decided that the
corporation be dissolved and a resolution in accordance with said desire was
then adopted; notice of said dissolution was published in a newspaper of
general circulation in Raleigh county, West Virginia, on June 23, 1944, and on
June 30, 1944; the secretary of state was duly informed of said action but
required a certificate to the effect that all accrued charter taxes and gross
sale taxes had been paid. The stipulation agreed to by the claimant and counsel
for the state shows that all charter taxes and accrued gross sale taxes were
paid prior to July 1, 1944. The company performed no acts whatsoever as a
corporation on or after July 1, 1944, and on June 13, 1944, the physical
property and all unliquidated assets were assigned to one Roy Fairchild, in
trust, to be liquidated by him for the benefit of the stockholders of the
company.
From an examination of the record and the stipulation filed it would seem that
everything that was required under the law to bring about the dissolution of
the corporation in question had been done and performed previous to July 1,
1944, except a
44 REPORTS STATE
COURT OF CLAIMS [W. VA.
certificate to the effect that all claims including charter taxes and gross
sale taxes had been paid. This information was shortly thereafter furnished to
the secretary of state and certificate of dissolution issued on July seventh
following. In our opinion the mere fact that the certificate showing the
payment of charter and gross sales taxes had not been incorporated in the
report to the secretary of state when all other matters had been properly taken
care of, so far as pertaining to the dissolution of the company was concerned,
should not subject the company to a payment of a license tax for the year 1944
and that in equity and good conscience as heretofore indicated, return or
refund of the $40.00 so paid should be made. Accordingly, an award in the sum
of forty dollars ($40.00) is made and recommended to the Legislature
accordingly.
(No. 436-S—Claimant awarded $451.00)
NATHAN CRIHFIELD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Januarij 19, 1945
G. H. A. KUNST, JUDGE.
On the 3rd day of September, 1944, claimant and two companions were walking
across a swinging bridge spanning Coal River at Maxine, Boone County, West
Virginia, when part of the bridge, which was defective, gave way and all three
fell eighteen feet. Claimant was seriously injured and for which injury a claim
is made for $451.00. Respondent recommends and the attorney general approves
its payment.
An award of four hundred fifty-one dollars ($451.00) is made to claimant.
W. VAJ REPORTS
STATE COURT OF CLAIMS 45
(No. 441 -S-——Claimant awarded $ 69.62)
BETTIE T. GEMROSE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion liled Jcrnuar 22, 1945
ROBERT L. BLAND, JuDGE.
The claim in this case is in the sum of $69.62. The record thereof was made by
the state road commission and filed with the clerk January 4, 1945. The
state road commissioner concurs in the claim and it is approved for payment by
the assistant attorney general.
It appears from the record of the claim that claimant’s taxi, driven by her
husband, was traveling at English, McDowell county, West Virginia, August 28,
1944, and as it passed state road commission truck No. 1030-68, which was
standing still dumping a load as the taxi approached, the truck suddenly moved
forward about four feet into the road, striking the taxi. The driver of the
truck was looking back toward the load of slate which was being dumped.
We are of opinion that the damages caused by the collision may be repaired for
the amount of the claim, and award is accordingly made in favor of claimant,
Bettie T. Gemrose, for the said sum of sixty-nine dollars and sixty-two cents
($69.62).
46 REPORTS STATE
COURT OP CLAIMS [W. VA.
(No. 424-S—Claimant awarded $240.00)
EFFIE SAVAGE PRATT, Guardian of Charles Layman
Savage and Lois Elaine Savage, infants, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled January 22, 1945
ROBERT L. BLAND, JUDGE.
The facts supporting the claim in this case are particularly set forth in the
opinion of Judge Elswick, in claim No. 227-S, Effie Savage Pratt v. State
Road Commission, 2 Ct. Claims (W. Va.)
89, to which opinion reference is here made.
Said Effie Savage Pratt, former wife of Theodore Savage, is the mother of two
children, Charles Layman Savage and Lbs Elaine Savage, both infants. Charles
Layman Savage was born May 6, 1933. Lois Elaine Savage was born August 31,
1935,
The record of the claim was prepared by the state road commission and filed
with the clerk December 1, 1944. The head of that agency recommends that an
appropriation be made in favor of each of said infants of $5.00 per month from
January 1, 1945, to and including December 31, 1946. An assistant attorney
general approves the payment of both of said amounts.
In view of the concurrence in the claim by the head of the state agency
concerned and the approval of payment by the attorney general’s office, and for
the reasons set forth in the opinion of Judge Elswick above referred to, we
recommend an award to Effie Savage Pratt, guardian of said two infants, viz,
Charles Layman Savage and Lois Elaine Savage, in monthly payments of five
dollars ($5.00) to each, from January 1, 1945 to December 31, 1946.
W. VA.] REPORTS
STATE COURT OF CLAIMS 47
No.—4 22 S—C1aimant awarded $7 20.00)
ALICE E. McCLUNG, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 23, 1945
G.
H. A. KUNST, JuDGE.
On January 25,
1936, claimant’s husband, John
McClung,
while in the employ of respondent, received injuries in the
course of his employment resulting in his death on February 9,
1936.
A claim under the shortened procedure provision of the Court of Claims Act was
made and the court considered the factual and legal matters pertaining to said
claim and made an award, all of which is fully reported in the court’s opinion,
2 Ct. Claims (W. Va.) 83.
The claim now here presented is made for $720.00 to be paid in monthly
installments of $30.00, from January 1, 1945 to December 31, 1946, 24 months,
in continuation of the award made in the above mentioned claim.
Respondent recommends and the attorney general approves its payment. An award
in the sum of seven hundred and twenty dollars ($720.00) is made to claimant,
Alice B. McClung, payable in monthly installments of thirty dollars ($30.00)
each.
48 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 423-S—Claimant awarded $10.00)
LOTTIE STUART, formerly LOTTIE SKELTON,
Guardian of MARJORIE ANN SKELTON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 23, 1945
G. H. A. KUNST, JUDGE.
George Skelton, the husband of Lottie Skelton and the father
of Marjorie Ann Skelton, in the course of his employment with
respondent received injuries causing his death on October 17,
1935.
A claim under the shortened procedure provision of the Court of Claims Act was
made and the court considered the factual and legal matters pertaining to said
claim and made an award, all of which is fully reported in the court’s opinion,
2 Ct. Claims (W. Va.) 85,
The claim now here presented is made for $5.00 per month for the months of
January and February, 1945, in continuation of the award made in the above
mentioned claim. Said Marjorie Ann Skelton, after February 28, 1945, will have
reached the age of sixteen years, the time limit fixed for said payments.
Respondent recommends and the attorney general approves its payment. An award
of ten dollars ($10.00) is made to claimant,
W. VA.] REPORTS
STATE COURT OF CLAIMS 49
No. 402—Claim dismissed)
GEORGE COY, JR., an infant, by GEORGE COY, SR.,
his next friend, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion Med January 24, 1945
1. The jurisdiction of the Court of
Claims does not extend to a claim for injury to an inmate of a State penal
institution.
2. The West Virginia industrial school for boys at Pruntytown is held to
be a penal institution within the meaning of section 14 of the act creating the
Court of Claims.
Lee, Blessing & Steed (Howard B.
Lee), for claimant;
Ira J. Paiilow, Attorney General and W. Bryan Spillers, Assistant
Attorney General, for respondent.
ROBERT L. BLAND, JUDGE.
Claimant, George Coy, Jr., of Kessler, Greenbrier county, West Virginia, by
George Coy, Sr., his next friend and father, flied his claim in this court on
September 10, 1944, in the sum of $5,000.00, which amount, in equity and good
conscience, he maintains should be discharged and paid by the state of West
Virginia.
His petition alleges that on April 29, 1943, when he was fifteen years of age,
by an order entered by the circuit court of Greenbrier county, he was duly
committed to the West Virginia industrial school for boys, at Pruntytown, in
Taylor county,
•West Virginia; and that on June 4, 1943, while in said school he was assigned
and directed by the proper authorities thereof to work in the laundry,
maintained and operated by the state of West Virginia on the premises of said
school; that at the time he was so assigned and directed he was a youth of
fifteen
50 REPORTS S TATE
CO’R F OF CLAI\1S [\V. \‘A
years of age, and had never had any prior experience in working in a laundry or
with or about machinery of any kind, and that he did not know and did not
appreciate or understand. nor was his attention drawn or directed to the
extremely dangerous and hazardous character of the work which he was required
to do. He charges that it became and was the duty of the state, through its
agents and servants in charge of said school, and laundry, by reason of his
extrcme youth and inexperience, to advise and inform him fully of the risk,
danger and hazard incident to his work in the operation of said laundry, and to
warn him against the danger to which he would be subjected in the performance
of such work. He says that notwithstanding such duty. neither at the time of
said assignment and direction nor while he was so employed in the said laundry
did any person or persons connected with the school and laundry give him any
instructions respecting the operation of the machinery and appliances used in
and about the operation of the laundry, or warn him of the risks, danger and hazard
to him in the operation of said machinery and appliances.
Claimant further alleges that notwithstanding the duty of the state and its
agents and servants, he was assigned to operate what is known as an “extractor”
which is in itself a dangerous instrumentality, and without any instructions or
warning as to such danger; that at one time such extractor had been equipped
ss’ith a lid or cover. but the same had been removed or lost for a number of
months, and that while so operating said extractor he got his left arm caught
in its machinery and mechanism, and the same was so bruised and mangled that it
had to be amputated very near the shoulder, thus crippling him for life.
The attorney general has moved to dismiss the claim upon the ground that it is
a claim for injury to an inmate of a state penal institution, which is excluded
by section 14, article 2, chapter 14 of the code.
Claimant, in his petition, has seen fit to allege that said industrial school
for boys is not a penal institution within the
)J ‘/A J I j’(f j , ‘, I AT I: ‘ (PI (J 51
contemplation of sect ion 14 of the act creating the Court of Claims
Section 14, article 2, chapter 14, of the code, provides as follows
‘1 he jurisdiction of the court shatl not extend to any claim:
2. For in jury to (ir death of an inmate of a s ate penal inStitUtion.
Counsel for claimant has filed an able brief, citing many authorities in
support of the proposition that the industrial school for boys at Pruntytown is not a reria] institution.
Counsel for the state have likewise flied able briefs in support of the motion
to dismiss the claim on the ground that said school is, in truth and fact. a
penal nstitucion. Members of the court have devoted much time to the consderati
n of the question, and are not in agreement.
\Ve deem it unnecessary to discuss the various authorities cited by counsel for
claimant and counsel for the state.
Majority members cf the court are cf opimcn that the West
Virginia industrial school for boys at Pruntytown. is a penal
institution within the contemplation and meaning of section
14 of the court act. and that the ursdiction of the Court of
Claims to entertain the claim in question is excluded by the act.
Judge Schuck does not agree with the judgment of majority members of the court
and will file a dissenting opinion.
The motion of the aztornv gneral to dismiss the claim wul be sustainec. and the
cia:m is accrainglv :smissed.
CHARLES J. SCHL’CK. Jt dissenting.
As set forth ifl the petition fied with this eaim and further outhned
in the maorltv c’mnon. the claimant. George
Coy. Jr.. was committed to the
Pruntvtcwn school tor boys. on April . 1
4 ‘. when he was ff:ecn
years of age: and shortly thereafter. or about June 4th of the same year.
while engaged
52 REPORTS
STATE COURT OF CLAIMS [W. VA.
or employed in doing certain laundry
work, and at a time when the petition alleges that he had never had any
previous experience in working in and about machinery of any kind, and which
machinery, according to the petition filed, was of a dangerous and hazardous
character, claimant was so badly injured by having his arm mangled in the said
machinery as to necessitate its amputation, and thus make him a cripple
throughout the remainder of his life,
The sole question presented here for our determination, upon the motion to
dismiss heretofore interposed by the state, is whether or not the boys’
industrial school at Pruntytown is a penal institution, since the act creating
the Court of Claims, prohibits us from considering any claim for damages that
has arisen in any manner by reason of injury to an inmate while confined in a
penal institution.
The seriousness of the claim and the nature of the injuries require that most
careful consideration be given to the determination of the question involved in
order that justice may be done.
An examination of all the various acts, beginning with the act of 1889,
creating the Pruntytown institution and following through with the Acts of
1908, 1913, 1919 and the subsequent acts, show conclusively to my mind that the
Pruntytown school is purely a correctional institution where boys of tender
years who may have, by reason of their acts, become a detriment or a menace to
society, can be put in the custody of the state authorities, where parental care
shall be administered in such a fashion and manner as to regenerate and rebuild
the boy in qestion and seek to make him a worth-while citizen when he stands on
the threshold of manhood.
An impartial investigation of the provisions of these several statutes, now
combined into the juvenile delinquency statute, shows beyond all question that
it was the intention of the various legislatures, as well as of the authorities
of the state in charge of the institution, to have boys committed there after a
hearing by the juvenile court authorities and without a formal
W. VA.1 REPORTS
STATE COURT OF CLAIMS 53
Conviction for some criminal offense in the criminal courts of our state, It is
true that it is also provided that where a minor under the age of sixteen years
has been convicted of a felony or of a misdemeanor, the judge of the said court
is vested with the discretion of committing such minor to the reform school at
Pruntytown, having in mind particularly the character of the reform school as a
place of reform, and not of punishment, and so may order the boy so convicted,
removed to and confined in said reform school. This language following the
statute is, of itself, in roy judgment, sufficient to establish the fact that
in the minds of the legislators first creating the institution, it was treated
wholly and solely as a reformatory and not as a place of punishment. This is
further shown by subsequent acts, the whole tenor of which is the matter of
reformation and reform and not of punishment for crimes that may have been
committed.
Perhaps it would be well to consider the definition of the word “penal” in
connection with the determination of the involved question. Webster, in the
International Dictionary, defines the word “penal” in part as follows:
“Of or pertaining to punishment or penalties; as:
a Designed to impose punishment: . . . c Inflicted as, or constituting, punishment or penalty,
or used as means of punishment; .
W-ords and Phrases, Vol. 31, p. 579,
defines penal as follows:
“The words ‘penal’ and ‘penalty’ strictly and primarily denote punishment,
whether corporal or pecuniary, imposed and enforced by the state for a crime or
offense against its laws.”
Surely from these definitions no comfort can be obtained in relation to their
application to the institution at Pruntytown by simply saying that a school
intended by the various legislatures and the officials of the state to be one
created for the purpose of helping a child or a boy of immature age, could
possibly fall within the meaning of those definitions. It is very plain to my
mind, therefore, that no state institution may be classed as a “penal
institution” within the meaning of the
54 REPORTS STATE
COURT OF CLAIMS [W. VA.
statute referred to, unless it is established and presently maintained as a
place of “punishment” for those who intentionally violate the laws of the
state, It is my contention that impartial examination of our statute, relating
to, the creation and establishment of this industrial school, inevitably leads
to the conclusion that it was never intended that the school should be a place
of punishment or a penal institution in the sense understood by the definitions
given above, but rather a place where, through the gentle and proper
administration of quasi-parental authority the boy’s habits and disposition may
be so changed as to make him a worthwhile citizen.
The majority opinion simply makes the unqualified statement that in the
judgment of the judges rendering the opinion, Pruntytown is a penal institution
and contemplated as such within the meaning of section 4 of the act creating
the Court of Claims, but offers no authorities whatsoever to sustain such
conclusion. I have looked in vain, in a rather extensive examination of the
authorities of other states, this matter never having been decided by our state
courts before, for any conclusion or opinion that would sustain the majority
opinion, but have found none. On the other hand, I have found that where this
matter has been tested, the courts have been unanimous in holding that an
industrial school is not a penal institution. See House of Refuge v. Ryan, 37 Ohio State, 197; Roth Boyle v. House of Refuge, 31 Md. 329; Milwaukee
Industrial School v. Mi!waukee County, 40 Wis. 328; 22 Am. Rep. 702; Commonwealth
v. Fisher, 62 Atlantic 198; 213
Pa. 48; Wisconsin Industrial School
for Girls v. Clark County, 103
Wis. 651; 79 N. W. 422.
In House of Refuge v. Ryan. 37 Ohio State, supra.
at p. 203, the court said when
referring to the commitment to the house of refuge:
“The commitment is not designed as a punishment for crime, but t place
destitute, neglected and homeless children, and those who are in danger of
growing up as idle and vicious members of society, under the guardianship of
the public authorities, for their proper care, and to prevent crime and
pauperism.”
W. VA.] REPORTS
STATE COURT OF CLAIMS 55
In Roth & Boyle v. House
of Refuge, 3 1 Md. supra, the
Court said:
‘The House of Refuge is not a prison, but a school
where reformation and not punishment is the end;...”
The court in this case further indicated that the mere fact that the
institution in question may be used as a prison for juvenile convicts did not
change it from a reformatory to a prison. The Ohio court also said in House of Refuge V. Ryan, supra, that the institution in question was a home and a
school, not a prison. In Milwaukee
Industrial School v. Milwaukee County, 40 Wis., supra, the Court said (point 6 of syllabi and
at p. 333):
“The commitment of the child to an industrial school, as authorized by the
statute, is not an imprisonment.
When children must be confined for crime, common humanity to them, common
regard for the future welfare of the State, requires, in many cases, that they
should be sent to some place of detention
where they may have a reasonable opportunity of becoming better, instead of
worse, by their confinement; where the prison authorities are not their mere
jailers, but are charged with parental duty as well as with parental authority;
and where education for good is not only not excluded, but is made a condition
of their restraint.”
Under the force of these authorities, each one of them applicable to the
condition that is presented to this court in the petition as filed in this
claim, and considering further the attitude of our own state aulhorities, in
classifying these institutions, muct we not justly and properly contradict the
statement that Prun;ytown is a penal institution?
It is fundamental that persons sent to or committed to a penal institu; ion
must first be tried and convicted of a criminal offense in the manner provided
for by the constitution and laws of a state and sentence duly and lawfully
imposed in accordance therewith.
56 REPORTS STATE
COURT OF CI,AIMS [W. VA.
No state can legally condemn or imprison criminals in any other way, and to do
so would be a gross violation of the constitutional rights of even the lowest
and meanest criminal.
May I ask, then, does the record before us prove that claimant has ever been
convicted of a crime in a court of competent jurisdiction and given a sentence
accordingly, to a penal institution? Vie look in vain for an answer so far as
the proceedings in the instant claim arc concerned, and we are rewarded only by
the contention that there are bars on some of the windows at Pxuntytown and
therefore those detained there are criminals, no matter how young and immature,
irrespective of home environments that led to their confinement and
notwithstanding the fact that they had never been convicted as provided by our
own state constitution and criminal s’atutcs; and notwithstanding that further
no authority can bc found that sustains the proposition or assumption that
schools similar to Pruntytown are penal institutions. The state board of
control, in charge of this institution, itself in its reports, does not
classify this school as a penal institution; nor does our own “Blue Book’’
classify it as such.
If Pruntytown is a penal institution, which by reason of the very term brands
those confined there as criminals, and puts upon them an everlasting stigma
that will be detrimental throughout he remainder of their lives, then by the
same line of reasoning the girls’ school at Salem and other similar
institutions that we have for the reformation of youth throughout the stae must
be likewise classed. This conclusion shocks the conscience and makes us
appreciate full well the significance of the phrase “man’s inhumanity to man.”
I cannot lend my judgment I o the conclusion of the majority not only is this
now sixteen year old boy crippled for life, seem ingly through no fault of his
own. hut we would now put upon him a further stigma at his tender age of being
a criminal by reason of the fact that the juvenile court committed him to
Pruntytown for reformation, instruction and further education.
I would overrule the motion heretofore made and filed l)y the state and hear
the claim on Its merits.
W.VA.] REPORTS
STATE_COURTOFCLAIMS__- 57
(No. 447-S—Claimant awarde1 $7500)
JOHN AFRICANO, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 1, 1945
G. H. A. Kunst, JUDGE.
On August 16, 1944, respondent had at the railroad siding at Granville, in
Monongalia county, West Virginia, a storage tank containing ninety-six hundred
gallons of asphalt. Fire of unknown origin, supposed to have been incendiary,
destroyed the storage tank and a tank heater. Employees of respondent having
negligently neglected to securely fasten the cover on the opening in the top of
the tank, when the supports of the tank, by reason of the heat, collapsed, the
tank fell and the fluid asphalt ran from the opening in the top of tank over
the victory garden of claimant on land adjoining that on which the tank stood.
The garden contained growing vegetables which the hot asphalt completely destroyed.
Claim is made for $75.00 damages. Respondent recommends and the attorney
general approves its payment.
An award of seventy-five dollars ($75.00) is made to claimant.
58 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 448-S—Claimant awarded $75.00)
SAM OFSAY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion lUed Februarq 1, 1945
G. H. A. KUNST, JUDGE.
The facts stated in the case of John Africano, No. 447-S. are the same as in
this case, except the damages of $75.00 asked by claimant are for damages to
the lot on which said garden of John Africano was growing, and is owned by
claimant herein. Reference is made to said claim No, 447-S for a complete
statement of facts.
Respondent recommends and the attorney general approves payment of the claim.
An award of seventy-five dollars ($75.00) is made to claimant.
(No. 453-S—Claimant awarded $32.13)
MAYFORD HUGHART, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 1, 1945
G. H. A. KUNST, JUDGE.
At seven-thirty o’clock on November 3, 1944, when a truck, No. 130-94, owned by
respondent and an automobile owned by claimant, had stopped at a railroad
crossing at Bigley
W. VA.] REPORTS
STATE COURT OF CLAIMS 59
avenue, in Charleston, West Virginia, awaiting the passing of a train, the
driver of the state truck negligently backed the truck into the front of the
automobile, causing damage to it, which cost $32.13 to repair and for which
amount claim is made. Respondent recommends and the attorney general approves
its payment.
An award of thirty-two dollars and thirteen cents ($32.13) is made to claimant.
(No. 455-S——Claimant awarded $7.50)
DR. ROY 0. BOWLES, Claimant,
V.
STATE ROAD COMMISSION. Respondent.
Opinion filed February 1. 1945
G. H. A. KUNST, JuDGE.
At four-thirty o’clock P. M. on January 13, 1945, at Pliny, in the county of
Putnam, state of West Virginia, the driver of truck No. 30-135, owned by
respondent, negligently turned said truck from a rut in road in such manner as
to cause the rear wheels of the truck to strike the fender of a parked
Chevrolçt sedan automobile owned by claimant. Claim is made for $7.50, the
amount it cost to repair the damage to fender.
Respondent recommends and the attorney general approves its payment.
An award of seven dollars and fifty cents ($7.50) is made to claimant.
60 REPORTS STATE
COURT OF CLAIMS [W. VA.
(Nos. 450-S, 45 1-S, 452-S—Claimants awarded $57.82, $15.00, $92.28)
OHIO VALLEY BUS COMPANY, SALLIE HOARD and
PHILLIP ADAMS, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 2, 1945
CHARLES J. SCHUCK, JUDGE.
These claims arise by reason of an accident that resulted from a state road
truck running into and striking a bus owned• by the Ohio Valley Bus Company, of
Huntington, West Virginia. The accident happened on December 8, 1944 on Sixth
avenue between Elm and Sixteenth streets in the city of Huntington, West
Virginia. The claimant, Sallie Hoard and claimant Phillip Adams were passengers
on the bus in question. The bus was traveling west on Sixth avenue between Elm
and Sixteenth streets in the said city of Huntington and the said road truck
involved was traveling east and on the wrong side of the street. The bus pulled
to the extreme right with the right front wheel on the curb of the street to
avoid a collision, but notwithstanding this fact the bus was sruck by the state
road truck by reason of the negligence of the state road operator in opera’ing
his truck.
The record shows further that he was fined in the police court of Huntington
for reckless driving on this occasion. The record further shows that a thorough
investigation was made by the special investigator for the road commission who
recommends the payment of the claims in question in the following amounts to
wit: Ohio Valley Bus Company, $57.82; Sallie Hoard, $15.00; Phillip Adams,
$92.28. Settlement in the aforesaid amounts to the respective claimants is
authorized by the state road commission and agreed to by the attorney general’s
office. Accordingly an award is made to the said Ohio Valley Bus Company in the
amount of fifty-seven dollars and
W.VA.j REPORTS
STATE COURT OF CLAIMS 61
eighty-two cents ($57.82) to the claimant Sallie Hoard in the sum of fifteen
dollars ($15.00), and to the claimant Phillip Adams the sum of ninety-two dollars
and twenty-eight cents ($92.28). Said sums to be in full settlement of all
damages of all kind, personal or otherwise, caused by reason of the accident in
question.
No. 454-S——Claimant awarded $97.60
L. D. SPENCE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 2, 1945
CHARLES J. SCHUCK, JUDGE.
Claimant’s automobile while being driven along the highway near Quinwood in
Greenbrier county, on December 21, 1944, was stuck by a snowplow owned and
operated by the state road commission. The record reveals that the operator of
the snowplow was engaged in removing the snow from the upper side of an
elevated curb and while so doing his snowplow slid into claimant’s car causing
the damage complained of and amounting to $97.60. One Pearl Spence, the wife of
claimant, was in the car at the time and suffered minor injuries. The amount of
damage aforesaid is by agreement in full settlement not only for injuries to
the automobile, but for any personal injuries suffered by claimant or his wife
the said Pearl Spence.
The state road department recommends settlement in the aforesaid sum and this
settlement is approved by the attorney general’s office. We, therefore,
recommend an award in the amount of ninety-seven dollars and sixty cents ($97.60),
accordingly, to the claimant, and suggest that upon receipt of the aforesaid
amount both the claimant and his wife, Pearl Spence, shall sign and execute a
full and complete release.
62
RFPORTS S I’ATl COURT 01 Cl AIMS [W. VA.
(No. 457 S—Claimant awarded $8.16)
JACK HEADLEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
fikd h’hruurc1 2. 1945
ROBERT L. BLAND, JuIxiF.
The claim in this case is for the sum of $8. 16. It arises out of an accident
with state road commission truck No. 320-13. On December 28, 1944, claimant’s
DeSoto automobile, bearing West Virginia license No. 152-392, was parked on a
state controlled road at Vienna, in Wood county, West Virginia, when said state
rQad commission truck, operated by R. 0. Corley, an employee of the road
commission, skidded and collided with it, damaging its right rear fender
shield, which had to be straightened, weldc(l, and aligned. The actual and
necessary cost for this repair work was the amount of the claim. Respondent
admits that the state truck was at fault. The head of the agency concerned
concurs in the claim. Its payment is approved by an assistant attorney general.
Upon the showing made by the record, prepared by the state
road commission and duly lileci with ihe clerk February 1,
1945, an award is made in favor of claimant Jack Ileadley in
the sum of eight dollars and sixteen cents ($8. 1 6)
W. VA I RI ‘OR IS
S I A I COURT Of ClAIMS 63
(N. 158 S ( hirnint ,w,r,k,I $fO.(,2
COLUMI3IAN CARBON COMPANY, Claimant.
V.
S’I’ATE ROAD COMMISSION, Respondent.
Oprnwn
hici I ihruarq Z, 1945
ROBERT L. BLAND, Ju1xE.
On October 24, 1944 state road commission
truck No.•530-3 1 was being operated by R. T. Brothcrton on state route No. 21,
two miles north of Ripley. in Jackson county, \Vcst Virginia. Claimant’s
Chevrolet 1942 automobile, driven by Herman F. Bode, was following the truck.
The road was wet and slippery. The state truck was making a left-hand turn in
the road and its driver did not see claimant’s car traveling behind it. The two
vehicles collided. Claimant’s car was damaged in consequence of the impact. The
repair bill amounted to $30.62 as shown by an itemized statement made part of
the record. For this sum claimant filed his claim with the state road
commission. The head of that agency concurred in the claim. Its payment was
approved by an assistant attorney general. A record of the claim was prepared
by respondent and filed with the clerk on February 1, 1945. The claim is
informally considered by the court upon that record.
An award is made in favor of Columbian Carbon Company for the sum of thirty
dollars and sixty-two cents ($30.62)
64 REPORTS STATE
COURT OF CLAIMS [W. VA.
(Nos. 43€, 433, 434—Claimants awarded $1500.G0; $250.00; $100.00)
ROBERT RAGASE, CLARENCE BROWN AND MARY
ALICE EMERICK, an infant, by WILLIAM P. BRADFORD,
her next friend, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion ñled February 2. 1945
Appearances:
Mose Boiarsky and John T.
Copenhaver, for the claimants;
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JuDcp,
These several claims arose by reason of an accident that happened on August 19,
1944, on the highway commonly termed “the narrows” in Marshall county, West
Virginia. Claimants were in an automobile, driving north, when a state road
truck, operated by a prisoner, collided with the said car from the rear,
completely demolishing the car and slightly injuring occupants. Liability on
the part of the state road commission was
admitted by the respondent and we are concerned here only with the amount of
damages sustained by each claimant.
The testimony shows, with reference to the claimant Robert Ragase, that he was
the owner of the automobile, that the said automobile was so badly damaged as
to be useless and beyond repair. The testimony further shows that the ceiling
price at the present time for the said automobile was approximately $900.00.
Claimant Ragase was carrying valuable property in the nature of cameras, film,
reflectors and other incidental equipment, part of which was used in connection
with his occp
W, VA.] REPORTS
STATE COURT OF CLAIMS 65
pation and profession. He sustained some injuries, which required treatment and
for which his hospital and doctor bills amounted to approximately $55.00 or
$60.00. Taking into consideration the nature of the injuries, and the fact that
they were not serious in any way, together with his property loss, we feel that
an award of $1500.00 would be proper and would fully cover all damages, both to
himself and to his property, that the claimant Ragase has sustained.
Accordingly an award is made in the amount of fifteen hundred dollars ($1500.00).
The claimant Clarence Brown was rendered unconscious at the time from the blow
occasioned by the impact of the automobile and truck and was obliged to pay a
doctor bill and hospital bill amounting to approximately $40.00. He also was
obliged to purchase new eyeglasses, which, together with the examination,
entailed an outlay of $35.00. He lost two weeks’ work. In view of the nature of
his injuries and his property loss, it is our opinion that he is entitled to an
award of two hundred and fifty dollars ($250.00), and we recommend this award
accordingly.
The claimant Mary Alice Emerick’s injuries were very minor, and while her legs
and thighs were bruised no injuries of any consequence were sustained. She had
no doctor bill, although she maintains this was occasioned by reason of the
fact that a relative of hers was a doctor and through courtesy of the
profession she was not charged for any service. She did sustain the loss of a
suitcase, a pocketbook and shoes, and some other personal property. Considering
the nature of her injuries and her property loss as well we are of the opinion
she is entitled to an award of one hundred dollars ($100.00) and recommend an
award in that amount.
66 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 393—Claim denied)
ACHILLES T. ROBISON, Claimant,
V.
STATE BOARD OF CONTROL, and STATE ROAD
COMMISSION, Respondents.
Opinion filed February 2, 1945
Under the act creating the Court of
Claims negligence on the part of the state agency involved must be fully shown
before an award will be made.
C. R. Morgan, for claimant;
Ira J. Partlow, Attorney General, and V. Bryan Spitters, Assistant
Attorney General, for respondents.
ROBERT L. BLAND, JUDGE.
Achilles T. Robison, a former city mail carrier at New Martinsville, seeks in this
case an award of $26,988.35, and bases his claim o.n alleged negligence of the
state board of control and the state road commission, their officers and
employees, in allowing a convict with a dangerous criminal record to be
transferred from the penitentiary at Moundsville to a prison road camp, and
escape therefrom and attack and do him great bodily injury.
Claimant, who resides in the country, about one mile from New Martinsville, the
county seat of Wetzel county, further elucidates his claim by saying that in
the afternoon of May 6. 1944, after concluding his duties as a mail carrier on
that day, he went to his home; and, his wife and son being absent, he secured a
key to his residence and entered the house, where he was confronted by one
James Clark, alias James McCune, alias Joseph Kurosi. Clark had in his
possession a double-barreled, 12-gauge shotgun, the property of claimant. With
this gun he deliberately shot claimant in both of his legs. He then demanded
and obtained what money claimant had in his possession and
W.VA.J REPORTS
STATE COURT OF CLAI\ 67
drove away in claimant’s Buick automobile. Claimant was taken to the hospital
at New Martinsvillc, where his wounds were cleansed and he was given blood
plasma and a blood transfusion. Thereafter it was found necessary to amputate
his right leg. After this was done gangrene set in and it was found expedient
to perform a second amputation of the limb.
Claimant was forty-six years of age at the time he was shot by Clark and was
earning $185.00 per month. His injuries are such that he will never be able to
resume the duties of a city mail carrier. As a result of the injuries inflicted
upon him he has lost the benefit of his employment in which his salary would
have increased at intervals. He has incurred heavy expenses in surgical,
hospital and home treatment; ani, although he has procured an artificial limb,
there are shots in his knee that render the use of it exceedingly
uncomfortable.
Claimant submits an estimate of the co-ts which have been and will be incurred
by him due to the injuries in!icted upon him by Clark, as follows:
Dr. J. 0. Theiss $ 20000
Miss Imogene Thomas, registered nurse 230.00
Mrs. Clyde Clegg, R.N., New Martinsville 12.00
Miss Rosamond Tiber, registered nurse 21 7.00
Wetzel County Hospital 517.60
Penicillin from Ohio Valley Hospital 92.75
Jama ambulance 7.00
Loss of time from May 6, to July 15,
1944 .
362.00
Estimated cost of artificial limb - 200.00
Estimated cost of reshaping leg -- 150.00
Loss of Leg -
25,000.00
$26,988.35
Claimant’s testimony relates to his injuries and nothing stated by him sheds
any light upon the circumstances attending the escape of Clark from the prison
road camp.
The state has entered a general denial of responsibility or liability, and
contests the right of claimant to an award. It denies
68 REFORTS ‘TATE
COURT OF CLAIMS [W. VA.
the negligence imputed to it, and it therefore becomes necessary for claimant
to prove by a preponderance of evidence the negligence on which he relies to support
his claim. To do this claimant demanded the production by the state of Clark’s
criminal record. This demand was promptly complied with and the following
record produced:
‘For
(PHOTOGRAPH)
(a front and side view)
West Virginia Penitentiary
32745
Marks and Scars: Small scar right shoulder. Tatts: Skull with 2 bars above and
Death Before Dishonor below, right lower outer arm, question mark, right middle
finger. Tattoo heart on chest, with initial Pop and Mom. Small heart with cross
and number 13 below left shoulder. Spread eagle with U. S. Marine Corps and L.
K. in body of eagle. Scroll with name Lena and two dice below. Dim Tatt: I
itial J. G. below left lower outer arm.
CONDUCT RECORD
Date
No. Rep. Offense Penalty
2- 6-43 1 Escape Huttonsville, 1-24-43
6 Mos. Red Z. White.
All G. T. L. Hold for
Crt.
3-24-43 2 Unnecessary Noise on RtW. 3 Days Guard House.
3-26-43 3 Destroying State Blanket 5 Days Guard House.
6- 5-43 4 Creating Disturbance in Cage 5 Days Guard House.
After the Lights Were Out
6- 7-43 5 Creating Disturbance on Red 1 5 Days Guard House.
White for Three Nights
8-26-43 6 Thowing Medicine in Spit Can 5 Days Guard House.
3-23-44 7
Possesson of Sweater Charged 2 Days
Guard House.
to Floyd Larch No. 31741
6 13-44 8 Esccpi g frcrn Road Camp No. 80 6 Mos. Red l4 White.
5-4.44 All G. T. L. Hold
for Court.
7-17-44 9
Sleeping in on Morning Count 2 Days
Guard House.
8-20-44 10 Writing to Party, Claiming Her To 30 Days Writing
Be His Sister When She Is Not Privilege.
W. VA.J REPORTS STATE COU?.J F LX1 3
69
Unassigned Nov.
24-42
Huttonsville Dcc. 29-42
Red t White Feb. 6-43
Unassigned Aug. 6-43
R. C. 77 Aug.31-43
Unassigned Sep. 16-43
Dining Room Jan. 2 0-44
Unassigned Mar. 11-44
R. C. 80 Apr. 19-44
Unassigned Jun. 10-44
Red t White Jun. 12-44
0. S. Expiration 0. S. Exp. 0. S. Parole 0. S. Parole
Name: Clark, James
Aliases: James Carrie, James McCune
James Freeman McCune (Correct Name)
Race: White County: Cabell
Convicted Oct. 23-42
Sentenced Oct. 23-42
Full Time Aug. 23-52
Term Given 1 to 10 Yrs.
Eligible
for Parole
Now
New Number to be Given at Expiration cf Above Sentence. Received Life Sentence
from Wetzel County Court for Armed Robbery.
Weight: 159
Dk. Brown
Birth Place:
Where Nat’ Rd.
Nation: U. S. A. If Alien
Religion: Protestant Educ tion Limit: High School
Tobacco: Yes Alcc- I Yes Narcotics: No
Military: U. S. Marines F. 2nd Bat. 7th Marine Pvt.
Address of Parents, Relative or Friend. F-Father, M-Mother, S-Sister,
X-Friend, W-Wifc.
M: Mrs. Margaret Lan, 2037 W. 47th S Cleveland, 0.
G/M: Mary S. Kaull, Kingsville, 0.
W: Grace McCune, 3188 W. 90th St., Cleveland. 0.
(Out to Court 9-22-44. Ret’d 9-2 44.
ASSIGNMENT AND
TIME EARNED
Aasigrment Out Expiration Returned Earned
May 10-49 May 5-49
Escaped
Sp lt--3 SDays
Escaped
Male 32745
Crime: Burglary (Day)
Eff Snicnccd Aul. 24-4 2
Received Nov. 24-42
Expiration Oct. 10-52
R Sc.sr. a,
1
110 n.
11 -,
N0
i
(-13:
on
CO
HZ
Age: 19 Height:
6-1
Color Eyes: Blue Hair:
Occupation: Truck Driver
Complexion: Fair Marital Sta us: Married Pittsburgh, Pa.
Former Felony Convictions. . . . Misdemean ‘-s in Refer clatores.
70 REFORTS STATE
COURT OF CLAIMS [W.VA.
Arr. Vernon, Texas 4-25-42 for Fed. Auths. Rel. Authorities Wichita
FaIls, Texas, Impersonating a U. S. Marine Officer, Trans. to Dallas, Texas.
Subject Wanted as a Deserter from U. S. Marines. Admits: Boys md. Sch.
Lancaster. Ohio, 1939, Auto Theft, Indef. Term 2 Years. Paroled to
Join U. S. Marines. Admits Arr: Hudson, Ohio, 1939 BZE. Given 1 Year
Preb. Violated. Admits Arrested Cleveland, Ohio, Several Times for
Misdeameanors.”
David Hinerman, a guard at the West Virginia penitentiary at Moundsville,
called as a witness by claimant, testified that on one occasion he “heard James
Clark make the remark that if he got out right away he would try to go straight
and behave himself, and if he had to serve ten years he would shoot everybody
who got in his way,” and that similar remarks were frequently made by prisoners
at the institution. Clark was at that time serving a sentence of from one to
ten years for “breaking and entering.” This was about two months before Clark
was sent from the prison to the prison road camp at Reedy, West Virginia.
Claimant also produced Carl F. Montgomery, captain of tle guard at camp 80, the
only armed prison labor camp in the state. He testified that on May 4, 1 944,
James Clark, an inmate of the penitentiary, who had been transferred to prison
labor camp No. 80, was one of three prisoners who escaped from this camp on May
4, 1 944. He stated that W. B. Phalen was guard on duty when these escapes were
effected, and that he had never before lost a prisoner. Witness also testified
as to the general efficiency, watchfulness and reliability of Phalen as a
guard. He exnrcssed the opinion that Phalen was guilty of no dereliction of
du’y in the escape of Clark from the quarry at which he was working.
The foregoing is a substantial summarization of the evidence adduced and relied
upon by claimant to establish a prima
facie right to have ‘he Court of
Claims recommend to the Legislature an appropriation in payment of his claim.
To meet and rebut the charge of negligence in allowing the escape of Clark from
the prison labor camp, H. H. Cottle, deputy warden of the penitentiary, Carl F.
Montgomery, captain of
W. VA.] REPORTS
STATE COURT OF CLAIMS 71
the guard at Camp 80, R. M. Coiner, chief road guard, William E. Phalen, guard
on duty at the time of the escape of Clark, Lloyd E. Phillips, guard at camp
80, Berton Blake, guard at the same camp, Clinton H. Hill, quarry foreman of
the prison labor division of the state road commission, and William Willoy,
another guard in the same division, were called by the state as witnesses.
In the opinion in the case of Claim No. 228, Johnson V. State Road Commission, 2 Ct. Claims (W. Va.) 203, it is said:
“It is provided by statute in West Virginia that all male persons convicted of
felony and sentenced to imprisonment or confinement in the penitentiary, or so
many thereof as may be required by the state road commissioner, shall, as
incident to such sentence or confinement, constitute the state road force, and
as such may be employed under the supervision of the state road commissioner in
building, surfacing and maintaining roads under the supervision of the state
road commissioner, code, chapter 17, article 5, section 1.
“The warden of the penitentiary prepares for the state road commissioner a
monthly report which shows the names of not less than five hundred inmates of
the penitentiary who are suitable for road work. From said list the road
commissioner selects the number needed for road work, Supra, sec.
2.”
Under authority of law in such case made and provided the state road commission
maintains a prison labor camp at Reedy, in Wetzel county. There have been as
many as 205 convicts from the penitentiary there at one time. All of these
men were persons who have been convicted on charges of felony and sentenced to
confinement in the penitentiary. James Clark was one of the convicts
transferred from the penitentiary to the prison labor division of the state
road commission. He was so transferred under lawful authority. A quantity of
rocks had been quarried at Hill’s quarry. Clark was one of ten convicts sent
from camp 80 to this quarry to load these rocks into dump trucks, to be taken
out on the road to knapping crews. William
72 REPORTS STATE
COURT OF CLAIMS [W. VA.
B. Phalen was assigned as guard over the men. He had been a prison guard for
approximately three years. He was stated to be an exceptionally good guard.
Prior to May 4, 1944, he had “never lost a man.”
The face of Hill’s quarry is three hundred feet in width. Its height is
approximately seventy-five feet. The stones which had been taken from the
quarry were stacked in piles on three sides. The piles on the quarry side were
so built as to leave a small passageway between the face of the quarry and the
long stone pile. The stones were of such size that the prisoners could lift
them and place them in the trucks. The stone piles on the face of the quarry
side were as “high as a man’s head.” They precluded a view of the passageway
between the row of rocks ahd the face of the quarry. Two dump trucks were being
used. Guard Phalen was stationed straight in front of the trucks, and about
thirty feet from where the prisoners were working. The guard was armed with a
sawed-off shotgun. The prisoners were “bunched” around the trucks. Phalen
caused the prisoners to begin the loading of the stones from the right-band
side of the rows of stones. When these rocks had been removed by the trucks the
prisoners worked from the right side of the pile in front of the face of the
quarry toward the left, While the convicts loaded the truck Phalen could not
see the passageway between the long row of stones and the face of the quarry.
When behind the truck where they could not be seen, the prisoners removed a
sufficient number of stones to effect an entrance to the passageway between the
row of stones and the face of the quarry, and in that way Clark and two other
prisoners made their escape. The guard explains their action in these words:
“So, while these men were picking up stones from the pile on the ground and
loading them into the dump trucks three of them got through an opening that
they had made by loading the stone into the truck.” The guard could not
reasonably have seen the men behind the truck.
When the escape of the men was discovered guard Phalen directed a truck driver
to go to the camp and notify the captain of the guard as to what had occurred.
State police and other officials
W.VA.j REPORTS
STATE COURT OF CLAIMS 73
were given immediate notice and a prompt search was made bo apprehend the
convicts.
The evidence as a whole refutes the charge of negligence. Majority members of
the court therefore find the state free from negligence and dismiss the claim.
Judge Schuck will file a dissenting opinion.
G. H, A. KUNST, JuDGE, concurring in part.
I concur in Judge Bland’s opinion that negligence of respondent contributing to
the escape of this convict is not proven: also that an award should be denied
claimant.
I do not concur in the doctrine that if negligence of respondent contributing
directly to his escape had been fully shown that respondent would have incurred
liability.
Kuhns v. Fair, 124W. Va. 761; 22 S. E. (2d) 455, holds that the
custodian of convicts is not personally liable for a tort committed by a
convict, unless, by breach of duty, he directly participated in the commission
of the tort.
Negligence is the breach of duty considered. In the Supreme Court case
negligence contributes to, or is the proximate cause of the tort; in the other,
between the negligence and resulting escape and the tort there is an
intervening criminal act of a responsible agency; the causal connection between
the first negligent act and the tort is broken. The last act in legal
contemplation is regarded as the sole cause of the tort, the proximate cause
thereof,
Negligence to be actionable must be the proximate cause of the injury.
Proximate cause is the superior, or controlling agency as distinguished from
incidental or subsidiary cause. It is the last negligent act contributing
thereto and without which such tort would not have resulted.
No recovery can be allowed against a defendant for an injury which resulted
from a criminal act of a third person, although there existed at the time a
condition which made the act pos
74 REPORTS STATE
COURT OF CLAIMS [W. VA.
sible, or less difficult to accomplish and which was produced by the negligence
of defendant.
In the instant case, negligence of the guard and respondent is not proven.
Preponderance of evidence is to the contrary. And if negligence contributing
directly to the escape had been proven, it would not have constituted the
proximate cause of the injury to claimant.
The opinions cited and relied upon by counsel for claimant are not in point and
do not apply to the facts of the case.
In my opinion, the correct legal doctrine applicable to the facts in this case,
was stated by me in my concurring opinion in the case of Herbert Fisher V.
State Board of Control, 2 Ct. Claims (W. Va.) 428, as follows:
A defendant’s negligence is too remote to constitute the proximate cause, where
an independent illegal act of a third person intervenes, which, because it is
criminal, defendant is not bound to anticipate, and without which such injury
would not have been sustained
Very much legal authority supporting this doctrine is cited by the attorney
general in his brief filed herein, which I shall not encumber the record by
repeating.
CHARLES J. SCHUCK, JUDGE, dissenting.
