STATE OF WEST VIRGINIA
Report of the Court of Claims 1941-1942
Volume 1
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the period July 1, 1941 to
November 30, 1942.
By
WM. S. O?BRIEN
Secretary of State and Ex Officio Clerk
and
JOHN D. ALDERSON
Deputy Clerk
(Published by authority of an order of the State ?Court of Claims and
pursuant to section 25 of an Act entitled ?Court of Claims law? approved
March 6, 1941.)
WM.
W. GAUNT & SONS, INC.
Reprint
Edition
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3011 Gulf Drive, Holmes Beach, Florida 33510
Printed in the United States of America
by
Jones Offset, Inc., Bradenton Beach, Florida 33510
CONTENTS III
TABLE
OF CONTENTS
Page
Bonds of administrators and guardians ?---- xxxiii
Claims classifi and certified, list of _____ xxii
Claims reporte ,table of xxxvii
Financial repo t (see memorandum of Deputy Clerk) ?__ xix
index on opil ions ______xxxvii
Letter of tran mittal v
Memorandum f Deputy Clerk xvii
OpinionsofCo rt xxxv
Personnel of Curt iv
Publishing re rt, order for ____________________
Releases by chimants xxxiii
Rules of proce ure __________
_________________ Ix
IV PERSONNEL OF
THE STATE COURT OF CLAIMS
PERSONNEL
OF
THE
STATE
COURT OF CLAIMS
HONORABLE WALTER M. ELSWICK Presiding
Judge
HONORABLE ROBERT L. BLAND Judge
HONORABLE CHARLES J. SCHUCK Judge
WM. S. O?BRIEN
Secretary of State and Ex Officio Clerk
JOHN D. ALDERSON
Deputy Clerk
LETTER
OF TRANSMI?ITAL V
Letter
of Transmittal
To His Exc ilency
Honorable atthew M. Neely
Governor o West Virginia
Sir:
In confor ciity with the requirements of section twenty-five of the Cour of
Claims law, approved March sixth, one thousand nine hundr d forty-one, and an
order of the State- Court of Claims ente ed of record on July thirtieth, one
thousand nine hundred fo: ty-two, I have the honor to transmit herewith the
report of ti e State Court of Claims for the period July first, one thousa d
nine hundred forty-one o November thirtieth, one thousai I nine hundred
forty-two.
Respectfully submitted,
Secretary of State and
Ex Officio Clerk.
ORDER OF COURT
FOR PUBLICATION OF REPORT VU
ORDER
OF COURT
For Publication of Report
WHEREAS, The act creating the state
court of claims provides for the publication by the clerk of the said court of
a biennial report as a public document for submission to the Governor and the
State Legislature, and
WHEREAs, The court has been in existence and engaged in hearing and determining
claims against the state and various agencies thereof since the 14th day of
July 1941, and will continue to hear and determine claims up to and including
the October term, 1942, before the next regular session of the State
Legislature beginning January 13, 1943, and
WHEREAs, The full biennial period will not have expired from the first term or
session of the court before the next regular session of the State Legislature,
during which period, however, many awards have been made and others denied, and
opinions of the court filed therewith, and
WHEREAs, The said act requires that the said awards so made by the court shall
be submitted to the Legislature for its consideration and action and, as
allowed, be set forth in the regular biennial budget bill the1pf;
THEREFoRE, The court is of the opinion that it will be expedient, proper and
beneficial both to the claimants involved and the state and its several
agencies, and especially so to the members of the Legislature, to submit to the
Legislature all awards made and claims denied, together with the opinions
rendered by the court, heretofore made and to be made, up to and including the
October term, 1942.
IT IS THEREFORE ORDERED, That the clerk shall publish his report as
required, including and embracing all awards made and
VIII ORDER OF
COURT FOR PUBLICATION OF REPORT
claims denied, together with the opinions rendered, including, also, the awards
to be considered by the court, and the opinions rendered during the October
term, 1942, as soon as may be after the 20th day of November next, for submission
to the Governor and the State Legislature, and
IT IS FURTHER ORDERED, That the said first report to be so published by the
clerk shall consist of 1000 copies, with permanent bindings.
Entered July 30, 1942.
RUL OF
PRACTICE AND PRCCEDURE IX
Rules
of Practice and
Procedure
OF THE
STATE
COURT OF CLAIMS
(Adopted by the Court July 30, 1941)
X RULFS OF PRACTICE AND PROCEDURZ
TABLE
OF CONTENTS
Rules of Practice and
Procedure
RULE PAGE
1. Clerk,Locatk,nof Office, etc XI
2. Clerk, Custodian of Papers, etc XI
3.
FiingPapers _____? XI
4. Records XII
5. Claims,Formof XII
6. Copy of Notice of Claims to Attorney General and State Agency XIII
7. Jurisdiction, Prima Facie ____ XIII
8. Docket, Preparation of _-_-_ ? -_. XIII
9.