An analysis of the majority opinion as rendered in this claim presents but one
issue, namely, whether or not there was negligence on the part of the state
agency involved. It becomes necessary, therefore, to analyze the facts as
presented to the court and to determine from these facts whether or not there
was negligence on the part of the guard involved, and, in my judgment further,
whether there was negligence on the part of the department or agency having
charge of the work in failing to have a sufficient number of guards to
supervise and contrI the work of the convicts who were employed on the project.
As set forth in the majority opinion, the evidence shows that the quarry in
question was about three hundred feet long and
W. VA.] REPORTS
STATE COURT OF CLAIMS 75
seventy-five feet high, and it is virtually admitted that it would be
impossible for an escape to have been made up over the face of the quarry. The
prisoners, ten in number, were loading stone on two trucks, to be conveyed to
the highway that was being improved in a nearby section of Wetzel county. The
stone had been placed in piles and although there is no direct testimony of any
kind as to the manner of the escape, it is assumed and maintained as a defense
that the prisoners in question must have gotten behind the piles of stone and
thus eventually made their escape from the project. The work of loading the
stone took place about the middle of the quarry, which left at least a hundred
feet of the quarry itself exposed on either side of the trucks that were being
loaded, and so far as the evidence reveals, with no obstruction that would
prevent a watchful guard from seeing the men if an attempt to escape was being
made. The testimony fails to show definitely how long the prisoners had escaped
before their absence was noted. It is assumed that a space of seven or eight
minutes elapsed before their action was noted. The guard in question, William
B. Phalen, maintains that the men escaped through an opening in the stone pile,
but a review of his testimony reveals the fact that the stone piles in question
left an open, unobstructed space of at least a hundred feet on either side
through which no convict could escape without being detected or seen if the
guard was exercising the degree of care necessary under the circumstances. He
maintains (record p. 77) that he could not see them behind the truck that was
being loaded. This fact of itself, to my notion, constituted negligence in that
he ought to have placed himself so that he could have seen the prisoners at all
times, or, if this is not true, and assuming that his statement is correct,
then the department involved was in my judgment negligent in not supplying him
a sufficient number of guards to take care of the number of prisoners that were
employed on the work, and who, if Phalen’s testimony is correct, could have
been working without a guard seeing them at the time.
It must be borne in mind that this was known as an armed camp, and that
prisoners with long-term records, and of a
76 REPORTS STATE
COURT OF CLAIMS [W. VA.
vicious nature, were amongst those employed at this particular work and
consequently there was a higher duty devolving upon the state agency involved
than would be present or required in an unarmed camp. The record shows that
Phalen himself was armed with a shotgun at the time.
The witness Blake, one of the witnesses for the state agency, when asked the
question (record p. 112), “Can you explain how, if a guard had been on the
alert three men could have gone to one end or the other of the quarry without
being seen,” replied. “It looks to me like he could have seen them all right.”
Further in this connection the witness Montgomery, who was in charge of the
guard, states (record p. 22) that it was the duty of the guard to keep the
prisoners in view at all times. If this was the duty of the guard Phalen then
he definitely violated that duty, because he has testified (record pp. 76-77)
that he could not see the men behind the truck.
It is difficult to comprehend that a watchful guard could not have prevented
the escape when, as he testified, he could not have been more than thirty feet
away from the prisoners themselves, and they, the prisoners, could not have
been more than that distance in front of him, the guard. (Record p. 76.) Either
the guard was negligent in not noticing the escaping prisoners or the
circumstances were such that, considering the nature of the men who were
employed in this work, the state agency involved ought, beyond all question, to
have employed more guards in carrying on the work. In either event it seems to
me that in equity and good consience the state should be liable for any act
committed by an escaping prisoner that deprives a citizen of his right of
property or who by reason of the vicious act of an escaping prisoner is so
maimed as to be made a cripple for life and deprived of the means of earning
his livelihood.
The project of improving our highways. under the system and plan adopted, must
be commended, not only from an economic but from a social standpoint as well.
The work done by reason of this plan saves many dollars for the state in
bringing
W. VA.] REPORTS
STATE COURT OF CLAIMS 77
about necessary improvements and at the same time perhaps creates a more humane
manner of handling prisoners and at least, gives the prisoner who wants to be
reformed an opportunity to do so in the open without being confined within the
gloom of four walls, This very scheme and plan, however, carries with it
certain responsibilities and obligations that must be fully discharged by the
state. One of these is that in view of the very nature of the work that is
carried on and the prisoners involved, the state is under obligation, at least
in equity and good conscience, to protect the citizen, as well as his property,
from any tort or criminal act that might be committed against him or his
property by reason of the presence of these prisoners. ‘Within reason the state
must take the required and necessary precautions. It must have a sufficient
number of guards, in an armed camp especially, to take every precaution to
avoid escapes. It must see to it that capable, keen and alert guards are placed
in charge of the work, and failing to carry out these conditions, it ought to
be, in my opinion, held liable for any harm that was done to a citizen by an
escaped prisoner when these requirements have not been met by the state itself.
At the close of the third to the last paragraph of the majority opinion there
is this significant statement: “The guard could not reasonably have seen the
men behind the truck.” Let me ask, if not, why not? I repeat, in view of this
statement, either the guard was not keen and alert or a sufficient number of
guards had not been supplied. In either case there was negligence which
ultimately led to the deplorable and tragic injury to claimant.
Joe Yoho, safety director for the state road commission, of the district
involved, who made an independent investigation of this whole affair, when
asked (record p. 148) whether or not Carl F. Montgomery, who also testified,
and who was the chief of the guard, had made a statement to Yoho to the effect
that Phalen had been discharged for negligence, answered “Yes, Sir. He made
this quotation: that he discharged guard Phalen for negligent—for negligence on
line of duty relative to that escape.” This statement was afterward denied by
Montgomery himself, but the fact remains, as shown on record page 165, that Mont-
78 REPORTS STATE
COURT OF CLAIMS [W. V?
gomery, the captain, told Phalen that he would not need him on the morning of
May 13, 1944, which was a week or ten days after the escape in question had
taken place, and so far as this record reveals Phalen has not been employed or
engaged as a guard since, and it is questionable whether or not he has any
connection with the department at the present time. The witness Montgomery
further testifies (record pp. 16-166) that he wanted to talk to Phalen about matters
of the escape but never had an opportunity as Phalen went to his home at Cass,
West Virginia. to spend a two weeks’ vacation, but he has never returned to the
job as a guard. So far as the record reveals he never returned to that
particular work nor is it definitely shown whether he was discharged or not or
whether he was in fact acquitted of any negligent conduct in watching over the
men at the quarry. All of which indicates to me rather strongly that at least
to the officials in charge of the project the acts of Phalen as the quard in
question were not those of a careful, prudent man, and that he should not be
continued in that line of work. After the escape of the three men in question
on May 3rd, he, Phalen, allowed another man to escape also.
Under all these circumstances I would make a substantial award to claimant to
recompense him, to a degree, at least, for the irreparable injury he has
suffered.
W. VA.] REPORTS
STATE COURT OF CLAIMS 79
(No. 41 9—Claim denied)
ATHEY-BROOKS MOTORS, INC., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 2, 1945
An award will be refused a claimant to
whom two courses of conduct are open in the operation of a vehicle on a public
road and who did not exercise ordinary care in choosing the course to pursue
and thereby sustained property loss.
Appearances:
Robert McDougle, for claimant;
W. Bryan Spillers, Assistant Attorney General, for respondent.
G. H. A. KUNST, JUDGE.
On July 13, 1944, about two-thirty o’clock P. M., the sun shining and good
visibility, claimant’s common-carrier truck and trailer, eleven feet two inches
high, duly licensed under state law, being driven north, in passing a streetcar
on Murdock avenue, under the jurisdiction of respondent, in the city of
Parkers- burg, West Virginia, struck the limb of a tree extending out over the
street and caused damage to the trailer amounting to $668.25 for which an award
is asked.
The evidence shows: That respondent had exercised jurisdiction over this street
only a short time; had no notification of the existence of this limb; no former
similar accidents had occurred here to the knowledge of any witness; the scars
on the limb were not shown to be due to any previous collision, with trailers,
as assumed by brief of claimant; claimant had been operating trucks over this
street for a period of approximately
80 REPORTS STATE
COURT OF CLAIMS [W. VA.
fourteen years; the driver of this vehicle was familiar with this street and
the conditions pertaining to driving vehicles over it and had driven trucks
over it about twelve times; he had been warned of danger incident to lack of
clearance and instructed to be alert and exercise care concerning same (which
was his duty without instruction) ; there was clear vision for a long distance;
the dimensions of his vehicle were known to him, its height and the amount of
clearance needed to avoid an obstruction; the distance from the streetcar rail
to the east curb of street was one hundred and forty-seven inches; the roof of
streetcar extended over the rail approximately twenty inches; the trailer was
ninety- four inches wide and the vehicle, including the tractor and trailer,
was thirty-three feet in length; the distance from the street curb necessary to
clear limb of the tree was twenty-seven inches; the sway of the streetcar was
from four to six inches; adding extension of streetcar over rail, twenty
inches, width of trailer, ninety-four inches, distance to curb for clearance of
limb, twenty- seven inches, made a total of one hundred and forty-one inches
and left a space of six inches; adding the sway of the streetcar, there was
left no extra space between the streetcar, the trailer and the clearance of the
limb. The approaching streetcar and the limb were both visible long before
passage would take place. The speed of his vehicle was ten miles an hour or
less.
A choice of two courses of conduct were open to the driver; his duty was to
exercise ordinary care in choosing which course to pursue. One course was safe,
offering no hazard whatever, by stopping.
The other course was driving his vehicle, thirty-three feet in length, between
a swaying streetcar, through a passage way having an extra width of only six
inches, or no extra width, by reason of the swaying streetcar.
Ordinary, reasonable care is such as is commensurate with apparent danger. This
court is of opinion that the driver of this vehicle did not exercise such care
in choosing the latter course of conduct: 45 C. J. 961, section 516,
An award is denied and the case dismissed.
\V. VA.] REPORTS
STATE COURT OF CLAIMS 81
(No. 383—Claim denied)
THE QUEEN INSURANCE COMPANY OF AMERICL
and THERESA BRINDIS, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Februarg 2, 1945
When upon the hearing of a claim
asserted against the state the evidence is conflicting but preponderates in
favor of the agency involved, an award will be denied.
J. Walter Copley and Thomas West, for claimants;
W. Bryan Spillers, Assistant Attorney General, for respondent.
ROBERT L. BLAND, JuDGE.
On January 8, 1944 a collision occurred in the town of Wayne in Wayne county,
West Virginia, on state route No. 52 between a 1941 Chevrolet 1 -ton truck belonging to
claimant Theresa Brindis and a truck belonging to the state road commission.
The former was repaired by the Price Motor Company of Williamson at a cost of
$243.43. Said claimant Theresa Brindis carried collision insurance on said
truck with the Queen Insurance Company of America, The policy contained a
$100.00 deductible clause, The insurance company paid to her the sum of
$131.43. The Queen Insurance Company of America joins with claimant Theresa
Brindis in this case and cotends that it should be repaid said sum of $131.43
while claimant Brindis seeks an award of $112.00, $12.00 of said amount
representing a towing charge that was paid by her in addition to the amount
paid by the insurance company.
In the early morning of the above date Thomas Brindis, a fruit merchant of
Williamson, West Virginia, driving the truck owned by his wife, claimant
Theresa Brindis, left that city en-
82 REPORTS STATE
COURT OF CLAIMS [W. VA.
route for Huntington, in said state. As he passed through the town of Wayne,
the county seat of Wayne county, about sixty miles distant from Williamson, the
truck he was driving and a state road commission truck, driven by Charles
Bradshaw, collided.
In addition to the driver Brindis there were two other occupants of the truck
when the accident occurred, namely Roy Temper and a soldier now in France. Said
Thomas Brindis and Roy Temper testified in support of the claims.
Brindis stated that the accident occurred as he came up toward the courthouse
as he was coming out of a curve in the road, practically a horseshoe curve.
According to his testimony he was going around this curve, He said: “Just about
the time we straightened up to go up the hill is where we hit.” The state truck
was approaching from the opposite direction. Brindis was driving uphill and the
state truck was coming downhill. Brindis was driving between five and seven
miles an hour. The road was slippery that morning. As he was straightening out of
the curve he met the other truck. ‘When he first saw it it was from twenty to
thirty feet away. He said that when he perceived the state truck he stopped and
got over as far as he could on the road and that he was on his side of the
road. The state truck was not traveling very fast. After the collision there
might have been about five or six feet separating the two vehicles, that is,
the front of each truck. And his truck was still on his side of the road. It
was off the road, on his side, as far as he could get, and the state truck was
setting back about in the middle of the highway. A bank and a ditch prevented
Brindis from getting any farther than the position occupied by his truck.
The accident was investigated by a member of the department of public safety
who made measurements of the positions of the two trucks, A deputy sheriff of
Wayne county also assisted in investigating the accident. When Brindis saw the
state truck approaching, he said he “put the brakes on. It didn’t take long to
stop because we were going slow.” The driver of the state truck applied his
brakes about the same time he saw Brindis.
W. VA.] REPORTS
STATE COURT OF CLAIMS 83
Brindis admits that the road was very slippery and that thee was snow and ice
on it. He had chains in the truck but was not using them.
The witness Temper testified in substantial corroboration of the evidence given
by Brindis. He said there was plenty of room on the road for two trucks to get
through.
Upon the testimony of these two witnesses claimants rest their case.
There is a sharp conflict in the testimony offered by the claimants in support
of the claims and the testimony adduced by the state in opposition to the
claims.
It is shown by the testimony of Charles Bradshaw, a grader operator and truck driver
for the road commission, who drove the state truck at the time of the accident,
that the road had been slick and slippery the night before and that on the
morning of the accident an assistant supervisor had directed him and other
employees to obtain a truck and get cinders and place them on the hill, here
vehicles had been “hung up.” He did so. Two other employees were in the truck
with him. The road was slippery and it was snowing. He testified: ‘When I
started around that curve, this truck come out of that curve, just along about
the point of that curve there, and when he swung out he swung out on my side of
the road. I didn’t see him until we was within twenty or thirty feet of one
another. I put my brakes on. It was slick and I had chains on my car, but the
road was pretty slick and icy.” Witness was driving on his side of the road.
Brindis was on his side of the road, but when he swung around the curve he
swung the front end of his vehicle on Bradshaw’s side of the road. When the
collision occurred the front end of the Brindis truck was over on the Bradshaw
side of the highway. The road at the point where the accident occurred was 18
feet in width. On the side on which Bradshaw was driving the shoulder was two
and one-half feet in width and on the side that Brindis was driving the
shoulder was three feet in width. It was a brick road, but since the occurrence
84 REPORTS STATE
COURT OF CLAIMS [W. VA.
of the accident has been widened and has a black top surface on it at this
time. The front end of the Brindis car was over the center or white line of the
road. This fact was discovered after the collision occurred.
Ira Elliott, a witness for the state who was in the car operated by Bradshaw,
testified that when they went to obtain gravel or cinders for the road they
found a few cars hung up on the hill. He heard Roy Lockhart, also an occupant
of the truck exclaim when he saw the Brindis truck approaching, “Look out
Charlie!” The trucks were just ready to jam at that time. This witness also
testified that the road was wide enough for two cars to pass if both stayed on
the proper side of the road. When the accident happened it was snowing pretty
hard and the highway was slick. The front end of the state truck was turned to
the right side of the road. There were chains on the rear wheels of the state
truck.
Roy Lockhart, one of the occupants of the state truck, testified that the road
was “awful slick.” He further testified that he warned Bradshaw, the driver of
the state truck, to look out and about that time the two trucks collided. He
saw the Brindis car approaching and for that reason warned the driver of the
state truck. He declared that the front end of the Brindis vehicle was over
some from the middle of the road. There was snow and ice on the road and the
state truck was on its proper side.
Andrew Barbour, a deputy sheriff of Wayne county, called as a witness for the
state, testified that he made an investigation of the accident and assisted
Trooper Langford in making measurements of the positions of the two trucks. He
stated that the state truck had chains on and that the Brindis truck did not.
The Brindis truck, he declared, was more on the state truck’s side of the road
than on its own side. The front end of the Brindis truck was over on the state
truck’s side of the road. The only track marks that could be seen were those of
the Brindis truck. The witness also said that it was snowing as hard as he had
ever seen it snow.
VA.] REPORTS
STATE COURT OF CLAIMS 85
When upon the hearing of a claim asserted against the state the evidence is
conflicting but preponderates in favor of the agency involved, an award will be
denied.
An award will be denied in each case and the claims dismissed.
(No. 404—Claim denied)
THE STATE CONSTRUCTION COMPANY,
a corporation, Claimant,
V.
STATE TAX DEPARTMENT, Respondent.
Opinion filed February 2. 1945
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 genetal law,
when it appears from the general law that it is the policy of the Legislature
to deny payment of such refun ‘s unless such applicatioi is filed as prescribed
by the statute pestaitting refunds on gasoline used for certain specific
purposes.
Robinson & Stump, for claimant;
W. Bryan Spillers, Assistant Attorney General, for respondent.
ROBERT L. BLAND, JUDGE.
In this case the State Construction Company claims from the state of West
Virginia the sum of $3008.90 on account of state tax paid on fuel oil and
gasoline used in the operation of a Lorain 75 shovel and tractors in connection
with a coal stripping operation in Harrison county, West Virginia. This
gasoline and fuel oil was used over the period of time beginning in August,
1943, and extendng through June, 1944. The amount
86 REPORTS STATE
COURT OF CLAIMS [W. VA.
of refund claimed to be due the claimant for each month is as follows:
August, 1943 $ 83.75
September, 1943 273.75
October, 1943 247.50
Novemebr, 1943 169.00
December, 1943 286.75
January, 1944 281.50
February, 1944 353.00
March, 1944 355.00
April, 1944 282.00
May, 1944 381.50
June, 1944 295.15
$3Q08.90
Separate applications covering the refund for each of the above listed months
were filed in the office of the state tax commissioner on September 13, 1944.
On September 15, 1944 each of said applications was rejected by the state tax
commissioner for the reason “gasoline was purchased more than 60 days prior to
date of filing application and refund can not be legally granted.”
It is contended by claimant that failure to file the several applications for
refund was occasioned by excusable inadvertence and that the state has been
unjustly enriched to the extent of said sum of $3008.90 at the expense of said
State Construction Company.
In the carefully considered case of Del
Balso Construction Corporation v. State Tax Commissioner, 1 Court of Claims (‘W. Va.) 15, we held:
“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.”
W. VA] REPORTS
STATE COURT OF CLAiMS 87
In the more recent cases of Joseph
Harvey Long. Paul Walker Long, Jenny Eloise Long. and Hilda S.
Long v. State Tax Commissioner,
in which determinations were made at
the present term of this court, 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.”
The time fixed by statute in which to make application for refunds is perhaps
too short, but that is a marer for the Legislature to consider and determine.
We feel that the case under consideration is controlled by our holding in the
above ci’cd cases, and are. therefore, constrained to deny the award sought and
dismiss the claim.
(No. 465-S—Claimant awarded $24.3 8)
HAZEL M. SHAFER, Claimant,
V.
STATE ROAD COMMISSION. Respondent.
Opinion
filed July 12, 1945
G. H. A. KUNST. JUDGE.
On January 15, 1945, at Adamston, Harrison county, West Virginia, on U. S.
route No. 19, driver of respondent’s truck No. 430-87, while ascending a grade,
attempted to shift gears which failed to mesh. The truck drifted back and
collided with claimant’s automobile causing damage to the car, whith cost
$24.38 to repair, for which amount claim is made.
Respondent recommends and the attorney general approves its payment.
An award of twenty-four dollars and thirty-eight cents ($24.38) is made to
claimant.
88 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 46 1-S—Claimant awarded $591.00)
MILDRED JOHNSON, an infant, whose claim is filed by HOWARD E. JOHNSON, her
father and next friend, Claimant,
V.
STATE ROAD COMMISSION. Respoxtdent.
Opinion filed Julj 12, 1945
G. H. A. KUNST, JUDGE.
On August 4, 1943, while Mildred Johnson, the eleven year old daughter of
claimant, was playing at the side of Sixth street, Point Pleasant, Mason
county, West Virginia, respondent’s truck No. 130-95 passed, loaded with
cribbing ties, not held by binder chains as required by law. A tie fell from
the truck on the child’s right foot causing injury, pain and suffering, which
necessitated surgery and hospitalization, for which claim is made for $591.00.
Respondent recommends and the attorney general approves its payment.
An award for five hundred and ninety-one dollars ($591.00) is made to claimant.
It is recommended that this sum be paid to a guardian appointed for claimant by
the proper court, upon the giving of a bond in an amount sufficient to cover
the award and the execution of a full and complete release to be signed by the
father and the guardian, showing payment in full settlement of any and all
damages that may have resulted by reason of the injury in question.
W. VA.] REPORTS
STATE COURT OF CLAIMS 89
(No. 466-S—Claimant awarded $29.64)
HARRY B. DAVIS, Claimant,
V.
STATE CONSERVATION COMMISSION, Respondent.
Opinion filed July 12. 1945
G. H. A. KUNST, JuDGE.
On January 17, 1945, on U. S. highway No. 119, at Five Block, near Sharples,
‘West Virginia, claimant’s automobile collided with a fallen telephone pole,
rotted at the ground and broken by a heavy fall of snow, which extended into
the road. It was a pole in a telephone line leading to a fire tower both
belonging to respondent and which it had negligently failed to remove. The cost
of repairing the resultant damage to the car was $29.64, for which claim is
made.
Respondent having recommended and the attorney general having approved its
payment an award of twenty-nine dollars and sixty-four cents ($29.64) is made
to claimant.
(No. 470-S—Claimant awarded $40.75)
MAIN STREET NEWS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 12, 1945
CHARLES J. SCHUCK, JUDGE.
Claimant, having or owning a store or place of business at 327 West Main street
in the city of Clarksburg, West Virginia, asserts its claim against the state
road commission for damages
90 REPORTS STATE
COURT OF CLAIMS [W. VA.
in the amount of $40.75 resulting from having a plate glass window broken,
which said window was located in the said storeroom at the said address, the
window having been shattered and broken by loose stones flying or being
propelled against the said window by passing automobiles, It is alleged that
the said stones were negligently left on the highway in froflt of claimant’s
place of business by the said state road commission at the time that changes or
repairs were being made to the said highway during the month of February, 1943.
The facts and circumstances surrounding this particular claim are similar in
all respects to those that governed this court in its decision heretofore made
in the case of Darling Shops, Inc. v. State Road
Commission, 2 Ct. Claims (W. Va.) 397,
and in which we held the state road commission liable for the damages sustained
by the said Darling Shops, Inc. Accordingly we are of the opinion that the
state is morally bound to compensate the claimant for the damages suffered by reason
of the said negligence.
Recommendation of payment is made by the state road commission and concurred in
by the attorney general’s office. Under all the facts and circumstances as
shown we are of the opinion that claimant is entitled to recover and an award
is made accordingly in the sum of forty dollars and seventy-five cents
($40.75).
(No. 460-S—Claimant awarded $200.00)
WILLIAM H. NEAL, JR., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Jult 12, 1945
CHARLES J. SCHUCK, JUDGE.
Claimant asks recovery for damages to his Chevrolet car, resulting from the
said car or automobile being struck by state
W. VA.) REPORTS
STATE COURT OF CLAIMS 91
road truck 130-96, on the road near Leon, Mason county, West Virginia, on the
14th day of April, 1943.
From the record as submitted for our consideration it appears that claimant’s
car was parked at the side of said road and that the state road truck in
question, by reason of a defective hydraulic brake line bursting, got beyond
the control of the driver thereof and could not be stopped in time to prevent
the truck from colliding with claimant’s car and causing the damages in
question.
The state road commission recommends payment of the damages in the sum of
$200.00 and the assistant attorney general approves the payment of the said
amount.
Under all the circumstances and conditions as presented we are of the opinion,
and so hold, that the state is morally bound to compensate the claimant for the
damages caused by the collision in question, and make an award in the sum of
two hundred dollars ($200.00) in favor of the claimant, William H. Neal, Jr.
(No. 463S—C1aimant awarded $123.44)
FRANCIS RONK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 12, 1945
CHARLES J. SCHUCK, JUDGE.
Claimant seeks recovery for damages to his taxicab in the amount of $123.44,
occasioned by a collision between the said taxicab and state truck 230-46, the
collision having taken place on state route No. 9, at Mill Creek, near Milton,
West Virginia, on September 11, 1944.
92 REPORTS STATE
COURT OF CLAIMS [W. VA.
From the record as submitted for our consideration it appears that the accident
was caused by the negligence of the driver of the said state truck in not using
proper warning signals of his intention to back across the highway, and in so
doing backed or ran his truck into claimant’s taxicab which was passing on its
right and proper side at the time of the collision.
Payment of the damage in the aforesaid amount is recommended by the state road
commission and apptoved by the assistant attorney general. Accordingly an award
is made in favor of the claimant, Francis Ronk, in the sum of one hundred
twety.three dollars and forty-four cents ($123.44).
(No. 471-S—Claimant awarded $30.60)
LUT PAPPALARDO, Claimant,
V.
STATE ROAD COMMISSION. Respondent.
Opinion
filed July 12. 1945
ROBERT L. BLAND, JuDGE.
Upon the facts disclosed in the record of this case, prepared by the state road
commission, and filed with the clerk of this court on March 20, 1945, the head
of the state agency concerned concurs in the claim asserted by claimant for the
sum of $30.60, and an assistant attorney general approves the claim as one for
which, within the meaning of the court act, an appropriation should be made by
the Legislature. From these facts it appears that on December 26, 1943,
claimant’s automobile was parked diagonally across a state controlled road in
Wetzel county, West Virginia, about eleven o’clock in the morning. The rear end
of the vehicle was in a ditch, while the front was toward the center of the
road. The driver of
W. VA.] REPORTS
STATE COURT OF CLAIMS 93
state road commission truck P-30-70 entered a sharp turn on the brow of a hill
when his truck began to slide. As the vehicle swung around claimant’s car its
rear end collided with claimant’s machine causing damage thereto. This damage
is fixed at $30.60. Respondent says that the accident was the fault of the
state. It is shown that claimant is entitled to be compensated.
An award is, therefore, made in favor of claimant, Lui Pappalardo, for thirty
dollars and sixty cents ($30.60).
(No. 439—Clajm dismissed)
JAMES DILLON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 16. 1945
By paragraph 2, section 14, of
the court act, it is expressly provided that the jurisdiction of the Court of
Claims shall not extend to any injury to or death of an inmate of a state penal
institution.
Claimant, appears in his own behalf.
W. Bryan Spillers, Assistant Attorney General, for respondent.
CHARLES J. SCHUCK, JuDGE.
Claimant, James Dillon, was a convict located at state road prison camp No. 75,
at Keyser, West Virginia, where on March 19, 1942, he lost the sight of his
left eye which was struck by a flying piece of stone while he was knapping
rock, no goggles having been furnished him by respondent or anyone in charge of
the camp. He seeks compensation for his Injury.
94 REPORTS STATE COURT
OF CLAIMS [W. VA.
While his claim may be meritorious, yet this court has held in Baisden v. State Road Commission, 2 Ct. Claims (W. Va.) 352 that by the provisions of the
act creating the court, paragraph 2, section 14, it is expressly provided that
the jurisdiction of the Court of Claims shall not extend to any injury to or
death of an inmate of a state penal institution. Claimant in our opinion was an
inmate of a state penal institution although working in the prison camp.
Accordingly we hold in accordance with the opinion in Baisden supra that
the court is without jurisdiction and the claim is hereby dismissed.
(No. 459.—Clajm dismissed)
WILLIAM E. SNEE, Claimant,
V.
STATE TAX COMMISSIONER, Respondent.
Opinion filed July 16, 1945
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.
Claimant, on his own behalf;
W. Bryan Spitters, Assistant Attorney General, for respondent.
ROBERT L. BLAND, JUDGE.
Claimant, a resident of Pennsylvania, engaged in the drilling of wells for the
production of oil and gas, seeks in this pro-
W.VA.j
REPORTS STATE COURT OF CLAIMS 95
ceeding an award for the sum of $578.35 for refund of gasoline tax paid on
11,567 gallons of gasoline purchased between June 3, 1944 and October 8, 1944,
while drilling a gas well at Sisler, near Terra Alta, in Preston county, West
Virginia, not used on highway, His petition for such refund was filed in this
court on February 2, 1945, from which it appears that he did not make
application to the state tax commissioner for refund until January 12, 1945,
more than sixty days after purchase, on which account refund was not made to
him by that department.
In the case of Del Balso 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 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.”
Such holding was followed in re claim No, 404, State
Construction Company v. State Tax Commissioner, in which case an opinion was filed February 2, 1945.
In re claim No. 324, Joseph
Harvey Long et als v. State Tax Commissioner,
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 facie within
its jurisdiction, and therefore the court declined to place it upon the trial
calendar.
96 REPORTS STATE
COURT OF CLAIMS [W. VA.
(Nos. 467, 468, 469—Claimants awarded $500.00; $2,000.00; $300.00)
A. W. UTTERBACK, MRS. A. W. UTTERBACK and
FRANCES CREMEANS, Claimants,
V.
STATE ROAD COMMISSION, .Respondent.
Opinion fIled July 23, 1945
The Court of Claims will recommend to
the Legislature appropriatio’ns for the payment of damages for property loss
and personal injuries suffered when it is disclosed by the record of claims
asserted against the state that there is a moral obligation on the part of the
state to make such payments and in equity and good conscience it should do so.
Lilly and Lilly, for claimants;
W. Bryan Spillers and Ralph M.
Hiner, Assistant Attorneys General,
for respondent.
ROBERT L. BLAND, JuGDE.
These three cases grow out of an accident which occurred on the 20th of March,
1944, at the intersection of Ninth avenue (state route 52) and Fifth street, in
the city of Huntington, W’est Virginia. Since they involve the same basic
facts, so far as the accident is concerned, they are, for prudential reasons,
consolidated and heard together. The awards sought are as follows: Claimant A.
W. Utterback, $1,500.00; claimant Mrs.
A. W. Utterback, $15,000.00, and claimant Frances Cremeans, $1,500.00.
Claimant A. W. Utterback, now an Ensign in the United States Naval Reserve,
was, for four years prior to his enlistment, engaged in the insurance business
in said city of Huntington, having been superintendent of the National Life and
Accident Insurance Company. He was paid in that capacity a stated salary and
also received the benefit of certain commissions.
W. VA.] REPORTS STATE COURT OF CLAIMS 97
About six o’clock on the evening of the twentieth day of March, 1944,
accompanied by his wife, claimant Mrs. A. W, Utterback, and son, two years of
age, and his sister, claimant Frances Cremeans, Ensign Utterback was driving
his 1941 model special Deluxe Chevrolet automobile in a westerly direction on
Ninth avenue (state route 52). He and his wife occupied the front seat, while
Mrs. Cremeans and the child sat in the back seat. At the intersection of Ninth
avenue and Fifth street the Utterback car, which was being driven at a speed of
from fifteen to eighteen miles per hour, and a Plymouth coupe automobile, owned
by the state road commission and driven by C. E. Tauszky, junior engineer for
the road commission, collided. The Utterback car was very badly damaged. Ensign
Utterback sustained some slight bruises about the face and body; Mrs. Utterback
was very seriously hurt. Her right eye was badly cut in three places and the
side of her right cheek was disfigured, Below the right eye there was a lump as
big as a hen’s egg. In addition she suffered great nervous shock and
experienced much pain. Several hundred dollars were expended for medical and
surgical attention, plastic surgery having been resorted to to repair the
disfigurement of her face. Hospital residence and medical treatment
necessitated the expenditure of large sums of money on her behalf. Claimant
Frances Cremeans was hurt about her limbs and body and found it necessary to be
placed in a hospital for forty-two days, incurring expenditures incident to her
injuries.
There is a marked conflict in the testimony submitted to this court, but
physical facts surrounding the accident tell us much. Ninth avenue is an
extensively used thoroughfare. At the point of its intersection with Fifth
street there are no stop signs. The driver of the state car testified that he
was not going more than ten miles an hour, which speed was as indicated by his
own testimony, materially increased immediately before the accident as the
impact of the collision and the relative position of the cars afterward would
indicate. His car was found fifty-five feet back on Fifth street where it had
run into a maple tree, He admitted that he knew of the existence of the two
stop signs on Fifth street, and notwithstanding such knowledge he
98 REPORTS STATE
COURT OF CLAIMS [W. VA.
did not stop in obedience to the traffic rules of the city. Ensign Utterback
testified that just before entering the intersection he noticed the state car
approaching on Fifth street back near the center of the block but that since he
did not have any stop sign he paid no further attention to the car because he
had the right of way. This was true, and it was the plain duty of the driver of
the state car to have stopped his vehicle before entering the intersection. The
accident was wholly uncalled for and could readily have been avoided by the
exercise of ordinary judgment and the observance of the traffic signs of
warning. It is fortunate that the occupants of the Utterback car escaped with
their lives.
We do not believe that any good or necessary purpose would be subserved by
entering into a more detailed discussion of the facts and circumstances surrounding
the accident. Suffice it to say that the court made careful and thorough
investigation of these facts and circumstances, and its members are unanimously
of opinion that the claims filed in the three several cases are just and
meritorious. It is believed that under the peculiar situation, bearing in mind
the manner in which the state car was driven and the indifference shown to the
stop signs by the agent of the state in charge of it and the dire consequences
resulting from the accident, there is a moral obligation on the part of the
state to make reparation for the property loss sustained and personal injuries
suffered by the claimants. Both equity and good conscience would justify and
warrant the Legislature in making an appropriation for the payment of the
awards hereinafter made.
An award is, therefore, made in favor of claimant A. W. Utterback in the sum of
five hundred dollars ($500.00), the major portion of which will reimburse him
for the outlay made for the repair of his automobile and the residue to
compensate him for the time necessarily lost from his business; and an award is
made to claimant Mrs. A. W. Utterback in the sum of two thousand dollars
($2,000.00), which amount includes reimbursement for moneys necessarily
expended to repair the damage done to her face, and makes a reasonable
allowance for pain and suffering experienced; and to claimant Frances Cremeans
an award is made in the sum of three hundred dollars ($300.00).
vA I 01 PoRt S S IA! (‘0001’ OP (‘I AIMS
(No. 476 (laini,uit awarded ,00() 1)0 UOfl rehearing)
WARD I IUFEMAN, guardian of BOBBY L COGAR, an
infant, Claimant,
V.
STATE BOARI) OF CONTROL, Respondent.
()pmion hied Auqua .‘ 1 l1
()pinr
rn on rehear, n, q
filed I )t’
erniber
17, O4
i
Wjsonq 2’ Vsonq, for claimant
W. Brqan Spitters and Ralph M.
Jluwr, Assistant Attorneys General,
for respondent.
ROBERT L. BLANI), JUF)(1[i.
In my opinion the Court of Claims cannot make an award on the sole ground of
sympathy. however strong the appeal may be. It is without power to recommend to
the Legislature an appropriation of the public revenues as a gratuity. The rule
of equity and good conscience cannot be invoked for such purpose.
Bobby Cogar, fourteen years of age, on whose behalf a petition is filed in this
case by his duly appointed and acting guardian, seeking an award of $10,000.00
as compensation to his said ward for personal Injuries sustained while he was
an inmate of the ‘West Virginia children’s home at Elkins, is the son of Mr.
and Mrs. Ellery Cogar, late residents of Webster county. and both now deceased.
The father of said infant was a veteran of World War I. By virtue of that fact
his children and dependents became entitled to an allowance of funds from and
at the hands of the veterans’ administration. West Virginia facility. On the
death of both the father and mother of said ward, the duty rested upon said
facility to pay said money to the dependents of said deceased veteran,
including petitioner’s
100 RFPORTS STATE
COURT OF CLAIMS [W. VA.
ward. At the time of the appointment of petitioner as guardian for said infant
son of said deceased veteran, his ward was in charge of the department of
public assistance, children’s division, of West Virginia, and was being kept
and cared for in the home of Al Lanham, of Camden-on-Gauley, West Virginia. The
appointment of petitioner as guardian for said infant was made at the instance
of the Veterans’ Administration. The department of public assistance
subsequently caused the boy to be removed to the children’s home at Elkins. He
was removed to that institution in September, 1943. The boy as required to
attend the school taught at the home and did minor chores from time to time.
The twenty-eighth day of December, 1943, was observed as a holiday. On that
date petitioner’s ward effected an entrance to the basement of a building
through which he made his way to the laundry. The laundry work had just been
concluded by Mrs. Hazel Collett, the laundress at the institution. She had
momentarily left the laundry. Only a young female inmate was present when the
boy made his appearance. The current of a drying machine, known as a “spinner”
had been turned off, The spinner, however, continued in motion for a short time
thercaftcr. The boy walked to this spinner and deliberately thrust his hand
into it. The top had not at the moment been replaced when the current was shut off. He gave
as a reason for his action that he saw a nut in the machine and wanted to see
what it looked like. He further added “Well, I was fooling around the furnace
and I just went in there and I was fooling around and went in there and stuck
my hand in the thing.” As a result of his inquisitiveness his arm was severed
and dropped into the spinner. He was given first aid by the superintendent of
the institution and his wife, and immediately conveyed to the Davis Memorial
hospital where his right arm was amputated close to the socket. There can be no
doubt that the child was badly and seriously injured. His case is one that
makes an exceedingly strong appeal to the sympathy of the court. The claim is
prosecuted solely on the alleged ground of the negligence of the officers and
agents of the institution. The claim is advanced that the machine was a
dangerous instrumentality and that the duty rested upon
\V.VA.]
REPORTS STATE COURT OP CLAIMS 101
those in charge of it to protect the inmates from accident and harm. The state
resists an award in the case. It is shown by the testimony of l\’Irs. Collett,
the laundress, that children were warned against danger and forbidden to go to
the laundry except when they were sent for the purpose of bathing and carrying
laundry. On the day of the accident the boy had no occasion to be in the
laundry. Tic effected entrance clandestinely and the accident occurred
immediately after he entered the room and while the laundress was absent for
approximately five minutes on an essential mission. There is no evidence in the
case on which majority members can see their way clear to recommend relief for
the child, To say, under the facts disclosed by the record, that the officials,
agents and servants of the institution were negligent in the premises would be
a violent assumption. I am impressed by the fact that all ordinary precautions
against danger to the child, as well as to other inmates of the institution,
were employed. The machine is not shown to be an inherently dangerous
instrumentality. I do not believe that an appropriation of the public revenues
of • the state would be proper under the circumstances
disclosed by
the evidence in this case. Such an appropriation would amount to nothing more
than the bestowal of a gratuity, and it would establish an unfortunate
precedent. The public revenues cannot properly be appropriated for privIIe
purposes. An appropriation to compensate petitioner’s ward would, I think, be
for a private purpose. An award is tlwrefore denied and the claim dismissed.
G. H. A. KUNST, JUDGE, concurring in part, dissenting in part.
I concur with Judge Bland in his opinion that there be no award granted in this
case because I am of the opinion that this court had no jurisdiction of the
case.
This claim arose out of the care or treatment of Bobby L. Coger, an inmate of
the West Virginia children’s home, a state institution, under the control and
jurisdiction of the state board of control, respondent herein, By reason of the
alleged negli
102 REPORTS STATE
COURT OF CLAIMS [W.V
gence of its officers, employees and servants in not rendering to him the care
or treatment which its duty under the circumstances, as custodian of such
inmate who had not yet reached the age of discretion, legally required of it,
but, on the contrary, this ward of the state while in said institution was
exposed to a dangerous instrumentality, a spinner, not properly guarded and
concerning which he had not been sufficiently warned and instructed as to its
dangerous character and by which his arm was torn off and for which injury and
suffering, an award of $10,000.00 is asked against said respondent.
The third provision of sec. 14, art. 2 of ch. 39 of the Acts of the West
Virginia Legislature for the year 1945 says:
“The jurisdiction of the court of claims shall not extend to any claim . . . Arising out of the care or treatment of a person in a
state institution,’’
Care is definied as ‘a relative term and of broad comprehension, meaning
responsibility; charge or oversight; watchful regard and attention.” Courts
have said that the distinction of different degrees of care ‘is unscientific
and impracticable, as the law furnishes no definition of these terms that can
be applied in practice.” 9 C. J. 1287 and 1288.
Treat is defined: “to conduct one’s self in a certain manner with respect to;
use; as, ‘to treat a horse cruelly.’ “ Treatment
is defined as the act or manner of treating in any sense. ‘‘I speak this with
an eye to those cruel treatments which men of all sides are apt to give
the characters of those who do not agree with them. Addison-Spectator No. 243,
Century Dictionary. (Italics ours
Failure to bestow upon a person in a state institution the degree of care which
the situation demands constitutes treatment out of which a claim may arise.
The phrase, care or treatment, has received judicial interpretation in
an English case: “Care or treatment of any lunatic.” (Italics ours)
WVA 1 REPORTS
STATE COURT OF CI AIMS 103
“The parents of a lunatic who resides with them under their care are persons
‘having the care or charge’ of a lunatic within the meaning of 16 Z 17 Vict. C
96 S 9 and may be convicted under that section for ill-treatinq such
lunatic ‘‘
Buchanan and Another, Appellants v. Hardti,
Respondent. Vol. 18.
0. B. D. pp. 486 and 487. (Italics ours).
Lord Coloridge C. J.: “1 am of opinion that thi’; conviction must be affirmed.
The justices have found that the appellants did ifl-treat the
lunatic, who was their daughter and under their care, it had been argued that,
notwithstanding those findings, the persons charged with il1-ireatnq this
lunatic are not liable under 16 1 7 Vict. c. 96. S. 9, because they are the parents of the
lunatic. That section enacts ‘hat if ‘any person detaining or taking or having
‘he care or charte. or concerned or taking part in the custody care or treatment of any lunatic or person alleged to be a lunatic, in any way abuse.
ill-treat, or wilfully neglect such lunatic or alleged lunatic, he shall be
guilty of a misdemeanor.’ ‘‘Id. (Italics ours).
The care or treatment of a person in a state institution out of which a claim
could arise is that degree of care or treatment which constitutes actionable negligence.
“Judge Cooley in his work on Torts, defines actionable negligence as ‘the
failure to observe, for the protection of the interests of another person, that
degree of care. precaution and vigilance which the circumstances justly demand,
whereby such other person suffers injury,’ and his definition has been adopted
or quoted with approval in a large number of cases and characterized as the
best einition ‘‘
‘1 C 1 6 I ar I ca;es cited.
No plea to the jurisdiction was filed herein by the attorney general,
representing respondent. and this provision of the court act was overluoLej ani
n)t consdere! by t’s’co’r in ii after the case had been heard, and no
conclusion was reached. The other members of the court were of opinion that the
case having been heard on its merits a ‘‘cision Hould be made thereon and
opinions written.
104 REPORTS ST\TE
COURT OF CLAIMS [W.VA.
If I am correct in my opinion, no award should be made and no opinions be
rendered on the merits of this claim without having first determined the
question of jurisdiction.
‘‘Objection for want of jurisdiction of the subject matter may be taken by
demurrer, or motion, or in any way whereby the subject may be brought to the
court’s attention, and if not brought to the attention of the trial court, may
be noticed by the appellate court of its own motion for the first time.” Thacizer v. Hubbard
£s’ Applebg. 122 Va. 379; 4 S. B. 929; 21 A. L. R. 414n.
A motion to dismiss because the subject matter is not within the jurisdiction
of the court is rightly entertained by the court.
“When it appears that the court has no jursdiction over the subject matter of
the suit, it will take notice of the defect, whether objection is made or not,
and will dismiss or stay the procecdngs cx rnero molu, and it is its
duty to do so” .
. . 12 Enc. of Pleading Practice, 190.
It should be the duty of the court to carry out the intention and policy of the
Legislature, Since the language of this statute is plan and unambiguous, there
is no occasion for construction. Every technical rule, as to construction and
force of particular terms, must yield to a clear expression of legislative
will. The intention of the Legislature is clearly expressed in the clear
unambiguous statement of the statute, which enactment could be stated: The
jurisdiction of this court does not extend to a claim arising out of actionable
negligence to a person in a state institution.
CHARLES J. SCHUCK, JUDGE, dissenting.
I cannot agree with the reasoning set forth in the majority opinion refusing an
award, and I am therefore obliged to dissent.
\Vhile, of course, no approprIation by the Legislature can be made as a mere
gratuity or on the sole ground of sympathy, hut when the facts, carefully
analyzed, show negligence and
W. VA.] REPORTS
STATF COURT OF CLAIMS 105
carelessness on the part of those in charge of a state institution, then no
question of mere gratuity is presented but rather the matter of doing justice
in equity and good conscience as set forth in the act creating this court,
The testimony clearly shows that the machine in question was highly dangerous
not only when it was being operated for the purpose for which it was
constructed, namely taking care of and drying the washing of the laundry of the
institution in question, but also, even after the work had been completed for
which the machine was used and the electric current turned off it still
continued to operate and was so dangerous that it amputated this boy’s arm when
for some reason he put his arm into the machine. The very happening of the
accident and its nature in my judgment, demonstrates conclusively that it was a
dangerous instrumentality or machine used in carrying on the work of the
istitution. No precaution had been taken to keep the children away from the
machine or its operation as the evidence reveals. No protection in or about the
machine had been constructed or built for the purpose of protecting the
children of the institution and so far as the evidence reveals, it was only after
this deplorable accident had happened that any precautionary measures whatever
were taken by those in charge of the institution.
I challenge the statement that all ordinary precautions against danger were
taken. A careful reading of the record, I repeat, discloses that rio
precautionary measures were taken, save only that, since the accident, rules
and regulations havc been formulated not to allow any of the boys in the
laundry room who are not employed there in taking care of the cleaning and
drying of the laundry. So far as the record reveals, no rules had been
promulgated before the accident. In fact, every inference and deduction shows
that no precautions against injury to the children had been taken previous to
that time. If this was not negligence, considering all of the circumstances and
facts, namely that it was a state institution where children of tender ages
were confined without the proper discretionary power to discriminate between
what was or might be dangerous or
106 RI- FOR IS
SFA FT COURT OF CI AIMS [W. VA.
machinery that might be harmless, then I fail to comprehend how or under what
conditions negligence or lack of proper or ordinary care could ever be imputed
to those in charge of a like insti’ Ut
Ofl. As shown in the record (p. 4O the
machine could have been operated when entirely enclosed and continued to
operate, so far a.s the drying process is concerned when and if enclosed. In
view of these facts the proper supervision was not maintained in my judgment in
allowing the machine to operate without being closed and thus making it highly
dangerous to any children that would enter the laundry room. That the claimant
in question did enter the laundry room under the circumstances shown in the
record was or ought to have been anticipated by the authorities in charge and
as the record further shows, they have since endeavored to remedy this
condition by keeping the door to the laundry locked and boys arc now only
allowed there when in charge of or under the sunervision of one of the matrons
or older employees.
The dangerous instrumentality of the spinner or machine in question is made
manifest by the absolutely undisputed fact that although the power of the motor
was no longer furnished by the electric current yet the uncovered and unguarded
machine had power enough and sufficient to inflict this deplorable injury on a
child of thirteen years of age. I am also of the opinion, as the facts reveal
and as the claimant’s personal appearance before the court will show, that
while he was thirteen years of age. and therefore under the age with which he
could be charged with contributory negligence so far as the legal rule was
involved, yet, his mental development had been considerably retarded and was
but that of a child of nine or ten years of age. These facts were or should
have been knos’n by those in charge of the institution.
The superintendent in charge at the time of the accident had been at the
institution but a few days previous thereto and perhaps had not had time to
fully acquaint himself with the various situations presented nor the hazard
present in the using of the machine in question. He seems to have done what was
necessary as a precautionary measure after the accident occurred;
W.VA.] RE PORTS
STATE COURT OF CLAIMS 107
but frankly admits that so far as he was able to learn and know no precautions
were taken before the accident (record p. 35,)
In Rine v. Morris et
a!, 1 27 S. E. 908: 99 W. Va. 52, Judge
Hatcher in the opinion says:
“W’here the defendants negligently leave exposed in a public place, unsecured,
unguarded, and unattended, a dangerous machine, likely to attract children,
excite their curiosity, and lead to their injury, while they are pursuing their
childish instincts, a child of tender years, injured by said machine while meddling with it, is entitled to recover damages for the injury
inflicted.” (Italics ours)
Surely, the reasoning of Judge Hatcher in the case just referred to.
has a most significant application to the facts presented by claimant.
The further question is presented by the supplemental opinion filed by Judge
Kunst in which he agrees with the conclusion as set forth in the majority
opinion but concludes that the act creatjnE the court. sec. 14, art. 2. of cha.
14, code, denie’ that the court has any jurisdiction to hear and try a claim
arising out of the care and treatment of a person in a state institution.
I frankly admit that this provision is vague and indefinite as to whether or
not it includes state institutions of every kind and description. If it does,
then a student at the state university or any other state school who pays his
tuition as well as room and board in case he occupies one of the dormitories,
would be barred from presenting a claim to this court for injuries sustained
while such student; and no matter how meritorious his claim may be or how
extreme the negligence on the part of those in charge of the institution where
the student had been injured, yet he would be denied the right to have his
claim heard in this court on jurisdictional grounds. I cannot conceive that the
Legislature intended such construction to be placed on the provision in
question. I am of the opinion ‘hat it refers to penal :‘nd such other
institutions in which the state is called upon to give aid and assistance, medical
108 REPORTS STATE
COURT OF CLAIMS [W.VP,
and otherwise, and in which the state could not be held liable for the
treatment of inmates by any in charge of the institution either through a
mistake in the matter of treatment such as could easily happen in a state
insane hospital or asylum or by the conduct of the guards or employees toward
an inmate in any such institutions,
I would give to this provision a more liberal interpretation and would hold
that in our state institutions and state schools, as well as where the state is
charged with the duty of making and molding the lives of children and growing
boys and girls into good citizens, that the duty of reasonable and ordinary
care in their protection devolves upon the state under the circumstances and
that the state should be liable when any of its officers or officials in charge
are guilty of negligence and any of the students or inmates without fault, are
injured thereby, I trust that at the next session of the Legislature this
paricular provision will be clarified and the jurisdiction of this court in
this respect definitely defined, For the reasons set forth, I dissent and would
favor an award.
CI-TARLES J. SCHUCK, JuDcF,
upoil petition for rehearing.
A rehearing having been heretofore granted the claimant in ce the above
claim, and all of the facts adduced in the first or original hearing, as well
as those presented at the second hearing, having been duly considered, and
Judge Smith, sitting for the first time at the regular October term, 1945,
agreeing with the views set forth in my dissenting opinion heretofore filed,
and in which an award was recommended, and for the reasons set forth in the
said opinion, an award is now made to the claimant in the sum of three thousand
dollars ($3000.00) ; the said dissenting opinion hereby being adopted as the
majority opinion of the court in the matter of said award; and we further
recommend that payment be made accordingly in the said sum to the proper
guardian duly appointed and qualified to care for the said infant’s affairs and
interests.
Judge Bland dissents and will file an opinion stting forth his views.
\V. VA.] RE1NDR1S
SI A FL COURT OF CLAIMS 109
ROBERT L. BLAND, JuDGE, dissenting.
Upon careful reexamination of the record of this case and due consideration
given to argument of counsel, I am constrained to adhere to the views which I
expressed in a written opinion filed after the original hearing. Indeed, such
views are strengthened and confirmed. It is not, in my opinion, a case in which
an award may properly be made within the contemplation of the court act. I
perceive nothing in the record that could possibly render either the board of
control or the W’est Virginia children’s home at Elkins culpable or in any way
responsible for the accident sustained by Bobby Cogar. I do not see any actual
negligence upon which an award could be based if an award may be made on that
ground. It is well understood that the doctrine of respondeat superior does not apply to the state. The claim is prosecuted on the sole ground
of negligence. The state is not liable for the negligence of its officers,
agents or servants. In ‘West Virginia no such liability has been voluntarily
assumed. The youth had no occasion to be in the laundry. His presence there was
without the knowledge or consent of anyone connected with the children’s home,
and was effected clandenstinely during the momentary absence of the laundress.
W’hen she left the laundry the current had been cut off the electric spinner.
The lid was on the machine. The laundress had no reason to know or anticipate
that the boy would enter the room and deliberately thrust his arm into the
spinner.
Claimant’s ward was born March 24, l9O. The accident occurred December 28, 1943.
The boy was, at that time, three months less than fourteen years of age, and
was in the fifth grade in school. An infant over the age of fourteen years is
presumed to have sufficient discretion and understanding to be sensible of
danger and to have power to avoid it. Hairston
v. United States Coal & Coke Company, 66 W. Va. 324.
The boy explained his presence in the laundry in these words:
‘‘W’ell, I was fooling around the furnace and I just went in there, and I was
fooling around and went in there and stuck
110 REPORTS STATE
COURT OF CLAIMS [W. VA.
y hand in the thing.” He further stated: “Well, I was fooling around it there,
and I went over there, and I just looked down in it, and I slipped my arm down
in it.” When asked if the laundress had not told him that he was not supposed
to come in the laundry, he replied: “SWell, sometimes she did.” When asked if
he had told the superintendent of the home or his wife, when they would not let
him go to a show one night that he was going down there and stick his other arm
in the machine, he answered: “Well, I might have done it.” The boy was not
required to work in the laundry and did not work there. When he went to the
laundry on the occasion that the accident happened the door was closed, He
testified that he “just had to bear down on it, and it would come open.”
Anna Lee Helmick, the only person in the laundry when the accident occurred,
told the boy not to put his arm about the machine.
Mrs. D. B. Gainer, assistant superintendent and financial secretary of the
home, testified that all children were instructed not to go in various places
and that the laundry was one place that boys especially are not to enter since
they have no occasion to be there except when bringing laundry from the boys’
basement. This witness described the spinner, which claimant contended to be a
dangerous instrumentality, as follows: “It is a very smooth machine. It doesn’t
have any blades. It has a round whirl built on against the outside wall of the
machine and at the top a very smooth copper band and there are no blades in it;
it is perfectly smooth in the bottom, with just this nut in the center, and
this section that goes around has holes drilled in it, and there are no blades
in the machine.”
Mrs. Hazel Collett, laundress at the home, testified that she had put her table
linens in the dryer and walked into the adjoining room, and might have been
gone as long as five minutes. The current had been turned off. The spinner
still revolves for a short time after the current is turned off. It was during
her absence from the room that the boy appeared there, walked over to the dryer
and put his arm in it. She further testified that when she went to the laundry
she was instructed that boys
W. VA.] REPORTS
STATE COURT OF CLAIMS -
111
were not to fool around machinery and always warned the boys accordingly.
I see no moral obligation on the part of the state to make an award in this
case. An award, under the evidence, must amount to the bestowal of a gratuity.
The Legislature is without power to thus appropriate the public funds.
I do not think that the jurisdiction of the court to make a determination of
the claim is excluded by section 14 of the court act. The claim does not arise
out of the “care” or “treatment” of a person in a state institution within the
meaning of the statute.
The injury suffered by the boy makes a strong appeal to my personal sympathy;
but as I view my duty, as a member of the court, I am unable to unite with my
colleagues in recommending an award in his favor.
(No. 475—Denied)
LOIS THOMPSON, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opirsiors filed August 29, 1945
When a student attending a State
college and living in a dormitory maintained in connection therewith
voluntarily uses a fire escape for purposes of ingsess and egress rather than
the main entrances to such building provided for such purpose’ and in
consequence of such use of such fire escape sustains personal injuries for
which the college authorities are in no way responsible a claim for damages
suffered will be denied.
Lilly & Lilly for claimant;
W. Bryan Spillers, Assistant Attorney General, for the state.
ROBERT L. BLAND, JUDGE.
Claimant Lois Thompson, now a Wave in the armed forces of the United States,
was formerly a student at Marshall College
112 REPORTS STATE
COURT OF CLAIMS [W.VA.
in Huntington, Cabell county, West Virginia. She lived on the second floor in
the dormitory known as College Hall. She alleges that prior to the summer of 1
944 there was a stationary fire escape located on the east end of said College
Hall, which extended from the third floor of the building to the ground, and
that sometime during the summer of 1943 that part of said fire escape extending
from the ground to the second floor was changed so that the metal steps,
formerly used in said stationary fire escape were attached to a platform at the
upper end and the other end of said metal fire escape was ‘attached to a cable,
pulleys and weights so that the one end could be lowered to the ground when in
use, and when not in use would, by the said weights, pulleys and cable, be
raised in a position horizontal to the ground.
Claimant further alleges that prior to the summer of 1943 said stationary fire
escape was used by students, including herself, living in said College Hall as
a means of ingress and egress from the second and third floors of said
building, and that after the lower section of said fire escape, extending from
the ground to the second floor, was changed in the summer of 1943, the
students, including herself, living in said College Hall continued to use said
fire escape as a means of ingress and egress from said building.
Claimant says that on and prior to April 19, 1944, the room she occupied on the
second floor of said College Hall had a doorway leading from said room out onto
the platform that extended down to said fire escape landing from the ground to
said second floor, and on said 19th day of April, 1944, when she undertook to
lower said fire escape from the second floor to the ground so as to permit two
other girls who lived in said dormitory to use the fire escape as a means of
ingress to said building, one of the cables on said fire escape, due to its
defective and insufficient condition, broke, and said fire escape fell to the
ground, as a result of which her right femur was broken, and that by reason of
said injuries she was necessarily confined in St. Mary’s hospital in the city
of Huntington and
W.VA.] REPORTS
STATE COURT OF CLAIMS 113
was forced to and did expend approximately $400.00 for hospital bills, doctor
bills, medicine and treatment.
Claimant contends that she has been permanently injured as a result of her said
accident and that her injuries and damages were caused by and through the
negligence of the board of control of the state of ‘West Virginia in the manner
in which it maintained said equipment at said Marshall College. She seeks an
award of $5,000.00 by way of damages.
The state denies all responsibility for the accident and contests the claim.
To establish the merit of her claim Miss Thompson and three other witnesses
testified. These witnesses had been students at Marshall College. One of them,
Eunice Rogers, was a room-mate of claimant. It was shown that during the school
year beginning September, 1943, up to and including April 19, 1944, when her
accident happened, claimant occupied a room in suite F-2 on the second floor of
College Hall. This room led onto the fire escape extending from the ground to
the third floor of the building. Students living on the second floor of the
dormitory, desiring to reach the fire escape would have to go through this
room. The college library is located a short distance east of the dormitory. A
part of the campus and the athletic grounds extend on beyond and east of the
library. There is a main entrance to College Hall on Third avenue and another
general entrance from Elm street. Referring to the fire escape Miss Thompson
explained: “Well, the girls
—we all used it to come up and down in front of the library. We never did after
hours or before hours; we would come in that way, made a shorter route that
way.” It was a shorter and more convenient route in going to and from the
library. It would not, however, require but a few moments to use either of the
main entrances to the dormitory.
It is necessary for a person on the second floor to go out toward the end of
the fire escape in order that the weight of the fire escape would overcome or
overbalance the weight con-
114 REPORTS STATE
COURT OF CLAIMS [W.VA.
nected to the cable and pulleys and thereby lower it to the ground.
Explaining under what circumstances she was injured, Miss Thompson testified:
‘Well, there was two girls came down and they yelled for me to let them down
the far end of the fire escape. The heavier you are the less you have to go out
on it, so I had to walk first about to the end. When I got to the end, why,
something happened. The thing went down and the rod that extended that
connected the fire escape to the steps and to the cable struck me over the leg
when it fell.”
The claimant sustained a fractured femur of the right leg which extended into
the kneecap. She was in the hospital for ten weeks, in treatment for four weeks
and in a cast for five weeks. She had hospitalization privileges which paid a
substantial amount of expenses incurred,
The evidence shows that she had used the fire escape three times on the day of
the accident.
It appears that claimant has made substantial recovery. There has been perfect
healing of the knee and neither leg is shorter than the other. She has
successfully passed the examination required for enlistment in the \Vavcs.
We cannot find from the evidenc’ that the use made by the claimant of a fire
escape was with the knowledge or consent of the authorities of the college. It
does appear, however, that some of the students did use the fire escape from
time to time for purposes of convenience. It was because of the misuse of the
stationary fire escape by students that the board of control caused it to be
changed to a cantilever or weight lift fire escape.
The contract for this work was awarded by the board of control in February or
March 1943 to James J. Weiler Z Sons, structural steel contractors of
Huntington. The work to be done under this contract contemplated all the fire
escapes of Marshall College, including the one on the east side of College
Hall, where claimant sustained her accident, changing the sta
W.VA.] REPORTS
STATE COURT OF CLAIMS 115
tionary fire escape there to a cantilever or weight lift escape. After the
completion of the work and before approving for payment the invoice submitted
by the contractor, college authorities had L. W. Schmidt, architect of
Fairmont, West Virginia to make a complete inspection of all the work performed
by said contractors, and it was on the basis of the report made of this inspection that payment was made. The report
of the inspection of the fire escape on the east side of the dormitory building
showed it to be in good condition. Notwithstanding the change made in the fire
escape, some of the students continued to use it for purposes of ingress and
egress, although such use was not with the consent or approval of college
authorities. We think that the board of control and the administrative
officials of the college did all that could be reasonably expected to make the
fire escape safe for the use for which it was intended, including fire drills.
Just how the cable happened to break or what caused it to break on the occasion
of claimant’s accident is not made clear by the record, In any event it is not
believed that the college authorities were in any way responsible for the
accident.
Miss Thompson was an adult of good intelligence. She certainly knew that the
fire escape was not constructed or intended to be used a.s a means of ingress
and egress. She also knew that there were two main entrances to College Hall,
either of which she could have used with safety. Had she exercised prudence and
judgment she would have used these entrances. It may, we think, be safely said
that the accident was the result of her folly.
After the conclusion of the introduction of evidence by the claimant and
respondent, the attorney for the state moved the court to dismiss the claim
upon the ground that it is a claim for an injury arising out of the care or
treatment of a person in a state institution, which is excluded by section 14,
article 2, chapter 39, Acts of the Legislature, Regular Session, 1945. Said
section provides:
“The jurisdiction of the court shall not extend to any claim:
116 REPORTS STATE
COURT OF CLAIMS [W. VA.
“3. Arising out of the care or treatment of a person
in a state Institution.”
Majority members of the court do not think that this provision of the statute
excludes the court’s jurisdiction of the claim in question. Judge Kunst is of a
different opinion. Miss Thompson was not a ward of the state. Her situation
demanded no peculiar care or treatment such as would be the case where one is
confined in a mental or penal institution.
Upon due consideration of all of the evidence adduced we are of the opinion
that the claim asserted against the state by Miss Thompson is not one for which
an appropriation of the public revenues should be made by the Legislature.
An award is, therefore, denied and the claim dismissed.
G. H. A. KUNST, JUD, concurring.
This claim arose out of the care or treatment of Lois Thompson, a student,
while living in a dormitory of and enrolled ii Marshall College, a state
institution, under the control and jurisdiction of the state board of control,
respondent herein. By reason of the alleged negligence of its officers,
employees and servants in not rendering to her the degree of care or treatment,
which its duty to her under the circumstances justly demanded, by the
employment of a defective cable, supporting the lowest section of a fire escape
on a dormitory building of said college, which cable broke in the use of said
fire escape by said student, and the section attached to said cable fell to the
ground with the student, breaking the femur of her right leg; for which injury,
the resulting suffering and expense an award of the sum of $5,000.00 is asked
against said respondent.
After the hearing herein, the attorney general, representing respondent, moved
the court to dismiss this case upon the ground that the court had no
jurisdiction, because of the third provision of sec. 14 of art, 2 of ch. 39, of
the Acts of the Legislature, regular session, 1945, which is as follows:
“The jurisdiction of the court shall not extend to any claim . .
W.VA.] REPORTS
STATE COURT OF CLAIMS 117
arising out of the care or treatment of a person in a state institution. . .
I am of opinion that this motion should
have been sustained and that no award could be made and that the case be
dismissed.
In case No. 476, Ward Huff man, Gd, v. Board of
Control, heard at the present term of
court the same question as to the jurisdiction of the court having arisen, I
was of opinion that the court had no jurisdiction, no award could be made and
the case should have been dismissed. The reasons for my opinion having been
fully stated therein, I see no reason for encumbering this record by its
repetition in this case but refer to it as my opinion herein.
CHARLES J. SCHUCK, JUDGE, concurring.
I agree with Judge Bland’s conclusion that an award should be refused, but base
my opinion on grounds different from those set forth in his opinion.
The accident in question took place on April 19, 1944. The testimony shows
(record pp. 61-62) that in the latter part of August, 1943, the board of
control before accepting the work involving the changes and alterations on the
fire escape in question, made by the contractor, had an examination made by an
architect, one L. W. Schmidt, of Fairmont, West Virginia, who, after making a
complete inspection, reported to the board that the fire escape in question, so
far as the installation and changes were concerned, was satisfactory and the
work very well done. The board, therefore, had performed its full duty and had
the right to rely on the report made by the architect and consequently could
not be held liable for an accident that happened subsequently and within eight
months after the said investigation and report had been submitted. While it
seems rather strange that within the said period of eight months the said fire
escape could become so defective as to cause the accident to claimant, this,
however, was a condition for which in my judgment the board of control could
not be held liable, and which under all the circumstances the board could not
antici
118 REPORTS STATE
COURT OF CLAIMS [W. VA.
pate or expect. The board had the right to rely on the architect’s report and
having done so was not responsible for claimant’s accident happening within the
eight months period after the said investigation.
(No. 405—Claim deniei)
o. P.
BRANN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed August 31, 1945
The state does not guarantee the
freedom from accident of persons travelling on its highways.
Claimant, in his own behalf;
W. Bryan Spillers, Assistant Attorney General for respondent,
ROBERT L. BLAND, JUDGE.
In this case the Reverend 0. P. Brann, of 217 ‘Wood street, ‘Westernport,
Maryland, prosecutes a claim against the state of ‘West Virginia for the sum of
$150.00. He bases his claim on the failure of the state road commission to
erect and maintain posts or guardrails or other indications of danger on an
improved black-top secondary road, known as the Beryl-Hampshire road, in
Mineral county, West Virginia, at the place where it crosses the tracks of the
Western Maryland Railway Company at Tusetown and where he drove his automobile
over a stone wall and thereby wrecked the vehicle. He seeks reimbursment for
the amount which he expended for the repair of the car.
About nine-thirty o’clock on Wednesday night, March 29, 1944, claimant was
returning from Hampshire, where he had
W.VA.j REPORTS STATE COURT OF CLAIMS 119
conducted a religious meeting, when
the accident occurred. Testifying in support of his claim, he said: “It was a
dark, foggy night and when I came down to the railroad, why I missed the road.’
It is a very sharp turn there. To my notion it was very dangerous until it was fixed. They
have put posts there now, or guardrails, like. And I went over the wall, about
a four or five foot stone wall there, and the car dropped over, the front wheel
and the rear wheel, and turned it up half-way and dropped it straight down, and
I was fortunate enough not to get hurt, but it wrecked the car.” When asked
whether he had ever traveled the road before, claimant replied: “Oh, many a
time, many a time. I have been travelling it for years as far as that is
concerned.” Continuing, he testified: “There is a rough place in the road on
the opposite side and when I came down, I missed that, I pulled around it,
like, and I came over across the railroad, it didn’t take much of a swing to go
over the wall.”
Claimant said that he was not forced over the wall on account of the bad
condition of the road. He admitted that, except for the absence of warning
signs of danger, the road was in generally good condition, and that he had
knowledge of and was familiar with the condition which existed at the point
where his car went over the stone wall. In the performance of his ministerial
duties he had traveled the road by day and by night. Within the month
preceeding the accident “maybe two or three times.” Although lhere was a
warning sign conspicuously posted, he did not heed it or stop his
car before crossing the railroad. No vehicles obstructed his right of way as he
traveled to the point where the accident happened. Long prior to the night when
his car went over the stone wall he was thoroughly familiar with the condition
of the road at the point where it did so. “I was always very careful,” h
testified, ‘‘when I came across that track for that reason because it is a real
sharp turn.’’ Interrogated as to whether he understood before the accident
occurred that the point at which the accident took place was a dangerous one,
he answered: “Yes, sir, I did, and I always drove very careful and I was
driving very slow this time: wasn’t driving over ten miles an hour, but
120 REPORTS STATE
COURT OF CLAIMS tW.VA.
I swung just too far, and you didn’t have to swing very far to go over that
wall.”
Claimant does not show positively or satisfactorily that the accident actually
occurred on the state road. From the showing made by the record the accident
could have easily been on the right of way of the Western Maryland Railway
Company which maintains the surface at the point where it happened.
It was shown by the testimony of Harry R. Taylor, maintenance supervisor for
roads in Mineral county, who had been familiar with the Beryl-Hampshire road
for nineteen years, that on March 29, 1944, the time of claimant’s accident it
was in good repair. At the approaches to the railroad crossing it was sixteen
feet in width, No accident had occurred and no complaint had been heard about
the alleged unsafe or dangerous condition of the road. Cleo Swecker, district
maintenance engineer for distrcit 5, which includes Mineral county, never had
any complaint about a dangerous or unsatisfactory condition of the road where
the accident happened and testified that it was in good repair. After the
accident four posts were erected on the road. The witness testified that three
of them were on the Western Maryland Railway Company right of way and that
permission was obtained by the road commission from the railroad company to
erect them. Zeddie Harrington, a school bus driver and mail carrier in Mineral
county, testifying for the State, said that he drove a sixty passenger school
bus for the Mineral county schools over the Beryl-Hampshire road. He had been
driving the bus for ten years. He drives it over the route where the accident
happened. He never had any difficulty in getting his sixty-passenger school bus
over the road and wouldn’t say that the approaches to the railroad track at the
crossing of the Western Maryland Railway Company were dangerous. He never had
any trouble there with the bus.
Upon the whole evidence we are unable to recommend an appropriation of the
public revenues of the state to satisfy the plaintiff’s claim. We cannot give
it our approval.
An award, is, therefore, denied and the claim dismissed.
W. VA.] REPORTS
STATE COURT OF CLAIMS 121
(No. 426-—--Claim denied)
MRS. JOHN P. KATTONG, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Illed August 31, 1945
Appearances:
H. D. Rollins, for the claimant;
W7. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES, J. SCHUCK, JUDGE.
Claimant, Mrs. John P. Kattong, asks damages in the amount of $150.00 for the
loss of a horse which fell over an embankment adjacent to the highway or road
near Bentree, Clay county, the horse having been killed by the fall.
The testimony reveals that the horse in question was running at large over the
highway and adjacent territory; that it had come to a high embankment or cut in
the highway near the Bentree schoolhouse and while on the said embankment in
some manner fell to the highway and was killed. Claimant herself testified that
the road or highway itself was “all right” and no testimony was offered to show
that the condition of the highway or road or the traveled portion thereof, had
any connection whatever with the accident. Of course, claimant maintains that
the state should have a fence or barrier on top of the embankment to prevent
any animals from falling over it, but no obligation, legal or moral, was
imposed upon the state to construct or maintain such barrier, as is plainly
shown by the testimony. Considering the mountainous and hilly conditions that
present themselves along the highways in West Virginia, the cost of constructing
such fences or barriers on the many embankments
122 REPORTS STATE
COURT OF CLAIMS {W.VA
would be prohibitive, and not being directly connected with the use of the
highways themselves impose no obligation on the state. There is even a question
as to whether or not the ground or place from which the horse fell was under
control of the state road commission. At all events, we hold that the claimant
is not entitled to an award and dismiss the claim.
(No. 490 S—Claimant awarded $ 1.00)
BESSIE L. KING, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opioioo filed
October 9, 1945
ROBERT L. BLAND, JUDGE.
The claim in this case is in the sum of $127.50 and arises out of a highway
accident, The record thereof, prepared by the state road commission, was
filed with the clerk September 9, 1945. The agency concerned concurs in the
claim. It is approved by an assistant attorney general as a claim for which,
within the meaning of the act creating the Court of Claims, an appropriation
should be made by the Legislature.
The following facts, relied upon for an award in the amount claimed, appear
from the record of the case.
About ten o’clock on the morning of September 17, 1944, claimant was
driving a 1935 model Buick coupe automobile, bearing license number 157-031, in
an easterly direction on state route 20, opposite the Hope Natural Gas Company
station, at Hastings, Harrison County, West Virginia. The prison labor division
of the state road commission was at the time excavating material from a hillside
by the use of shovel and loading into
zY
REPORTS STATE COURT OF CLAIMS 123
trucks to be hauled away. As she approached the place where the men were
working she noticed the shovel and truck, the shovel being on the left side of
the road and the truck crosswise of the road on the right side, with the front
wheels on the berm, the truck being at a standstill. Claimant slowed down with
the intention of stopping, but the flagman motioned her to proceed on her
course. As she did so and was passing the rear of the state road commission
truck the operator of the truck backed it into the automobile being so driven
by claimant, thereby causing a collision, from which claimant suffered personal
injuries and the vehicle she was operating was badly damaged.
The flagman admits that he gave claimant the signal to pass. The operator of
the state truck claims that he looked back but did not observe the car’s
approach until he heard the collision.
Claimant’s personal injuries consisted of bruised forehead, loss of tooth, and
pain around the right margin of the thoracic cavity extending from the sternum
to the vertebral bodies. For necessary attention and treatment she incurred
liability to pay doctor and dentist bills amounting to $51.00 as shown by
itemized statements made parts of the record. She should be compensated by way
of an award for this amount. The balance of her claim, $76.50, is for damages
sustained to the automobile which she was driing at the time of the collision.
She is not entitled to an award for such damages because it appears from the
record that the auornobile did not belong to her but was owned by her daughter,
Miss Leah King, who could have been made a coclaimant with her mother, but was
not. We must deal with the record as it comes to us. Notwithstanding the
concurrence of respondent in the whole claim and its approval by the attorney
general’s office, we cannot recommend an appropriation of $76.50 to claimant
for damages to an automobile which she does not own. In a way the members of
the Court of Claims are guardians of the public revenues.
The owner of the damaged automobile can hereafter file a claim with the state
road commission for the damage to which the record shows she would be entitled,
if she elects to do so.
124 REPORTS STATE
COURT OF CLAIMS -_[W.VA.
An award is made in favor of claimant Bessie L. King for fifty- one dollars
($51.00) to cover personal InjurIes suffered by her on account of the accident
herejnbefore mentioned, but an award to her for damages to the automobile in
which she was driving—and belonging to her daughter—is denied, regardless of
any agreement which may have been made by the officials of the road commission
before the claim came to this court. Such agreements cannot control the action
of the court, which must depend upon the showing made by the record of each
claim which it may be called upon to determine. Only the head of a state agency
is authorized by the court act to concur in a claim. No such power is given by
statute to subordinate officials.
(No. 492-S——Claimant awarded $60.00)
EARL C. McCLURE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed October 9, 1945
ROBERT L. BLAND, JUDGE.
The claim asserted against the state in this proceeding is for the sum of
$60.00. The state road commission concurs in it and its payment is approved by
an assistant attorney general. From the record, prepared by the road commission
and filed in this court on the 18th of September, 1945, it
appears that employees of the state road commission, in the month of August.
1945, were burning brush on the right of way of secondary road No. 36, near Ft.
Gay in Wayne county, West Virginia, and permitted the fire to get out of
control and burn over about two acres of land owned by claimant. This lire
destroyed approximately forty locust trees, three apple trees, a few oak and
white pine trees, and several fence posts. Obviously the damage sus
W. VAJ REPORTS
STATE COURT OF CLAIMS 125
tamed by claimant, who was without fault in the premises. should be compensated
for by the state. In the opinion of the court the claim is meritorious and an
award should properly be made therefor.
An award is, therefore, made in favor of claimant Earl C. McClure for sixty
dollars ($60.00).
(No. 493-S—’--Claimant awarded $34.28)
W. C. NEAL, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 9, 1945
ROBERT L. BLAND, JuDGE.
Claimant’s 1941 Chevrolet coupe automobile, bearing West Virginia license No, 9
1-444, was lawfully parked at 1517 Jackson street, in the city of Charleston,
West Virginia, on the 21st day of December, 1944. About three-thirty o’clock on
the afternoon of that day stao road truck No. 130-67, operated by James L.
Ramsey, an employe of the road commission, was being driven on said Jackson
street, when bolts in the left rear wheel of the state vehicle sheared off
while it was in motion. causing the dual wheels to separate from the truck and
collide with the parked automobile. In consequence of the collision claimant’s
car was damaged to the extent that he was obliged to pay $34.28 for its
necessary repair, for which amount he filed a claim with the road commission.
The record shows that the driver of the state truck was at fault, The head of
the department concerned concurs in the claim. An assistant attorney general
approves it for payment.
An award is now made in favor of claimant W. C. Neel in the sum of thirty-four
dollars and twenty-eight cents ($34.28).
126 REPORTS STATE
COURT OF CLAIMS [W.VP
(No. 462-S—Claimant awarded $13.01)
B. H. HALSTEAD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled October 15, 1945
CHARLES J. SCHUCK, JUDGE.
Claimant asks damages in the amount of $13.01 occasioned by a collision between
his Chevrolet sedan and a state road truck, occurring on the 20th day of
October, 1942. In the collision the fender of claimant’s car was damaged,
together with other slight damages to the body, requiring the amount of repairs
in question and for which the claim is presented.
The record shows that the driver of the state road truck was at fault; the head
of the department concerned concurs in the claim. The claim is approved by the
attorney general’s office.
An award is therefore made in favor of claimant, B. H. Hal- stead, in the
amount of thirteen dollars and one cent ($13.01).
(No. 479-S—Claimant awarded $13.60)
H. D. ARCHER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled October 15, 1945
CHARLES J. SCHUCK, JuDGE.
Cliimant presents his claim in the amount of $13.60 for damages to his
Chevrolet car, occasioned by his car being struck by a wheel that came off a
passing state road truck.
W.VA.] REPORTS
STATE COURT OF CLAIMS —__127
The record reveals that at four o’clock P. M. on May 14, 1943, claimant’s
Chevrolet car met and was passing state road truck C-20-17 west of Quiet Dell,
in Harrison county, when a wheel, as indicated, came off the state road truck,
colliding with claimant’s car and damaging it as set forth. The record further
reveals that the driver of the state road truck had failed to have it checked,
although forewarned by a wheel having come off the truck earlier in the day,
and consequently failing to take the necessary precaution to have his truck in
proper condition for use on the highway. His failure so to act was negligence.
The head of the department concerned concurs in the claim and the attorney
general’s office approves it for payment. An award is therefore made in favor
of the claimant, H. D. Archer, in the sum of thirteen dollars and sixty cents
($13.60).
(No. 480-S——Claimant awarded $52.94)
B. F. GARVER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 15, 1945
CHARLES J. SCHUCK, JurGE,
The claimant, B. F. Garver, while descending what is known as Wheeling Hill, in
Wheeling, Ohio county, West Virginia, at about ten-thirty o’clock P. M. on
March 13, 1945, met state road car No. 629-1 1 coming up the hill, which said
road car in seeking to pass a bus crowded claimant’s car off the road onto the
sidewalk on his own or proper side of the road, the rear bumper of claimant’s
car catching the front wheel of the said road car, causing damage to claimant’s
car in the amount of $52.94. There was a conflict in the reports submitted by
the respective drivers, but the state road commission investigator,
128 REPORTS STATE
COURT OP CLAIMS {W.VP
Mr. Laco M. Wolfe, after investigating all of the facts, adopted the report
favorable to claimant. From the record as submitted it is found that the state
road driver was negligent in the operation of his car.
The head of the department concerned concurs in the payment of the claim and
the attorney general’s office approves it for payment.
An award is therefore made in favor of claimant, B. F. Garver, in the sum of
fifty-two dollars and ninety-four cents ($52.94).
(No. 481 -S—Claimant awarded $9.44)
LEO R. BURKE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 15, 1945
CHARLES J. SCHUCK, JUDGE.
Claimant asks damages in the amount of $9.44, the cost of repairing windshield
glass broken by flying stone from rock being knapped by state road crew at and
near Rupert, during the fall season of 1 942, said flying stone having caused
the damage in question as claimant was driving by where the said knapping of
stone was taking place. The record reveals that the rock or shale that struck
claimant’s car windshield came from a hammer of the crew knapping the stone,
causing the damage in question, the crew engaging in the said work not having
taken the necessary precaution to protect passing automobiles.
The head of the department concerned concurs in the claim and the attorney general’s
office approves it for payment.
An award is therefore made to claimant, Leo R. Burke, in the sum of nine
dollars and forty-four cents ($9.44).
\V.VA REPORTS
STATE COURT 01 CLAIMS 129
(No. 482S—C1ajmant awarded $80.47)
ELVIN HAMRICK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinioo filed October 16, 1945
MERRIMAN S. SMITH, JuDGE.
On the night of January 20,
1945, claimant was driving his Chevrolet automobile on state
route 15 towards Webster Springs, on the right side of the road, when state
road commission truck No. 720-6, driven by Olen Gregory, an employee of the
state road commission, cnroute to Cherry Falls, collided with claimant’s car
damaging the Chevrolet to the extent of $80.47.
It appears from the investigation made by proper state employees that
Olen Gregory was in an intoxicated condition and thereby not having his truck
tinder control did sideswipe and collide with claimant’s car, which could not
be avoided by claimant.
The record shows negligence and reckless driving on the part of the state
employee. The head of the department concerned concurs in the payment of this
claim and the attorney general’s office approves the payment.
An award is therefore made in favor of the claimant, Elvin Hamrick, in the sum
of eighty dollars and forty-seven cents
($80.47).
ll i’R I S
S IA ii
(OUR
I 01 (1 AIMS 1W VA. (Nn. 18 t S awardtI
$t(>.9)
C MYI.JUS, Claimant,
V.
STA’J’E
ROAD C( )MM ISSION. Respondent.
()pinin
1114d () tbcr JO, JQ45
M1RR I MAN S. SM 1111, Junoi.
II. C. Bever, dist net &‘ girwer br he slate road CommissiOn, while (lrIViflc
slate road ((Nil mission (_hevrolet No. 7292, in backing out of his private drive wi y in Weston, West
Virginia, into the street. backed in to the parked I )odge car of claimant L. C.. My buS, (laniaIflg
I lie left door It) the
extent of $46. o)5•
It appears I rom the invesl gal ion and report that this damage to claimant’s car was due solely to he negligence and failure to use due care on belial I of the stale’s em ployce. The head of the department
in vol vctl t. oncu rs iii I
he i.i y tilt ii of the cia in and the office of the at I orney general
a pprovo’s its p mcii
Therefore, an award of fot I y six tb!
bars and ninety five cents ($46.95) in favor ol the tlaim.ini, I.. C.
Nlyhins, is hereby granted.
( t”Ji. 1 t l S ( .l.li1hHt .IV.’ iiIc(I $ I . S
CoLONIAl. CI .ASS (X)MI’ANV. (:1aiiaiit,
S’I’Al’L ROAI) (:OMMISSION, Respondent.
Mcd
( S I bcr I (. IQ4
MERRIMAN S. SMITH, JuLxE.
A state road commission maintenance crew undertook to dynamite a slide w hich had clogged up the
outlet of a culvert on
W. VA.] REPORTS
STATE COURT OF CLAIMS 131
U. S. route 19 at Deanville, just north of Weston, ‘West Virginia, on March 7,
1945. Directly beneath this charge of dynamite was an abandoned twelve-inch
sewer which had been out of operation for years, and its location was not known
to the state maintenance crew. When the dynamite exploded there was a terrific
explosion of sewer gas, which resulted in a large amount of broken tile and
small stones being thrown on the roof of the nearby factory of the claimant, the
Colonial Glass Company, damaging it beyond repair and necessitating a new roof
for which the labor and material amounted to $335.35.
The full extent of this damage being done by negligence of the state’s workmen
and through no fault of the claimant, and the claim in the said amount having
been approved by both the head of the state road commission and the attorney
general’s department, an award of three hundred thirty-five dollars and
thirty-five cents ($335.35) is hereby recommended to be paid to the claimant,
the Colonial Glass Company, of Weston, West Virginia.
(No. 489-S—Claimant awarded $91.27)
MELVIN 0. ANDERSON, Claimant,
V.
STATE CONSERVATION COMMISSION, Respondent.
Opinion filed October 16, 1945
MERRIMAN S. SMITH, JUDGE.
On Saturday, June 30, 1945, George Hott, an employee of the state conservation
commission, was driving a Chevrolet truck from cabin No. 11 in Lost River State
Park, and on rounding a curve he passed the claimant, Anderson, driving his
Dodge car towards cabin No. 12. By virtue of the fact that the truck was over
the middle line of the road, and in swerving the truck to the right to avoid
the accident, the rear of the truck struck the left
1’2 REPORTS STATE
COURT OF CLAIMS [W.VA.
front and side of the Dodge car belonging to claimant. Anderson, the cost of
repairs amounting to $91.27.
The record is conclusive as to the negligence of the state’s truck driver, and
no negligence is attributed to claimant Anderson. The director of the state
conservation commission and the attorney general’s office both approve the
claim as just and correct.
Therefore, an award of ninety-one dollars and twenty-seven cents ($91.27) is
hereby recommended for payment to the claimant Melvin 0. Anderson.
No. 483—Claim denied)
PAULINE L. CHARLTON, administratrix of the estate of
Kenneth 0. Charlton, deceased, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion ,‘iled December 18, 1945
Opinion on rehearing fied April 29, 1946
No duty, express or implied, rCsts
upon the state road commission of West Virginia to maintain the highways under
its jurisJiction in more than reasorably safe condition for use in the usual
manner and by the ordinary methods of travel: and the state does not guarantee
freedom from accident of persons traveling on such highways.
XV. W. Smith, for claimant;
W. Bryan Spillers. Assistant Attorney General. for respondent.
ROBERT L. BLAND, JuoG.
about sixty miles distant, and return on that day, eight members Intending to
go on a pleasure ride to the city of Charleston,
W. VA.] REPORTS
STATE COURL uI CLAIMS 133
of the Huntington Motorcycle Club, and several guests assembled at
Twenty-fourth street and Third avenue, in the city of Huntington, West
Virginia, on Sunday afternoon, March 18, 1945. The group proceeded, in
cavalcade form, led by 0. I. Bond, captain of the club, in an easterly
direction, over U. S. route No. 60, an extensively traveled highway. When they
arrived at the overpass crossing the main line of the Chesapeake £ Ohio
Railway, near Culloden, in Putnam county, Kenneth 0. Chariton, president of the
club, riding immediately behind and to the right of Bond, hit a dip or
depression at a point where a break in the concrete pavement of the road had
been repaired with asphalt, and lost control of his machine. He managed to stay
on his motorcycle until it had proceeded, in a wobbling condition, a further
distance of two hundred feet, and again hit another depression in the road at a
point where repair work had been done. This time he was thrown off the machine
and sustained injuries from which he died later in the day at a Huntington
hospital to which he had been removed.
In this case the administratrix of the decedent seeks an award in her favor, as
such personal representative, in the total sum of $11,150.00, $10,000.00
thereof for the death of the decedent and $1,150.00 for the reasonable value of
his motorcycle at the time of said accident, the funeral and other costs,
outlays and expenses incident to and arising therefrom.
In her petition claimant alleges that the death of said Charlton was due to an
accident sustained by him at a described point on said highway when he was
thrown from his motorcycle by reason of a defect in the main or driven portion
of the road, which defect was only a short distance beyond the crown of said
overhead crossing and was not easily seen when one was approaching, or
traveling said highway in an easterly direction. She contends that said alleged
defect in said highway was brought about principally by a sinking or settling
of the roadbed, fill or embankment, causing a crack or depression in the
surface of the road, and that said alleged defect existed in said road for a
number of months without having been repaired by the road commission. Claimant
further contends that it was the duty of
134 REPORTS STATE
COURT OF CLAIMS [W,VA.
the road commission to repair and keep in good order and in a safe condition
said highway for the use, benefit and protection of the traveling public, and
that its failure, carelessness and negligence to repair and keep repaired the
said highway, at the point where the accident occurred, was the direct and
immediate cause of said accident and the death of said decedent.
The width of the road in question is twenty feet of concrete. By reason of the
constant travel and heavy traffic over the highway it becomes necessary to make
repairs from time to time. At the point where the accident occurred there was a
small hole or depression which had been repaired by the use of tar and chips.
There are many miles of bQth primary and secondary roads in Putnam county and
the evidence shows that the road commission was reasonably diligent in making
repairs at all points where they were deemed necessary, giving first attention
to the most important places calling for repairs. No good purpose would be
subserved by detailing the testimony of the various witnesses. The members of
the court visited the scene of the accident and observed the condition of the
road where it had been repaired. Consideration of the whole evidence fails to
satisfy the court that the road was not in a reasonably safe condition for
public use and travel thereon.
It is shown that the road, at the point of the accident, was repaired by the
road commission on January 19, 1945; February 12, 1945, and March 19, 1945. An
employee of respondent testified that he traveled the road on Saturday evening
before the accident and that he did not consider the road in any respect
dangerous for public use.
It is not every accident that occurs on a state highway that calls for or
justifies an award or appropriation of the public revenues.
Judge Brannon, in the opinion in the case of Slaughter V. CIty of Huntington, 64
W. Va. 237, says on page 241:
“There seems to be a growing disposition whenever an injury is received on a
street or highway to at once
W.VA.] REPORTS
STATE COURT OF CLAIMS 135
sue for damages under the expectation that the taxpayers will make
compensation, no matter where the blame lies; that the public will guarantee
the highway under all circumstances.”
In 29th Corpus Juris at page 671, it is said:
“The construction and repair of highways is a governmental duty belonging to
the state, which can be performed only by agents designated for that purpose,
or by municipal corporations upon which the performance of such duty is imposed
by law, and, in either case, travelers using the highway have no legal right,
in the absence of statute, to recover from the state or its officers for
injuries caused by defects in the highway. The state may assume liability for
such injuries; but such liability is limited by the terms of the statute,...”
In this court’s opinion in Lambert V. State Road Commission,
1 Ct. Claims (W. Va.) 186, we stated:
“The state is not an insurer against accidents upon its public highways. Claims
against the state for injuries or death upon the public roads should be based
upon legal or equitable right. For such claims only may awards properly be
made.”
No duty, express or implied, rests upon the state road commission of West
Virginia to maintain the highways under its
jurisdiction in more than rasonably
safe condition for use in the usual manner and by the ordinary methods of travel; and
the state does not guarantee freedom from accident of persons traveling on
such highways.
Under the facts disclosed by the evidence in this case we are unable to
see that a moral obligation rests upon the state to make an award
in any amount in favor of the claimant.
An award is, therefore, denied by majority members of the court,
and the claim dismissed.
CHARLES J. SCHUCK, JUDGE, dissenting.
While I fully agree that the state road commission in
maintaining the highways under its jurisdiction is only required to
136 REPORTS STATE
COURT OF CLAIMS {W. VA.
keep the said highways in a reasonably safe condition for use in the usual
manner and by the ordinary methods of travel, and while the state is not called
upon to guarantee freedom from accident to persons traveling the highways, yet
I feel the record in this case, when carefully reviewed, shows beyond all
question that the highway here concerned and upon which this accident happened,
resulting in the death of claimant’s husband, was not kept in a reasonably safe
condition for ordinary travel, and that therefore an award should be made.
That the highway where the accident happened was in bad repair cannot be
doubted when we take into consideration the evidence of the witnesses sponsored
by the state itself, and in charge of making the necessary repairs to the road
to make it reasonably safe. The fact is that this highway or road at the very
place where the accident happened had been twice repaired within sixty days
previous to the time of the accident, namely both in January and February of
1945, and that in both instances the repairs had been inadequately and
improperly made, since, when the final repairs were made the day after the
accident and as the evidence reveals, with more care and in a workmanlike
manner, no defect has appeared in the road since that time; all of which
indicates to my mind that the necessary care and caution was not taken in making
the repairs in January and in February, and that if the same character of
repairs had been made on either one of these occasions, then the accident would
not have happened and this claim would not be before this court for
consideration. In this connection the witness McGhee, who was a salesman, and
who traveled the road about five days a week, testified that the hole in
question was six or eight inches in depth and had been in the road for a period
of at least six weeks previous to the time of the accident. He also testified
that it was difficult to see the hole when coming over the ridge, or riding
toward Charleston; such being the direction that the motorists in question were
traveling at the time of the accident. The witness Sponagle, who lives nearby,
says that the hole was patched several times before the date of the accident
but that the patching did not hold and that the hole was in the road some three
or four weeks previous to the time of the acci
W.VA.J REPORTS
STATE COURT OF CLAIMS - 137
dent; that the hole was about four fct square and that the repairs that were
made on the day after the accident were of such a type as to keep the road in
good repair since that time. He also testified that previous to the time of the
repairs on March 1 9, it was a dangerous hole, evidently, as shown by his
testimony, one that would be highly dangerous to the traveling public. So far
as the evidence reveals neither one of these witnesses, McGhee or Sponagle,
have any interest in the outcome of this matter; did not know the parties, and,
consequently, so far as we know, were no doubt testifying truthfully and
without any feeling or bias in the matter.
Under all of these circumstances, there being nothing in the record that would
sustain the imputation of contributory negligence, I cannot see but that the
state was negligent in not keeping the road in proper repair, and therefore
should be called upon, to some degree at least, to compensate claimant.
The only testimony that we had before us as to the speed at which the cavalcade
was traveling was that they were moving at a rate of approximately twenty-five
miles per hour. No witness testified to the contrary. In view of this fact, and
fhc fact that it was difficult to see the holes in question until, as the witness
above stated, you were “right on it,” and in view of the further fact that no
,warning signs of any kind had been displayed, a fact which is not disputed but
corroborated by the state’s witnesses, no contributory negligence of any kind,
in my judgment, can be attributed either to the deceased or any member of his
party. If this deduction be correct then we have only the negligence of the
state to deal with, and with disinterested witnesses giving us the full facts,
we find that there was a hole six to eight inches deep and about four feet
square; that it was difficult to see the hole when coming over the so-called
ridge or elevation, traveling in the direction of Charleston; that the previous
repairs had been undoubtedly inadequate, and improperly made; that the deceased
was a very careful driver, and that not only he, but another member, at least,
of his party was thrown at the same place by reason of the first hole, or the
one nearer the crown of the road; that the dangerous condition
138 REPORTS STATE
COURT OF CLAIMS [W.VA.
of the road was allowed to exist for at least three or four weeks before the
accident; all of which facts, uncontradicted and taken together make a case of
negligence that is not disputed in any way by the testimony in the case.
I am therefore of the opinion that an award should have been made.
ROBERT L. BLAND, JUDGE, upon petition for rehearing.
Upon a rehearing of this case which was allowed to enable the claimant to
adduce certain evidence which she was precluded from introducing, without fault
on her part, on the original hearing, the new evidence offered was merely
cumulative in character and insufficient to change in any way the determination
of the claim against the state formerly made-by majority members of the court.
For reasons set forth in the original majority opinion, now ratified and
confirmed, and with respectful deference to the opposing views expressed in the
carefully prepared original dissenting opinion filed in the case by Judge
Schuck, an award is denied and the claim dismissed.
CHARLES J. SCHUCK, JUDGE, dissenting.
The evidence adduced at the rehearing of this claim confirms in every
particular the conclusions reached in my dissenting opinion and definitely
shows that the overwhelming preponderance of the evidence is to the effect that
the hole in question was highly dangerous to the traveling public; was six to
eight inches deep and three or four feet wide: that it was difficult to see
when traveling in the direction from Huntington to Charleston; was allowed to
remain in its highly dangerous condition for a period of weeks before the
accident; that previous repairs had been inadequate and that the repairs made
on the day after the accident have been found good and sufficient,
notwithstanding the fact that more than a year had elapsed from the date of the
accident and final repairs to the time of the rehearing on the merits of the
claim in this court.
W. VA.J REPORTS
STATE COURT OF CLAIMS 139
The majority opinion on rehearing, ratifying the original majority opinion, is
based solely on the theory that the new evidence offered was cumulative in
character and insufficient to change the former determination; cumulative
evidence, yes, in quality, given by taxpayers and wholly disinterested, and, so
far as we know, creditable witnesses, wh have no interest in the outcome of the
matter and undoubtedly prompted solely by a desire to do justice as between the
parties directly involved; cumulative evidence sustaining and supporting every
material allegation showing negligence and proving the right and justice of the
widow’s claim; and cumulative evidence which was so qualitative as to make a
good and sufficient case, without the consideration of the evidence presented
in the original hearing; cumulative evidence, not merely quantitative or
additional, but essential to every element of merit involving the claim here
presented. I repeat that under these circumstances and the evidence, I would
favor an award.
(No 49 1—Clairnant awarded $106.7 1)
E. Y. McVEY, Claimant,
STATE DEPARTMENT OF MINES, Respondent.
Opinion filed December 18, 1945
MERRIMAN S. SMITH, JUDGE.
This claim for $106.71 was filed for the payment of an expense account for the
month of June, 1945, by B. Y. McVey, former inspector and examiner for the
department of mines.
The facts submitted were to the effect that claimant, McVey, had maintained his
home and headquarters in Charleston four and one-half years while working for
the department of mines.
On May 29, 1945 he received notice to go to Morgantown on June first, and to
establish headquarters in that city. So on
140 REPORTS STATE
COURT OF CLAIMS [W.VA.
June third Mr. McVey went to Morgantown carrying out the department’s orders and
remained there until June twenty-fourth performing his duties; he then went to
Fairmont for the remainder of the month in performance of his orders.
As was customary he made out his expense account, for the month of June in the
sum of $160.71, and flIed it with the department, whereupon payment was refused
upon the grounds that Morgantown was his headquarters from June first, and the
state does not allow expenses for any of its employees while remaining at their
headquarters.
Especially during the war-time period when housing conditions are critical, and
even in normal times the state in changing the headquarters and homes of
married employees should be considerate, and a period of at least thirty days
should be given such employees.
It appears to this member of the court that the state should be fair and just in
its treatment of all faithful and loyal employees.
Since sufficient notice of change of headquarters was not given the claimant
and there was no question as to the fairness and justness of the daily expense
incurred and as submitted, therefore an award in the sum of one hundred six
dollars and seventyone cents ($106.71) is hereby recommended for payment to the
claimant, E .Y. McVey.
W.VA.J REPORTS
STATE COURT OF CLAIMS 141
(No. 487—Claim denied)
INA ARRICK, Claimant.
V.
STATE BOARD OF CONTROL, Respondent,
Opinion filed December 18, 1945
Where escaped convicts steal and take
away an automobile and after using the car, abandon it, having caused damages
thereto, the state agency involved will not be held liable for the damages,
unless negligence on the part of the said agency is fully shown and that such
negligence contributed to and made possible the escape. Ruth Miller V. Board
of Control, I Ct. Claims (W. Va.) 97,
affirmed.
Appearances:
No appearance for claimant.
W,/’. Brtjan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
On the 17th day of July, 19-15, two prisoners, John Murrell and Jack Spence,
confined in the state penitentiary at Moundsville, escaped from the said prison
and while so at liberty stole claimant’s car from her garage located near
Proctor, in W’etzel county, \Vest Virginia. T’he car was driven by the said
escapees to Chesapeake, Ohio, and when later found it was considerably damaged,
no doubt from the manner in which it had been driven and operated and claimant
was obliged to expend the sum of $269.61 for repairs to the automobile and to
put it in proper running order. Only the matter of the escape is revealed by
the record and no evidence is presented to show that those in charge of the prison
or the state agency involved were in any manner responsible for or contributed
to the escape of the prisoners in question; i. e. no negligence whatever on the
part of the state agency involved or the prison officials is shown.
Under these circumstances consistent with our holdings heretofore made in
similar cases, we deny the claim and refuse an award and dismiss the petition.
142 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 498-S——Claimant awarded $76.50)
LEAH KING. Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied January 14,1946
ROBERT L. BLAND, JuDGE.
The claim involved in this case is for the sum of $76.50.
The head of the state agency concerned concurs in the claim. It is approved by
an assistant attorney general as a claim which should be paid by the state of
West Virginia within the meaning and purpose of the act creating the State
Court of Claims.
Said claim arises out of an accident which occurred September 17, 1944, when a
Buick automobile, owned by claimant and driven by her mother, Mrs. Bessie L.
King, in an easterly direction on state route No. 20, opposite the Hope Natural
Gas Company’s station, at Hastings. in Wetzel county, West Virginia, was
damaged.
The prison labor division of the state road commissIon was at the time
excavating material from a hillside by the use of a shovel and loading it into
a truck to be hauled away. As the driver of the automobile approached the place
where the men were working she noticed the shovel and truck. The shovel was on
the left side of the road and the truck crossways of the road, on the right
side, with the front wheels on the berm. Mrs. Bessie L. King, the driver of
claimant’s automobile, slowed down with the intention of stopping, but the
flagman motioned her to proceed on her course. As she did so, and was passing
the rear of the state road commission truck, the operator of the truck backed
it into the automobile, causing a collision, in which the automobile was badly
damaged. It is shown that the vehicle was damaged to the extent of the claim.
W. VA.] REPORTS
STATE COURT OF CLAIMS 143
The court finds the claim to be valid and meritorious.
An award is, therefore, made in favor of claimant Leah King for the sum of
seventy-six dollars and fifty cents ($76.50).
(No. 508-S—-Claimant awarded $49.27)
CLARENCE QUEEN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed January 15, 1946
ROBERT L. BLAND, JUDGE.
Claimant Clarence Queen seeks an award in this case for the sum of $49.27 to
reimburse him for that amount of money paid for the necessary repairs made to
his automobile after an accident which occurred July 2, 1945, on state route
No. 33, near Pricetown, in Lewis County, West Virginia.
On the above date a truck was wrecked on the highway. Claimant had parked his
1939 Chevrolet automobile, bearing West Virginia license No. 70-272, on the
opposite side of the road in order to assist the occupants of the wrecked
machine to extricate themselves from it. When state road commission truck No.
730-19 approached the scene of the accident it stopped a few feet behind
claimant’s parked machine. Subsequently state road commission truck No. 730-89,
following, struck the first mentioned state truck and drove it into claimant’s
car, causing the damages thereto for which the claim is made.
The state road commission concurs in the claim and it is approved by an
assistant attorney general as one for which the state as a sovereign
commonwealth should properly make compensation.
144 REPORTS STATE
COURT OF CLAIMS [W.VA.
Claimant’s automobile was sufficiently parked off the highway. Respondent
admits that the operators of the state trucks were at fault. The claimant
should not be obliged to bear the loss of the money which he has paid for the
repair of his car.
Under all the facts disclosed by the record, which was prepared and submitted
to this court by the state road commission, we are of opinion to, and do, find
that the claim is just and proper and that an appropriation should be made by
the Legislature for its payment.
An award is, therefore, made in favor of claimant Clarence Queen for forty-nine
dollars and twenty-seven cents. ($49.27).
(No. 509-S——Claimant awarded $3.06)
T. L. JAMERSQN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January I. 1946
ROBERT L. BLAND, JUDGE.
State Road Commission station wagon No. C-21-28, operated by Edward Morris, was
parked on a lot in front of the Kroger store, on East Washington street, in the
city of Charleston, West Virginia, July 14, 1945. Mr. Morris had gone into the
store. At the same time a 1 940 model LaSalle automobile, bearing West Virginia
license No. 36-558, owned by claimant T. L. Jamerson, and driven by Mrs.
Margaret Jamerson Mottesheard, was also parked on the same lot while Mrs.
Mottesheard did some shopping in the store, The operator of the state vehicle
was backing out of the parking lot when he struck or caught the left fender of the
Jamerson machine, damaging it to the extent of the amount of the claim
W. VA.] REPORTS
STATE COURT OF CLAIMS 145
filed against the road commission as shown by an invoice of the repair made to
it.
The head of the state agency concerned concurs in the claim. It is approved as
a valid claim against the state by an assistant attorney general.
An award is now, therefore, made in favor of claimant
T. L. Jamerson for the sum of three dollars and six cents
($3.06).
(No. 494-S—Claimant awarded $1 15.67)
CLEO SMITH, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
OpInion filed January 15, 1946
MERRIMAN S. SMITH, JuDGE.
This claim was made by Cleo Smith for damages sustained to his car under the
following statement of facts, On August 11, 1 944, about ten-thirty P. M.,
while driving towards Alderson, West Virginia, on stafe route No. 20, on his
side of the road and passing a state road commission truck coming in the
opposite direction and driven by Nick Coulter, the said state road truck
swerved, crossing the center line of the road, and struck Mr. Smith’s car on
the left side, damaging the left front fender, axle, wheel spindle, hub, tire
and tube, in the amount of $1 15.67. This accident was due solely to the
negligence of the state truck driver, who was drinking at the time, and through
no fault of the claimant,
The claim is concurred in by the state road commission and submitted under
Section 1 7 of the court act. Therefore, an award is hereby recommended to be
paid to Cleo Smith amounting to one hundred fifteen dollars and sixty-seven
cents
($115.67).
146 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 496-S——Claimant awarded $15.30)
e
CHARLES A. HUDSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 15, 1946
MERRIMAN S. SMITH, JUDGE.
On July 30, 1945, claimant’s car was parked on state route No. 73 in Harrison
county, when James C. Casto, the operator of the state road commission’s
road-sweeper, in sweeping the highway, drove too close to claimant’s parked
automobile, tearing and denting the left rear fender. Due to the negligence of
the state road commission employee, and this claim having been concurred in and
submitted under section 1 7, of the court act, an award in the sum of fifteen
dollars and thirty cents ($15.30) is hereby made by this court in favor of
Charles A. Hudson.
(No. 512-S——Claimant awarded $50.00)
CHECKER WHITE CAB, Inc., Claimant,
V.
STATE ROAD COMMISSION. Respondent.
Opinion filed January 16, 1946
CHARLES J. SCHUCK, JUDGE.
Claimant presents a claim for damages in the amout of $50.00 occasioned by
injuries to one of its cabs by reason of a collision with state road truck
C-29-10. The accident occurred at the intersection of ‘Washington and Oney
streets, in the city of Charleston, West Virginia, on the 11th day of June,
1945.
From the record as submitted it appears that claimant’s cab was being driven
west on Washington street, and the said
W. VA.] REPORTS
STATE COURT OF CLAIMS 147
state road truck was being driven from Washington street over and across the
intersection of said Washington street and Oney street as aforesaid. It is
admitted in the report as submitted by the state road commission that the
driver of the state truck was at fault and Ihere appears to have been no
negligence on the part of the driver of claimants cab; but on the contrary it
appears that the said driver was on the right side of the said street and not
in any manner at fault so far as being involved in the said collision.
The state road commission concurs in an award, and it is shown that the
accident was due solely to the negligence of the state truck driver. The
attorney general’s office, through the assistant attorney general, recommends
payment. Therefore, an award is authorized to be paid to the said Checker White
Cab, Inc., in the amount of fifty dollars ($50.00) and recommended to the
Legislature for payment accordingly.
(No. 488—Claim denied)
BERNARD L. PARSONS, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion Med January 21, 1946
An award will not be made in favor of
a claimant whose automobile wa. stolen and damaged by escapees of the West
Virginia industrial school for boys at Prunrytown, unless culpability on the
part of the state agency involved, its officers, agents or servants is fully
shown and that such culpability contributed to and made possible the escape of
such inmates.
Claimant, pro Se;
W. Bryan Spillers, Assistant Attorney General, for the state.
ROBERT L. BLAND, JUDGE.
The claim involved in this case is submitted to the court for determination
upon an agreed statement of facts. An auto-
148 REPORTS STATE
COURT OF CLAIMS [W.VA.
mobile owned by claimant, Bernard L. Parsons, was stolen from his home
in the city of Fairmont, Marion county, West Virginia. July 26, 1945, by three
boys. two of whom were escapees of the West Virginia industrial school for boys
at Pruntytown. The boys were subsequently arrested after the automobile had
been recovered at Morgantown. During the time that the car was in their
possession it was badly damaged. This damage is itemized as follows:
I Window glass broken $ 5.50
1 Door lock broken 3.50
2 Rear bumper braces broken - 3.00 Fuel line
broken 4.00
Brakes completely worn out - 22.00
The total damage to the car amounted o $38.00. Claimant seeks an award for said
amount.
The record does not show any culpability or responsibility on the part of the
state board of control or the officers, agents or servants of the industrial
school for the theft of the car in question. They did not contribute in any way
to such theft. We have repeatedly held in similar cases that no responsibility
shall rest upon the state warranting an appropriation of the public revenues
for the relief of claimants. There is nothing in this case as we view it that
would make it an exception to the rule which this court has heretofore
followed. In the recent case of ma Arrick v. Board of Control, claim No. 487, involving a claim for damages sustained to an automobile
by reason of its theft by an escaped convict from the state penitentiary, in
which an award was denied, Judge Schuck says in the opinion:
“Only the matter of the escape is revealed by the record and no evidence is
presented to show that those in charge of the prison or the state agency
involved were in any manner responsible for or contributed to the escape of the
prisoners in question.”
Such may also be said to be true in this case.
Consistent with our former holdings, to which we now adhere, we must now deny
an award in this case and dismiss the claim.
W. VA.J REPORTS
STATE COURT OF CLAIMS 149
(No. 473-S—Claim denied)
EVA PETERS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed January 22, 1946
MERRIMAN S. SMITH, JuDGE.
The circumstances surrounding the accident for which claim for damages are
sought by claimant are that on the night of November 30, 1944, a snowplow and a
truck owned and operated by the state road commission, going in opposite
directions on the highway leading south from Union, stopped alongside each
other, blocking the highway. The snowplow was headed towards Union and the
cinder truck headed south in the opposite direction. John Peters, son of
claimant, who was driving south from Union when approaching the two parked
trucks, states that the headlights on the snowplow so blinded him that he did
not see the truck alongside, headed in the same direction he was traveling, so
that he ran into the rear of the parked truck damaging the Chevrolet
automobile. It was a windy and snow-stormy night, and visibility was low.
The state lawmakers, realizing that the driving of a 50 to 100 H. P. automobile
on the highway makes it a dangerous instrumentality provided that the operator
of such a machine must have same under control at all times. The fact that
the state snowplow headlights were burning brightly, and especially since
weather conditions rendered visibility low, was not negligence; on the contrary
if the headlights had not been burning there would have been negligence. The
evidence submitted regarding the burning of the taillights on the parked cinder
truck is contradictory; however, if they were burning as they should have been,
it is doubtful if they could have been seen by Peters, the driver of the
approaching Chevrolet, since the bright headlights from the snowplow would have
150 REPORTS STATE
COURT OF CLAIMS [W,VA.
obliterated them from his view, and since he was blinded by the glare of the
headlights.
This accident could have been avoided if Peters had had his car under control,
as provided by law, and if he had exercised care and judgment when his vision
was blinded. He should have stopped and not rushed headlong into danger. This
is a befitting example where the popular slogan “Lose a second and possibly
save a life” would have been especially appropriate.
From the evidence submitted and the physical facts and conditions, there is no
question but that John Peters heedlessly contrbiuted to the accident, and if he
had exercised due care and judgment he could have averted same. Consequently an
award is denied.
(No. 511 -S—Claim denied)
APPALACHIAN ELECTRIC POWER COMPANY,
Claimant,
V.
STATE ROAD COMMISSION,
Respondent.
Opinion fIled January 23, 1946
ROBERT L. BLAND, JUDGE.
Claimant, Appalachian Electric Power Company, a foreign corporation created and
existing under the laws of the state of Virginia, and duly authorized to do
business in the state of West Virginia, wherein it has extensive operatons, has
asserted a claim for $252.06 against the state road commission of West
Virginia, in which said claim that state agency has concurred, and it has been
approved by an assistant attorney general as a claim that, in view of the
purposes of the act creating the Court of Claims, should be paid. The claim is
submitted to the court for determination under section 17 of said act, which
W. VA.] REPORTS
STATE COURT 01 CLAIMS 151
provides the shortened procedure’’ for the determination of claims against the
state. The record was prepared by the state road commission and filed with the
clerk of this court on December 18, 1945.
The contention of claimant is that certain transformers owned by it and located
on state-owned property in the vicinity of Stewart street (route No. 1 6) at
‘Welch, McDowell county. West Virginia, were damaged by fire on March 14, 1945,
which said fire was caused by the carelessness and negligence of employees of
the state road commission, and that the necessary and actual cost of repairs
made to, and replacement of, said transformers amounted to the said sum of
$252.06, as shown by itemized accounts therefor, filed with the road
commission, and made part of the record in this case. Nothing is shown by
claimant as to how the fire occurred, or what, if any, effort was made by the
employees of the road commission to prevent its spread and damage to its
property.
The state road commission, in order to support its concurrence in the claim,
says that its employees in heating tar under the transformers in question
failed to carry out instructions of the foreman to move the tar barrels away
from the poles on which transformers were installed, and that the tar became
too hot and exploded, resulting in damage to the transformers by fire where the
tar was burning. It represents that if the barrels of tar had been placed away
from the transformers there would have been no damage to claimants cquipmcn’
from fire.
The basis of the claim is the alleged negligence of the employees of the road
commission, and if an award, should be made in the case upon the showing made
by the record it would necessarily be predicated upon such negligence,
negligence admitted by the state agency proceeded against.
The record in question. upon the basis of which this court is asked to make a
determination of the claim, consists of respondent’s statement of fact and
recommendation. certain correspondence between claimant and officials of the
road commission, three ex parte statements
made by a former maintenance
152 REPORTS STATE
COURT OF CLAIMS [W.VA.
superintendent, the foreman in charge of the employees who were doing the
patching work on the state road and the employees who had in charge the heating
of the tar barrels, and a general summarization of the facts set forth in the
record, and such investigation as was made by the road commission.
It appears that the damaged transformers were installed upon land owned by the
state for the purpose of serving electricity to the Welch Emergency Hospital,
an agency of the state. After the claim had been filed, Mr. C. L. Allen,
district engineer, being in doubt as to whether the responsibility for the
claim, if any, rested with the state road commission or the board of control,
addressed a letter to the claimant asking by what authority the transformers had
been installed upon state property. The reply addressed to him, and made a part
of the record, admits that claimant had neither a lease nor easement for such
purpose, but relied upon the fact that when claimant began to furnish
electricity to the Welch Emergency Hospital in 1929 the public service
commission of West Virginia approved a form which provided that claimant should
have the right, if necessary, to construct its poles, lines and circuits on the
property. This provision manifestly related to the property of the Welch
institution, and not to the other property then owned or later acauired by the
state.
The statute under which the claim is referred to the court provides that the
claim shall be informally considered upon the facts submitted, and that if the
court determines that the claim shall be entered as an approved claim and an
award be made therefor it shall so order, and file its opinion with the clerk,
but if the court finds that the record is inadequate, or that the claim should
not be paid it shall reject the claim.
The claim in question was submitted to the court under section 17 of the court
act, and under date of July 19, 1945, the state road commission requested an
advisory opinion with reference to the responsibility of the state to make an
award for the payment of the claim now under consideration, at which time the
members of the court were unanimously of opinion
W. VA.] REPORTS
STATE COURT OF CLAIMS 153
that it would be inadvisable to attempt to render an advisory opinion upon the
meagre facts presented for the court’s consideration, and under date of October
1 7, 1945, addressed a letter to the state road commission returning the record
submitted for such advisory opinion for necessary amendment. It was at that
time suggested that perhaps the better course to be pursued in the
consideration of the claim would be to have it filed and prosecuted under the
regular procedure provision of the court act. Respondent, however, withdrew its
request for an advisory opinion and thereafter submitted the case as above
stated under the shortened procedure provision of the statute. We are asked to
ratify a recommendation for an award against the state on the ground of the
admitted negligence of the state without having any sufficient opportunity to
investigate the circumstances attending the fire that resulted in the damage to
claimant’s property. This court cannot be held to be a mere ratifying
instrumentality, but must have proof before it to show the propriety of making
an award before doing so.
The scheme for the creation of the State Court of Claims was carefully
considered and worked out by an interim committee of the Legislature. In its
report to the Legislature that committee expressly stated: “A shortened
procedure is provided for small claims where no question of fact or liability
is in issue.” For such purposes only s.hould the shortened procedure provision
of the court act be used, *
Majority members of the Court of Claims
are of opinion that the record of this claim, as presented to it by the state
road commission, is entirely too inadequate to warrant the making of an award
at this time. A report was made to the road commission of the fire and of the
damage done to the transformers thereby, but such report is not found in the
record. We are not given the benefit of the information contained in that
report. We do not feel that we are materially aided by the ex parte statements
above mentioned.
The claim may very properly be rejected under the circumstances of its
presentation to the court, without prejudice to the
154 REPORTS STATE
COURT OF CLAIMS [W.VA.
claimant. The court act provides: “The rejection of a claim under this section
shall not bar its resubmission under the regular procedure.” We do not see any
reason why this claim should not be prosecuted under the regular procedure of
the court act, to the end that we may have all the information obtainable in
relation to its merits, If it shall hereafter be resubmitted to the court and
prosecuted under its general procedure and show itself to be entitled to an
approved award, it will be afforded an opportunity to do so.
Because of what is conceived to be the inadequacy of the record, and without
passing on the general merits of the claim in question, an award is at this
time denied therefor, and the claim dismissed by majority members of the court.
Judge Schuck is of opinion that an award should be made in the case and
dissents from the action of the majority members of the court.
(No. 497—Claim denied)
JOHN B. McGHEE, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Optniori filed January 29, 1946
Appearances:
John B. McGhee, the claimant, in his own behalf;
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant John B. McGhee at the time a deputy warden of the medium security
prison at Huttonsville, was called upon by M. E. Ketchum, the warden of the
state penitentiary to pay a portion of the premiums of two certain insurance
policies
\T VA.] REPORTS
STATE COURT OF CLAIMS 155
carried presumably to protect them as state agents or employees against any
liability to third persons occasioned by injuries to such third persons through
the negligent operation of state trucks used in connection with carrying on and
operating the state prison in question. Complying with said request claimant
made two payments, one of $200.00 and one of $55.98 to the said warden; which
payments are admitted and as shown by the evidence were in turn paid to the
insurance agency, through which the policies were obtained.
An examination of the policies in question shows that in policy No. A346882 for
which claimant paid his $200.00 installment, he was not insured at all as he is
nowhere mentioned in the policy as being among those protected, but on the other
hand the policy was payable to the state of West Virginia, the “West Virginia
State Penitentiary, ‘Warden M. E. Ketchum and the Board of Control, and also
the West Virginia Security Prison; policy No. A366146 was made to Warden M. B.
Ketchum and John B. McGhee, the claimant, and to the payment for this last
mentioned policy the claimant contributed $55.98. The first policy was issued
on September 29, 1943; the second on March 29, 1944.
Heretofore, on the second day of August, 1943, this court by an advisory
opinion, rendered at the request of the state auditor held that a claim for a
yearly insurance premium on a policy issued to cover public liability and
property damage on state automobiles owned by the conservation commission and
operated by state agents and employees, was not collectable as a claim against
the state. This opinion was subsequently confirmed by another advisory opinion
rendered January 13, 1944, Dougan,
Bretz & Caidwell, Agts., etc., v. Auditor. 2
Ct. Claims
(W. Va.) 260, when the following question was submitted for an opinion by the
auditor.
“Can the state properly pay insurance premiums on cars owned by the state,
inasmuch as there is a question as to whether any enforceable liabiliy accrues
against the state in case of property damage or personal injury.”
156 REPORTS STATE
COURT OF CLAIMS [W.VA.
In answer to the question submitted this court held that the state had no
authority express or implied to pay such insurance premiums, and that only an
act of the Legislature conferring the necessary authority could warrant the
state or any of its departments to make the payments of the premiums in
question.
Subsequently thereto, by an act of the Legislature chap. 71, page 295, acts of
the regular session 1945, state officers, boards, commissions and agencies of
the state were authorized to spend public funds for public lability insurance
against bodily injury or property damage caused by the negligence of drivers of
motor vehicles owned and operated by the state or any of its agencies.
It is apparent therefore, that the claim under consideration arose at a time
when the Legislature had not yet conferred any authority on any state agency or
department to incur an obligation arising out of public liability insurance so
far as the payment of the premium was concerned. Consistent with our advisory
opinions herein referred to, we, of course, must deny the claim. However, in
view of the fact that the insurance here involved was improperly and
improvidently issued against which the insurance company, if called upon to pay
a loss or damage could well have denied liability, the policies in question
being unenforceable, the claimant would be justified in seeking the return of
the amounts paid by him not only from the Insurance company which issued the
policies, but as well from the warden who improperly collected claimant’s
portion or part of the premiums. This, of course, is a matter for him to
decide and to determine what course he will eventually pursue in having the
amounts here claimed paid back or returned to him.
An award is accordingly denied.
MERRIMAN S. SMITH, JUDGE, concurring.
The claimant, not being represented by counsel, failed to present the policies
in evidence before the case was submitted.
After receiving and reviewing copies of the policies by the court, it appears
that the policy issued September 29, 1943, for
W. VA.]
REPORTS STATE COURT OF CLAIMS 157
which claimant paid $200.00,
was cancelled pro rata March 29, 1944.
Consequently he is due a credit of $100.00 on the amount paid.
It further appears that the policy written March 29, 1944, for which Mr. McGhee
paid $55.98, was cancelled January 1, 1945, so he was entitled to a return
premium of $9.33 from the company.
As set forth in the court’s opinion, by Judge Schuck, the claimant should be
refunded the premiums by the insurance company, since there was no liability
under the policies from inception. Since both policies were cancelled, a return
premium of $109.33 should have been refunded Mr. McGhee at the time of cancellation
of the contracts.
No. 501—Claimant awarded $45.90)
ROY L. ELLISON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Januaqj JO, 1946
In claims arising out of automobile
accidents, this court will give utmost consideration to the physical facts
surrounding the Circumstances, especially where the testimony of the witnesses
is conflicting, weak and indefinite.
Appearances:
Claimant, in his own behalf;
W. BrlJan Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JuDGE.
About three-thirty p. M, on June 5th or 6th, 1945, Roy L. Ellison, of
Charleston, West Virginia, was driving on state route No. 10, enroute to Logan
from Lyburn. In passing a
158 REPORTS STATE
COURT OF CLAIMS {W.VA.
state road truck, driven by 0. H. Farley, going in the same direction, the
driver of the state truck pulled to his left and the toolbox on the front
bumper of the truck struck claimant’s Ford sedan, damaging the bumper, doors
and front and rear fender in the amount of $45.90.
From the evidence of the witnesses and taking into consideration the physical
facts of the damage to the Ford sedan, it appears that there was no
contributing negligence on the part of the claimant, and in order to have
inflicted the damage sustained to the Ford sedan, Farley must have swerved his
truck to the left, sideswiping the entire right side of claimant’s car.
From the physical facts and evidence presented, an award is hereby made in
favor of Roy L. Ellison in the amount of fortyfave dollars and ninety cents
($45.90).
(No. 500—Claimant awarded $30.28)
AETNA CASUALTY and SURETY COMPANY
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed March 2 1, 1946
‘Where the facts supporting a claim
against the state warrant it an award will be made under the doctrine of
subrogation.
S. J. Knapp, for claimant;
W. Bryan Spillers, Assistant Attorney General, for respondent.
ROBERT L. BLAND, JUDGE,
The claim in this case arises out of the accident for which an award was made
in case No. 3 63-S, Mabscott Supply
Company v. State Road Commission, 2 Ct. Claims (W. Va.) 349,
W.VA.] REPORTS
STATE COURT OF CLAIMS 159
in which an opinion was filed July 28, 1944. In that case the claim was for
$50.00 and the award was made for that sum. The claim was concurred in by the
state road commissioner and approved by an assistant attorney general as a
claim which, within the meaning of the court act, should be paid by the state.
The facts disclosed by the record in that case revealed that on December 13,
1943, one Charles Hunt, an employee of the state road commission, was driving
state road truck No. 1038-13, distributing cinderson route 19-21, near Prince
Hill, Raleigh county, West Virginia, when it collided with a Ford truck owned
by said Mabscott Supply Company, which truck was properly parked on the side of
the road, and caused damage thereto, to repair which said claimant incurred
costs amounting to $80.28. The road commission truck, which ran into the
private truck, was being operated, on an ice-covered road, without chains. The
claimant carried insurance on its truck, but the insurance policy contained a
deductable clause in the sum of $50.00. The Aetna Casualty and Surety Company,
claimant in this case, which had issued the policy on the truck, paid the
Mabscott Supply Company $30.28, leaving a balance of $50.00 necessary for the
repair of the damaged vehicle, for which sum an award was made by the court
upon an informal consideration of the record of the claim, prepared by the road
commission and filed under section 1 7 of
the court act.
In the present case claimant, Aetna Casualty and Surety Company, seeks an award
for the said sum of $30.28, the amount which it was obligated to pay to
Mabscott Supply Company under the provisions of the policy of insurance which
it had issued in its favor. Although the facts in the Mabscott case and the
facts in this case are identical, the state denies responsibility for the
payment of the claim.
Claimant prosecutes its claim upon the theory of subrogation. It maintains that
since it was obliged under the policy of insurance referred to to pay Mabscott
Supply Company the said sum of $30.28 because of the damaged condition of its
truck caused by the wrongful act of the employee of the state road commission
160 REPORTS STATE
COURT OF CLAIMS [W.VA.
in colliding with said truck, it has the right to be reimbursed by the state
for such payment.
It is well known that the doctrine of subrogation is a creature of equity. The
application of the rule is intended to do justice. Under the title of
subrogation in that splendid authority, American Jurisprudence, vol. 50,
section 36, page 706, it is said:
‘The doctrine of subrogation may be invoked in favor of persons who are legally
obligated to make good a ioss caused by the negligent or tortious acts of
another. Indemnitors fall within this rule. By contract, express or implied,
they bind themselves to save harmless the person indemnified, and where they do
so by paying the loss or damage they are undoubtedly entitled to be subrogated
to the indemnitee’s rights against the person responsible. A frequent
application of subrogation of this character is found in the case of insurers,
as, for example, an insurer against employers’ liability. Another instance is
where an employer, having become obliged to respond in damages for an injury
caused solely by his employee’s negligence, is subrogated to the injured
person’s right of action against the employee .
If the state were suable it is clear, we
think, that claimant would be entitled to be subrogated to the right of
Mabscott Supply Company to look to the state for the full amount incurred by it
in the repair of its damaged car. Since claimant paid $30.28 of that amount it
should in the exercise of equity and good conscience be subrogated to the
position of the supply company.
Upon full consideration of all the facts arising upon the hearing of the instant
claim, we are of the opinion that it is only right and fair that claimant
should be reimbursed for the amount which it is obligated to pay and did pay
for Mabscott Supply Company and accordingly an award is now made in favor of
claimant, Aetna Casualty and Surety Company, for the sum of thirty dollars and
twenty-eight cents ($30.28).
W.VA.J REPORTS
STATE COURT OF CLAIMS 161
(No. 51 4-S—Claimant awarded $200.00)
MARTHA CLARK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed April 9, 1946
ROBERT L. BLAND, JUDGE.
While engaged in construction or maintenance work on secondary road No. 11, in
Lincoln county, West Virginia, employees of the state road commission found it
necessary to blast a rock ledge about thirty feet distant from a bored well on
the premises of claimant, who resides about six miles above Rich- land, in said
county. The blasting of this ledge caused the water in claimant’s said well to
become muddy and unfit to use Claimant says that she believes that $200.00 will
compensate her for the damage done to the well. After a thorough investigation
of the facts concerning the damage done to the well and under date of December
27, 1945, E. L. Worthington, then state maintenance engineer,
having indicated in writing his approval of the claim for the said sum of
$200.00, and under date of December 18, 1945, Ernest L. Bailey, state road
commissioner, having concurred in the claim for that amount and an assistant
attorney general having approved the claim as one which should be paid by the
state, this court is of opinion that the said sum of $200.00 would enable
claimant to drill another water well on her premises, and that under the
circumstances disclosed by the record her claim is just and meritorious, and
should be entered as an approved claim and an award made therefor.
An award is, therefore, made in favor of claimant, Martha Clark, for the sum of
two hundred dollars ($200.00).
162 REPORTS STATF
COURT OF CLAIMS [W.VA.
(No. 520-S-—Claimant awarded $383.75)
DR. WM. C. McCUSKEY, Claimant,
V.
STATE HEALTH DEPARTMENT, Respondent.
Opinion filed Aprd 9, 1946
MERRIMA.N S. SMITH, JuDGE.
Claimant, Dr. Wm. McCuskey, a duly appointed member of the public health
council, serving for two meetings, namely October 2, 1944 and February 25,
1945, held at Charleston, West Virginia, performed his duties by preparing and
holding the examinations and grading the papers of the applicants. over a
period of twenty-three days, and due to pressure of his practice as a physician
during the war-time emergency failed to present his claim for per diem and
expenses by August 31, 1945, as required by statute.
The claim, in the amount of $383.75, having been audited and found just and
correct and in order, was concurred in by both Dr. J. E. Offner, state health
commissioner, and the attorney general’s department.
This court is of opinion that this is a just claim, and an award is hereby made
in the sum of three hundred eighty-three dollars and seventy-five cents
($383.75) to the claimant Dr. Wm. C. McCuskey.
W. VA.j REPORTS
STATE COURT OF CLAIMS 163
(Nos. 528-S. 529-S-——Clajmants awared $238.05. $20.00)
MRS. R. R. FANKHOUSER, Admx. of the estate of RUSSELL R. FANKHOUSER, deceased,
MRS. R. R. FANKHOUSER, in her own right, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed April 10, 1946
CHARLES J. SCHUCK, JUDGE.
On July 20th, 1945, Russell R. Fankhouser, since deceased, was driving his
automobile, having his wife and others as fellow-passengers, over and along
state highway route No. 20, about four or five miles east of New Martinsville
in ‘Wetzel county, following a state road truck: desiring to pass the said
truck he sounded the horn of his car as a warning signal, pulled out to pass
the said truck and while so doing the truck, operated by a state prisoner
working for the road commission, without warning or signal to Fankhouser,
suddenly pulled over and across the highway, colliding with said Fankhouser’s
car, crowding it off the highway, causing damages to said automobile in the
amount of $238.05, and causing injuries to his (Fankhouser’s) wife for which
she was obliged to expend the sum of $20.00 in obtaining medical relief. Two
claims are presented for our consideration, one by Mrs. Fankhouser, as the
administratrix of her husband’s estate, in the amount of $238.05, and one by
Mrs. Fankhouser personally for her injuries. in the amount of $20.00. Both
claims arc herewith considered together.
An investigation of the facts was made by the state road commission’s
authority, namely Laco M. Wolfe, special claims division chief, whose report
shows the facts to have been as herein outlined, and which report absolves
claimants from any negligence whatsoever. This report is concurred in by the
assistant attorney general, who approves the claims and recom
164 REPORTS STATE
COURT OF CLAIMS [W.VA
mends them for payment by the state. The court is of the opinion that, from the
facts as shown, the state is morally bound to pay the claims and finds further
that the amounts asked for, to wit $238.05 for damages to the automobile and
$20.00 for injuries to Mrs. Fankhouser, are just and reasonable. The claims are
approved accordingly in the aforesaid amounts, namely, two undred thirty-eight
dollars and five cents ($238.05 in favor of Mrs. R. R. Fankhouser as
administratrix of the estate of R. R. Fankhouser, deceased, and twenty dollars
($20.00) to Mrs. R. R. Fankhouser, personally, and awards are herewith made to
the respective claimants in the aforesaid amounts.
(No. 51 3—Claimant awarded $100.00)
RUSSELL RANDOLPH, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed April 15, 1946
Failure of the state
road commission to provide and install necessary warning signs of danger at a
point where a bridge on the state highway had been washed out by a flood may,
in circumstances, warrant an award in favor of the claimant by reason of such
condition of affairs.
H. D. Rollins, for claimant;
W. Bryan Spillers, Assistant Attorney General, for respondent.
ROBERT L. BLAND, JUDGE.
The claim involved in this case grows out of an accident on a state highway
where a bridge spanning a creek had been washed out by a flood and no warning
sign of danger had been installed at the point where such bridge had been
located.
W. VAJ REPORTS STATE COURT OF CLAIMS 165
Claimant Russell Randolph contends that state route No. 58 is a secondary highway leading from an oil refinery at
the mouth of Falling Rock Creek on Elk River, below the town of Clendenin in
Kanawha county, West Virginia, up said creek for a distance of several miles.
He represents that there were several bridges on this highway and that one of
these bridges, by which said highway crossed said Falling Rock Creek, about one
mile above the mouth thereof, was washed out by a flood in the month of August,
1945, leaving said highway without means of crossing the said creek at said
point, but that thereafter the said road commission put barriers up on the
highway below said bridge, and either the public or the commission arranged a
makeshift crossing below the place where said bridge had been for the use of
persons who found it necessary to travel said highway, but put no guards, signs
or barriers on said highway above the creek, thereby leaving the highway, at
the point where the same went upon the place where the bridge had been,
unguarded and dangerous for persons traveling said highway, coming down said
creek, particularly at night. He further contends that at the point where said
bridge had been washed out on the upper sdie, or side leading up the creek, the
highway was approximately twenty feet above the creek bed below and the decline
to said creek bed was at an angle of ninety degrees or straight up and down,
and was left unguarded and unobstructed. These contentions of plaintiff are
very well supported by the evidence which he introduced in support of his
claim.
On the night of October 31, 1945, claimant, who was then in the naval service
of the United States but at home on leave, met, in the city of Charleston, an
acquainance and friend who resided a short distance from the point at which the
bridge aforesaid had washed out, and very kindly consented to drive him, in
claimant’s automobile, to his home. Claimant was not acquainted with the road
and knew nothing about the washout of the bridge. It is true, as disclosed by
the evidence, that claimant’s friend did direct him how to cross the creek at
the makeshift bridge. Claimant left the home of his friend on his
Hi’ II I’)t S S II I IiHt I UI ( AtiS l\V VA.
ret
Urn to (ha I lest Ofl ibOlit OflI th iry oclock on the morning
of October Q
1
i ravel i n on the road directly to the point where the washed out bridge had
span ned the creek. I us
automobile was precipitated ovei- the embank mt’nt and badly damazcd.
but he escaped wiOt minor in juries, lie
asserts his
claim against he i oad corn mission or he
sum of $ 00. 00. One witness who test i
lied as to the da mase done to the a ut
oniobile
placed it at approximately $ 79.00, but this estimate iiiclLi(led the painting and enameling of the vehicle. ‘l’he testimony of claimant
as to the
amount he actually paid for the car is sonic— what in doubt, as disclosed by he evidence, especially in view
of his contradictory statements, lie
testified that when he bought the car he paid $
00 br it,
whereas
at the time of purchase he swore, under oath, that he paid $1 00.00 for it.
It is made lear t hat
a [ter the accident the automobile was in eNcce(ii ngl y bad eon
di t ion alt hong
h it coii hi proceed to the garage upon
its own power. a iid claimant was obliged to spend considerable money to have it
repaired. The exact amount of said
outlay is not made clear to the
court. In any event claimant ‘as able
to sell his automobile for $1 7S.00.
1’ he court was not I avorabi V impressed by the integrity of
the testimony of claimant or iv his contradictory statements while
testifying. but nevertheless the record makes
it
clear that he did in fact sustain a property
damage on account of the unguarded condition of the highway at the point where the bridge had been washed out, and under the peculiar circumstances of the case it is believed that not vi t hst and in g the ii
nsatisfactory testimony g i’en by hi
iii, he is entitled to a
reasonable a ward for the damage which
he has suffered. but his is especially so in view of the failure of the road
commission to offer any testimony
whatever to explain why it would
permit the highway at the pomt where the bridge had been to remain without
any sign of warning of danger from the
date of flood in August to the (late of
the occurrence of the accident on the thirty first of October following.
It won 1(1 seem t hat Ix’rsofis Uiiacquaifl red with existing conditions
traveling the highway should
be properly
\V VA 1 RilioR
IS S IA j (tlR I (N (I AIIS 167
afld sufficiently warned of I lw danier in
crossing he creek at he point where he bridge had been w aslied out
In view of the fail nrc of the road commission to install sufficient warning signs, and the pe iiliir circumstances attending he
case in queStion au award will be made in favor of claimant, Russell Randolph iii he su in
of one hundred dollars ($1 00.00) the court being of opinion from all of he evidence in the case, that
said a in on n I will a in ply corn wnsa Ic
Iii in I or such
damage iS he sustained.
474 (1,1111 (tcnict
JllNRY R. BRAI)Y, (lainiant,
V.
S’I’A’li: ROAI) (0MM ISSION. Respondent
)prin
li/cl
Iri/ 1
I lie sill cdncs iint i’tl.Ii.iliii’ Ci iliiiii ‘iii .iiiilin( hr sali’iy ui tiedes— n is lhIiIlh Iiii’hw.ivs in lie Itili iii tic sole iii IiiIiw.iy ionims— nil IS .1 IjIlalhihil
‘Ii.
liii
inn
v 1
(
,,,rni’slr,f? i(’ ( ‘tunis (\V. Va)
v
flit
n,r,i,r7(
i (
tunis \\‘. Vi. q V
let, n’s i’ lllltt?S for cli iii
ant
\V louin Sptller.c. Assist ant Attorney (ieiiei ii. for I lie state.
Ml:RRIMAN S SMIlI 1, ,JtlI)(t
On the thirty lust day ol
Marli, 1014. 1 lenry R lracly,
claimant, about jour o’clock in tIi morning,
was walking along he publiC Ii igh way on his way home I rom woi k , ,it a point about
one Ii nndred and lilt
y fuel past I he
intersection of the Panther I ick Run Road to rvl1(’nrdcsville and tlw (rauI ‘Town to
liii VieW road, in
the ditection
ol l,iirviu’w, Marion county, and while so walking dow ii this liii I or steel) grade, slipped on
168 REPORTS STATE
COURT OF CLAIMS [W. VA.
ice and fell, sustaining a compound transverse fracture of the right tibia,
middle third. A fellow-miner by the name of Joseph Klara was walking alongside
of him when he slipped and broke his leg. This stretch of road was built of
concrete and it is a secondary road maintained by the state road commission,
and from the evidence presented the road is built on solid rock and the ditch
line and berm is rather short. During the night the water ran down over a part
of the highway and ice accumulated thereon, whereupon the claimant alleges
negligence on the part of the state road commission employees.
This court has held that the state does not guarantee freedom from accident or
safety of pedestrians on its public highways. and the duty of the state or
highway commission in the matter of the removal of obstruction caused by snow
or ice is a qualified one.
The claimant, Brady, had been walking this road for a month immediately
preceding the accident and was undoubtedly familiar with its grade and conditions
prevailing at the time, Also, from the evidence, it appears that this same leg
was broken in 1936 in practically the same place, and he was under treatment
for a period of four years, not returning to his work until 1941. It is
unfortunate that this accident should have occurred, but the state did provide
hospitalization and surgical treatment for him under the department of public
assistance. The members of the court entertain the greatest sympathy for him,
yet it would appear from the evidence that the state road commission or its
employees were not guilty of negligence. Under the general law the state is not
liable to persons injured upon its public highways by reason of defects therein
and since our state has not by general law assumed liability for the negligence
of its officers and agents, the opinions of the Court of Claims to the
Legislature depend upon the facts of each particular case as they may arise
from time to time, and wherein a moral obligation, or under equity and good
conscience a duty for the sake of public policy, prevails.
An award is denied and the case is dismissed.
W.VA.j REPORTS
STATE COURT OF CLAIMS 169
(No. 51 0—Claim denied)
DOROTHEA GROGAN, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion filed April 29, 1946
There is no provision in the budget act for the payment of overtime to
employees working on a monthly wage scale as set up by the budget director; no
provision is made for a contract of employment to such employees either express
or implied, covering payment for overtime.
H. W. Bowers, for claimant:
V. Brtjan Sprllers. Assistant Attorney General, for the state. MERRIMAN S.
SMITH, JUDGE.
On May 16, 1945, claimant went to work for a Miss West, secretary of the West
Virginia board of examiners for registered nurses, a subsidiary of the state
agency, board of control, at its office in Charleston, Kanawha county, West
Virginia, at an agreed monthly salary of $150.00, the office hours being from
nine A. v1.
to five p. Monday through Friday, and
Saturdays from nine to twelve noon. Claimant worked for two months or until
July 16, 1945, wnen she tendered her resignation.
Claimant testified that for many days she worked overtime and read a detailed
account of each day’s time put in, including the hours and minutes, making a
total of about fifty-six hours, or eight days, overtime, for which time she now
makes claim against the state for reimbursement. At the time of making this
daily timetable it was not made for the purpose of claiming overime pay but for
the purpose of having it applied to her vacation credit.
In practically all departments of the state there are times during the year
when certain emergencies arise and more work
170 REPORTS STATE
COURT OF CLAIMS [W. V
is necessarily required so that the employees are compelled to work overtime
unless extra help is employed, and the budget act does not set up a fund for
overtime payment of such employees paid on a monthly wage scale.
The evidence in this case was conclusive that no provision is made for overtime
payment of the salaried employees of the state and whenever anyone applies for
a salaried posi’ion with any of the state agencies they have notice that the
state makes no contracts, either express or implied, that they are to receive
extra compensation for hours worked overtime during the course of their regular
duties. There is no reason why an employee of the state should not be as loyal,
interested, cooperative and conscientious as with a private organi7ation. and
when by virtue of incompatability of temperament. jealousy or personal
prejudices there arises discord and discontent between an employee and his or
her superior, then for the good of all concerned resignation should be in
order. It is not encumbent upon the state to reimburse disgruntled employees
for working overtime when necessity so demands or the superior by virtue of bad
judgment or mismanagement fails to cooperate or to be considerate of those
under his or her supervision.
An award is hereby denied and the case dismissed.
ROBERT L. BLAND, JuDGE. dissenting.
It sufficiently appears from the majori’ y opinion that relations between the
executive secretary to the board of examiners for registered nurses and the
claimant, a former stenographer for the board, were anything but cordial, Such
fact, however, should constitute no valid reason for the denial of an award in
this case, when it appears, as is clearly shown by he weight of the evidence,
that claimant was obliged on account of the exacting requirements of her
superior officer to perform duties after regular working hours, requiring
additional time and greater labor, which could easily have been done between
nine o’clock A. M. and five o’clock P. M. of each working day. There is a
well-known adage worthy of all acceptation that “a laborer is worthy of his
hire.” It is manifest from the record that
W.VA.] REPORTS
STATE COURT OF CLAIMS 171
claimant was capable and well
qualified to discharge the duties devolving upon her position. She was well
recommended to the board by the executive secretary of the state nurses
association, who fully acquainted claimant with the usual and customary hours
of employment. There is nothing in the record showing failure on the part of
claimant to discharge all the duties incumbent upon her promptly and
efficiently. It is by reason of the manner in which the work of .the office was
administered by he present executive secretary to the board that claimant was
obliged to do overtime work. It is needless to advert at any length to the
convincing facts appearing in the record. Suffice it to say that
in view of the undisputed facts disclosed by the record supporting the claim in
question, there would seem to be without doubt a moral obligation on the part
of the state to compensate the claimant for her excessive overtime employment.
It is shown that at least on one occasion overtime compensation was paid by the
present executive secretary to the board, although she professes to have made
the payment out of her own funds. Why she should have done this is not
apparent.
By reference to chapter 1 of the ac’s of the Legislature of West Virginia,
regular session, 1943, the purpose of which act is to appropriate the money
necessary for economic and efficient discharge of the duties and responsibility
of ‘he state, it will be observed that to pay the per diem of members and other
general expenses of the state board of examiners for registered nurses the sum
of $4000.00 each year of the succeeding biennium was appropriated, and by
reference to chap’er 11 of the acts of the Legislature of West Virginia,
regular session, 1945, it will be further noted that to pay the per diem of
members and other general expenses of the board, an appropriation of $6500.00
was m3dc for each year of the succeeding biennium. It thus appears that within
the contemplation of the Legislature additional duties and greater labors were
to be performed by the board. The overtime or extra work performed by claimant
overlapped between these two appropriations. That there was money available to
pay claimant for
172 REPORTS STATE
COURT OF CLAIMS [W. VA.
eight days overtime work done by her is made quite clear. When two hundred and
fifty nurses present for examination in the legislative chambers were waiting
the results of their examinations, it is manifest that the holding of such examinations
and grading the papers thereafter presented a situation that called for extra
work, and yet there was nobody to do this extra work except claimant herself.
The record does not disclose that the executive secretary proved herself to be
of much assistance.
I would favor an award compensating claimant for eight days overtime work.
(No. 51 9—Claim denied)
JOE M. HUTCHINSON, Claimant.
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed May 1, 1946
The fact that a stone or rock falls
from the hillside adjacent to a pubic road or highway, striking and wrecking a
passing truck, does not of itself constitute negligence on the part of the
state road commission. See syllabus Clark v. Road Commission, I Ct. Claims (W. Va.) 230.
Appearances:
Kay, Casto &
Amos (Dale G. Casto) for claimant;
Esron B. Stephenson, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
On February 14, 1945, about seveny-thirty or eight P. M. while claimant was
driving his truck and trailer in a northerly direction over and along U. S.
route 11 9, and about four miles
\V. \‘A. 1 Rt:IN)R IS S
IA ii ‘01. JR I’
01 ti AIMS 17
north of the city of ( ha lest on, a Ii
tige rock or lioti Ider broke from the
hi llsicle i ii mediately aclja.ent to the said high way striking and
wrecking clamiant ‘s t nick and causing sonic in juries o him
personally. I he hillside where the accident hap— pened is al most
perpeiidic u lar, is lout y or fifty feet high cx tending or s1opi ng back ward
and ii pw a rd for several liii
nd red feet from the top or brink of t
lie lii II adjaceii t o I lie Ii igh way,
and is composed of rock, shale an(l dirt. It is a dangerous place on he
route in quest ion and .is shown by lie
evidence the road conimission or its employees in
charge of the maintenance of lie S,ii(l hit’hway, realiíing Is
dangerous condition. made periodical examinations of the hillside and slope to remove rocks or earth loose or likely
to fall on the highway and tO do ,ill things necessary to mike the highway sale for the traveling public. SLich
cxaniinal ion was made arid work perf
ormed on the said hillside as late as l)ecember 2, I 44 or live or six weeks before the accident. lii addition,
the assistant highway superintendent of
that (listrict ,
who lives on the said route,
passing this hillside almost daily and k riowing of its condition, was, as he testified, always on tlw watch for any
earth or rocks loose or likely to fall oil t lie liii’hw.iy and to take the necessary
f)rccalitioilary iiie,istires to riiale
i lie liii’hiway sale. No
evidence was nit ro(lLice(l to show liii the boulder t hat
fell was loose and might fill or that .iii
cx.iiiiiriat ion of I lie hillside would
reveal the likelihood of Its slipping
from its place, falling to t lie highway and perhaps .lIrsiilg d.iniagc to a raveler t liereon. On the
contrary, so far as t lie cvidenu’ shows, t lie hillside, from the (‘xainination
made shortly bcloie the beginning of the year I Q45 . was considered
i easori.ibly sale irid all loose dirt
and ro ks hid apparently been removed Wc field iii
the ( liu’h
case, referred to in I
lit’ .sijlltthic;,
as well is iii t lie
detcrniination of oIlier claims that ‘‘‘I’lw sljte is not a
guarantor of safety to the traveling public. slut e if it had such
burden placed upon it the state as a
whole mighl Soon be bankrupt and unable to function as a corn moo weal I Ii
or as .1 l)Otl(f politic.
No negligence on the part of the st ate or the agem. y involved is shown. Accordingly iii award is denied and the claini (liSfli
issed,
174 REPORTS STATE
COURT OF CLAIMS {W.VA.
(No. 5 27—Claimant awarded $123.20)
CHARLESTON MAIL ASSOCIATION, Claimant.
V.
STATE HEALTH DEPARTMENT, Respondent.
Opinion filed May 3, 1946
As a general rule when the head of a
state agency incurs an obligation on behalf of his department in performance of
an administrative act, such indebtedness should be paid out of fun!s available
for the purpose. in order that the state’s credit be held inviolate.
Appearances:
Spiliman, Thomas & Battle (W. V.
Ross) for claimant:
W. Bryan Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JUDGE.
In January, 1945, Dr. A. L. Chapman, acting deputy commissioner of the state
health department, at his office in Charleston, Kanawha county, West Virginia,
ordered to be published, on January 24, 1945, a seven-point legislative program
in the Charleston Daily Mail consisting of 88 column inches at the regular rate
of $1.40 per column inch. This edition had a circulation of 58,000 in
Charleston and throughout the state.
The bill, for $123.20, was rendered to the state health department, and was
sent down to the auditor for payment in the usual form and due course, but
payment was rejected on the grounds that it was making of policy by the
state health department whereas the Legislature should make the policy and the
department should execute that policy: and the auditor would like to know the
reaction of the Legislature toward the payment of such an advertisement as this
before giving it his approval.
W. VA.] REPORTS
STATE COURT OF CLAIMS 175
The evidence showed that the Legislature adopted about half of the points set
out in the advertisement among them being an increase in the salary of the
health commissioner.
In my opinion the people should have knowledge pro and con on
legislation proposed for the common good, since an enlightened electorate is
more conducive to better laws under our form of government, and especially
where increase in salaries for key positions are proposed it is better for the
public to have advanced information disseminated through the press than for a
handful of men in a smoke-filled room to lobby the enactment of such laws
through the Legislature to the advantage or disadvantage, as the case may be, of
an uninformed constituency.
In this instance the claimant acted in good faith, the acting health
commissioner’s program was endorsed by about seventy- five varied
organizations, civic clubs and individuals throughout the state, and part of
the program was enacted into law by the Legislature for the benefit of W’est
Virginia citizens; consequently it was a just debt and should be paid.
And it appearing that the appropriation for the department for the biennium of
1943-1945, during which this claim arose, has lapsed, an award in the sum of
one hundred twenty-three dollars and twenty cents ($123.20) is made.
176 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 495—Claimant awarded $185 000)
THE BALTIMORE AND OHIO RAILROAD
COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed May 8, 1946
As a sovereign commonwealth, the state
of West Virginia should, in equity and good conscience, discharge and pay an
obligation for which it is both morally and legally liable.
Ambler, McCluez- & Davis (Fred L.
Davis), for claimant;
W. Bryan Spillers, Assistant Attorney General, for the state.
ROBERT L. BLAND, JuLxE.
It appears from an agreed stipulation of facts that about four o’clock A. M. on
the 9th day of February, 1945, Neal Riley, age thirty, residence Parkersburg,
West Virginia, a yard- helper in the employ of the Baltimore and Ohio Railroad
Company, was injured in the Fifth Street Coach Yard, Parkers- burg, West
Virginia, while riding a foot stirrup on the rear or southwest corner of
baggage and mail car No. 273 of the railroad company; that while the said car
was moving at a speed of about three or four miles an hour, and the said Neal
Riley was on the southwest corner of the car as aforesaid, his head and body
came in contact with a steel girder pier supporting an overhead highway traffic
bridge, between Parkersburg, West Virginia and Belpre, Ohio; that there was a
close clearance, to wit, 1 6 inches between the edge of the pier and side of
the car and 13 inches between the edge of the pier and the center line of the
grab iron at the point where the said Neal Riley was riding when the said
accident occurred; that there were no defects in the foot stirrup or grab iron
on the baggage and mail car which might have contributed to the accident; that
Neal
W. VA.]
REPORTS STATE COURT OF CLAIMS 177
Riley had been in the employ of the
Railroad Company for about five or six months prior to the date of the
accident, and had assisted in the switching of cars at that point on two prior
occasions; that both of said prior trips were made during darkness; that there
are lights, with shades, suspended from poles on goose-neck brackets, in the
Fifth Street Coach Yard; that these lights are spaced approximately 50 feet
distant from each other, which said lights were burning at the time of the
accident, and afforded a certain amount of illumination; that the said Neal
Riley sustained a contusion of the right hip, right flank and left shoulder,
contusion and laceration right forehead, temporal region, complete fracture of
the right transverse processes of the 1st, 2nd and 3rd lumbar vertebrae, and
was admitted to the St. Joseph’s hospital, in the city of Parkersburg, West
Virginia, on the 9th day of February, 1945, and discharged from that instituion
on the 16th day of February, 1945; that the said Neal Riley was unable to
return to his usual employment with the railroad company until the 14th day of
June, 1945, thereby losing 125 days, computed at $8.54 per day, amounting to
$1,067.50: that by agreement bearing date on the 20th day of October, 1 914,
between the Baltimore and Ohio Railroad Company and the Parkersburg-Ohio Bridge
Company, of record in the office of the clerk of the county court of Wood
county, West Virginia, in deed book 165, page 255, the railroad company granted
to the said bridge company the right to construct and maintain a bridge and the
necessary supports thcrefor over the railroad and property of the railroad
company at Fifth street, Parkersburg, West Virginia, upon certain terms and
conditions, among which it is provided:
“5. The Bridge Company shall assume and bear and indemnify the Railroad Company
against all loss or damage which said Railroad Company or its employees or
property may suffer on account of any accident caused by or in any way growing
out of the construction, maintenance and operation of said bridge, whether the
negligence of the employees of the Railroad Company contributes to said
accident or not, and the Bridge Company shall assume and bear and indemnify the
Railroad Company against any
VS RI I’tItt IS S L\ I:
tOt)IZ F CI II AIMS jW. VA.
injury to said bridge caused by I ‘U’
t){)er.iIiOn ol trains.
7. 1’ his agreement shall he 1)1 nd in g ii pun a ml b’ br the benefit of the
pa i es hereto, am! I heir sric cessors a rid assigns. arid arty rail ro.itl
ctiiiiia ii y oper— at tug over he racks of the Railroad Company.
That at the inic ot the accident baggage and mar I car No. 27 was being
operated upon which is known as track No. I of the Bali r more and Ohio
Railroad (onllia my, I Sf1 h Street Coach ‘i ard . that rack No. 1 ks-as consi rircietl sonic Ii rue prior
to the building of the Fifth street bridge and was in its present locatwn
before arid at the inie of and sub’ equent to t lie construct ion of the said
Fifth street bridge, and the location of said track No. I has not been changed
since the building of the bridge: :bat the said bridge described in the
agreement set forth in paragraph was construetod by the Parkersburg-Ohio Bridge
Company over the tracks and property of the Railroad Company at Fifth street.
Parkersburg. West Virginia. and by successive conveyances has now become and is
‘he property of the state of West Virginia. having acquired title to said
bridge by deed bearing date on the 50th day of June, 1937, executed by David B-
Crawford. et a?.
of record in the office of ‘he clerk
of the county court of \Vood county. West Virginia, in deed book 21. page 20Q:
that paragraph No. 4 in said deed provides as follows:
4 All the rights, privileges and franchises granted by The Bal’imore and Ohio
Railroad Company to the said Parkersburg-Ohio Bridge Company by contract dated
October 20, 19 14, recorded in Deed Book 165, Page 26 in the office of the
Clerk of the County Court of Wood County, West Virginia. which rights.
ptivileges and franchises were, after intermediate conveyances, conveyed by the
Parkersburg Community Bridge Company to the said David B. Crawford and John M.
Crawford by said deed of May 20. 1 937, above referred to.”
That on the 23rd day of March, 1 945, and again on the 16th day of Apr,I, 1
945, Ic’ ters were directed by the railroad
W.VAI REPORTS
STATE COURT OF CLAIMS 179
company to representatives of the state road commission of the state of West
Virginia, who were in charge of the bridge referred to in the agreement in the
preceding paragraph, advising them of the accident hereinbefore described, and
asking for advice as to the handling of the claim which was then being made by
the said Neal Riley; that there was some exchange of correspondence between the
railroad company and the office of the attorney general of the state of West
Virginia, and the state road commission, with the result that, by letter,
bearing date on the fourth day of May, 1945, addressed to Mr. P. C. Garrott,
general claim agent, The Baltimore and Ohio Railroad Company, Baltimore,
Maryland, signed by Ralph M. Hiner, assistant attorney general of the state of
West Virginia, the railroad company was advised that the state road commission
could not be bound by the provisions in the said contract as aforesaid, and
that the state of West Virginia would not appear in the defense of any action
which the said Neal Riley might bring against the railroad company, and that
the stae would defend any action which might be brought against the state road
commission, thereby refusing to comply with the provisions of paragraph 5
thereof: thar the said Neal Riley employed George Sheldon, an attorney,
practicing in the city of Parkers- burg, West Virginia, for the purpose of
filing a claim and. if necessary, the institution of a suit against the railroad
company for damages for the injuries sustained by him in the above described
accident, and after some negotiations between representatives of the claim
department of the railroad company and attorney Sheldon, said claim of the said
Neal Riley against the railroad company was settled for the sum of $1 8O.OO.
and a full and complete release was signed by the said Neal Riley on the I O h
day of July. 1 94, releasing the said railroad company and the state road
commission of the state of \\rcst Virginia from any and all liability for
injuries arising out of said accident: that the railroad company is prohbitcd
by the terms and provisions of Wcst Virginia constitution article 6, section . and the judicial decisions of \Vesi Vrgina thereunder.
from maine am i ng an v .u tion cit her at law or in equity. against he state of
\Vest \‘irginia. t he state rul commissioner
180 REPORTS STATE
COURT OF CLAIMS [W. VA.
of West Virginia, or the state road commission of ‘West Virginia, for the
enforcement of said contract or agreement, and therefore is obliged to proceed
under chapter 20 of the acts of Legislature of ‘West Virginia, for the year
1941, as found in Michie’s 1943 West Virginia code, section 1143, etc.
Respondent contends that the state,
its political subdivisions, agencies, agents or employees are without authority
to enter into any contract or agreement imposing responsibility upon the state
for the debts or liabilities of any county, city, township, corporation or
person, by virtue of article 10, section 6 of the constitution of ‘West
Virginia; and that the state road commission was relieved of all liability in
the premises when a full and complete release was signed by Neal Riley on June
10, 1945, releasing the railroad company and the state road commission of ‘West
Virginia from any and all liability for injuries arising out of the accident in
question.
The railroad company contends that the contract dated October 20, 1914, which
it entered into with the ParkersburgOhio Bridge Company, which, by its terms,
is binding upon the parties thereto, their successors and assigns. should be
honored by the state of ‘Wst Virginia. It argues that said contract could be
enforced in the courts of the state against any owner of the bridge except the
state of ‘West Virginia, which cannot be made defendant in a state court. The
railroad company asks why should not the state in equity and good conscience
discharge and pay an obligation solemnly entered into in writing on the 20th
day of October, 1914, between it and the Parkers- burg-Ohio Bridge Company,
which obligation was binding upon the successors and assigns of the respective
parties, when in fact the state of ‘West Virginia is the successor and assign
of the Parkersburg-Ohio Bridge Company. It argues that any person or
corporation except a sovereign commonwealth that had become the successor and
assign of the Parkersburg-Ohio Bridge Company would be bound by the agreement
and would be obligated to honor its terms. It takes the position that when the
agreement in question was entered into in 1914 the railroad company had a free,
open and unobstructed passageway over
W.VA.} REPORTS
STATE COURT OF CLAIMS 181
and along its various tracks in the Fifth Street Coach Yards in Parkersburg,
West Virginia. It had a right to require this right of way to remain free, open
and unobstructed. It had paid a valuable consideration for the privilege of
laying its tracks in this Coach Yard. The Parkersburg-Ohio Bridge Company had no
right to interfere in any way with the operation of locomotives and cars over
and along these tracks. Realizing the exclusive right of the railroad to enjoy
the free, open and unobstructed use of these tracks and further realizing that
no bridge could be built over those tracks without first obtaining the written
approval and consent of the railroad company, the agreement in question was
negotiated and signed by the respective parties thereto. In the event the
railroad company had seen fit to refuse to enter into this contract with the
bridge company and the bridge had not been constructed over the railroad’s
tracks, this accident would not have happened.
It is manifest that the contract in question could not be enforced against the
state in a court of law so long as it should see fit to rely upon its
constitutional immunity. However, if the state were suable it would plainly
follow that by reason of the conditions of the contract the claimant would be
entitled to recover a verdict. The fact that Neal Riley executed a release of
his claim to the road commission and to the railroad company could not militate
against the right of the latter to be subrogated to the extent of the amount
which it was obliged to pay in settlement of the claim. We are of opinion in
view of the showing of the record that the settlement made by the railroad
company with the claimant was fair, just and reasonable.
The contract, which is the basis of the claim, was not entered into by and
between the railroad company and the road commission. Sections 5 and 7
contained in that contract would of course be objectionable and not allowed to
be inserted in an agreement between the railroad company and the state. The
contract was in existence when the road commission acquired title to the bridge
property. The contract containing the sections referred to was of record in the
office of the county court of Wood county where it could have been seen and
inspected
182 REPORTS STATE
COURT OF CLAIMS [W.VA.
by the road commission or any representative of the state. When the road
commission took title to the bridge property it acquired such title subject in
all respects to the terms, covenants and conditions contained in the original
agreement. It would seem that the state of West Virginia would not want to
repudiate an obligation which it voluntarily assumed. The railroad company
divested itself of a valuable right when it permitted the bridge to be
constructed over its tracks. The road commission is now in possession of the
bridge, enjoying its benefits, and should not, in equity and good conscience,
be permitted. under the circumstances existing in this case, to be relieved
from complying with its obligations on account of its immunity from suit. The
Legislature may, we think, if it sees lit so to do, assume responsibility for
the payment of the claim in the instant case. In other words, the state as a
sovereign commonwealth should, in equity and good conscience, discharge and pay
an obligation for which it is both morally and legally liable.
An award is accordingly made in favor of claimant, The Baltimore and Ohio
Railroad Company, for the sum of eighteen hundred and fifty dollars ($1850.00).
W.VA.J REPORTS
STATE COURT OF CLAIMS 183
(No. 518—Claim denied)
EVA PETERS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed May 8, 1946
CONTRIBUTORY NEGLIGENCE. In a claim
for property damage wherein there is a collision on the highway and both
parties to the accident fail to use ordinary care this court does not Iccognize
comparative negligence and each party thereto is responsible for the damage to
his automobile or truck.
Appearances:
Mobler, Peters & Snyder (Charles
G. Peters) ,
for claimant;
W. Bryan Spillers. Assis an; Ae*orney General, for the state.
MERRIMAN S. SMITH, JUDGE.
This claim was heari as cae No. 473-S at the January,’ 1946 term of court,
under the shorten:d procedure provision of the court act, and an award was
denied, whereupon a hearing under the regular procedure was granted by the
court and the case was so docketed at the April, 1946, term.
The facts as set out in the opnion in case No. 473-S were as follows: The
circumstances surrounding the accident for which damages are sought by claimant
are that on the night of November 30, 1944, a snowplow and a truck owned and
operated by the state road commission, going in opposite direc;ions on the
highway leading south from Union, Monroe county, West Virginia, stopped
alongside each other b1oc1nR the highway. The snowplow was headed towards Union
and the cinder truck headed south in the opposite direction. John Peters, son
of claimant, who was driving south from Unon, states that when approaching the
two parked trucks that the
184 REPORTS STATE
COURT OF CLAIMS [W.VA.
headlights on the snowplow so blinded him that he did not see the truck
alongside, headed in the same direction he was traveling, so that he ran into
the rear of the parked truck damaging the Chevrolet automobile. It was a windy
and snowy night and visibility was low.
In the instant case all the records of the shortened procedure case were
offered as a stipulation by both sides in this case, and the only additional
evidence was that of Forrest Roles who had in the former case submitted, by
letter, his version of the accident and known now as stipulation No. 7. On page
13 of the transcript Mr. Roles testified that Peters was driving at the rate of
20 miles or less per hour; this being the fact makes a fortiori in
my opinion that Peters did not use ordinary care in driving the automobile
under the physical conditions and was guilty of contributory negligence. In
property damage claims where both parties are guilty of negligence there are no
degrees of negligence and each party is responsible for his own negligence to
his own vehicle, irrespective of the amount of damage.
Therefore, the denial of an award in the former case is hereby reaffirmed and
an award is again denied.
W. VA.] REPORTS
STATE COURT OF CLAIMS 185
(No. 522—Claimant awarded $550.00)
JAMES REYNOLDS, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion filed May 8. 1946
A claim in which the facts adduced
justify an additional payment to claimant for injuries received while employed
as a laborer or janitor at Marshall College.
Appearances:
Cecil B. Dean, for claimant;
W. Brjan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
This claim arose by reason of an accident to the claimant while engaged as a
janitor or laborer at Marshall College on September 13, 1945, and
while claimant was replacing light bulbs in what is known as Laidley Hall of
the said college. He was using a small two or three tread or step ladder to do
the work and render the service of replacing the light bulbs, and, as he was
about to descend, claims the ladder slipped causing him to fall to the hard
floor and sustain severe bodily injuries. There were no rubber tips on the
ladder to hold or keep it from slipping but the testimony is not conclusive as
to whether this condition of the ladder caused the accident or brought about
claimant’s fall. It was not, however, what is known as a safety ladder, and had
no protective appliances or attachments. Claimant is seventy-two years of age
and seemingly rather frail and not very robust. The college had at the time not
availed itself of the provisions of the workmen’s compensation act, but has,
since the accident, complied with the requirements of the said act, and any
employee involved
186 REPORTS STATE
COURT OF CLAIMS [W.VA.
in a similar accident happening now would undoubtedly be entitled to some
compensation. Claimant has been paid approximately $400.00 by the board of
control, his wages from the time of the accident to January 1, 1946.
Carefully reviewing the facts as presented to us and believing that the
claimant’s testimony preponderates in -his favor, we are of the opinion that
the state or agency involved is morally bound to pay some compensation to him,
somewhat commensurate with the allowance that would have been made if the
collecre at the ime of the accident had already availed itself of the
provisions of the workmen’s compensation act. Taking into consideration that
claimant has already been raid the sum of anproximately $400.00 we feel he is
en’itlcd to an additional payment of five hundred and fifty dollars ($550.00)
and recommend an award accordingly in that sum.
ROBERT L. BLAND, JUDGE, dissenting.
Prior to September 13, 1945, Marshall College, a state educational institution
at Huntington, had not complied with the statute which requires the state of
West Virginia and all governmental agencies or departments created by it to
subscribe to, and pay premiums into the workmen’s compensation fund for the
protection of their employees, and be subject to all requirements of said
statute, and all rules and regulations prescribed by the commissioner with
reference to rates, classification and premium payments. On the contrary, the
institution had, on its own initiative, paid for injuries sustained by workmen
in line of duty until some months ago the state auditor, always alert to the protection
of the public revenues, refused to authorize any charge for medical services
and hospital services and thereupon the college immediately took steps to come
under the workmn’s compnsation act.
On the said 13th day of September, 1945, claimant, James Reynolds, a roustabout
and janitor at the college had occasion to install an electric light bulb in
Laidley Hall. For the purpose of doing so he used a small ladder, about two
feet in
W.VA.1 REPORTS
STATE COURT OF CLAIMS 187
height, and consisting of three steps. He had installed the bulb. When he
attempted to descend and placed his foot on the second step he slipped and fell
o the floor. As a result of the fall he sustained a fracture of the right hip
just below the angulation of the socket. He incurred expenses of approximately
$529.50. In this case he seeks damages in the amount of $5000.00. From the time
of his accident until the 1st day of January, 1946, he was paid by the college
his salary at the rate of $105.00 a month. By a majority of the court he is
given an award of $550.00.
I do not think that under the facts disclosed by the record an award should be
made in any amount. The s’ate is not bound to compensate an individual employee
for injuries sustaied while in its service, and no right of recovery in favor
of such employee exists by inference or legal construction, or otherwise than
by statute. 49 Am, Jur., Section 73, at page 284. The award made would, in my
opinion, be a mere gratuity. If ratified by the Legislature it would authorize an
appropriation of the public revenues of the state for a purely private purpose.
This court has no jurisdiction in workmen’s compensation cases. Such uridiction
is exor@ssly excluded by subsection 4 of section 1 4 of the Court Act. There is
a difference between relief which may be afforded under chapter 23 of the code,
beii’ the workmen’s cornpensaion statute. and awards which may be made by the
Court of Claims. One may qualify for relief under the workmen’s compensation
statute when he would not be entitled to an award in the Court of Claims. If
1’e Legislature had intended this court to make awards under circumstances
calling for relief in workmen’s compensation cases it would not have excluded
such jurisdiction in the Court Act.
I do not think that upon the merits of he instant case the claimant has shown
himself to be entitled to an approved claim. I think his injuries were the
result of his own carelessness. The ladder which he used in installing the
electric light bulb, consisting as above stated of three steps, was exhibited
to and inspected by the members of the court. The writer of this statement
stepped safely upon each of the three steps of the small
188 REPORTS
STATE COURT OF CLAIMS [W.VA.
ladder and it did not wobble. H. 0. Clark, superintendent of buildings and
grounds at the Huntington institution, testified that he weighs 187 pounds and
that the ladder did not wobble when he stepped upon it. If the award made shall
be ratified claimant will have received his salary at the rate of $105.00 a month
for three and one-half months, plus the amount of the award, namely, $550.00,
as a reward for falling off a step not more than eighteen inches from the
floor. I can and do sympathize with him for the injury which he sustained as a
result of the fall and for the pain which he has endured in consequence
thereof, but I cannot concur in an award made on what I conceive to be purely a
sentimental ground. The door of the court of claims should be closed to purely
sentimental claims.
(No. 5 15—Claimant awarded $2500.00 upon rehearing)
DAVIS TRUST COMPANY, Adm. of the estate of
LUCY WARD, deceased, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opirnon filed May 8. 1946
Inexcusable laxity in the handling and
guarding of prisoners committed to the state penitentiary, under circumstances
as presented in the prosecution of this claim, constitutes negligence on the
part of the prison officials, and if such negligence is the cause of a crime
committed by a prisoner against a citizen, whereby such citizen, or his estate,
suffers damage, an award will be made.
Appearances:
Brown & Higginbotham, for claimant;
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JuDGE.
The Davis Trust Company, of Elkins, West
Virginia, as administrator of the estate of Lucy Ward, deceased, prosecutes
W.VA.j REPORI’S
SI’Ai’E COURT OF CLAIMS 189
this claim on the ground of inexcusable laxity, amounting to negligence, on the
part of the prison officials in charge of the state medium security prison at
Huttonsville, ‘West Virginia, in guarding and handling the prisoners of said
prison, one of whom, James Chambers, on January 20, 1945, raped and murdered
the said Lacy Ward, a highly respected lady, living on a farm near the said
prison. The said rape and murder took place in the barn on the farm about nine
o’clock A. M., and thereafter Chambers returned to the prison without the
prison authorities even knowing that he had been off the prison premises or
grounds.
In this all-important claim, a careful review of the testimony is necessary to
fully determine whether the prison officials were so lax in guarding the
prisoner, Chambers, as to be guilty of such negligence as might reasonably lead
to the commission of the crime or crimes for which Chambers was subsequently
convicted and later hanged at the Moundsville prison.
The record, made up mostly of agreed stipulations and the report of the
legislative committee on penitentiary made to the regular session 1945
of the West Virginia Legislature after investigating conditions at the
Huttonsville prison, sets forth in minute detail the facts presented to us for
our determination.
Chambers (colored) a life-term prisoner at the time of the Lucy Ward murder, on
the first day of April. 1935. killed and murdered, by cutting her throat with a
razor, one Mabel McIntyre, a colored woman, the mother of a young colored girl
to whom Chambers had been paying some attentions, and to which actions her
mother had seemingly been ob.iecting. This crime took place in Wyoming county
and subsequently Chambers was tried and convicted of hrst degree murder. with a
recommendation of mercy, and thereupon sentenced to life imprisonment in the
penitentiary at Moundsville. Early in the year 1941 he attacked with a knife
one Ethel Goodman. also an inmate of the prison, and cut. or stabbed her on the
hip. Later he was found in the said Ethel Goodman’s bath room. she at the time
being employed in the Warden’s apartment was
190 REPORTS STATE
COURT OF CLAIMS {W.VA.
tried for this misconduct by the prison court and sentenced or placed on ‘red
and white” indefinitely, which, as explained by the prison clerk, means
confinement to his cell and two meals a day. He was so confined for a period of
about sixty days. Thereafter, while working on a prison road gang, he attacked
a fellow prisoner with a knife, and was later transferred to the Huttonsville
prison where he remained until he committed the crime for which this claim is
presented.
The report of the legislative committee on penitentiary which
investigated conditions at the Huttonsville prison shortly after the Ward
murder, reported, among other things, that Chambers left the institution and
farm on January 20, 1945, going to the nearby Ward farm, raped and murdered
Lucy Ward and returned to the prison without his absence ever being known by
the prison officials; that the prisoners were allowed to visit neighboring
farms, springs and orchards of their own free will and without guards; that
prisoners attempted to rape other women in the vicinity of the prison, and that
the officials did nothing when such conduct was reported to them; that
prisoners were arrested some distance from the prison for fishing without
licenses and that they were found so engaged as late as ten o’clock at night;
that prisoners were in possession of keys to gas tanks and other outside
buildings; that the knife with which Miss Ward was slain was one apparently
taken from the prison, and that a general laxity of discipline was evident, and
that no proper check of prisoners was made. Under such conditions and lax
discipline Chambers had been serving his life sentence from July 27, 1944, the
date of his assignment to Huttonsville, until January 20, 1945, a period of six
months, when he committed the Ward murder.
It requires no stretch of the imagination to reach the conclussion that had the
proper precautions been taken by the officials and had the handling and
governing of prisoners becn such as the conditions and circumstances required,
the brutal and dastardly crime. which is the basis of this claim, might never
have been committed. Chambers was a desperate criminal, not only outside the
prisons, but inside of them as well. He was a fiend
W. VA.] REPORTS STATE COURT OF CLAIMS 191
when in possession of a knife or
razor. We have the right to assume from the facts before us that his record
from the time he committed the murder in Wyoming county to the time of his
transfer to the Huttonsville prison was fully known by the proper officials,
and having known his record, it was an abuse of discretion and judgment to
allow his transfer; this fact, coupled with the general laxity of discipline at
Huttonsyule, the general disregard for the safety and security of citizens and
residents from attack by uncontrolled and ungoverned prisoners confined there,
and the unwarranted and improper assigment of Chambers to Huttonsville
constitute negligence for which the state is morally bound to make amends.
No mere financial award can restore the life of the victim of the tragedy
involved, nor heal the wounds of those who were near and dear to her. However,
we feel that the state, as such, should not be unnecessarily penalized for the
acts and conduct of the officials referred to, and are therefore of the opinion
that an award of $3500.00 should be made, and which we believe would have the
desired effect for the future conduct of the prisons in question. An award of
thirty-five hundred dollars ($3500.00) is accordingly made, payable to the
claimant as administrator of the Lucy Ward estate.
MERRIMAN S. SMITH. JUDGE, concurring in part.
While I agree with the conclusion reached in the opinion as filed by Judge
Schuck so far as an award is concerned, yet I feel that in view of the circumisances
and facts here presented the amount of the award should be left open for the
further consideration of the Legislature.
ROBERT L. BLAND, JUDGE, dissenting.
Fully recognizing the atrocity of the crimes of the convict James Chambers and
the laxity of discipline maintained at the Huttonsville medium security prison
I am nevertheless constrained to oppose a recommendation for an appropriation
of the public funds in this case.
192 REPORTS
STATE COURT OF CLAIMS [W. VA.
It is doubtful, to say the least, whether the Legislature in creating the Court
of Claims had in mind or contemplated the filing and prosecution of a claim of
the character such as the one under consideration. From time to time claims
against the state must necessarily arise for the payment of which it would be
eminently proper for the Legislature to make appropriations within the
limitations of its powers, since the purpose of the Court Act is to provide a
simple and expeditious method for the consideration of such claims which because
of the provisions of section 35, aritcle 6 of the constitution of the state and
of statutory restrictions, inhibitions or limitations cannot be determined in a
court of law or equity. The jurisdiction conferred upon the court is limited, I
think, to demands resting upon legal basis. “Claim” is defined to be “a demand
of a right or alleged right; a calling on another for something due or alleged
to be due; as, a claim of wages for services.” Century Dictionary. No liability
against the state was created by the Court of Claims Act where no liability
existed before its enactment. If the state were suable the instant claim could
not be maintained; such a claim is against public policy. By reason of the
inhibitions against suit contained in the constitution of ‘West Virginia our
state is incapable of giving its consent to be sued, wherefore for the
consideration of proper and meritorious claims against the sovereign power the
State Court of Claims owes its origin as a special instrumentality of the
Legislature where all such claims are finally passed upon and adjudicated. In a
jurisdiction where consent to be sued may be given the state does nothing more
than waive its immunity from action. Smith
v. State, 227
New York 405; 125 N. B, 841; 13 ALR 1264.
It does not thereby concede its liability in favor of the claimant or create a
cause of action in his favor which did not theretofore exist. Davis v. State, 30
Idaho 137; 163 Pacific 373; Ann. Cases 1918-D,
911.
It is the peculiar function of the Court of Claims to assist the Legislature in
its consideration of all claims asserted against the state. It is important to
know whether the legislative body
W.VA.] REPORTS
STATE COURT OF CLAIMS 193
desires the court to be guided by law
or to make recommendations according to the respective reactions of its
members. In 49 American Jurisprudence under the title Liability of State and State Officers, Section 73, page 284, this enlightening information is
stated:
The liability of a state in its ordinary affairs is somewhat different from
that of a private individual. Under ordinary circumstances, it can sustain a
liability only by reason of a contractual obligation. It is not liable for the
tortious acts of its officers. And where a governmental duty rests upon a state
or any of its instrumentalities, there is absolute immunity in respect to all
acts or agencies. There is no moral obligation upon the part of the state which
can be enforced upon equitable principles alone. The state is not liable as an
individual or private corporation may be on the ground that its agent acted
upon an apparent authority which was not real. It is not bound to compensate an
individual employee for injuries sustained while in its service, and no right
of recovery in favor of such employee exists by inference or legal
construction, or otherwise than by statute. It is not the policy of states to
indemnify persons for loss, either from lack of proper laws or administrative
provisions, or from inadequate enforcement of laws or the inefficient administration
of provisions which have been made for the protection of persons and property . .
And in Section 76 of the same volume,
under the title For Torts of Officers,
this universally accepted rule is
stated:
The rule is well settled that the state, unless it has assumed such liability
by constitutional mandate or legislative enactment, is not liable for injuries
arising from the negligent or other tortious acts or conduct of any of its
officers, agents, or servants, committed in the performance of their duties. In
other words, the doctrine of respondeat superior does not apply to sovereign
states unless through their legislative departments they assume such liability
voluntarily.
194 REPORTS STATE
COURT OF CLAIMS [W. VA.
“While there is authority to the contrary, the general rule is that the
exemption of the state from- liability for torts of its officers and agents
does not depend upon the state’s immunity from suit without its consent, but
rests upon grounds of public policy which deny the liability of the state for
such damages. It is based upon the sovereign character of the state and its
agencies, and the absence of obligations on the part either of the state or
such agencies, and not upon the ground that no remedy has been provided. Under
this general rule a state is not answerable in damages for injuries sustained
by, or the death of, a convict in prison through the negligence of the prison
officers, in the absence of any voluntary assumption of liability
“The distinction recognized in municipal law, in determining the liability of
municipal corporations for tort, between acts and duties which are strictly
public and governmental in their nature and those which are of a private or
proprie;ary nature does not appear to control the question of liability of the
state for tort. The rule of nonliability of the state for torts of its
officers, although often stated in terms indicating it to be a rule of
nonliability when the officer is exercising a governmental function, does not
appear to be limited to cases where the act of the officer or agent occurred in
the discharge of some purely governmental function of the state.”
In the case of Allen v. Board of
State Auditors, 122 Mich 324. it is
held that:
“A petition for compensation by a citizen who served a term in prison for a
crime of which, it is alleged, he was innocent is not a ‘claim’ which the board
of state auditors may be authorized to pass upon under article 8, section 4 of
the Constitution, creating such board ‘to examine and adjust all claims against
the state;’ claims, within the meaning of such provision, embracing only
demands based on legal grounds.”
W. VA.] REPORTS STATE COURT OF CLAIMS 195
In Riddoch v. State, 68
Wash. 329; 123 Pacific 450; Am. t6 Eng. Annotated Cases, Vol. 30, page 1033, it
is held;
“In the absence of voluntary assumption of the obligation, the state is not
liable for the torts or negligence of its officers or agents; and this applies
to personal injuries to a spectator, sustained through a defective railing in a
state armory, negligently constructed by a state commission created for the
purpose, and leased for a compensation to private parties by the state officer
in charge of it for the purpose of giving a public exhibition: since the
state’s immunity from liability is not confined to the discharge of purely
governmental functions of the state, the sovereignty of the state extending to
any private enterprise taken over or administered by the state.’
In the opinion in ‘he above case, Judge Ellis says:
‘The doctrine that a sovereign state is not liable for the misfeasance,
malfeasance, nonfeasance or negligence of its officers, agents or servants,
unless it has voluntarily assumed such liabili’y, is established by authority
so cogent and uniform that isolated expressions which might be construed as
tending to the contrary are negligible.’’
The rule of a state’s nonliability for torts is stated by the United States
Supreme Court in Robertson v. Sichel, 127 U. S. 507, 515; 8 S. Ct. 1286; 32 U. 5. (L. ed.)
203, as follows:
‘‘The government itself is not responsible for the misfeasances, or wrongs. or
negligences, or omissions of duty of the subordinate officers or agents
employed in the public servcie; for it does not undertake to guarantee to any
person the fidelity of any of the officers or agents whom it employs; since
that would involve it, in all its operations, in endless embarrassmets, and
difficulties, and losses, which would be subversive of the public interests.
Story on Agency, Sec. 3 19; Seymour v. Van Slyck. 8 Wend. 403, 422; United States v. Kirkpatrick, 9 Wheat,
720, 735: Gibbons
v. United States, 8 Wall, 269; Whitside v. United
196 REPORTS STATE
COURT OF CLAIMS [W. VA.
States, 93 U. S. 247, 257; Hart
v. United States, 95 U, S. 316,
318; Moffat v. United
States, 112 U.S. 24, 31; Schmalz’sCase, 4G.
Cl. 142.”
I do not think that the instant claim is one that may be properly prosecuted
against the state; but I realize that the state, through its Legislature alone,
has the sovereign power to waive its immunity from liability for torts I do not
think, however, that the mere ratificaion of an award made by the Court of
Claims amounts to a voluntary assumption of liability. On the contrary, I am
impressed by the thought that a voluntary assumption of liability for the torts
of its officers, agents or servants must be made by the enactment of an express
statute.
After an experience of approximately five years on the Court of Claims I am
more and more persuaded that every claim should be determined upon the basis of
Its own facts.
I think that the attempted award made in the instant case is abortive and
futile. Under the Court Act two members of the court have the power to make or
deny an award. In the case under consideration one member favors an award of
$3500.00 and another would leave the determination of the amount of the award
to the Legislature. Thus, majority members of the court are not in agreement on
the question of the amount of the award which they would make in favor of
claimant. An award like a judgment should be definite and certain. An award is,
I think, the final consideration and determination of the court. When two
members of the court who would favor an award are in disagreement as to the
amount thereof, how can it be said that an award has been actually made? The
majority opinion is vague, indefinite and uncertain as to what was actually
done by the court in its determination of the case.
The Legislature has a special legislative report before it as to conditions at
the medium security prison at Huttonsville. If the Legislature shall desire to
correct conditions prevailing there it has all the information it may need in
that report and I do not see that the Court of Claims is concerned about such
condi
W.VA.] REPORTS
STATE COURT OF CLAIMS 197
tions. Its concern is to determine whether or not the public revenues of the
state should be appropriated in satisfaction of the claim in question. It does
not behoove the court to “penalize” the state in any amount.
CHARLES J. SCHUCK, JUDGE, upon petition for rehearing.
The petition of the state board of control heretofore filed in the above claim,
seeks a reconsideration by the court of the evidence heretofore adduced at the
previous hearing, and bases its application on the following reasons, to wit:
1.
One member of the court favored an
award of $3500.00;
2.
Another member of the court was of an
opinion that the amount of the award should be left open for the further
consideration of the Legislature, and:
3.
Another member of the court favored the
denial of. an award.
No other or additional testimony is offered or presented.
Reviewing again the record before us and giving consideration to the arguments
now presented by counsel upon the application for reconsideration, a majority
of the court reaffirms its former opinion and holds that the state or agency
involved is morally bound to compensate the estate of the deceased Lucy Ward,
and after mature consideration we fix the amount of th said award in the sum of
twenty-five hundred dollars ($2500.00) and recommend to the Legislature payment
accordingly.
ROBERT L. BLAND, JUDGE, dissenting.
For reasons set forth in my former dissenting opinion filed in this case, I
dissent to the award now made in favor of the claimant by a majority of the
court. Atrocious as the crime of the convict Chambers is shown to have been, he
was promptly tried, convicted and hanged for his henious offenses; he made full
atonement for his crimes. No award of this court, how-
198 REPORTS STATE
COURT OF CLAIMS [W.VA.
ever, large the amount might be, could be of any benefit to his unfortunate
victim. Her only heirs-at-law are one brother and one sister, both more than
three score and ten years of age. It cannot be argued, in view of general law,
that the state is under any obligation, moral or otherwise, to respond in
damages for Miss Ward’s death.
I reaffirm that in my judgment the award is improper and against public policy.
(No. 5
17-S—-Claimant awarded $450.00)
JAMES G. LANHAM. Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Med May 8. 1946
ROBERT L. BLAND. JUDGE.
In 1937 the state road commission made a change in the location of the highway
known as U. S. route No. 250,
about six miles east of the city of
Fairmont, in Marion county, West Virginia. In the course of grading, paving and
otherwise improving said road, a deep cut was made through a tract or parcel of
land, the surface of which was owned by Oscar Little. The road cOmmission
obtained a deed from said Little for the right to make said change in said
location of said road. The said deed is recorded in the office of the clerk of
the county court of said Marion county in deed book 332 at page 203. The land
owned by Little was formerly owned by claimant James Lanham. When Lanham
conveyed to Little he excepted and reserved one-half interest in the Pittsburgh
vein or seam of coal on said land, with necessary mining rights to mine and
remove the same, Lanham had the coal so reserved properly entered for taxation
and has regularly paid the taxes
W.VA.] REPORTS
STATE COURT OF CLAIMS 199
thereon. He has made no conveyance of any part or interest in the coal
reserved and is the owner thereof at the present time. The road commission paid
Little, the owner of the surface and one-half interest in the coal, the sum of
$900.00 for the right of way executed by him and for damages. No title
was secured by the state from Lanham.
Claimant Lanham made a claim agaihst the road commission for 4,500 tons of coal
taken from the land in the course of the work done on the highway. A survey was
made by engineers of the road commission to determine whether or not the number
of tons claimed by Lanham was correct. The reports of the engineers show that
there was approximately 5,500 tons of coal removed. They agree that 4,500 tons
is a fair estimate.
The road commission agreed to pay clamant, in full settlement of his demand,
the sum of $450.00. He accepted the proposition. The state road commission
therefore concurs in Lanham’s claim for that amount. An assistant attorney
general approves the setlcment. We are of opinion from the showing made by the
record that the claim is jus’ and meritorious.
It appears from the record of the case that out of ap’ropriation heretofore
made by the Legislature there is money to the credit of the road commision
available for the payment of the claim.
An award is therefore now made in favor of claimant, James G. Lanham, for the
sum of four hundred and fifty dollars ($450.00), payable out of the
al7ronriation made for the state road commission for the current biennium.
200 REPORTS STATE
COURT OF CLAIMS [w. VA.
(No. 502—Claim denied)
• PETER SECHINI and ALICE J. SECHINI, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opimon filed May 9, 1946
LATERAL SUPPORT. In a cause of action
for damages caused by removal of lateral support, an award will be denied where
the physical conditions show that the state excavated entirely within its right
of way and that the slipping and cracking of dirt on adjacent property was
caused by filled- in dirt and the virgin soil was not molested by any
excavation on the state’s property.
Appearances:
Gilbert S. Bachmann, for claimants:
W. Brjan Spillers, Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JUDGE.
In 1929 claimants built a story and one-half stucco dwelling on two lots on a
slope adjoining the north side of the right of way of the national road in
Liberty district, Ohio county, ‘West Virginia, near the Pennsylvania state
line. In 1941 the state road commission widened the highway from 1 8 feet to 22
feet and dug a ditch about 1 y
feet deep alongside the berm, which was
about 8 feet wide, in front of the claimants’ property. The front porch has
pulled away from the house and there are breaks in the porch pillars, cracks in
the flagstone walk and tilting of two willow trees in the front yard, in
addition to three or four cracks running parallel across the lawn, for all of
which the claimants are seeking damages to the extent of $2500.00.
The members of the court made a personal inspection of the property and the
majority of the court found that neither
\V. VA.] REPORTS
STATE COURT OF CLAIMS 201
the center line or the grade of the highway was changd when it was widened
about 4 feet in I 94O4 1; that the right of way extends 33 feet from the center
of the road on each side: that the ditch was about 12 feet from the right of
way line and that of claimants’ property.
When the house was built excavation was made for a full- size basement and for
a coal bin under the porch and the dirt was thrown out in front to fill in the
lawn. About a year after the house was built one Mr. Slater testified that he
was employed to grade and sod the lawn. At this time there was a crack in the
loose soil so he put a used telephone pole about 25 feet long in a horizontal
position at the bottom of the loose or filled-in dirt, and placed five posts in
a vertical position to hold the pole in position and to keep the filled-in dirt
from slipping. About ten feet from the Sechini’s west property line the road
commission did excavate practically to the right of way line in order to put in
a culvert to carry off the water from the ditch, and upon personal observation
there is no cracking or slipping of the native soil on this adjoining lot.
After a careful inspection of the property and due consideration to all the
testimony, the majority opinion of this court is that the work done by the
state in 1941 did not impair in any way the lateral support of the adjoining
property of the claimants, and that whatever damage was sustained by them is
due solely to the slipping and settling of the filled-in dirt deposited on the
native soil in levelling and grading of the slope for the lawn.
Any claim for damage or an award is denied by majority members of this court
and due deference is taken to the views of Judge Schuck, who will file a
dissenting opinion.
CHARLES J. SCHUCK, JUDGE, dissenting.
I cannot agree with the conclusion reached by the majority of the court in this
case, since the evidence in my judgment, does not sustain the proposition that
the slipping of the earth and the cracking of the porch attached to the house
was caused
202 REPORTS STATE
COURT OF CLAiMS [W. VA.
by filled-in dirt as maintained during the course of the hearing by the
respondent. The testimony offered to sustain this theory was, in my judgment,
lamentably weak, and in some instances not worthy of consideration, since the
resident engineer himself, who was the principal witness in suport of the
theory in question, had to admit that the blueprints which he introduced to
sustain his contention did not bear our his theory of the case, and his
testimony with reference to logs and grass decaying ten years after the house
in queslon was built was so highly Improbable as to make this part of his
testimony unworthy of serious consideration.
The home of the claimants was built in 1929, and the uncontradicted testimony
of the witnesses is that up to the year 1 941, at which time the national road
was widened and the excavation complained of took place. no defect or cracks of
any kind had been shown either in the porch or the house and that shortly af:er
the said changes in the national road, the damages to the proper: y in question
took place. This physical fact stands out as an uncontradicted feature that is
so strong and convincing as to compel me to reach a conclusion contrary to that
maintained by the majority. Independently of all other testimony, this physical
fact in bold relief, points the way to the proper solution of the issues here
involved. I repeat that the testimony of the resident engineer, to the effect
that logs and slipping grass and dirt that was put upon the adjacent property
from the excavation for the cellar and basement of the house caused the damage
complained of, is too far fetched, as shown by his own testimony and not
suppored by the outstanding fact just referred to: on the other hand, a
reputable engineer who testified for the claimant gave it as his opinion,
without qualification, that the work done by the respondent at the time that the
road was widened and somewhat changed in the year 1941, was undoubtedly the
cause of the damage to the property for which this claim is now presented.
In view of these conditions and deduc’ions, I am unable to agree with the
majority opinion and therefore dissent. In my judgment an award should be made.
W. VA.] REPORTS
STATE COURT OF CLAIMS 203
(No. 524—Claim denied)
EMMA QUICK, MILDRED MILLER and HARRY
MILLER, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed June 17, 1946
Where the testimony shows that a farm
or land was benefited by a road construction and improvement rather than
damaged, an award, of course. will be denied.
Appearances:
Ralph H. Smith, for the claimants;
XV. Bryan Spillers. Assistant A’ torney General, for the state.
CHARLES J. SCHUCK, JuDGE.
Claimants maintain that by reason of the construction of a bridge or viaduct
over and upon their farm or property, located in Wirt county, West Virginia,
their land and house were flooded by what the testimony shows to have been an
unusual cloudburst. They claim damages in the amount of approximately $1500.00,
and accordingly ask an award at the hands of this court. A further question was
also presented, namely, the matter of the construction of a certain pipe that
took care of the water flowing from a small spring or stream on the adjacent
hillside, the claimants maintaining that this pipe was so constructed that it
failed to carry off the water from the said spring, and consequently caused a
marsh or swampy condition which lessened the value of the land.
At the time that this improvement was contemplated the state road commission
obained a deed, dated June 1, 1940, for
O1
RHOR I S S I A .)t’I I (S C AI\IS [W. VA.
the right of-way across the lands of
claimants, and which deed contained the following closing paragraph:
‘The said art y of he (rst part. in consid cration of the benefits received and
to be received by reason of the construction or improvement of said road,
hereby waives all claim for damage to residue of property growing out of such
construction or improvement.’’
The claimant Emma Quick nai ni ii ns that she never had this part of the deed
read to her, yet she signed the same and acknowledged it, and the deed had been
read to her by a neighbor as well as by one of the road agents. While this
provision might well Prevent any recovery for damages and would perhaps under
ordinary conditions he conclusive, yet we have nevertheless given consideration
to all the testimony as presented. On their own initia’ive the members of the
court took a view of the premises in order to fully acquaint themselves with
the conditions prevailing. and that justice might be done as between the
claimants and respondent.
The testimony of the road commission’s engineer is to the effect that the
bridge complained of had bcn built in accordance with the scientific formulae
of the United States Geodetic Survcy, and the outlet under the bridge for
the passage of water even made larger than required by the said surveys. The
testimony further shows that the property in question was as a whole assessed
at $550.00, and the testimony of a neighbor was to the effecc that in his
judgment, the whole property was at no time worth more than $600.00. The view
heretofore referred to and made by the court sustained this testimony as to
values. There is but comparatively little bottom land probably several acres,
which would have any value, the remaining part of the farm being hilly and
mountainous.
As heretofore referred to, complaint was also made that the drainpipe carrying
the stream from the hillside was not properly constructed, but an examination
shows that the drain in question was one over which the respondent had no
control, being entirely on claimants’ property, except where it came to the
con-
W. VA.] REPORTS
STATE COURT OF CLAIMS 205
struction of the new road and that no damage could possibly have been caused by
this construction and if there was, it must have been occasioned by claimants’
lack of care in draining and cleaning the spring or stream in question. We are
persuaded that the new road improves the property rather than lessens its
value, and that consequently there was no such injury by reason of this unusual
rainfall as would entitle claimants to an award. The house in question was of
very cheap construction and could not possibly have been damaged to the extent
claimants allege. All in all, we are of the opinion that the property has been
benefitted rather than damaged and an award is denied.
(Nos. 5O3-5O45O5-5O6-5O7-——Claims denied)
B. F. DARLINGTON, MARGARET DARLINGTON, and MARGARET ANN DARLINGTON, an infant;
WILLIAM
WARD and NANCY LYNN WARD, an infant,
Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed June 17, 1946
‘Where an employee of the state,
having established headquarters for seven days in the week, after work hours on
Saturday evening while enroute to his home to spend the wek nd with his family,
is not in the furtherance of his employer’s business, nor does he in any way
directly or indirectly promote the welfare of his employer’s business; under
the evidence in these cases awards will be denied.
Rummel, Blagy and Stone (M.
Harper Mauzy) for claimants;
W. Bryan Spillers, Assistant Attorney General, for respondent.
MERRIMAN S. SMITH, JUDGE.
These five claimants filed their several claims against the state road
commission for damages growing out of the same auto-
206 REPORTS STATE
COURT OF CLAIMS [W. VA.
mobile accident, each claim being for a specific amount. Since the facts and
circumstances surrounding the accident are the same the said several claims are
combined and heard together.
On Saturday, July 14, 1945, Dewey Taylor, party chief of a surveying crew of
the state road commission, together with six other men, had been working below
Liverpool and Sandyyule, about fifteen miles from their headquarters at Ripley.
At noon, on that day, they discontinued work for the week and returned to
Ripley for lunch. Since it was Saturday that was considered the workday. After
lunch Taylor repaired to his room at the hotel in Ripley and checked his notes.
He testified that this work required two or three hours. (Record p. 190). He
and Walker and Triplett then drove to Spencer, about twenty-five miles from
Ripley, in a state station wagon. While at Spencer, Taylor made arrangements at
the SpencerRoane Hotel with the manager, Margaret B. Lockhart, for the
following week for lodging and meals for himself and his crew, since they were
to change their headquarters from Ripley. About six o’clock P. M., instead of
returning to their headquarters at Ripley, Taylor with Walker and Triplett,
proceeded to drive to their home at Walton. John Walker was at the wheel when
they left Spencer. Upon reaching the suburbs of the town, the station wagon
sideswiped a parked automobile belonging to Mr. William S. Ryan. then
prosecuting attorney for Roane county. After this occurrence Taylor took over
the wheel. When he had driven about twelve miles and while rounding a curve he
crossed the center line of the highway on his left and ran head on into a
Chevrolet pick-up truck owed by claimant Margaret Darlington, and driven by her
husband, claimant B. F. Darlington, causing the accident for which these claims
for damages are sought. The accident occurred about two miles from Walton, in
Roane county, on route 119, between six and seven o’clock in the evening.
From the time that Taylor left Spencer, he elected to be on his own business
and was in no way acting within the scope of his employment by the state road
commission. As above stated, his headquarters were at Ripley, where the state
had
W. VA.] REPORTS
STATE COURT OF CLAIMS 207
provided for his room and sustenance and his going home at Walton was for his
own benefit, comfort, and pleasure. No one understood more clearly than Taylor
himself that he was on his own business since he had imbibed in strong drink
and was under the influence of liquor. While on his way to his home he
permitted ‘Walker, without a license, to drive the station wagon and he himself
drove it while in a state of intoxication. It is made clear by the evidence
that while thus on his way to his home at Walton, Taylor was in no manner
engaged within the scope of his employment for the state road commission.
While it is clear that Taylor might be personally liable to the claimants, the
evidence is insufficient to warrant or justify responsible for the happening of
the accident.
It is our opinion that the compensation commission erred in awarding
compensation to Walker since neither Taylor, Walker nor Triplett were in the
furtherance of their employer’s awards to them against the state. The state is
in no way business nor within the scope of their employment, nor in any way
were they promoting the business of the state at the time of this unfortunate accident.
Awards are, therefore, denied by a majority of the court, and the claims
dismissed.
ROBERT L. BLAND, JUDGE, Concurring.
These cases are prosecuted upon the theory that the state road commission as
principal, through Taylor, as agent, committed the tort which caused the
damages for which awards are sought, in the total sum of $17,250.00. While I
steadfastly maintain that in the absence of voluntary assumption of liability,
the state is not liable for the torts or negligence of its officers or agents,
the doctrine of respondeat superior not being applicable to the state, nevertheless, upon
the issues tendered by the record I am fully in accord with the views expressed
in the majority opinion written by Judge Smith. It is only when acts done by
command or while within the scope of em-
208 R1POR’I S S I
Al I (‘(ARI OI CLAIMS [W. VA.
ployment that a principal or master is responsible for the acts of his agent or
servant. That situation does not exist in these cases. It is generally
understood that the principal is not responsible for the acts of his agent not
within the scope of the employment.
In Clark v. Buckrnobile
Cornpanj, 107 App. Div. 120, 94 New
York Supp. 771, it is held that in an action brought to recover damages for
personal injuries sustained by the plaintiff in consequence of being struck by
an automobile owned by the defendant, the fact that the persons in charge of
the automobile at the time of the accident were employees of the dcfendant does
not render the defendant responsible for their negligent acts unless they were
then ngagcd in the defendant’s business.
Whether or not the road commission, an
agency of I
he state, is responsible for damages
sustained by the claimints by the negligence of Taylor rests upon and must be
determined by the inquiry as to whether or not Taylor, at the time of the
accident, was acting as agent or employee of the road commission within the
scope of his employment.
Although the evidence shows that Taylor was an employee of the state road
commission it does not show that at the time of the accident he was acting
within the scope of his employment. It is not sufficient to show agency only.
It is necessary to show connection of the accident with the employment, which
has not been done.
Taylor was employed in the survey department of the state road commission. He
was in charge of a crew of seven persons, including himself, whose duties were
chiefly in the field. He was designated as party chief or chief of the crew. He
was a transit-man, anyone in charge of the survey party having the title of
chief of the party. The party ran elevations and made cross-sections. Taylor
went to work for the commissicn in 1927, and left its employ between 1941 and
1942, He was reemployed in 1943. When Taylor reentered the employment of the
road commission and was assigned to a project,
W. VA.j REPORTS
STATE COURT OF CLAIMS 209
a station wagon which had been obtained from the Army and fitted for field work
was placed at his service for such work. For a period of approximately two
months the crew had headquarters at Parkersburg. After the completion of that
job it began work in another section, between Sandyville, West Virginia, and
Liverpool, Ohio, having headquarters at Ripley, in Jackson county. On Saturday,
July 14, 1945, the crew quit work about twelve o’clock noon. Its
members went to the hotel at Ripley. While there Taylor checked his notes, the
work requiring something like an hour. He also went out to a hardware store for
the purpose of purchasing some sandpaper for an old gentleman who was finishing
a gunstock for him, this action not being in any way connected with his
employment by the road commission. From Ripley, Taylor and others went to
Spencer, in Roane county, where he arranged at a hotel for lodging for members
of his crew during the following week. After this he started in the station
wagon, which he used in the field, for his home at Walton. When he left Spencer
the vehicle was driven by John Louis Walker, a member of his crew. Later Taylor
took the wheel of the station wagon. When within two and one-half miles north
of Walton, Taylor collided with a motor vehicle in which the claimants were
driving. He was intoxicated at the time. Walker was injured in the collision
and later received compensation from the workmen’s compensation fund;
compensation, by the way as shown by the record, which would not have been paid
if the true facts had been certified and known by the department.
It is shown by the testimony of L. C. Madden, engineer of plans and surveys,
who had overall supervision of Taylor and his crew, that no permission or
consent was at any time given to Taylor to use the station wagon in going to
his home at Walton on week ends. His use of the station wagon was confined and
limited to the field work which he was employed to do for the road commission.
It is manifest from the evidence that at the time of the accident Taylor had
finished his work for the road commission for
210 REPORTS STATE
COURT OF CLAIMS [W. VA.
the week and was on his way to his home at Walton, where Walker also resided.
He was about his private business. He was on his own personal business, in no
way connected with the business of the road commission, and, cosequently, was
not at the time of the accident acting as agent of the road commission, nor in
the scope of his employment. He was not in any respect acting under orders of
the road commission. He was not performing any service for the state, being
merely on his way to his home.
“‘Where the chauffeur commits injury while driving for himself his employer is
not liable.” Huddy on Automobiles, Section 284, 4th Ed.
Tested by recognized authority of law claimants have failed to show that they
are entitled to awards in these cases Lamentable as the accident is shown to
have been, it would be a miscarriage of justice to recommend an appropriaion of
the public revenues by way of awards. The interests of the taxpayers cannot
be overlooked.
CHARLES J. SCHUCK. JUIXm, dissenting.
The question involved in the issue presented for our consideration and
determina’ion and as shown by the majority opinion is, of course, whether or
not Dewey Taylor, the state road employee in charge of the station wagon which
collided with claimant’s truck and brought about the injuries in question, was
at the time of the collision acting within the scope of his employment. That he
was grossly negligent in causing the accident, and that none of the claimants
were guilty of any contributory negligence is in fact admitted, and need not be
considered by me in this dissenting opinion.
Dewey Taylor had been employed by the state road commission at different times
for a period of about eighteen years. He was last employed by the commission in
October, 1943, hand thereafter remained in its employ continuously until the
time of the accident; from 1938 to 1942 and from 1943 to the date of the
accident in July 194, had acted as a crew chief or field
W. VA.] REPORTS
STATE COURT OF CLAIMS 211
superintendent in charge of some six or seven men comprising a surveying crew.
The men were under his supervision and direction, and he was responsible to the
road commission for their activities. His immediate superior was L. C. Madden,
chief engineer of the plans and survey department of the state road commission.
Taylor moved his crew from place to place as directed, and as his particular
work required, and likewise made arrangements for their accommodations and
supervised their work in the field.
The testimony reveals that on each job convenient field headquarters would be
established where board and room for the men could be obtained and that the
arrangements for such accommodations were in the hands of and carried out by
Taylor. The crew usually worked from eight o’clock A. M. to four o’clock P. M.,
except Saturdays, when they would quit at twelve o’clock noon. Taylor, In his
supervisory capacity. had other duties in connection with his work, namely, the
bookwork reflecting the work and progress that had been made on a job and which
was summarized for the purpose of repor’ing the details to his superior at
headquarters: this work required extra time on his part and was usually
performed either at his home or at and near the place where the crew was
employed. This book- work, of course, was a necessary part of his employment,
and on the day of the accident, according to the testimony, he had been engaged
for several hours at Ripley. West Virginia, the place of the crew headquarters,
in finishing and completing the facts and figures concerning the survey that
was being made some fifteen miles from Ripley. Ever since he began to act as
crew chief, back in 1938, the road commission had furnished him a motor vehicle
or station wagon to use in and about the performance of his duties. He was
entrusted with the complete custody, control, and management of such vehicle,
and of course would be responsible for it during all of the period that it was
in his charge and care. I make the positive observation that the record reveals
that Taylor was never at any time given any specific instructions or
directions, either oral or written, by his superior or anyone else in the road
commission as to what use
RI FR I S S I A
II COU 1<1 OF CLAIMS [W. VA.
he could or could not make of the vehicle. Of course the
evidence shows that the question was asked Madden, his immediate superior, as
to whether he had given him any authority to use the station wagon: it was
answered in the negative, but this testimony means absolutely nothing so far as
the authority vested in Taylor in using the wagon in question was concerned. It
was not denied that he had the right to use It at all times; that he did so use
it, and that he had not only used it three or four times while working on the
job near Ripley to return to his home as he was doing at the time of the
accident, but that he had also used it while working on a job near Parkersburg
in driving to his home over the week end. These facts, to my notion, establish
beyond all question that full authority had been given to Taylor to use the
station wagon at all times in the course of his employment, and especially so
in going to his home over week ends; and further that his use of the wagon
under the circumstances and facts as revealed lead to the conclusion that this was part of
the consideration of his employment and seemingly expeditious in carrying out
his work, and therefore in the end beneficial to the road department.
The accident happened. as indicated, through the gross negli14, 1945, the date
of the accident, Taylor and several of his crew left Ripley at about two
o’clock P. M. on the way to the home of the said Taylor and one John Walker, a
member of the crew, both of whom lived at Walton. Taylor intended to stop
at Spencer, and did stop there, where he negotiated arrangements with the
manager of the hotel to accommodate his crew at that particular place and which
was being moved from the operations near Ripley to new work in and about
Spencer.
ac iden t happened. as indicated, through I he gross negligence and carelessness
of the said l’aylor, between Spencer and the town of Walton about six thirty or
seven o’clock on the night in question, and was caused by Jaylor deliberately
crossing to the wrong side of the road and bringing about, while traveling at a
r,it her high rate of speed a violent collision with the ( hi man Is, who
were traveling in I lIe opposite direct ion and thereby aus;ng
5(fiOliS
IN juries to tIle ( lainlauts and perhaps
W. VA.J REPORTS
STATE COURT OF CLAIMS 213
serious permanent injuries to at least one of them. Taylor, at the very scene
of the accident, admitted his negligence and careissness. Throughout the
hearing and nowhere in the majority opinion, is any negligence of any kind
imputed to the claimans or any of them.
In my opinion, considering all the circumstances, namely, that Taylor was
acting in a supervisory capacity and at places and points away from the
employer’s main headquarters, that he was vested with the right to exercise
judgment and discretion in the performance of his own duties as well as those
of his crew; that no specific instructions, either oral or written, had ever
been given him defining and limiting the range or scope within which he could
act, made him, in fact, a subprincipal and liable in a higher degree for injuries
to innocent third persons than some minor employee of the crew would have been.
Taylor himself was driving the station wagon at the time of the accident.
Courts have held as shown by the case of Ashland
Coca- Cola Bottling Co. et al v. Ellison et al, 252
Ky. 172; 66 S. W. (2d) 52, that, where the employee’s time is not confined and
calls for the general supervision of the company’s business through traveling
over the territory and with general authority to use the company’s automobile,
circumstances tending to support the charge that he was about his master’s
business assume an importance and call for consideration greater than would the
same circumstances were the employee a minor one. So also, have courts held
that the relationship of master and servant does not depend merely on the time
employed at the employee’s actual work, but may exist outside of actual working
time. Our own West Virginia Court of Appeals has several times held that the
real test or criterion of whether a servant’s act is within the scope of his
employment lies in the relationship which the act done bears to the employment.
Cochran v. Michczels 110 W. Va. 127; and other cases.
That Taylor stopped at Spencer and made the arrangements for accommodations for
his crew which was to be quartered
214 REPORTS SPATE
COURT OF CLAIMS [W. VA
the following week is uncontradicted, However, the state road de partment
insists that Taylor was drunk or intoxicated at the time of the accident and
that under the circumstances as herein set forth, he was not acting within the
scope of his employment It may be well to dispose of the question of
intoxication before considering the other matter which I believe to be
conclusive so far as the liability of the state road commission is concerned.
As is so ably set forth in claimant’s brief, I hold to the opinion that whether
or not Taylor was intoxicated is immaterial upon the inquiry as to whether at
the time of the accident he was acting within the scope of his employment.
Blashfield’s Cyclopedia of Automobile Law £ Practice, Vol. 5, Sec. 3036, and
cases cited, lays down this rule, which in my judgment controls so far as the
question of intoxication involved in this issue may be concerned, to wit:
‘According to some authority, and probably the better rule, the taking of a
drink by a servant in violation of his instructions is not such a deviation, of
itself, from his duty as to sever pro tempore the relationship of master and
servant and to relieve the master from liability for his negligence in
operating the vehicle while intoxicated.
“Consequently, if the servant is acting otherwise within the scope of his
employment, the master is liable for damages arising from ac’s of the servant,
although, the servant at the time was intoxicated. This is true, although, the
master did not know that the servant was intoxicated.” Blashfield’s Cyclo pedia
of Automobile Law Zi Practice, Vol. 5, Sec. 3036, and cases cited. Cle.’e1and Nehi Bottlinq Co.
v. Schenk (C.C.A. Ohio), 56 F.
(2d) 941: Dixon v. Haynes, 146 Wash. 163, 262 P. 119: Crockett v. U.S. (C.C.A.
W. Va.), 116 F. (2d) 646: Taylor v. Joyce, 4 Cal. App. (2d) 612, 41 P. (2d) 967;
V. L. Nicholson Const. Co. v. Lane, 177 Tenn. 440, 150 S. W. (2d) 1069: Erdman v. Henry S. Horkhejmer & Co. etc., 169 Md. 204, 181 A. 221.
The matter of whether Taylor was intoxicated or not is of itself not germaine
to the solution of the question involved.
W. VA. REPORTS
STATE COURT OF CLAIMS 215
i it is determined that he was acting within the scope of his authority, I
repeat, the question of intoxication does not enter save, and save only, as a
warning to the road commission that in the future men and employees of Taylor’s
habits and disposition should not at any time be entrusted with the use of
state automobiles, property, or station wagons.
As heretofore shown Taylor was accompanied by an employee, John Walker, both of
whom resided at Walton. In the accident Walker was injured, having received a
broken arm. His employer, the state road commission, was a subscriber to the
workmen’s compensation fund. Walker applied for compensation benefits and his
claim was allowed and paid. The employer’s report of injury disclosed the day,
hour, place and circumstances under which the injury was received, and was
certified true and correct by Walker’s chief, namely, Dewey Taylor, and
transmitted to the compensation commissioner by L. C. Madden, the chief
engineer of the plans and survey department from the commission’s headquarters.
In his letter of transmittal Madden wrote I am transmitting Form CD- 13-B
covering injuries to John Walker, who is employed in the Plans and Survey
Department of the S’ate Road Commission.” Madden, himself. approved and
certified as correct the application for the allowance of Walker’s doctor and
hospital bills. Subsequently the ompensation commissioner enered a formal order
to the effect that Walker’s injury had been received in the course of and
resulted from his employment. The claim was allowed and fully paid. The state
road commision was no doubt fully conversant with the facts and circumstances
giving rise to Walker’s injury and his claim for compensation, and even
assisted him in securing the allowance thereof and at no time protested in any
manner against the allowance or payment thereof on the ground that his injury
was not received in the course of his employment or as the result of any
misconduct, or of any disobedience of any rules or instructions.
If Walker was acting within the scope of his employment at the time of his
injury, as certified to by the road commission engineer, which action, of
course, would bind the road commis
216 REPORTS STATE
COURT OF CLAIMS [W. VA.
sion itself, it necessarily follows that Taylor was also acting within the
scope of his employment at the time of he accident and consequently responsible
for the damages that may have been incurred by his negligent act. Being the
employee of the state road commission, the principal becomes responsible and I
cannot countenance the idea that any department should be allowed to “blow both
hot and cold” under the conditions and facts as presented here. It is not only
ridiculous, it is unconscionable to assume that Walker, who was paid
compensation, was within the scope of his employment, and that the contrary
position must now be assumed that Taylor was not acting within the scope of his
employment in order to escape liability for the damages incurred to the
claimants by the accident. Both were riding in the station wagon at the time:
both were on their way to their homes in the same town after their work for the
day had been finished: both were servants of the road commission; both were
acting within the scope of their employment when the accident happened, and
both, so far as their relation to their master-employer is concerned, must be
governed by the same rule of responsibility to innocent third persons. I
repeat, if Walker was acting within the scope of his employment at the time of
his accident, as certified to by the road commission, so, also, was Taylor and
there can be no escape from this conclusion.
An award should be made to these seriously injured claimants and the
Legislature should so act, in my opinion, to discharge a moral obligation
devolving upon the state and the agency here involved.
W. VA.] REPORTS
STATE COURT OF CLAIMS 217
(No. 525—Claim denied)
EARLE HUTCHISON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed June 17, 1946
No duty, express or implied, rests
upon the State
road commission of West Virginia to
maintain the highways under its jurisdiction in more than reasonably safe
condition for use in the usual manner and by the ordinary methods of travel;
and the state does not guarantee freedom from accident of persons traveling on
such highways.
Salisbury, Hacknej & Lopinsizy
(Emerson W. Salisbury) for claimant.
W. Bryan Spiller’s, Assistant Attorney General, for respondent.
ROBERT L. BLAND, JUDGE
Claimant Earle Hutchison seeks an award in this case of $5,000.00 by way of
damages for personal injuries sustained on the 9th day of January, 1 946, when
he, with other persons, was driving in an automobile on U. S. route 19-2 1 in
Fayette county, West Virginia. He contends that as he was riding as a guest in
said automobile, owned by one Bruce Robertson, he was injured when the vehicle
turned over an embankment by reason of striking a broken portion of the
highway. He maintains that it was the duty of the road commission to keep said
highway in a reasonably safe condition of repair, but that on account of its
failure and neglect to do so, at the time and place of the accident, a portion
of the pavement or concrete of said highway had broken, thereby causing a large
hole in said highway and that when the automobile struck said hole it
• turned over said embankment, causing the injuries of which he complains and
for which he thinks he should have an ap
218 REPORTS S
FATF COURT OF CLAIMS [W. VA.
propriation of the public revenues. The road commission controverts his right
to such an award.
Claimant is a musician. He was a member of a six-piece band or orchestra,
conducted by Messrs. Bruce Robertson and Brady Frazier, and composed of five
male and one female persons, who were engaged in a common adventure or purpose.
This band or orchestra played for dances in various sections. Oii the night of
the accident it had an engagement o play for a dance at Beckley. The party left
Charleston at four-thirty or five o’clock in the afternoon, traveling in a 1938
model four- door Ford automobile. The vehicle had a small one-ton two- wheel
trailer attached, for the purpose of carrying musical instruments. Claimant was
seated in the rear on the right side of the automobile, which was driven by
Clarence Parish, who resides at Littlepage Terrace, in the city of Charleston.
The night was clear.
When the automobile reached a point on an eight-per cent grade on the highway,
about two-tenths of a mile south of Fayetteville, in the neighborhood of seven
o’clock P. M., it hit a broken place in the concrete pavement which the
evidence describes as a hole. One of the occupants of the automobile testified
tha this hole ‘started in the middle of the road on the left of the right-hand side
lane and stretched all the way across.” The same witness also stated that after
the au’ omobile hit this hole it con inued to run on the paved portion of the
highway fifteen or tweny feet and then went out on the shoulder and travelled
on the shoulder approximately forty to fifty feet before the vehicle turned
over. The claimant was asleep in the car at the time.
The driver of the automobile testified that as he approached the place where
the accident happened, driving at a speed of from thirty to thirty-five miles
an hour, he saw a black pla€e in the highway—’ ‘because the pavement is
white”—and it looked like water on the road until he got right at it and it was
too late to stop, and when the car hit the hole i’ knocked the wheel from his
hand and the car veered to the right and
W. VAt REPORTS STATE COURT OF ClAIMS 219
went out on the shoulder and right over
the embankment headfirst.
When asked what caused the car to turn over, tne driver of the vehicle replied:
‘‘W’ell. sir, the rear tire blew out, was one cause of it. The hole—when we hit
this hole. I lost control of the car: it jerked the wheel out of my hand, and
my left rear tire blew off, was the——”
We have heretofore held that no duty. express or. implied. rests upon the state
road commission of West Virginia to maintain the highways u-nder its
jurisdiction in more than reasonably safe condition for use in the usual manner
and by the ordinary methods of travel: and the state does nor guarantee freedom
from accident of persons travelling on such highways. Chariton, Admx. v. Road Commission, case No. 483.
The road under consideration is a well constructed primary highway. The paved
portion thereof is built of concrete of the width of twenty feet. There are two
lanes, each ten feet wide, with herms on either side. It is an extensively used
and travelled road. There is heavy hauling over it. Heat causes the concrete to
expand and from time to time rough places and depression.s are thus caused. The
‘hole” complained of in the present instance was the result of heat expansion
and heavy traffic. It extended for the greater part of the width of one lane,
but could not be said to constitute a hazard to any one using the road with
prudence and caution. The road commission had, however, repaired the road at
the place of the “hole” several times before the accident happened. When heat
caused it to “blow up” in July. 1945, five feet of the concrete pavement were
cut out and filled with “black lop” tar and limestone chips. It had to be
repaired again in the following November. Further repairs were made in
December, 1945. And it was again repaired in the first week of January, 1 946,
prior to the accident, at which time the depression was filled with pre-mix or
amacite. We think it may be reasonably said that the road commission was duly
diligent in making repairs to this particular section of the road when we
understand that there arc a hundred and
220 REPORTS STATE
COURT OF CLAIMS [W. VA.
fifty-four miles of primary roads in Fayette county to look after and keep in
order.
The evidence is conflicting in respect to the speed of the automobile at the
time of the accident. Claimant’s testimony would fix the speed at between
thirty and thiry-five miles an hour. Two eyewitnesses to the accident fixed the
speed at a higher rate. When the accident happened Albert Moran was right above
it. He estimated the speed of the car at fifty or sixty miles an hour. George
F. Olds who stood near Moran and slightly behind him, estimated the car speed
at forty-five or fifty miles an hour. Claimant himself testified that the
automobile was traveling between thirty and thirty-five miles an hour, but
since he was asleep when the accident happened his testimony could not be given
much weight. Physical facts sometimes speak louder than words. The automobile
did not turn over at the point where it struck the depression or hole in the
road. F. E. Springer, a member of the state police, made an investigation of
the accident immediately after it happened. He also made measurements and submitted
to his department his findings. He stated that after the automobile hit the
hole in the road it traveled for a distance of one hundred and two feet from
the hole to where the the righthand wheels started over the embankment, then
traveled sixty feet partly over the embankment until the trailer upset, pulling
tne rear end of the car around over the embankment, and causing the car to turn
over on its top in a ditch from a drain under the highway.
The evidence shows that the six occupants of the automobile at the time of the
accident had passed over the road “a good many times” in the preceding two
months—in the months of November and December—and the last time about a week
before the accident. In the case of Margaret
M. Smith v. State Road Commission,
1 Ct. Claims (W. Va.) 258, we held as follows:
“When an adult woman of good intelligence, while driving her husband’s
automobile on a state highway passes a hole on one side of said high way caused
by a
W.VA.] REPORTS
STATE COURT OF CLAIMS 221
break or slip on the rock base of said highway, which hole she could or should
have seen by the use of ordinary care, and on the same day, in the daytime
thereof, while driving said automobile in the opposite direction drives it into
said hole and the said automobile is precipitated over an embankment and she
sustains personal injuries in consequence of said accident, she will be held to
be guilty of contributory negligence barring a claim for an award for damages
occasioned by said accident.”
It is made clear from the evidence that all six of the occupants of the
automobile were familiar with the road having traveled it on different
occasions as above stated. Presumably they knew of the existence of the
depression or hole in the road, and if they did not they should have known by
reason of their acquaintance with the highway.
‘We do not think that the claimant has established a case entitling him to an
award. An award is therefore, denied, and the claim dismissed.
(No. 532-S—Claimant awarded $47.75)
WILLIAM G. GANTZER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opirion filed July 8, 1946
ROBERT L. BLAND, JuDGE.
It appears from the claim abstract in this
case that on August 9, 1944, while claimant was driving his Chevrolet
automobile across Junior Avenue Bridge. in Elm Grove, Ohio county, West
Virginia, on state. route No. 91, the end of a loose floor board in the bridge
flew up and caught the housing of the vehicle, causing damages thereto that
cost $47.75 to repair, for which claim is made against the state
road commission. The head
222 REPORTS STATE
COURT OF CLAIMS [W. VA.
of that agency concurred in the claim, prepared a record thereof, setting forth
the facts in relation to the accident, and filed the same with the clerk of
this court on April 4, 1946. An itemized statement of the costs incurred in
repairing the automobile was filed with this record. Payment of the claim is
recommended by the state maintenance engineer and the district engineer. It is
also approved for legislative appropriation by an assistant attorney general.
The claim is informally considered by this court upon the record submitted as
aforesaid.
In view of the recommendations made by officials of the road commission, the
concurrence in the claim by the state road commissioner and the approval for
payment by the attorney general’s office as aforesaid, an award is made in
favor of claimant William G. Gantzer, for forty-seven dollars and seventy- five
cents ($47.75).
(No. 535-S—Claimant awarded $95.19)
VALVOLINE PIPE LINES COMPANY, Claimant.
v.
STATE ROAD COMMISSION, Respondent.
Opinwn liled July , 1946
MERRIMAN S. SMITH, JuDGE.
On February 3, 1946, state road commission employees were working on secondary
road No. 7
in Pleasants county, West Virginia,
building a retaining wall which necessitated blasting out the rock for a
foundaton. One of the blasts threw stone over the hillside and broke the
two-inch oil pipe line belonging to the claimant, causing a wastage of 20.54
barrels of oil. A claim for the 20.54 barrels of oil at $2.94, amounting to $60.39. together
with labor and material for repairs to the pipe line, in the amount of $34.80,
making a total of $95.19, is presented for the loss sustained.
W. VA.J REPORTS
STATE COURT OF CLAIMS 223
Upon investigation and examination by
the state road comrnmission the payment is recommended by the head of the
department and concurred in by the attorney general.
An award is hereby authorized in the amount of ninety- five dollars and
nineteen cents ($95.19) to the Valvoline Pipe Lines Company by order of this
court.
(No. 472-S—Claimant awardtd $196.75)
BLAINE D. HENRY, Claimant,
v.
STATE ROAD COMMISSION, Respondent.
Opintoo filed July 1’}, 1946
MERRIMAN S. SMITH, JUDGE.
The circumstances out of which this
claim arose were that on the early morning of December 22, 1 944, claimant
Blame D. Henry was driving his Ford north on state route No 2 near Glendale,
Marshall county, West Virginia. As he approached the state road commission’s
headquarters one of its trucks, driven by William Kramer, was pulling another
truck with a twenty-foot chain onto the highway—it being a cold morning the
truck would not start on its own power. The claimant did not see the chain
across the highway until he was too close to stop so he collided with the chain
which threw him into the truck which was being towed, inflicting heavy damage
to the front end of his Ford. There was no flag or light on the tow chain,
neither were the lights burning on the truck being towed.
After due investigation by the state road commissions claim agent and upon
recommendation by the head of the state road commission, which recommendation
is concurred in by the attorney general, the claim is considered just and due.
Consequently, this court authorizes an award to claimant, Blame D. Henry, in
the sum of one hundred ninety-six dollars and seventy-five cents ($196.75).
224 REPORTS STATE
COURT OF CLAIMS [W. VA.
<No. 499—Clsim denied)
W. B. JORDAN and LENA JORDAN; BETTY LOU JORDAN and W. B. JORDAN, JR., infants
under the age of twenty-one years, by W. B. JORDAN, their father, guardian and
next friend, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed May 7, 1946
Rehearing denied July 15, 1946
‘When the state road commission, in thc exercise and discharge of a governmental
function, finds it necessary to renair a bridge spanning stream of water on a
state highway, removes the floor from such bridge in the performance of such
repair work, and in ordcr to warn persons traveling upon and using said highway
of existing danger at the point where the bridge is located, erects a
barricade, installs lights on either side of the bridge and provides a well
defined detour sign with reflector lights therein. an award will not be made to
claimants who attempted to drive an
automobile in the night time over the
said bridge from which such floor had been removed and thereby suffered
personal injuries and sustained property loss.
W. A. Thorr,hill Jr. and Watts, Poffenbarger,
& Bowks
(L. F. Poffenbarger) for claimants;
W. Bryan Spitters. Assistant Attorney General, for respondent.
ROBERT L. BLAND, JuDGE.
About three o’clock on the morning of September 2. 1945, claimants left their
home at Kopperston, Wyoming county, West Virginia, in a 1939 model Buick
automobile (owned and driven by claimant W. B. Jordan) to visit relatives in
the state of Pennsylvania. They travelled in West Virginia over what is
commonly called the Bolt-Glen Daniel highway, being a public highway leading
from Glen Rogers, in Wyoming
W.VA.] REPORTS STATE COURT OF CLAIMS 225
county, to Glen Daniel, in Raleigh county, They contend that about four-fifteen
o’clock, not yet daylight, near what is known as the Crouch farm, between said
Glen Rogers and Glen Daniel, the state road commission had been repairing a
bridge over which said state highway passes, and that said bridge had been
removed and there was no barricade, lights or warning signs of any kind to warn
the public generally that the said bridge was not in order, and that their said
automobile plunged from the said highway into the stream of water supposedly
spanned by said bridge, as the result of which each of said claimants was
seriously injured, requiring hospitalization and medical treatment for a long
period of time and that as further result of said accident the automobile owned
and operated by the said W. B. Jordan was completely demolished and thereby
became a total loss.
Claimants further contend that their injuries were caused by gross negligence
upon the part of employees of the state road commission, and not contributed to
in any way by themselves. They seek such damages and compensation for their
injuries and loss as may be fair and proper.
The state, by its plea filed in the case, denies all responsibility in the
premises.
A veritable mass of testimony was introduced upon the hearing of the claims.
This evidence has been carefully considered. The claims may well and easily be
determined upon the solution of a single issue of fact, namely did the state
road commission take proper steps and employ necessary measures to warn all
users of the highway of danger at the location of the bridge? Majority members
of the court find that it did. A sufficient barricade was erected, lights on
either side of the bridge were installed, and a well defined detour sign,
plainly marked, with reflector lights thereon, was provided.
Claimant, W. B. Jordan, who was operating the automobile at the time of the
accident, tesified that the highway was straight and level for over a half mile
before he reached the
226 REPORTS STATE
COURT OF CLAIMS [W. VA.
bridge. He should, therefore, have had good view of the reflector lights from
the detour sign.
In repairing the bridge the road commission was engaged in the performance of a
governmental duty, and where a governmental duty rests upon a state or any of
its instrumentalities, there is absolute immunity in respect to all acts or
agencies. Am. Jut. Vol. 49. Sec. 73, p. 284.
It does not follow that because an accident occurs on a public highway that the
state should make compensation for personal injuries suffered or property loss
sustained. It may be observed at this juncture that W. B. Jordan collected from
an Insurance Comoanv the sum of $88,OO on account of damage done to his
automobile in his unfortunate accident.
There was no “trap” at the bridge location The evidence of several witnesses
introduced and vouched for by claimants shows conclusively that the road
commission had safe-guarded the bridge in proper manner. The evidence offered
by the state left no doubt in that resoect.
Awards to the several claimants and each of them are denied and their claims
1ismissed by maioritv members of the court. Judue Schuck will file a dissenting
opinion.
CHARLES J. SCHUCK, JUDGE. dissenting.
While there are marked and distinct contradictions in the testimony submitted
in this case, yet, in my judgment, the evidence submitted on the part of the
claimant preponderates in his favor, and creates a presumption that those in
charge of the rebuilding of the bridge in question did not use the necessary
care to avoid an accident to a traveler on the highway at the time that the old
bridge had been removed and that the highway was left open without proper
precautions to the travel’ing public.
A number of witnesses testified both for the claimant and the respondent and,
giving weight to the nature of the tesiti
W.VA.J REPORTS STATE COURT OF CLAIMS 227
mony offered, I am driven to the conclusion as indicated, that the witnesses
who testified for the claimant, especially those whose depositions were taken
at Beckley, were strong in their statements that the proper precautions had not
been taken by the road crew in charge of the reconstruction of the bridge.
Several of these witnesses passed the point of the accident as late as nine
o’clock on Saturday night, the night before the accident, and seemingly were so
confused by the situation that was presented, that they stopped their cars, got
out to make an examination of the road before proceeding, and found that no
warning lights were burning at that time. This was a highly dangerous situation
that confronted the traveling public, and extraordinary precautions ought to
have been taken to avoid accidents that might result either in death or Serious
injuries to a traveler.
An examination of the testimony given by the witness, Eller, who was the bridge
foreman in charge of the reconstruction of the bridge at the time, shows
without contradiction that the crew working on the reconstruction left the
bridge at six-thirty o’clock on Friday evening previous to the accident and
that he was the last one there and left at the time indicated; that no member
of the crew, including himself, visited the scene of this work at any time on
Saturday, and that his first appearance was made at the place in question at
nine o’clock on Sunday morning, some time after the accident to the claimants
had occurred. Assuming that the proper barricades were constructed at the time,
although there is some question in this respect, the fact remains as shown by his
testimony that only two lights or flares, one on each side of the opening
caused by the removal of the bridge, were placed and that it was intended that
these lights or flares should be notice to the traveling public during all day
Saturday, Saturday night, Sunday, and Sunday night, before the crew would
return to continue the work of the reconstruction of the bridge on Monday
morning. This fact, in my opinion, does not show the necessary precautionary
measures to safeguard the interest of the traveling public on the highway being
repaired. The highway involved s
22 REPORTS STATE
COURT OF CLAIMS [W.VA.
one of the main arteries in that section of the state; traffic is heavy on it;
it was and is much traveled; yet in view of these facts there was to be no
inspection on Saturday evening by the road crew, or any member of it, to
ascertain whether or not the flares were still burning and whether or not the
barricades were still in place, as they had been left the day before. The road
crew did not work on Saturday.
The witness FlIer says that a new supervisor was to take charge on Monday
morning and that it was his, Filer’s duty, (record page 88) to simply place the
flares on Friday evening and pay no further attention to them. The new
supervisor so far as the record reveals neither made an inspection nor had
anyone else do it on Saturday or Saturday night to ascertain whether or not the
lights and the flares in question were still in place and properly burning as
warnings to travelers; this, of itself, was negligence, in my judgment. I am of
the opinion also, that flares cannot be expected to remain lit for 40 to 48
hours, at least it would seem reasonable not to take chances in this regard,
and that an examination should be made at least within 24 hours where a highly
traveled road is left open as this highway was, and where the likelihood of a
serious accident is so imminent. I repeat that, in my judgment, the testimony
preponderates in favor of the claimant that the proper precautions were not
taken to warn the traveling public of the condition that existed at the place
of the accident, and to indicate that the bridge had been removed; that the
necessary steps to see that these barricades and flares were still in their
proper places on Saturday had not been taken, and that at the time of the
accident, through no fault of claimants, there were no warning signals
sufficient to inform him of the dangerous situation that was ahead of him on
the highway in question. Under these conditions, I would favor an award.
Upon petition for rehearing.
Rehearing denied by majority of the
court on July 15, l46, Judge Schuck dissenting.
W.VAJ REPORTS
STATE COURT OF CLAIMS 229
(No. 530’—Claim dismissed)
MARGARET GILPIN MORROW, et als, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 17, 1946
Where the facts presented in a claim
filed show clearly that this court is without jurisdiction, a motion to dismiss
will be sustained.
Appearances:
Claimant, Marqaret Gilpin Morrow, for claimants:
Eaton B. Stephenson, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimants, the owners in fee of a certain tract of rand comprising about 51.08
acres situated in Cabell county, West Virginia, ask for damages in the amount
of $5000.00 for the wrongful appropriation by. the state road commission of a
portion of said tract now used as a public road and known and designated on the
state road maps as “secondary road No. 46.” Claimants allege that the said
appropriation of the land in question took place in the summer or autumn of
1934 and that work on the road was started and carried on by the commission in
the fall of 1 945. Claimants, one of whom has died since the filing of this
claim, were non-residents of the state and seldom visited or saw the said
tract. They allege further that they have never received any notice of the
alleged appropriation by the state and did not know of the road commission’s
action until a long time after the entry and taking of the said portion of
land. No action to compel the road commission to institute condemnation
proceedings has ever been taken by the claimants or either of them. In fact, no
suit or action of any
230 REPORTS STATE
COURT OF CLAIMS [W. VA.
kind, except the presentation of the claim here, has ever been instituted by
the claimants, or either of them, to seek or obtain redress for the alleged
trespass.
Under the foregoing allegations and facts the respondent filed a motion to
dismiss in the nature of a plea for want of jurisdiction on the part of this
court to hear and determine the issues involved, and argued that the act of the
Legislature creating the Court of Claims specifically denied it jurisdiction to
hear any claim in respect to which proceedings in the state courts may be
maintained.
It is obvious that the record before us and the facts as revealed clearly show
that whatever rights claimants have or may have had should or ought to have
been asserted in the state courts and that no claim is here presented, the
determination of which is within the jurisdiction of this court to hear and
decide. Clearly, under the laws of our state, any question of damages incident
to or occasioned by the alleged appropriation of the land by the road
commission would first have to be determined in a proper proceeding in a state
court.
The motion to dismiss the claim is therefore sustained.
‘. VA. I R1clOkl SS I Al I (OUR! 0! Cl.ARIS
231
(No. 53 l—Claimant awarded $462 (JO)
BERKELEY PRINTING ‘ PUBLISHING COMPANY.
a corporation, Claimant,
V.
STATE AUDITOR, Respondent.
Opinion filed Julq 17, 1946
When a publishing company
publishes legal notices contracted for by - constirtoional authority, as prescribed by statute, it bec’mes a just
obliga
tion and an award should be made.
Harry H. Byrer. Jr., for claimant:
W. Bryan Spillers. Assistant Attorney General, for respondent
MERRIMAN S. SMITH, JuDGE.
The Berkeley Printing Publishing
Company, a corporation doing business in \1artinsbur, Berkeley
counts’. \Vcst Virginia, was requested to publish not ices t es redeem
from sale to the public land corporation, during the monthc ot January,
February and March ol 1.Q43, by \Villiam ID. Morton. clerk of the circuit court ot
Berkeley county. West Virginia, and Charles A. Gain, deputy clils,sieincr for t orleited and
delin(Itlent lands for the county cit Perkelev , \\‘et
\‘troinia ‘I’he said puN shin .omjiany advertised these reJemiion notices as prescribed
by the I 4 I Acts of the Legislature, chap. 117. art. 1. see. %( ‘ 3S,
and rendered two stjiein.’n’s. iii: one for 8 certification numbers in the amount of SI 4’) 00 the (ii her I cii’ $ ccci Ilk ,iii tin 1111111 bei s in the a moon t cit S 31 8 OCt.
inakin .1 tci!al cii 510 .t1t)
On Nl.usli 2o. 104 lhe Supt me ciutit cit -\jmcals cii \Vcst
\7jieini.i, iii lie sase cii ,ir”,s. .- . ‘i ti/s v . .Judc,
12 \V Va. I 2. .‘
S Is ,‘d) ‘
I o, dcclii .‘d a luri cii the
11)41 At iii the I esislaiute inscil,ii .ts ii tecistites
peman
232 REPORTS
STJVFE COURt’ OF CLAIMS [W. VA.
of administrative duties by circuit courts in connection with sale of lands for
the benefit of school funds to be unconstitutional. As a result of this
decision the payment of the obligation of $462.00 to the claimant has not been
made and is still due and unpaid.
When a publishing company, acting in good faith, publishes legal notices
contracted, for by constitutional authority, as prescribed by statute, it
becomes a just obligation and the fact that a part of the statute is declared
unconstitutional at a later date is not sufficient reason for nonpayment of an
honest debt. The integrity and credit of the state of \Vest Virginia should be
beyond question at all times and common right and justice demand that its
creditors should have no fear that such obligations will not be honored so long
as it is a sovereign state.
The failure to pay the state’s just obligations because of a technicality
arising from the subsequent declaration of the law under which the obligation
was created as unconstitutional would be a blot upon the escutcheon of the public
policy and character of the state and a condition might arise whereby its
prospective creditors would demand cash payment before the performance of the
contract for fear that the statute under which it was authorized might be
declared unconstitutional and payment be denied only by virtue of such
technicality.
This court recommends an award in the amount of four hundred and sixty-two
dollars ($462.00) to claimant, the Berkeley Printing and Publishing Company. a
corporation. of Martinsburg. West Virginia.
W. VA.] REPORTS
STATE COURT OF CLAIMS 233
(No. 540—Claim dismissed)
B. Y. McVEY, Claimant.
V.
STATE DEPARTMENT OF MINES, Respondent.
Opinion
filed July 18, 1946
Wheee the petition filed and the
testimony adduced clearly show that the claimant has the right to have his
claim heard and determined us a state court, this court is without jusisdiction, and a
motion to dismiss for want of jurisdiction will be sustained.
Appearances:
Claimant, in his own behalf;
Eston B. Stephenson. Assistant Attorney Generaf, for the state.
CHARLES J. SCHUCK, JUDGE.
Claimant, P. Y. McVey heretofore filed his petition asking for an award
of $1650.00, representing five months salary as a state mine inspector at a
salary of $325.00 per month, from August 1, 1945 to December 31, 1945. Claimant
had for some years previous to August 1, 1945, been employed as
a mine inspector by the state department of mines; was serving a four-year
term, expiring December 3 1, 1 945, when he was dismissed without cause from
the service effective July 3 1 * 1 945. as he
maintains in his petition, and has never been paid for the ve months period
remaining in the said term of employment. To his petition and application for
an award by this court the department involved filed a general denial of
1ibility and a special plea asking the court to dismiss the case or claim on
the ground that claimant had an adequate remedy in the circuit courts of this
state, and that, therefore, this court was without jurisdiction to hear and
determine the matters here presented.
The act of the Legislature creating the State Court of Claims specifically
provides, subsection 7,
section 14 of chapter 20 of
234 REPORTS STATE
COURT OF CLAIMS [W.VA.
the Acts of 1941, that the jurisdiction of this court does not extend to any
claim upon which a proceeding may be maintained by a claimant in the courts of
the state.
In a case based on facts almost identical with those revealed by the hearing
before us, our Supreme Court of Appeals took jurisdiction of an original
proceeding in mandamus inter alia the issuing of a requisition for his full salary during
the period of petitioner’s ouster. See L.ePage
v. Bailer,, 114 W. Va. 25. LePage
had, likewise, been a district mine inspector regularly appointed for the term
of four years, ending December 3 1, 1933. and by action of the chief of the
department of mines was summarily dismissed from the service as of March 20,
1933, leaving approximately nine months remaining during his regular term of
service for which he had been appointed. He was not paid for the unexpired part
of the term and in his petition for the writ of mandamus asked payment
accordingly. The writ was awarded and this action on the part of the Si preme
Court clearly shows that the claimant here has an ade quate remedy in the
courts of our state and that therefore the Court of Claims is without
jurisdiction to hear and determine the issues presented by claimant’s petition
and testimony.
We, therefore, sustain respondent’s motion tc dismiss the claim.
W.VAI REPORTS
STATE COURT OF CLAIMS 235
(No. 534—Claimant awarded $3341.52)
LEROY ROBERTS, Claimant.
V.
STATE BOARD OF CONTROL, Respondent.
Opinion filed Julj 19, 1946
Pursuant to the purpose and spirit cf
the Act of the Legislature creating the State Court of Claims, an award may be
made for the payment of a claim against the state when the peculiar facts
supporting such claim show it to be just and meritorious and for which the state
has received distinct value and benefit.
Blessing & Musgraue
(R. A. Blessing) for claimant:
Eston B. Stephenson, Assistant Attorney General, for respondent.
ROBERT L. BLAND, JuDGE
The claim in this case is for materials furnished and labor performed in
repairing a water tank at Concord College, a state institution, located’ at
Athens, in Mercer county, ‘W’est Virginia. The West Virginia board of control,
a state agency’, has control of the finances and business affairs of said
Concord College and is vested by statute with title to all of its property.
A large tank, installed abou’ the year 1922
upon a tower one hundred and fifty
feet in height from the ground at an elevated location, supplies water and
furnishe fire protection not only to the various college buildings but
also to the inhabitants of the town of Athens. The water for this tank is
obtained from wells drilled on the college premises. The bottom of the tank had
deteriorated over a long period of use and was leaking. It was possible that
electrical apparatus employed to precipitate the water into the tank also
contributed to the condition of the bottom of the tank, or its deterioration
could have
236 REPORTS STATE
COURT OF CLAIMS [W. VA.
been caused by electrolysis. Temporary repairs had been made but no substantial
results accomplIshed.
Claimant LeRoy Roberts, a contractor of Huntington, West Virginia. skilled in
the line of his work, had successfully and very satisfactorily repaired a tank
at Lakin, an institution for the treatment and care of the colored insane
persons of the state and also done other good work at the instance of the board
of control. With such knowledge, W. C. Cook, treasurer of the board of control,
communicated in writing with J. F. Marsh, then president of the college and now
president emeritus, having been succeeded as head of the institution by Virgil
H. Stewart, suggesting claimant as one who might be interested in examining the tank in
question for possible repairs during the college vacaton in August. President
Marsh did take up the matter with claimant on the 27th of June, 1944. Claimant
thereafter made a personal inspection of the condition of the water tank and
recommended the requirement of a new bottom in order to give satisfaction. The
bottom of the tank was leaking and practically worthless. Claimant was then
directed by President Marsh to go ahead and order a new bottom for the tank,
since an emergency existed. This was deemed expedient since they “would have no
fire protection whatever for the building or the city.” Claimant immediately
contacted the former fabricator of the tank and obtained a quotation as to the
cost of a new bottom for the old tank. This quotation was 525.OO f. o. b.
Neville Island, Pittsburgh, Pennsylvania. The new bottom was ordered by
claimant and ready for shipment but the plant went on strike and the new tank
bottom could not, for that reason, be gotten away from the factory. When the
bottom finally reached the college in November, claimant removed the old
section of the tank and put in the new bottom, but by this time it was the
latter part of November and the weather was beginning to get cold. It was necessary
to carry an emergency line on the tank in order to protect the buildings and to
give the town of Athens, seat of the college, an immediate water supply. Also
by this time there was a blizzard and the overflow line froze. Ice about four
feet thick accumulated around
W. VA.] REPORTS STATE COURT OF CLAIMS 237
the stand pipe and over all of the equipment and a considerable section of the
buildings. This blizzard lasted about four days during which time claimant and
his force of workmen could not get back on the tank, Similar conditions of the
weather continued from time to time, lasting two to three and one-half days and
which necessarily retarded the progress of the work and added materially to its
cost.
VJhile the emergency line was frozen, the superintendent of buildings and
grounds cut the water back into the tank thus causing considerable trouble and
subjecting claimant to a further and greater outlay and expenditure of money.
The evidence discloses that claimant in order to place the new bottom in the
tank actually paid the total sum of $3507.02. Of this amount he paid for the
new bottom and other materials necessarily used on the job $1141.89. He had a
force of about six men from time to time and paid his labor $2365.13. He also
purchased and used materials for which he made no charge against the state. During
the time the work was in progress workmen employed on the job were furnished
meals at the college at a total of $165.50
for which amount he gives due credit.
The evidence further reveals that claimant made no profits whatever on the
transaction, but actually lost money.
The claimant had no formal contract in writing with the board of control, but
it clearly appears that the work was authorized by at least one member of the
board and by the president of the college. Claimant was assured that his proposal
would be held and treated as a contract for the work and that the president of
the college was arranging for the execution of a contract. The work was
irregularly done insofar as a contract was concerned, but it was well done and
entirely satisfactory to the president of the college and to the board of
control, Two members of the board testified before this court to that effect
and expressed the opinion that the work should be paid for. The state has
received distinct value and benefit from the work. The claimant has acted in
good faith and has never received any compensation for his labor or outlay of
money. V/e believe that the claim is possessed of peculiar worth and
238 REPORTS STATE
COURT OF CLAIMS [W. VA.
merit, and is an obligation which the state should discharge. We are impressed
by the thought that the claim is in fact a distinct moral obligation of the
state.
An award is, therefore, made in favor of claimant, LeRoy Roberts, for
thirty-three hundred forty-one dollars and fifty- two cents ($3341.52).
(No. 539—Claim denied)
NELVINA LOGAN, admx. of the estate of JOHN H.
LOGAN, deceased, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed July 23, 1946
When an employee of the state
contracts loar pneumonia and dies therefrom
arid the testimony fails to connect the incLpiency of the disease directly with
any act of his employment there will be a denial of an award.
Appearances:
Emerson W. Salisbury and H. R.
Hark, for claimant;
Eston B. Stephenson, Assistant Attorney General, for responden t.
MERRIMAN S. SMITH JUDGE,
John H. Logan, employed as a laborer with the state road commission at Mount
Carbon, Fayette county, West Virginia, contracted lobar pneumonia and died on
December 14, 1944. His daughter, Nelvina Logan, the duly appointed
admi,nistratrix of his estate, instituted this claim for damages against the
state road commission alleging negligence on the part of the state in not
furnishing proper transportation for its employees to and from work. The
testimony was to the effect that the
W.VA.j REPORTS
STATE COURT OF CLAIMS 239
state provided an open dump truck in transporting four or five of its
employees, among them the deceased, from Mount Carbon to various projects
ranging from eight to twelve miles; and at this season of the year the work was
principally cindering or patching the highway and that under these conditions
it was not practical to use a tarpaulin for the men while thus engaged.
It was further adduced from the evidence that Logan had suffered from an
asthmatic condition for a number of years, and during the week prior to his
critical illness he had contracted a cold, but notwithstanding this condition.
he worked every day up to and including Saturday, and on Sunday he became
critically ill and when a physician was called on Monday he diagnosed the
illness as lobar pneumonia from which he (Logan) died on Thursday.
The testimony further brought out the fact that on Saturday night Logan walked
about a mile to the store and back to his home; and from the very nature of the
disease of lobar pneumonia it is quite possible that such exposure on a wintry
night could have easily caused the disease in question to be contracted by a
person of his age and especially so in his already susceptible condition. There
was not a scintilla of evidence that connected his development of pneumonia
with any act of omission or commission on the part of the state, and it would
be a travesty of justice t impose damages for a death from natural causes, as
adduced from the death certificate filed as evidence in this claim, and
especially since the very nature of the work assumed by the decedent during the
previous three years was largely in keeping the snow and ice off the highways
during the inclement wintry blasts, so prevalent each year throughout this
mountainous section, and to which the deceased was accustomed.
This court refuses to recommend an award to the claimant herein.
240 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 549-S——Claimant awarded $24.48)
CHARLES A. STUKEY, Claimant,
V
STATE ROAD COMMISSION, Respondent.
Opinion filed October 19, 1946
MERRIMAN S. SMITH, Judge.
On the morning of January 5, 1946, while blasting the concrete floor of a
bridge over Worthington Creek on state road No. 47, in Wood county, West
Virginia, the concussion followed a ravine for a distance of about 1200 feet,
damaging the sash and window size 55” x 67”, in the home of claimant, the cost
of repairs amounting to $24.48.
This claim was concurred in by the state road commission and approved by the
attorney general under the shortened procedure provision of the Court of Claims
Act, and after due consideration by the Court of Claims an award in the amount
of twenty-four dollars and forty-eight cents ($24.48) is hereby granted to the claimant.
(No, 550-S—Claimant awarded $25.00)
L. E. VAN CAMP, Claimant,
V
STATE ROAD COMMISSION, Respondent.
Opinion filed October 19, 1946
MERRIMAN S. SMITH, JUDGE.
The employees of the state road
commission were blasting in soapstone rock on the Wolf Pen Road, secondary road
No. 32,
W. VA.j REPORTS
STATE COURT OF CLAIMS 241
in Tyler county, West Virginia, on September 7, 1945. In so doing
rocks were thrown for a distance of about 200 feet, damaging the metal roofs of
the house and barn and breaking ten 8” x 10” window glass in the home belonging
to claimant to the extent of $2500.
The state road commission, the state agency concerned, concurs in this claim
and the attorney general approves the claim and recommends payment.
An award is hereby granted to claimant, L. B. Van Camp, in the sum of
twenty-five dollars ($25.00).
(No. 551 S—Claimant awarded $85.87)
HERMAN BUCHANAN, Claimant,
V
STATE ROAD COMMISSION, Respondent.
Opioion filed October 19, 1946
CHARLES J. SCHUCK, Judge.
On March 16, 1946, certain employees of the state road commission were engaged
in painting or marking certain lines in and upon route No. 2 in Brooke county,
West Virginia, and used in connection with this work a certain steel marker,
the purpose of which was to keep passing cars and trucks off the newly painted
lines and away from the wet paint.
The record discloses that on the day in question, after the employees had
finished their work they left the steel marker lying on the highway having
failed to remove it, and while claimant’s truck, loaded with coal, was passing
over and along said highway jri southerly direction, the truck ran over the steel marker in question cutting a hole in the new
tire on claimant’s truck, so large that the tire was beyond repair and had to
be discarded or “junked.” It seems that the steel marker
242 CLAIMS [W. VP
was lying on the right side of the road in the path of claimant’s oncoming ruck
causing the injury to the dual tire on the right rear wheel. The value of the
tire at the time of the accident is fixed at $85.87. The officials of the state
road commission recommend payment and this recommendation is approved by the
attorney general. An award is therefore made in favor of the claimant in the
sum of eighty-five dollars and eighty- seven cents ($85.87).
(No.
553-S——Claimant awarded $1 50.00)
J. F. BOND, Claimant.
V
STATE ROAD COMMISSION, Respondent.
Opinion flied October 19. 1946
ROBERT L. BLAND, Judge.
The claim in this case, for which an award is made, is predicated upon the
damage resulting from a dynamite explosion which occurred on secondary road No.
18/1, in Nicholas county, West Virginia, under the jurisdiction of the state
road commission, on June 18, 1946. On that day, according to the record of the
claim, prepared by the head of the state agency against which it is asserted
and filed in the Court of Claims on September 18. 1946. in Nicholas county,
West Virginia, Edward Spencer and his son, Lindbergh Spencer, employees of the
state road commission, put off a shot of dynamiate, drilled type, two hundred
and forty feet from where claimant J. F. Bond was working his horse ploughing
corn. The horse, becoming frightened by the blast, rn away with the cultivatrr
plow attached. The animal’s right rear leg b’low the hock joint was so badly
lacerated that it was necessary to destroy it. The evidence shows that the
horse was valuable and that its reasonable worth was $1 50.00. Claimant
only asks that amount by wiy of damages, although it appears
W. VA.] REPORTS
STATE COURT OF CLAIMS 243
that his plow and harness were broken and damaged, As a result of the accident
it appears from the record that claimant was obliged to expend approximately
$90.00 to do the work in which he was engaged when the blasting occurred. No
warning of the intended blasting was given at claimant’s dwelling house
approximately five hundred feet from the point where the blasting was done.
Proper precautionary measures against danger were not employed by the employees
of the road commission. The claim is concurred in by the state road commission
and approved by an assistant arorney general. The state maintenance engineer,
the district engineer and the state claim agent recommended compensation to the
claimant.
In our opinion the claim in question is meritorious and one for which an
appropriation of the public revenue should be made by the Legislature; and an
award is, therefore, made in favor of claimant J. F. Bond for the sum of one
hundred and fifty dollars, ($150.00).
(No. 555-S—Claimant awarded $7275)
ROSE LEMASTERS, Claimant,
V
STATE ROAD COMMISSION, Respondent.
Opinion filed C)ctobet- 19, 1946
CHARLES J. SCHUCK, Judge.
Claimant, a seamstress, while walking or crossing a bridge over Middle Island
Creek in Tyler county, at about ten o’clock 1. M., on August 17, 1946, was
obliged to step to the west side of the bridge to avoid an oncoming automobile;
this action on her part being further necessary by reason of the construction
of the bridge and to save herself from being struck by the. automobile. In so
doing she stepped into a hole in the bridge 4nd sustained injuries to her knee
and thigh. The bridge forms
244 REPORTS STATE
COURT OF CLAIMS [W.VA.
part of secondary road No. 7, and is known as the Middlebourne-Wick Road. Her
injuries were of such nature as to require the services of a physician who made
six visits to her home to treat and dress her wounds, and who charged $22.75
for his services. The physician, as shown by the record, treated her for about
three weeks before she was discharged from his care and attention. in addition
to the physician’s charge she claims an additional fifty dollars for her loss
of services. No itemized account is before us as the value of said services.
However, when we consider that she required a physician’s attention for a
period of three weeks and the pain and suffering incident to her injuries, we
feel that the amount claimed is just and reasonable. The department involved
recommends payment of the claim and the attorney general concurs in the
recommendation. Accordingly an award is made n the sum of seventy-two dollars
and seventy-five cents ($72.75) in favor of the claimant, Rose LeMasters.
ROBERT L. BLAND, Judge, dissenting.
in my opinion the facts set forth in the record of this case, prepared by the
state road commission and filed in this Court under the provisions of sec. 1 7
of chapter 14 of the code, are insufficient to justify or authorize an award in
favor of the claimant. The only facts actually established are that the
claimant met with an accident on a state-controlled highway and incurred
liability to pay a physician the sum of $22.75 for medical services rendered.
Such medical treatment was received according to the record, showing, from
August 18, 1946, to September 9, 1946. It is true, however, that claimant
deposes that she is a seamstress and added: “I estimate that loss of time from
my sewing due to the injury will be 5O.OO.” This is purely speculative. There
is no proof that she had any sewing opportunities or engagements.
Claimant and the companion were returning home about ten o’clock at night from
a friend’s house and found it necessary to cross the bridge spanning Middle
Island Creek on the Midlebourne-Wick secondary road in Tyler county, West
Virginia, and were walking on the left side of the bridge about
W. VA.]
REPORTS STATE COURT OF CLAIMS 245
half way across the bridge when they were crowded to the west side by an
automobile. The claimant stepped into a hole in the floor of the bridge. How
long had the hole been there? ‘Was it there when claimant with her companion
crossed the bridge to visit a friend? Did they cross the bridge in the daytime?
The court is not advised as to these facts. ‘Why not? If claimant crossed the
bridge in the daytime and the hole was in the bridge at that time she could
have seen it or should have seen it.
In respect to claim No. 118, Marguerite
M. Smith v. State Road Commission, I Ct. Claims (W. Va.) 258, we held as follows:
“1. When an adult woman of good intelligence, while driving her husband’s
automobile on a state highway passes a hole on one side of said highway caused
by a break or slip on the rock base of said highway, which hole she could or
should have seen by the use of ordinary care, and on the same day, in the
daytime thereof, while driving said automobile in the opposite direction drives
into said hole and the said automobile is precipitated over an embankment and
she sustains perconal injuries in consequence of said accident, she will be
held to be guilty of contributory negligence barring a claim for an award for
damages occasioned by said accident.”
This court is in no position to make an award of the public revenues of the
state unless it is made to appear affirmatively to the court that the facts
supporting such claim establish the meritorious character hereof. The court
cannot arbitrarily make an award. It is the duty of the Legislature to
safeguard the public funds. This court should not be held to be a mere
ratifying instrumentality. An award should not be made, even though the claim
in question is concurred in by the head of the state agency involved and
approved by the attorney general’s office, in the absence of facts found in the
record upon which an award could be properly based.
Because I find that the award made in his case is purely arbitrary and not
supported by facts waranting it. I respectfully dissent from the action of my
colleagues.
246 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 552—Claimant awarded $3 00.00)
ALFRED F. DEMILIA, Claimant,
V
DEPARTMENT OF PROBATION AND PAROLE,
Respondent.
Opinion filed November 7, 1940
To release a prisoner from the
penitentiary upon parole without having a bond executed as required by chap.
62, art 12, sec. 17, of the code of West Virginia, is improper and in violation
of said provision and makes the State liable for any injury that said parolee,
as such may cause to any person during the period of his parole.
Appearances:
Hendricks, Jones Bouldin (D. B.
Jones), for the claimant:
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, Judge.
On December 6, 1945, and in the nighttime of the said day, claimant, a
practicing physician in the town of Whitesville, Boone County, had his 1939
Packard automobile stolen by one Edward Linville, a parolee from the West
Virginia penitentiary. While being driven along highway route No. 3, in said
county, by the said parolee, the car was wrecked and damaged and the claimant
now asks for an award by this court in the sum of $950.00 to cover the repair
bill, loss of use of the automobile, and depreciation.
Claimant maintains that the said parolee was released from the state
penitentiary without executing a bond as required by chap. 62, art. 12, sec.
17, of the code of West Virginia, which provides, inter alia, that
one so parolled:
shall enter into a bond in such sum as the director may require. with or
without sureties, to
W. VA j REPORTS STATE COURT OF CLAIMS 247
perform the conditions of his parole, which bond shall be payable to the state
of West Virginia and shall be for the protection of all persons injured by any
breach of the conditions of the parole.”
The evidence reveals that the authorities at the penitentiary had drafted the
form of the bond to be required, in the sum of $300.00, but that the same had
never been executed, at least by the sureties named therein. The evidence as to
whether the bond was executed by the parolee himself is not satisfactory and
one of the intended sureties testifies positively that when the bond was received
by him no signature of any kind had yet been appended to it. The reason that
the intended sureties failed to sign the bond or to execute it, was because of
the fact that at the time that it reached them in their home county, the said
parolee had already been released from the state penitentiary and consequently
the sureties refused to sign the bond. Of course, it is obvious that Linville
ought not to have been released until a good and sufficient bond was fully
executed. It is, therefore, manifest that his release without the bond was
improper and that having committed the crime of stealing claimant’s automobile,
for which he was later convicted, the state must be called upon to answer for
the default of its agency, and to make such amends and pay such damages to
claimant as would have been paid him had the bond been properly executed.
The bond, as submitted to the intended sureties, was in the amount of $300.00.
The testimony shows that this is the usual amount required in cases of release
of convicts on parole from the sta’e penitentiary. If the bond had been
executed as intended claimant would be entitled in our oDinion to the sum of
$300.00.
TaIing all of the matters into consideration, including the age of the
automobile, its value immediately before and after being wrecked, and the fact
that claiman’ received $1000.00, from the sale thereof, we are of the oinion
that the sum of three hundred dollars ($300.00) would be sufficient to cover
claimant’s loss and make an award accordingly.
248 REPORTS STATE
COURT OF CLAIMS {W. VA.
(No. 548—Claimant awarded $252.06)
APPALACHIAN ELECTRIC POWER COMPANY,
• Claimant,
V
STATE ROAD COMMISSION, Respondent.
Opinion
fIled November 7. 1946
Claimant is entitled to an awar I for
the burning and destruction of its transformers where a fire is rcgligeiitly
started under tar barrels in close proximity to claimant’s poles and
transformers which fire caused the said tar to overflow and explode and desroy
th property of the claimant,
Appearances:
Charles Tutwiler, for the claimant;
WI. Brgan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, Judge.
On March 14, 1945, and for some time prior thereto, the claimant, Appalachian
Electric Power Company, had been engaged in the business of furnishing electric
power to the community and city of Welch, as well also as to the Welch
Emergency Hospital, a state-owned institution. The poles. elec’ nc lines, and
transformers of claimant were located over and upon a right-of-way controlled
by the state road commission and for the construction of his equipment the
claimant had theretofore obtained the permission of the said commission in
order that electricity might be supplied to the said state emergency hospital.
On the day in ques ion a crew of the state road commission was engaged in
making repairs on what is known as Stewart street in the said city of Welch and
during the said o ‘eration was obliged to heat tar, contained in barrels, for
h.e purpose of
W.VA.J REPORTS
STATE COURT OF CLAIMS 249
spreading the said material on the street in question. An employee of the said
street crew, not heeding the instructions given him by his superior to keep the
barrels of tar in question far enough away from the poles and equipment of
claimant, started a fire under the said barrels when they were located about
fifteen feet from the said transformers; the fire under the barrels became so
intense, as to cause the tar to overflow and explode, setting fire to the poles
and transformers in question then belonging to claimant. The employee in
question frankly admits his failure to follow the instructions of the foreman
and says that had the tar been heated at a place of safety the destruction of
the property in question would not have occurred, (record p. 20). The foreman
also testifies that he had given the said instructions, but that they were not
heeded.
Under the circumstances, it is obvious that the employee in starting the fire
at the place near claimant’s equipment was guilty of such negligence as to
warrant an award, since it is conceded that the claimant had a full right to
the use of its poles, wires, transformers, and equipment at the place and
points where they had been constructed and used for the purpose of furnishing
electricity and light to the hospital in question. The claim is in the amount
of $252.06, as shown by the evidence and has heretofore been recommended for
payment by the state road commission and approved for payment by the office of
the attorney general.
We are of the opinion that the claimant is entitled to an award in the amount
of two hundred and fifty-two dollars and six cents ($252.06), and so hold.
250 REPORTS STATE
COURT OF CLAIMS [W. V
(No. 545—Claimant awarded $400.00)
JIMMIE MARKS, an infant who prosecutes his claim by
CHARLEY MARKS, his next friend, Claimant,
V
STATE ROAD COMMISSION, Respondent.
Opinton filed November 7, 1946
A case in which, upon the facts
proved, an awar s made in favor of a infant male child who suffered a
broken arm while crossing over a defective bridge on a state-controlled
highway.
Charles
A. Duffield, Jr., and John H.
Fox, for claimant.
W. Bryan Spillers, Assistant Attorney General, for respondent.
ROBERT L. BLAND, Judge.
On the 21st day of June, 1946, claimant, Jimmie Marks, fifteen years of age,
who prosecutes his claim against the state road commission by Chancy Marks, his
father and next friend, left his father’s home in Braxton county. West
Virginia, on horseback, for the purpose of going to the farm of Victor Bender,
some miles distant, to assist the latter in putting up hay. The horse he was
riding weighed between eight hundred and nine hundred pounds. When he attempted
to cross the small wooden bridge on Little Otter Creek, on a secondary road
under the supervision and control of the state road commission, one leg of the
horse fell through a defective and rotten portion of the bridge. As a result of
this accident the boy was thrown from the horse into the creek. By reason of
the fall the boy’s left arm was badly broken below the elbow. He was removed to
a hospital at Gassaway for care and treatment. A citizen of Braxton county
examined the bridge on the eve ning of the day of the accident, and found that
the particular plank in the bridge through which the horse’s foot fell was
rotted to the extent that he broke off pieces of it with his hand.
W.VA.] REPORTS
STATE COURT OF CLAIMS 251
One of the bones in the boy’s arm protruded through the flesh, and he was
obliged to wear a cast for more than two months, and endured exceeding pain and
suffering. Although there has been improvement in the arm it will remain
permanently crooked and deformed.
Giving due consideration to all of the evidence heard upon the investigation of
the claim, we are of opinion that an award should be made.
An award is, therefore, made in favor of the claimant for the sum of four
hundred dollars ($400.00).
(No. 48—Motion denied)
J. C. RICHARDS, Claimant,
V
STATE BOARD OF EDUCATION, and BOARD OF
EDUCATION OF CALHOUN COUNTY, Respondents.
Opinion
Med November 8, 1946
The Court of Claimc is without
jurisdiction to hear and determine or
to make an award in any matter or claim involvi g a county boar of
education. Reaffirming Dillon V. Board of Education, 1 Ct. Claims (W. Va.)
366.
Appearances:
R. E. Bills and I. M.
Underwood for the claimant;
W. Bryan Spillers, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, Judge.
This proceeding is in the nature of a motion to vacate an order heretofore
entered by this court, reversing an award of $5,000.00 to claimant and denying
the award on the ground that the Court of Claims was without jurisdiction to
hear and
252 REPORTS STATE
COURT OF CLAIMS [W. VA
determine any matter involving a claim against a county board of education.
This claim was first presented to this court at the April term 1942, and
involved serious and permanent injuries to a child, Ernestine Richards, eight
years of age, caused by her clothing catching fire from an open fireplace in a
one-room schoolhouse located in Calhoun county.
The majority of the court favored an award and fixed the amount at $5,000.00. I
dissented on the ground that, in my opinion, a county board of education was
not a state agency as contemplated by the act creating the Court of Claims and
that therefore we were without jurisdiction to hear and determine the merits of
the claim. See dissenting opinion in
re Richards v. Board of Education. 1 Ct. Claims 1W. Va.) 142. at page 151.
Subsequently, in the case or claim of Mary
Dillon. an infant, v. the Board of Education of Summers County. involving injuries to the said infant while
being transported in a school bus and allegedly caused by the careless and
improper operation of the bus by the driver thereof, this court in a majority
opinion written by Judge Bland, reversed its finding in Richards, supra, and
held that a county board of education was not a state agency as contemplated by
the act creating the Court of Claims and further specifically disapproved the
majority opinion or finding in the Richards
case. See Dillon v. Board of Education, I Ct. claims (W. Va.) 366. The foregoing decision also reversed the
holding or finding in Johnson v. Board of
Education, 1 Ct. claims (‘W. Va.)
158.
We are now asked to vacate the final order hereore entered in the matter of
this claim, and to substitute therefor an order reestablishing the award of
$5,000.00 and recommending it to the Legislature for payment accordingly.
Counsel made an able argument, both before the court and in their brief in
support of the motion, and by reason thereof, as well as the obvious importance
of the claim and the deep symoathy we have for this unfortunate child, we have
again read and reread our conclusions in this and other claims of similar
nature heretofore determined: have again fully considered the important
W.VA.] REPORTS
STATE COURT OF CLAIMS 253
questions involved and have again reached the conclusion that a county board of
education is not a state agency as contemplated by the Court of Claims
Act.
Since the entry of the orders in the foregoing claims denying jurisdiction, the
Legislature at its last session (1945) passed an act specifically excluding
from our jurisdiction any claim or claims that may grow out of any matter
involving a county board of education, and, as well specifically excluding from
the definition of “state agency” a county board of education. Chapter 39, Acts
of the Legislature 1945.
It is therefore obvious that we have no jurisdiction to hear and determine any
claim against a county board of education. We are bound by the provisions of
the act in question. We are not empowered to determine the validity or legality
of any act passed by the Legislature and must assume that the act in question
fully governs us in our deliberations and the settlement of claims that are
presented for our consideration. The application for the order to vacate the
previous order refusing an award and to reinstate the award heretofore made is
accordingly denied.
(No. 546—Claim denied)
S. B. LENT, Claimant,
V
STATE ROAD COMMISSION, Respondent.
Opinion filed November &, 1946
When the basis of a claim prosecuted against a state agency is negligence
and omission of duty, and it is clearly established by the evidence that it is
not a claim which the state as a sovereign commonwealth should discharge and
pay, an award will be denied.
Oliver D. Kessell, for claimant.
W. Bryan Spillers, Asistant Attorney General, for respondent.
ROBERT L. BLAND, JuDGE.
254 REPORTS STATE
COURT OF CLAIMS [W. VA.
In this case, the claimant, S. B. Lent, of Leroy, Jackson county, West
Virginia, maintains his right to have an award of $500.00 of public money,
against the state road commission. He owns and resides upon a small farm of
forty-one acres, situate on the waters of Fallen Timber, in Ravenswood districi
of said county. He affirms that he relies upon his said farm, and particularly
his garden and truck patch, for food for his table. He prosecutes his said
claim for damages alleged to have been caused by the negligence and omission of
duty of the employees of the road commission. The state contests his claim.
There is a well- recognized legal maxim, which reads: ‘The proof lies upon him
who affirms, not upon him who denies.”
The facts proved by the evidence introduced upon the investigation and trial of
the claim may be summarized as follows:
Claimant’s farm abuts upon the stream of water known as Fallen Timber, which is
traversed by a state secondary road, and, at least at one point on the rou’e,
the stream bed and the roadbed are the same. Claimant had, planted and growing,
a good garden about thirty feet from his residence. and not far distant from
the road and stream. The principal portion of the farm was steep. Adjacent to
and above claimant’s land is a tract of land owned by one B. M. Knotts. Some
years ago there was a heavy slip in the earth on the Knotts’ land. On the night
of Saturday, June 1, 1946, floodwaters ran down over the Lent land to the road,
About six o’clock on the morning of Sunday, June 2, 1946, a slip occurred on
the Knotts land, which was a continuation of the slip which had previously
taken place thereon, and from that hour until about four o’clock in the
afternoon rocks, trees, dirt, etc., ran from the Knotts land over claimant’s
land into the road. This mass of earth and other materials spread out on the
road for a distance of approximately two hundred and fifty feet, and for a
width of forty feet. It was about six feet in depth.
Claimant, apprehending that if a heavy rain should occur his garden would be
completely destroyed, immediately communicated with Creed Carmichael, the road
commission’s county superintendent. On Monday morning following the heavy
W.VA.] REPORTS
STATE COURT OF CLAIMS 255
slip of earth Mr. Carmichael and Mr. 0. C. Hill went to the scene and viewed
the condition of the road. The county superintendent agreed that something
should be done to clear away the debris, in order to avoid damage in case of
flood to claimant’s garden. He sent five employees of the road commission to
the Lent property on the following day. They chopped brush and did what they
could o relieve the situation and let the water out of the road but, on account
of the extraordinary mass of earth and other substances which had been
deposited, it was impossible to clear the road. In order to remove the obstruction,
it was apparent to the road officials that it would be necessary to bring in
machinery. The work necessary to be done to remove the huge mass of earth from
the road could not be done by pick and shovel. The water from Fallen Timber
stream caused the earth deposited upon the highway to become “soupy,” as
described by the witnesses who testified. There was no machinery suitable for
the removal of the obstruction immediately available. There were between five
hundred and six hundred truckloads of dirt and logs in the highway, part
thereof being already on claimant’s garden or truck patch. The road
commission’s county superintendent concluded, after a personal inspection of
the highway, that it would be necessary to have a shovel to remove the earth
from the road. This was after he had sent a foreman and five crewmen to examine
the highway and determine that only a shovel could remove the obstruction.
There was no shovel that could be used in Jackson county. On Wednesday, the 5th
of June, 1946, the district engineer for the road commission at Parkersburg,
accompanied by the maintenance superintendent for three counties, including
Jackson county, who was in charge of equipment, visited the highway on which
the earth from the slip was deposited, and agreed that a shovel would be
necessary for its removal. The nearest point from which a shovel could be
obtained was in Wood county. The district engineer directed a shovel to be sent
to Jackson county as soon as possible. The shovel intended to be used was at
the time being used on the north fork of Lee Creek, in Wood county, about fifty
miles from the slip in question. The shovel could not be
immediately
256
REPORTS STATE COURT OF CLAIMS [W. VA.
removed to Jackson county, since it was being used on a road in Wood county,
which had been closed and the work on which was necessary to be completed
before the shovel could be sent to Jackson county. This shovel was, however,
sent to Jackson county as quickly as it was possible for it to be released from
the necessary work in Wood county. The only other shovel which would have been
available for use in Jackson county was a truck shovel that could not be
operated in the slip, on account of the condition of the material of the slip.
As soon as the shovel could be removed, however, it was sent to Jackson county
to remove the slip of earth from the highway. Before its arrival, however, and
on the 13th of June, 1946, there was a heavy rain, and on the 19th of June
there was a further, heavier rain. The water produced by these two rains backed
up on claimant’s garden and practically destroyed all of the growing products
thereon, and permanently damaged the soil.
Claimant contends, therefore, that the failure of the road commission to remove
the obstruction from the highway, caused by the slip from the Knotts land,
before the two rains in question occurred, constituted negligence and omission
of duty, entitling him to compensation for the losses which he has sustained.
Under the evidence, we cannot conclude that the state or the said state road
commission was in any respect responsible for the slip on the Knotts land which
deposited the earth on the highway, or that the road commission was in any way
guilty of an omission of duty in removing the obstruction from the highway. It is
clearly apparent that the road commission acted as promptly as it was possible
for it to do in clearing the road. It could not reasonably be expected that it
would leave the work in Wood county where a road was closed and remove the
shovel to Jackson county earlier than it actually did so, It is unfortunate
that claimant should have sustained the loss of his garden and truck patch,
representing a season’s work, but it does not follow that he has a right to
compel the state to compensate him for such losses. There is no moral
obligation upon the part of the state which can be enforced upon equitable prin
\V. VA.] REPORTS STATE COURT OF CLAIMS 257
ciples alone. 48 Am. Jur., States,
Territories, and Dependencies, Section 73. The Legislature has unquestioned
power under circumstances to make appropriations of the public moneys, but in
the recent case of State ex rel.
Adkins V. Sims, Auditor, 127
W. Va. 786; 34 S. B. 2d 585, the Supreme Court of Appeals of West Virginia has held:
1n 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 Stat-e.”
We do not perceive that any such moral obligation exists in the instant case.
In the construction and maintenance of its highways the state exercises- a
governmental function. Under general law, as the writer of this statement
understands the state is not liable for the negligence of its officers, agents
or employees, while engaged in the exercise of a governmental function, in the
absence of a statute making it liable therefor. We have no such statute in West
Virginia. It would seem that if the Legislature intended to- create such liability
it would enact a statute to that effect.
We are constrained under all the evidence in this case to absotve the road
commission from negligence in removing the road obstruction from the highway
under consideration, and to acquit it of any omission of duty in the premises.
An award is therefore denied and the claim dismissed.
258 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 541—Claim deflied)
LEE ROY HENDRICKS, Claimant,
V
STATE ROAD COMMISSION, Respondent.
Opinion
filed November 13, 1946
No duty, express or implied, rests
upon the state road commission of West Virginia to maintain the highways under
its iurisdiction in more than reasonably safe condition for use i’ the usual
manner and by the ordinary methods of travel and the state does not guarantee
freedom from accident of persons traveling on such highways. Earle Hatchison v.
State Road Commission, Case No. 525, Ct a/s.
Hendricks, Jones & Bouldin, for the claimant.
W. Bryan Spiflers. Assistant Attorney General, for the state.
MERRIMAN S. SMITH, JuDGE.
Edward Hendricks, son of the claimant Lee Roy Hendricks, was driving his
father’s 1939 Pontiac automobile, and on the afternoon of April 27, 1946, upon
returning from Charleston, West Virginia, on U. S. route 11 9, near Racine,
Boone county. West Virginia, he wrecked the car, hence this claim to recover
for the damages sustained.
On the morning of April 27, 1946, the employees of the state road commission
were pulling the ditchline alongside this highway, which consisted of bringing
out the dirt and other accumulation from the ditchline with a grader,
depositing it upon the shoulder and filling in and levelling off the berm, and
whatever dirt that was scraped on the pavement was swept off with two steel
brooms by the employees. Between eleven and twelve o’clock it began to rain so
the crew went in for the day. After a lapse of about three hours, between two
and three o’clock that afternoon, Edward, with his companion and his sister, in
driving south from Charleston ran off the concrete
‘WVA.] REPORTS
STATE COURT OF CLAIMS 259
pavement onto the berm of the road, whereupon he lost control of the car and
swerved across the highway into the ditch on the opposite side of the road.
From the evidence there was no car approaching, nor was he passing a car, and
this was an eighteen-foot concrete pavement and practically straight for about
a mile ahead, and judging from the physical circumstances young Hendricks was
guilty of negligence, and must have been driving at an excessive rate of speed
when he carelessly ran off the pavement onto the berm, and because of such
speed lcst control of his machine and swerved across the pavement to the east
side and into the ditch.
This court has repeatedly held that “No duty, express oi implied, rests upon
the state road commission of West Virginia to maintain the highways under its
jurisdiction, in more than. reasonably safe condtion for use in the usual
manner and by the ordinary methods of travel; and the state does not guarantee
freedom from accident of persons traveling on such highways.”
In the instant claim the facts clearly show that the highway was in a
reasonably safe condition, and the state had taken the proper precaution for
the safety of the travelling public. Therefore, it is the opinion of this court
that an award for damages in this claim should be, and is, hereby denied.
(No. 521—Claimant awarded $2000.00 upon rehearing)
HAROLD H. CASHMAN, M. D., Claimant,
V
STATE BOARD OF CONTROL, Respondent.
Opinion tiled April 19, 1946
Opinion on rehearing fIled November 14, 1946
The State is under no moral obligation
to compensate a physician on the medical staff of a state tubercular sanitarium
who, by reason of his contact with the patients confined in said sanitarium or
hospital, contracts
260 REPORTS STATE
COURT OF CLAiMS [W. VA.
tuberculosis, unless it is shown that in some manner the state or the depart’
ment involved was guilty of negligence that contributed to the said physicians
contracting the disease in question.
Claimant, in his own behalf.
XV. Bryan Spillers, Assistant Attorney General. for the state.
CHARLES J. SCHUCK, JUDGE.
In January, 1944, claimant joined the medical staff at the Hopemont sanitarium,
a state institution located near Terra Alta in Preston county, West Virginia.
and devo;ed to the treatment of tuberculous patients. He continued in this
capacity on the said staff until October, 1 944, at which time he, himself,
became afflicted with pulmonary tuberculosis, contracted, he maintains, by
reason of his close physical contacts with patients in the said sanitarium
suffering from active pulmonary tuberculosis. Having had, prior to his illness,
regular x-ray examinations made of his chest which proved negative, he now
insists and concludes, as heretofore stated, that the nature of his services as
such staff physician brought about his own illness and affliction.
In July, 1945, he applied for compensation to the state compensation
commission, but was refused compensation on the ground “that the disability
complained of was not due to an ‘injury’ in the course of and resulting from
claimant’s employment.” An appeal to the workmen’s compensation appeal board
also resulted in a refusal to make an award and he now applies to this court
for relief accordingly.
Is the state morally bound to compensate claimant under these conditions and in
the light of the foregoing facts? It must be assumed, of course, that claimant
was fully acquainted with the risk and hazard incident to his services as a
physician in the said sanitarium; that he knew the danger incident to contacts
with patients suffering from tuberculosis that he would be obliged to make;
that he was aware of the danger of becoming afflicted himself by such contacts,
and that such risk and danger connected with his services was voluntarily
assumed
I
W.VA.J REPORTS STATE COURT OF CLAIMS 261
by him, No negligence of any kind is alleged or shown against the state or the
department involved in carrying on the purposes or work of the sanitarium. In
view of these circumstances does the claimant stand in any different position
than the physician who is called upon to treat a highly dangerous and
communicable disease found in a private home, and could such physician having
contracted the disease have either a moral or legal claim for damages by reason
of the contact so made? We do not think so.
A physician necessarily assumes the ordinary risks incident to the practice of
his profession, and if, in such practice, he, himself, unfortunately contracts
disease from contact with his patients, he becomes in the very nature of things
a martyr to the vicissitudes of his profession and makes a sacrifice for which
there is seemingly no compensation.
Considering all the facts and circumstances presented for our consideration an
award is refused and the claim dismissed.
Upon petition for rehear-i rig.
The state is morally bound to provide a safe, sanitary and hygienic place of
employment for a ph sician employed as such in one of its tubercular sanitoria,
and failure to do so thereby causing the physician to become afflicted,
entitles the physician to an award.
Appearances:
Ralph L. Miller, for claimant:
Eston B. Stephenson, Assistant Attorney General, for the state.
CHARLES J. SCHUCK, JuDGE.
At the April term, 1946, this court denied the claimant’s right to any award on
the theory that as a physician at the tubercular Hopemont sanitarium he could
not recover compensation from the state, in consequence of his having
contracted tuberculosis, unless it was shown that the department involved
262 REPORTS STATE
COURT OF CLAIMS [W. VA.
was guilty of negligence of such nature as would contribute to his contracting
the disease in question. Subsequently a motion for a rehearing was granted and
we now have before us testimony which presents a full and complete picture of
the situation that prevailed at Hopemont at the time claimant contraced the
disease and the conditions prevailing under which he was obliged to render his
services as such physician. We learn from the testimony that he was obliged to
give his services as such physician for a minimum of a year from the date of
his entering the institution (record p. 4’) and that if he concluded to quit or
sever his connection with the sanitarium before the end of that period he would
be virtually barred from offering his professional services to any other
similar institution by reason of an unwritten rule of law of the American
Medical Association to that effect (record p. 5). The purpose of this law is
obvious and without it endless confusion and embarrass ment would result; and a
sanitarium such as Hopemont might experience serious difficulty in maintaining
its staff if this ethical rule were not invoked. This uncontradicted testimony
was not before us at the previous hearing and in our opinion now gives a
reasonable and potent answer to the proposition that claimant could have
severed his connection with the institution if he was dissatisfied with
prevailing conditions while engaged as a physician there, He began his work at
Hopemont in Janu ary 1944 and was stricken with the disease in October 1 944.
so that he had not yet served a year of his contract at rhe time he became
afflicted with tuberculosis. He has been bedfast at the institution since that
time. A thorough physical examination of claimant at the beginning of his
employment revealed that he was in good health and free from any signs or
indications of tuberculosis.
The testimony further shows that claimant was called upon to attend eighty
patients (record p. 11) and that he was assisted in his work by not over three
nurses; that considering existing conditions, the dangerous nature of the
disease and the everpresent possibility of communication of the disease to
doctors, nurses, and those in attendance, not less than thirty-two nurses ought
to have been employed to care for these eighty patients
W. VA.i REPORTS
STATE COURT OF CLAIMS 263
and a larger staff of doctors maintained to properly supervise the treatment of
such a large number; these standards being fixed by the recognized medical
authorities of our country on the treatment of tuberculosis, as shown by the
American Review of Tuberculosis of May 1945, filed as part of the record with
us. We are further advised in this matter that the condition of sanitation and
hygiene existing in a tubercular sanitarium, tending to arrest the disease and
to prevent its communication to others, necessarily depends on the number and
efficiency of the nurses employed. It may well be said, of course, that the
state could not, from a financial standpoint, be called upon perhaps to have a
full quota of doctors and nurses as required by the standards heretofore
referred to, but in view of the marked difference between the number actually
employed at Hopemont at the time and the number fixed by the American Review of
Tuberculosis, conditions there were such, in our opinion, as to present
extraordinary risks to those employed as doctors, nurses or attendan ts.
From the testimony we learn further that tuberculosis is an air-borne disease
and that the tubercie bacilluz can be transferred from an infected patient to
others through the air. All of which means that a sufficient staff of nurses
must be maintained at a tubercular sanitarium to properly and adequately
instruct and watch over afflicted patients to prevent communication of the
disease and to maintain the necessary and required sanitary and hygienic
standards for arresting the disease and preventing its communication to others.
In this connec ion we are of the opinion that the staffs of both doctors and
nurses were inadequate at Hopemont, at the time claimant became afflicted, to
meet the demands of the institution, and to properly take care of the large
number of patients then confined there. The testimony also reveals that
additional nurses could have been obtained but that the salaries paid were
below those fixed in other states for the same kind and standard of services,
and consequently brought about a refusal to serve on the part of prospective
nurses. All of these facts a&ed together show obviously that claimant was
not afforded a reasonabiy safe place in which to render his services and thus
fulfill his contract
264 REPORTS STATE
COURT OF CLAIMS {W.VA
of employment to the state. The duty to properly protect claimant in his work
as such physician was breached, and in equity and good conscience the state was
morally bound to provide a reasonably safe, sanitary and hygienic institution
for those employed to discharge their respective duties there and to maintain
the standards of efficiency that the very nature of the sanitarium required.
A survey by efficient experts was made of the Hopemont sanitarium, at the
request of our Governor about ten or twelve months ago. They found that the
absolute minimum of salaries to properly take care of the sanitarium was
$270,000.00. The present working cost is, and for several years past has been,
$192,000.00. The testimony sho’vs (record p. 24) that the inability to get
nurses is attributed to lack of funds with which to pay the prevailing salary
range. Another survey of Hopemont was also made by one Esta McNebb, at the time
supervisor of Lowman Pavilion, the tuberculosis division of the City Hospital
at Cleveland. Miss McNebb is at the present time the tuberculosis consulting
nurse of the Veterans’ AdmInIstration. W’hile her report goes into all the
details concerning the conditions existing at Hopemont, her conclusion is
perhaps sufficient for the purpose of this opinion. She concludes as follows;
“The medical care of the patients at Hopemont is excellent, the clinical material
is abundant; the physical plant is adequate and capable of adaptation; the
nursing department has excellent leadership, but is too limited to
meet the needs of so many patients.” (Record pp. 44-45).
En view, therefore, of all the testimony now submitted and the facts now before
us, most of which were unknown to us at the first hearing, we are constrained
to reverse our previous finding and order, and to hold that the state, having
failed in its duty to claimant to provide a safe, sanitary and hygienic place
of employment, is morally bound to compensate him for his loss of services and
the suffering incident to the disease contracted by him,
The matter of just and proper compensation now concerns us in fixing the amount
of an award to claimant. He was receiv
W. VA.j REPORTS
STATE COURT OF CLAIMS 265
ing a salary of $2000.00 per annum at the time he was stricken in October,
1944. He has been bedfast since that time and the testimony of Doctor Salkin,
the superintendent of the institution (record p. 17) is to the effect that
claimant will not be able to assume his duties for another year. Considering
the claim from the viewpoint of our law applicable to claims before the
workmen’s compensation commission or department, claimant, if he had been injured
in the course of his employment as the term “injury” is defined, would have
been entitled to a maximum award of $18.00 per week for a maximum period of 156
weeks, assuming that the injury would be of a nonpermanent nature, ch. 131,
art. 4, sec. 6, Acts 1945 Legislature, code chapter 23, art. 4, sec. 6, and
would therJore be entitled to the full sum of approximately $2800.00.
Hc’.’ever, in view of the fact that claimant’s length of disability is somewhat
problematical and that he may be able to return to his duties in another year,
or approximately two or two and one- half years from the date he was first
stricken, we feel that an award of two thousand dollars ($2000.00) would be
proper and we so find accordingly.
MERRIMAN S. SMITH, JUDGE, dissenting.
The West Virginia workmen’s compensation law does not classify tuberculosis as
an injury. This is primarily the duty of the Legislature and is not a matter
for court action. The orderly way to receive compensation for an injury is
through the Legislature within the workmen’s compensation law and not by court
action.
Responsible democratic government should be achieved through the legislative
branch of the government and not through the judiciary.
Dr. Cashman assumed the risk of his employment and should have acquainted
himself with the conditions at Hopemont before accepting employment. He was
undoubtedly familiar with the standards as prescribed by the American Medical
Association.
266 IEPORTS STATE
COURT OP CLAIMS [W. VA.
I have the greatest sympathy and fully appreciate the plight our tubercular
sanitoria are confronted with in securing physicians, surgeons, and nurses, and
some legislative provision should be made for such employees when stricken with
such dread disease while engaged in such a humanitarian work. Until such time
as the Legislature sees fit to incorporate tuberculosis as an injury within the
West Virginia workmen’s compensation law, the physicians, surgeons and nurses
assume the risk of their employment.
The medical profession considers tuberculosis as an ‘‘accidental injury” and it
should be so considered by the members of the Legislature.
Tfle majority opinion presents a strong plea on behalf of an award for the
claimant and it is with reluctance that I do not favor an award in this
case.
(No. 556—Claim denied)
MAE MORGAN, Claimant,
V
STATE CONSERVATION COMMISSION, Respondent.
Opinion flIed November 18, 1946
The state has a gcneral right to
protect wild animals in the i terest of the pubi c, and complaint may not be
made of incidcntal injuries that may result from such protection.
Roland A. Clapperton, for the claimant;
WI’. Bryan Spillers, Assistant Attorney General, for the state.
ROBERT L. BLAND, JuDGE.
On the 15th day of October, 1946, claimant Mae Morgan, a widow fifty-five years
of age, residing on a farm owned by her in Nicholas county, West Virginia, left
her home for the
W. VA.]
REPORTS STATE COURT OF CLAIMS 267
purpose of calling upon a neighbor.
She walked along a path on her own premises, about seventy-five feet from a
state- controlled secondary highway. After proceeding a short distance she left
the path and walked to a point where core drilling for coal had been conducted
on her land. As she was looking at the rock which had been removed from the
test hole and reflecting upon the depth of the hole she observed a buck deer
coming in her ditection. Her first thought was that the deer would run away
when he saw her. It did not do so, however, but on the contrary viciously
attacked her, knocking her down and goring her. She was alone, there being no
one around to render assistance. As a result of the combat she sustained
serious personal injuries. Eventually assistance came to her, and she was
removed to the Sacred Heart Hospital at Richwood where she received
hospitalization. She claims to have incurred liability to the extent of
$825.00, for which amount she now seeks an award, and further, for a sufficient
sum of money to compensate her for the permanent injuries she sustained. The conservation
commission challenges the right of the claimant to an award in the premises.
Claimant concedes that the question presented by her claim is one of first
impression in \Vest Virginia.
It will be borne in mind that the protection and conservation of wild animals
is provided for by statute in West Virginia. Chapter 20, code. This protection
is especially applied to deer, The general right and ownership of wild game is
in the people of the state. In State V.
Southern Coal & Transportation
Companj, 71 W. Va. 470, the case dealt
with fish. The Court held as follows:
‘The State is owner of the fish in its streams, and as such, under its police
power, may enact legislation to protect the propagation of fish from injury
from placing in, or allowing he entrance into, streams of any matter of any
kind deleterious to the propagation of fish.”
“The State is not liable for injury to private property by beavers which it
imports and attempts to protect by statute, whether the statute is
constitutional
268 REPORTS STATE
COURT OF CLAIMS [W. VA.
or not.” Barrett v. State, 220 N. Y. 423; point 3 syllabus L. R. A. 1918C, 400.
In the opinion in that case it is said:
As to the first, the general right of the government to protect wild animals is
too well established to be now called in question. Their ownership is in the
State in its sovereign capacity, for the benefit of all the people. Their
preservation is a matter of public interest. They are a species of natural
wealth which without special protection would be destroyed. Everywhere and at
all times governments have assumed the right to prescribe how and when they may
be taken or killed. As early as 1705 New York passed such an act as to deer.
(Colonial Las, vol. 1, p. 585.) A series of statutes has followed protecting more or
less completely game, birds, and fish.
‘The protection and preservation of game has been secured by law in all
civilized countries, and may be justified on many grounds. * * * The measures best adapted to this end are for the
legislature to determine, and courts cannot review its discretion. If the
regulations operate, in any respect. unjustly or oppressively, the proper
remedy must be applied by that body.’ (Phelps
V. Racetj, 60 N. Y. 10, 14.) [19
Am, Rep. 140.]
“W’herever protection is accorded, harm may be done to the individual. Deer or
moose may browse on his crops: mink or skunks kill his chickens: robins eat his
cherries. In certain cases the legislatuie may be mistaken in its belief that
more good than harm is occasioned. But this is clearly a matter which is
conlided to its discretion. It exercises a governmental function for the
benefit of the public at large, and no one can complain of the incidental
injuries that may result.”
In the case of Mann V. State, Court of Claims of N. Y. (1944) 47 N. Y. Supp. 2d 553, the syllabus is
as follows:
“Where deer suddenly darted out and collided with automobile while claimant was
driving on State Park Commission highway, state was not liable, notwith
W. \TA.j REPORTS STATE COURT OF CLAIMS 269
standing alleged failure to provide suitable guards, railings or fences, since
state was acting as trustee for people and exercising a governmental function
for benefit of public at large.”
And from the opinion:
‘Further, had the State undertaken to erect such fences for confining of wild
deer, it would have been confronted with an intricate problem in view of the
deer’s well-known agility in scaling considerable heights.”
We are disposed in making a determination of the instant claim to adopt the
holding in point 1 of the syllabus of the New York Court of Claims in the case of Corron V. State, Court
of Claims of N. Y. (1939) 10 N. Y. Supp. 2d 960, which reads as follows:
“The state has a general right to protect wild animals in the interest of the
public, and complaint may not be made of incidental injuries that may result
from such protection.”
in our judgment that is a well-reasoned opinion.
We are unable to see any moral obligation on the part of the state to
compensate claimant for her unfortunate accident.
An award is, therefore, denied and the claim dismissed.
REFERENCES
AGENCY—Scope of Employment
Where an employee of the state, having
established headquarters for seven days in the week, after work hours on
Saturday evening while enroute to his home to spend the week end with his
family, is not in the furtherance of his employer’s business, nor does he in
any way directly or indirectly promote the welfare of his employer’s business;
under the evidence in these cases
awards will be denied. Darlington v. State Road - 205
ANIMALS
The state has a general right to
protect wild animals in the interest of the public, and complaint may not be
made of incidental injuries that may result from such protection. Morgan
v. State Conservation 266
See also
Kattong V.
State Road 121
Bond v. State Road 242
AUTOMOBILES—See Collisions with Siate
Vehicles BLASTING OPERATIONS—See
Bennett v. State Road - 5
Bond v. State Road 242
MeKinney v. State Road 41
Stukey v. State Road 240
Valvoline Pipe Lines v. State Road 222
BRIDGES and CULVERTS
A case in which, upon the facts
proved, an award is made in favor of an infant male child who suffered a broken
arm while crossing over a defective bridge on a state-controlled highway.
Marks v. State Road 250
Failure of the state road commission to provide and install necessary warning
signs of danger at a point where a bridge on the state highway had been washed
out by a flood may, in circumstances, warrant an award in favor of the claimant
by
reason of such condition of affairs. Randolph v. State Road 164
REPORTS STATE
COUR F OFCL AIMS [W.VA.
When the state road commission, in the exercise and discharge of a governmental
function, finds it necessary to repair a bridge spanning a stream of water on a
state highway, removes the floor from such bridge in the performance of such
repair work, and in order to warn persons traveling upon and using said highway
of existing danger at the point where the, bridge is located, erects a
barricade, installs lights on either side of the bridge and provides a well
defined detour sign with reflector lights therein, an award will not be made to
claimants who attempted to drive an automobile in the night time over the said
bridge from which such floor had been removed and thereby suffered persona]
injuries and sustained property loss. Jordan
v. State Road -
- 224
See also
Bowman v. State Road 11
Crihfleld v. State Road 44
Dempsey v. State Road 38
Gantzer v. State Road 221
Holbsrt v. State Road 13
Lemasters v. State Road 243
COLLISIONS WITH STATE VEHICLES
CONTRIBUTORY NEGLIGENCE. In a claim for property damage wherein there is a
collision on the highway and both parties to the accident fail to use ordinary
care this court does not recognize comparative negligence and each party
thereto is responsible
for the damage to his automobile or truck. Peters v. State Road 183
The Court of Claims will recommend to the Legislature appropriations for the
payment of damages for property loss and personal injuries suffered when it is
disclosed by the record of claims asserted against the state that there is a
moral obligation on the part of the state to make such payments and in equity
and good conscience it should do so. Utterback v. State Road 96
See also
Anderson v. State
Conservation 131
Hailer v. State Road 10
Hamrick v. State Road 129
Hranka v. State Road 37
Neff v. State Road 12
Ohio Valley Bus Company v. State Road 60
Peters V. State
Road 149,183
Queen v. Slate Road 143
Ragase v. State RoLd 64
Robertson V. State
Road 16
Ulterback V. State
Road 96
W.VA.] REPORTS
STATE COURT QPCLAIMS 273
CONTRACTS
Claimant not having been on the
preferred eligible list at the time of her dismissal by the Cabell county unit
is not entitled to a salary during the period of dismissal, even though the
reasons for said dismissal are not sustained and claimant was fully exonerated.
The preferred eligible list and ratings must control and govern in a period
during which an emergency arises caused by the curtailment of the appropriation
for the department and when it is found necessary to lessen the number of
employees or “visitors.” Garcia v. Dept. Public
Assistance -
- 35 Syllabus in re the claim of Shepherd v. Department of Public
Assistance reaffirmed and adopted.
Wilson v. Public Assistance 34 An employee of the department of public assistance
engaged
in the work of investigating applications for relief and commonly termed a
“visitor” and whose position and salary are based upon seniority and service
ratings and who is one upon the preferred eligible list when appropriations for
the said department are curtailed or decreased, cannot he dismissed without
just cause and if so dismissed without such just cause is entitled to her
salary during the period of such dismissal. Shepherd V.
Public Assistance 30
There is no provision in the budget
act for the payment of overtime to employees working on a monthly wage scale as
set up by the budget director; no provision is made for a contract of
employment to such employees either express or implied, covering payment for
overtime. Grogan v. Board
Control 169
As a general rule when the head of a
state agency incurs an obligation on behalf of his department in performance of
an administrative act, such indebtedness should be paid out of funds available
for the purpose, in order that the state’s credit
be held inviolate. Charleston Mail v. Health
Department 174
Compensation for duties performed and
services rendered by a deputy commissioner of forfeited and delinquent lands is
payable out of the operating fund for the land department in the auditor’s
office; and the Court of Claims will not recommend to the Legislature an
appropriation for such compensation when a claimant fails to allege and prove
that compensation for such services claimed by him and to which he might show
himself to be justly entitled is not available in the said fund for the
satisfaction of his claim. Thrift v. Auditor - 18
When a publishing company publishes
legal notices contracted for by constitutional authority, as prescribed by
statute, it becomes a just obligation and an award should be made. Berkeley
Printing V.
Auditor - - - 231
Pursuant to the purpose and spirit of
the Act of the Legislature creating the State Court of Claims, an award may he
made for the payment of a claim against the state when the peculiar facts
supporting such claim show it to be just and meritorious and for which the
state has received distinct value and benefit.
Roberts v. Board of
Control -
- -- 235
See also
Preiser Co. v. Board
Control 9
274 REPORTS STATE
COURT OF CLAIMS [\V. VA.
CONTRIBUTORY NEGLIGENCE
When the state road commission, in the
exercise and discharge of a governmental function, finds it necessary to repair
a bridge spanning a stream of water on a state highway, removes the floor from
such bridge in the performance of such repair work, and in order to warn persons
traveling upon and using said highway of existing danger at the point where the
bridge is located, erects a barricade, installs lights on either side of the
bridge and provides a well defined detour sign with reflector lights therein,
an award will not be made to claimants who attempted to drive an automobile in
the night time over the said bridge from which such floor had been removed and
thereby suffered personal injuries and sustained property loss. Jordan v. State Road 224
An award will be refused a claimant to whom two courses of conduct are open in
the operation of a vehicle on a public road and who did not exercise ordinary
care in choosing the course to pursue and thereby sustained property loss. Athe p-Brooks V.
State Road - 79
An award will be refused, where reasonable care has not been exercised by a
claimant in driving an automobile over an uneven rock stratum in the road,
causing an accident, in which claimant is injured and for which an award is
asked against respondent.
Yoak v. State Road - - 17
CONTRIBUTORY NEGLIGRNCE. In a claim for property damage wherein there is a
collision on the highway and both parties to the accident fail to use ordinary
care this court does not recognize comparative negligence and each party
thereto is responsible for
the damage to his automobile or truck. Peters
v. State Road - 183
DAMAGES
Where the testimony shows that a farm
or land was benefited by a road construction and improvement rather than
damaged,
an award, of course, will be denied. Quick v. State Road 203
ESCAPEES
Under the act creating the Court of
Claims negligence on the part of the state agency involved must be fully shown
before
an award will be made. Robison v. Board
of Control 66
Where escaped convicts steal and take
away an automobile and after using the car, abandon it, having caused damages
thereto, the state agency involved will not be held liable for the damages,
unless negligence on the part of said agency is fully shown and that such
negligence contributed to and made possible the escape. Ruth Miller v.
Board of Control, 1 Ct. Claims
(W. Va.) 97, affirmed. Arrick V. Board of
Control 141
An award will not be made in favor of a claimant whose automobile was stolen
and damaged by escapees of the West Virginia industrial school for boys at
Pruntytown, unless cuip
W. VA.) REPORTS STATE COURT OF CLAIMS 275
ability on the part of the state agency involved, its officers, agents or
servants is fully shown and that such culpability contributed to and made
possible the escape of such inmates.
Parsons v. Board of
Control -
147
Inexcusable laxity in the handling and guarding of prisoners committed to the
state penitentiary, under circumstances as presented in the prosecution of this
claim, constitutes negligence on the part of the prison officials, and if such
negligence is the cause of a crime committed by a prisoner against a citizen,
whereby such citizen, or his estate, suffers damage, an award will be
made. Davis Trust v. Board of
Control 188
INSURANCE PREMIUMS ON STATE VEHICLES—See
McGhee v. Board
Control -
- - 154
JURISDICTION
Where the facts presented in a claim
filed show clearly that this court is without jurisdiction, a motion to dismiss
will be
sustained. Morrow v. State Road 229
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 -
25
The jurisdiction of the Court of Claims does not extend to a claim for injury
to an inmate of a state penal institution. Coy v.
Boardof Control - 49
Where the petition filed and the testimony adduced clearly show that the
claimant has the right to have his claim heard and determined in a state court,
this court is without jurisdiction, and a motion to dismiss for want of
jurisdiction will be sustained.
McVey v. State Mines -. - 233
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 Education 251
By paragraph 2, section 14, of the court act, it is expressly provided that the
jurisdiction of the Court of Claims shall not extend to any injury to or death
of an inmate of a state penal
institution. Dillon v. State Road 93
LATERAL SIJPPORT
LATERAL SUPPORT. In a
cause of action for damages caused by removal of lateral support, an award will
be denied where the physical conditions show that the state excavated entirely
within its rights of way and that the slipping and cracking of dirt on adjacent
property was caused by filled-in dirt and the virgin soil was not molested by
any excavation on the state’s property.
Sechini v. State Road - -- - 200
276 REPORTS STATE
COURT OF CLAIMS [W. VA.
LIMITATION OF ACTIONS—See Statute of Limitations
MONEY PAID UNDER MISTAKE—See
Fairchild v. Auditor 42
MORAL OBLIGATION
As a sovereign commonwealth, the state
of West Virginia should, in equity and good conscience, discharge and pay an
obligation for which it is both morally and legally liable. Baltimore and
Ohio v. State Road - - 176
The Court of Claims will recommend to the Legislature appropriations for the
payment of damages for property loss and personal injuries suffered when it is
disclosed by the record of claims asserted against the state that there is a
moral obligation on the part of the state to make such pa5,ments and in equity
and
good conscience it should do so. TJtterbock
v. State Road -
96
See also
Lent v. State Road -
- 253
Ccishman v. Board Control - - - - - 259
(As to duty of Legislature to find,
see Note 2, page XXXVI).
NEGLIGENCE
The fact that a stone or rock Iall
from the hillside adjacent to a public road or highway, striking and wrecking a
passing truck, does not of itself constitute negligence on the part of the
state road commission. See spUabus Clark
v. Road Commission, 1
Ct. Claims (W. Va.) 230. Hutehinson v. State Road 172
Under the act creating the Court of Claims negligence on the part of the state
agency involved must be fully shown before an
award will be made. Robison v. Board of Control 66
Where an employee of the state, having established headquarters for seven days
in the week, after work hours on Saturday evening while enroute to his home to
spend the week end with his family, is not in furtherance of his employer’s
business, nor does he in any way directly or indirectly promote the welfare of
his employer’s business; under the evidence in these cases
awards will be denied. Darlington v. State Road 205
No duty, express or implied, rests
upon the state road commission of West Virginia to maintain the highways under
its jurisdiction in more than reasonably safe condition for use in the usual
manner and by the ordinary methods of travel; and the state does not guarantee
freedom from accident of persons traveling on such highways. Hutchison v.
State Road -
- - - 217
The Court of Claims will recommend to
the Legislature appropriations for the payment of damages for property loss and
personal injuries suffered when it is disclosed by the record
W.VA.] REPORTS
STATE COURT OF CLAIMS 277
of claims asserted against the state that there is a moral obligation on the
part of the state to make such payments and in equity and good conscience it
should do so. tltterback. et al v.
State Road — 96
When a student attending a state college and living in a dormitory maintained
in connection therewith voluntarily uses a fire escape for purposes of ingress
and agress rather than the main entrances to such building provided for such
purposes and in consequence of such use of such fire escape sustains personal
injuries for which the college authorities are m no way responsible a claim for
damages suffered will be denied. Thomp
sony Board Control 111
No duty, express or implied, rests
upon the state road commission of West Virginia to maintain the highways under
its jurisdiction in more than reasonably safe condition for use m the usual
manner and by the ordinary methods of travel; and the state does not guarantee
freedom from accident of persons
traveling on such highways. Chariton v. State Road 132
Where escaped convicts steal and take away an automobile and after using the
car, abandon it, having caused damages thereto, the state agency involved will
not be held liable for the damages, unless negligence on the part of the said
agency is fully shown and that such negligence contributed to and made possible
the escape. Ruth Miller v. Board of
Ccmtrol, 1 Ct. Claims (W. Va.)
97, affirmed. Arrick v. Board
Control 141
An award will not be made in favor of a claimant whose automobile was stolen
and damaged by escapees of the West Virginia industrial school for boys at
Pruntytown, unless culpability on the part of the state agency involved, its
officers, agents or servants is fully shown and that such culpability
contributed to and made possible the escape of such inmates. Parsons v. Board
Control --
---- 147
When the basis of a laim prosecuted against a state agency is negligence and
omission of duty, and it is clearly established by the evidence that it is not
a claim which the state as a sovereign commonwealth should discharge and pay,
an award will be
denied. Lent v. State Road — 253
Failure of the state road commission to
provide and install necessary warning signs of danger at a point where a bridge
on the state highway had been washed out by a flood may, in circumstances,
warrant an award in favor of the claimant by
reason of such condition of affairs. Randolph
v. State Road - 164
The state does not guarantee freedom from accident or safety
of pedestrians on its public highways, and the duty of the state or highway
commission is a qualified one. Harmon v. Road
Commission, 2 Ct. Claims (W. Va.) 329;
Woo fter v. Road
Commission, 2 Ct. Claims (W. Va.) 393.
Brady v. State Road 167
An award will be refused, where reasonable care has not been exercised by a
claimant in driving an automobile over an uneven rock stratum in the road,
causing an accident, in which claimant is injured and for which an award is
asked against respondent.
Yoak v. State Road 17
278 REPORTS STATE
COURT OF CLAlMS[W.V
The state does not guarantee the freedom from
accident of perSons travelling on its
highways. Brona v. State Road 118
Inexcusable laxity in the handling and
guarding of prisoners committed to the state penitentiary, under circumstances
as presented in the prosecution of this claim, constitutes negligence on the
part of the prison officials, and if such negligence is the cause of a crime
committed by a prisoner against a citizen, whereby such citizen, or his estate,
suffers damage, an award will be
made. Davis Trust, adm. v. Board
Control 188
LATERAL SuPPoRT, in a cause of action for damages caused by removal of lateral
support, an award will be denied where the physical conditions show that the
state excavated entirely within its right of way and that the slipping and
cracking of dirt on adjacent property was caused by filled-in dirt and the virgin
soil was not molested by any excavation on the state’s property
Sechini v. State Road 200
CONTRIBUTORY NEcucENcE. In
a claim for property damage wherein there is a collision on the highway and
both part tes to the accident fail to use ordinary care this court does not
recognize comparative negligence and emh party thereto is responsible for the
damage to his automobile or truck Peters
v. State Road - 183
In claims arising out of automobile accidents, this court will give utmost
consideration to the physical frets surraunding the circumstances, especially
where the testimony of the winesrcs is
conflicting, weak and indefinite. Ellisov
v. State Road 157
An award will not be marie in favor of a ciarnant whose automobile was stolen
and damaged by escapees of the West Virginia industrial school for boys at
Pruntytown. unless culpability on the part of the state agency involved, its
o’ibs’ra, agents or servants is fully shown and that such cuipahilby contrihued
to and made possible the escape of such inmatss. Paison.s v. Board
Control 147
No duty, express or implied, rests upon the state road commission of West
Virginia to maintain the highwas under its jurisdiction in more than reasonably
safe condition for use in the usual manner and by the ordinary metho s of
travob and the state does not guarantee freedom from accident of persons
traveling on such highways. arle
Hutclrisojs V. State Road Cons- mission, Case No. 525, et ala.
Hendricks v. Ste e Road 258
The State is under no moral obligation to compensate a physician on the medical
staft of a state tubercular sanitarium who, by reason of his contact with the
patients confined in said sanitarium or hospital, contracts tuberculosis,
unless it is shown that in some manner the state or the department involved was
guilty of negligence that contributed to the said physician’s
contracting the disease in ouestion. (‘ashman
v Board Con rrol 259
To release a prisoner from the penitentiary upon parole without having a bond
executed as required by chap 62, art. 12, sec. 17. of the code of West
Virginia, is improper and in viola-
W. VA J REPORTS
STATE COURT O CLAiMS 279
tion of said provision and makes the state liable for any injury that said
parolee, as such may cause to any person during the
period of his parole. DeMilia v. Probation and Parole 246
The fact that a stone or rock fails
from the hillside adjacent to a public road or highway, striking and wrecking a
passing truck, does not of itself constitute negligence on the part of the
state road commission. See syllabus Clark v. Road Commission, 1 Ct.
Claim (W Va.) 230. Hutchinson v. State Road 172
The state is morally bound to provide
a safe, sanitary and hygienic place of employment for a physician employed as
such in one of its tubercular sanitoria, and failure to do so thereby causing
the physician to become afflicted, entitle the physician
to an award. Cashman v. Board Control 259
Claimant is entitled to an award for the burning and destruction of its
transformers where a fire is negligently started under tar barrels in close
proximity to claimant’s poles and transformers which fire caused the said tar
to overflow and explode and destroy the property of the claimant. Appalachian
Electric v.
State Road 248
PAHO1.EES
To release a prisoner from the
penitentiary upon parole without having a bond executed as required by chap.
62, art 12, sec. 17, of the code of West Virginia, is improper and in violation
of said provision and makes the state liable for any injury that said parolee,
as such may cause to any person during the period of
his parole. DeilIilia v. Probation and. Parole 246
PENrL kNTITt TJONS
The West Virginia industrial sche’?l
for boys at Pruntytown is held to be a penal institution witl’in the meaning of
section 14
of the act creating the Court of Claims. Co v. BorEd Control 49
PRO OF (LUMS
When upon the hearing of a claim asserted
against the state the evidence is conflicting hut preponderates in favor of the
agency involved, an aarcl will be denied. QILeen Insurance v.
State
Road 81
In claims arising out of automobile accidents, this court will give utmost
consideration to the physical facts surrounding the circumstances, especially
where the tostmonv ot the witrasses
is conflicting, weak and indefinite. Eltsn v Stote Road 157
Where the evidence offered in support of a claim against the state fails to
establish by a preponderance of proof its merit as a claim for which an
appropriation should be made by the Legislature. an award will he denied. Soith v. State Road
See also
Appalechien Pieced” v. St’ite Road 150
280 RFPORTS S
FAl’I COURT OF CLAIMS W. VA.
W1ILRODS
As a sovereign commonwealth, the state
of West Virginia should, in equity and good conscience, discharge and pay an
obligation for which it is both morally and legally liable. Balti mor &
Ohio v. State Road - 176
RIGHT OF WYS aml ROADS
An award will be refused a claimant to
whom two courses of conduct are open in the operation of a vehicle on a public
y’oad and who did not exercise ordinary care in choosing the course to pursue
and thereby sustained property loss .Atlsey Brook v. State Road 79
Where an employee of the state, having established headquarters for seven days
in the week, after work hours on Saturday evening while enroute to his home to
spend the week end with his family, is not in the furtherance of his employer’s
business, nor does he in any way directly or indirectly promote the welfare of
his employer’s business; under the evidence
in these cases awards will be denied. Darhin
plan, et al. v State
Road --
- 205
LATERAL SUPPORT. In a cause of action for damages caused by removal
of lateral support, an award will be denied where the physical conditions show
that the state excavated entirely within its right of way and that the slipping
and cracking of dirt on adjacent property was caused by filled-in dirt and the
virgin soil was not molested by any excavation on the state’s property.
Sechini v. State Road - 200
No duty, express or implied, rests upon the state road commission of West
Virginia to maintain the highways under its jurisdiction in more than
reasonably safe condition for use in the usual manner and by the ordinary
methods of travel; and the state does not guarantee freedom from accident of
persons traveling on
such highways. flutchison v.5 tate Road 217
No duty, express or implied, rests upon the state road commission of West
Virginia to maintain Ihe highways under its jurisdiction in more than
reasonably safe condition for use in the usual manner and by the ordinary
methods of travel: and the state (10(5 not guarantee freedom from accident of persons
traveling on such highways. CharlLon vS tale Road 132
Where the testimony shows that a farm or land was benefited by a road
construction and improvement rather than ilarnaged,
an award, of course, wit Is’ deniod. Qe dir, ‘t at vS tale
Rouil 203
Failure of the state road conimission to provide aiid iost.ili reees!r y warn
ia’ aigiis of liiiigar itt ii point where a tint Ic on the state highway had
been washed mit by a IlomI 111iy, iii cireumatan ce:, ‘,irririt ii
award iii favor of the ch:iiinint by
reason of ,oeli condition of alf;t is. itt, iidolpb v. Ste (t Uoail W4
W. VA.] REPORTS STATE COURT OF CLAIMS 281
The state does not guarantee freedom from accident or safety of pedestrians on
its public highways, and the duty of the state or highway commission is a
qualified one. Harmon V. Road Commission, 2 Ct. Claims (W. Va.) 329; Woofter v. Road Commission, 2
Ct. Claims (W. Va.) 393. Brady v. State Road 167
An award will be refused, where reasonable care has not been exercised by a
claimant in driving an automobile over an uneven rock stratum in the road,
causing an accident, m which claimant is injured and for which an award is
asked agamst
respondent. Yoak v. State Road _-——_- 17
The state does not guarantee the freedom from accident of
persons travelling on its highways. Brann v. State Road. - 118
As a sovereign comonwealth, the state of West Virginia, should, in equity and
good conscience, discharge and pay an obligation for which it is both morally
and legally liable. Baltimore
& Ohio v. State Road - 176
No duty, express or implied, rests upon the state road commission of West
Virginia to maintain the highways under its jurisdiction in more than
reasonably safe condition for use in the usual manner and by the ordinary
methods of travel: and the state does not guarantee freedom from accident of
persons traveling on such highways. Earle Hutchison v. State Road
Commission, Case No. 525, at ais Hendricks v. State Road 258
See also
Lanham v. State Road - - . 198
ROCK SLIDES
When the basis of a claim prosecuted
against a state agency is
negligence and omission of duty, and
it is clearly established by the evidence that it is not a claim which the
state as a sovereign commonwealth should discharge and pay, an award will be de
nied Lent v. State RoacL 253
The fact that a stone or rock falls from the hillside adjacent to
a public road or highway, striking and wrecking a passing truck,
does not of itself constitute negligence on the part of the state
road commission. See syllabis Clark v. Road Commission,
1 Ct. Claims (W. Va.) 230. Hutclsinson v. State Road -. 172
SCHOOLS—BOARDS OF EDUCATION—See State
Agencies
STATE AGENCIES
Where an employee of tte state, having
established headquarters for seven days in the week, after work hours on
Saturday evening while enroute to his home to spend the week end with his
family, is not in the furtherance of his employer’s business, nor goes he in
any way directly or indirectly promote the welfare of his employer’s business:
under the evidence in
these cases awards will be denied. Darlington v. State Road 205
282 REPORTS STATE
COURT OF CLAiMS 1W.
VA.
The Court of Claims is without jurisdiction to hear and determine or to make an
award in any matter or claim involvmg a county board of education. Reaffirming Dillon v. Board of Education, 1 Ct. Claims (W. Va.) 366. Richards v. Board Edu catio 251
STATE EMPLOYEES
A claim in which the facts adduced
justify an addition payment to claimant for injuries received while employed as
a
laborer or janitor at Marshall College. Reynolds
v. Board
Control -- 185
Where the petition filed and the testimony adduced clearly show that the
claimant has the right to have his claim heard and determined in a state court,
this court is without jurisdiction, and a motion to dismiss for want of
jurisdiction will be sustained.
MeVey v. State Mines - 233
Claimant not having been on the preferred eligible list at the time of her
dismissal by the Cabell county unit is not entitled to a salary during the
period of dismissal, even though the reasons for said dismissal are not
sustained and claimant was fully exonerated. The preferred eligible list and
ratings must control and govern in a period during which an emergcncy arises
caused by the curtailment of the appropriation for the department and when it
is found necessary to lessen the number of employees
or “visitors.” Garde v. Public
Assistance -
- - - 35
Syllabus in re the claim of Slwpierd
v. Department of Public Assistance
reaffirmed and adopted. Wilson v. Depaihnent
Public Assistance -
- - - 34
-
An employee of the department of public
assistance engaged in the work of investigating applicatiors for relief and
commonly termed a “visitor” and whose position and salary are based upon
seniority and service ratings and who is one upon the prelerred eligible list
when appropriations for the said depdrlmnent are curtailed or decreased, cannot
be dismissed without just cause and if so dismissed without such just cause is
entitled to her salary durmg the period of such dismissal. Shepherd v. Public
Assistance --
- 30
The state is morally bound to provide a safe, sanitary and hygienic place of
employment for a physician employed as such in one ol its tubercular sanitoris,
en I feilure to do so thereby e musing the physician to become afflicted,
entitles the physician to an
award. Cashman v. Boerd
Control -
- - - 259
There is no provision in the budget act for the payment of overtime to
employees working on a monthly wage scale as set up by the budget director: no
provision is made for a contract of employment to such employers either express
or implied, covering payment for overtime. Grogan v. Board Control 169
W.VA.J REPORTS
STATE COURT OF CLAIMS 283
Compensation for duties performed and
services rendered by a deputy commissioner of forfeited and delinquent lands is
payable out of the operating fund for the land department m the auditor’s
office; and the Court of Claims will not recommend to the Legislature an
oppropriation for such compensation when a claimant fails to allege and prove
that compensation for such services claimed by him and to which he might show
himself to be justly entitled is not available in the said fund for the
satisfaction of his claim. Thrift v. Auditor 18
The State is under no moral obligation
to compensate a physi-. clan on the medical staff of a state tubercular
sanitarium who, by reason of his contact with the patients confined in said
sanitarium or hospital contracts tuberculosis, unless it is shown that in some
manner the state or the department involved was guilty of negligence that
contributed to the said physician’s contracting
the disease in question. Cashman v. Board Control 259
When an employee of the state
contracts lobar pneumonia and dies therefrom and the testimony fails to connect
the incipiency of the disease directly with any act of his employment
there will be a denial of an award. Logan v. State Road - 238
See also
Bennett V.
Stale Roed 5
McVey 5r Mines Dept. 139
McGlsee v. Board Control 14
STATUTES OF LIMIT &TIONS -
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 pui’chase 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, deco v. State
Tax 94
An award will not be made to a person failing to file application for rJund
of taxes paid on gasoline within sixty days after clete of purchase or dclive’v
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 liv the statute permittinv refunds on
gasoline used for certain specific purposes. State Construc tio v. State
Tax 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.. - 25
Where the facts supporting a claim against the state warrant it an award will
be made under the doctrine of subrogation. Aetna
v. State Road 158
284 REPORTS STATE
COURT OF CLAIMS [W. VA.
TAXES
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. Snee v. Tax
Commissioner 94
When a publishing company publishes legal notices contracted for by
constitutional authority, as prescribed by statute, it becomes a just
obligation and an award should be made. Berkeley
Printing v. Auditor 231
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. Tax Commis sione -- 25
Compensation for dutier performed and services rendered by a deputy
commissioner of forfeited and delinquent lands is payable out of the operating
fund for the land department in the auditor’s office; and the Court of Claims
will not recommend to the Legislature an appropriation for such compensation
when a claimant fails to allege and prove that compensation for such services
claimed by him and to which he might show himself to be justly entitled is not
available in the said fund for the satisfaction of his claim. Thrift v. Auditor
18
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
v.TaxCommssioner 85
WILD ANIMALS—See Animals
WORKMEN’S COMPENSATION
A claim in which the facts adduced justify
an additional payment to claimant for injuries received while employed as a
laborer or janitor at Marshall College. Reynolds v. Board
Control 185
When an employee of the state contracts lobar pneumonia and dies therefrom and
the testimony fails to connect the incipiency of the disease directly with any
act of his employment there will
be a denial of an award. Logan v. State Road 238
See also
Cath,nan v. Board Control 259