Testimony, Rules Governing XIV
10. Claims, Issues on -
- _--_-- ?-----?----? XIV
11. Stipulation of Fact; Interrogatories to Determine .------? XIV
12. Claimants, Appearances - __-----_______ XV
13. Briefs ___
XV
14. Amendments __.
XV
15. Claims, Dismissal on Failure to Prosecute ? ___
16. Certified Copies -
-
RUL
OF PRACTtCE AND PROCEDUBE
RULES
OF PRACTICE AND PROCEDURE OF THE
STATE COURT OF CLAIMS
FdJLE 1.?CLERK,
LOCATION OF OFFICE, ETC.
The secretary of state shall be ex
officio the clerk of the court. The clerk?s office of the court shall be in the
office of the secretary of state, in the city of Charleston, and shall be kept
open in charge of the clerk, or some competent employee of the clerk duly
deputized, each week day, except legal holidays for the purpose of receiving
notice of claims and conducting the business of the office, during the same
business hours as the office of the secretary of state, except when otherwise
required by the court during a general 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 anjndex for that purpose, any paper, pleading, document, or
other writing filed in connection with any claim or demand. The clerk shall
also properly endorse all such papers, claims, or demands showing the title of
the claim or demand, the number of the same, and such other data as may be
necessary to properly connect and identify the document or writing, claim or
demand.
RULE
3.?FILING PAPERS.
(a) Communications addressed to the
court or clerk and all notices, petitions, answers and other pleadings, all
reports, exhibits, depositions, transcripts, orders and other papers or
documents received or filed in the office kept by the clerk of this court,
shall be endorsed by him showing the date of the receipt or filing thereof.
XII COURT OF
CLAIMS
(b) The clerk upon the receipt of a notice of claim shall enter of record in a
book indcxi and kept for the purpose, the name of the claimant, whose name
shall be used as the title of the case, and a case number shall be assigned
accordingly.
RULE
4.?RECORDS.
The clerk shall keep the following
record books, suitably indexed in the names of claimants:
(1) Minute book, in which shall be recorded the minutes of all official
business sessions of the court, including rules of procedure, orders paying
salaries of members; orders paying the expenses of the court, and the salaries,
compensations, costs 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, 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 the case.
(3) 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.
RULE
5.?CLAIMS, FORM OF.
All claims and demands must be filed
with the clerk of thy court in the office of the secretary of state, and may be
by letter, petition, declaration, or any other writing, which sufficiently sets
forth the nature of the claim or demand and the facts upon which it is based,
and the state agency, if any, that is involved, It is understood that technical
pleadings shall not be required. The court, however, reserves the right to
require further information in writing before hearing, when, in its judgment,
justice and equity may demand or require.
RUL OF
PRACTICE AND PROCEDU1E XIII
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 note of
the time of said delivery of such notice to
e attorney general?s office.
RULE
7.?JURISDICTION, Prima Facie.
A reasonable time before the printing
of the docket, as provided by these rules, the court will examine each claim to
ascertain whether it is prima facie within its jurisdiction. If it is found that the court has
jurisdiction, the claim will then be ordered to be placed upon the docket. If
it is found that the court is without jurisdiction, the claimant or
representative presenting the claim will be notified accordingly, by letter
from the clerk; leave being granted the claimant or his representative to
appear before the court at any time during a regular or special session
thereof, to show cause, if any, why the court has or should assume jurisdiction
of the claim.
RULE
8.?DOCKET, PREPARATION OF.
The clerk shall prepare fifteen days
previous to the regular terms of the court a printed docket showing all claims
and demands that are ready for hearing and consideration by the court. 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 riht to
rearrange or change the order of hearing claims or demands at any regular term,
when in its judgment such rearrangement or change would help to expedite and
carry on the work of the term. As soon as the docket is completed and printed,
a copy thereof shall be mailed to the address of record of each claimant or his
representative of record, and a copy furnished the office of the attorney
general.
COURT
OF CLAIMS
RULE
9.?TESTIMONY, RULES GOVERNING.
While it is not intended or
contemplated that the strict rules of evidence governing the introduction of
testimony shall control in the hearing or presentation before the court of any
claim or demand; and while, so far as possible, all technicalities shall he
waived, yet the court reserves the right to require or outline from time to
time certain formalities to be required in presenting testimony in support of a
claim or in opposition thereto, and to preserve the proper sequence of
procedure in the hearing of each individual claim, as the circumstances may
demand or require. Such requirements or formalities may be announced from time
to time during sessions of the court.
RULE
10.?CLAIMS, ISSUES ON.
In order to promote a simple,
expeditious and inexpensive consideration of the claim made, the attorney
general shall within ten days after a copy of the notice has been furnished his
office file with the clerk a formal or informal statement or notice in writing,
either denying the claim, requesting postponement of proceedings to permit
negotiations with the claimant, or otherwise setting forth reasons for further
investigation of the claim, otherwise after said ten-day period the court may
order the claim placed upon its regular docket for hearing, if found to be a
claim prima
facie within its jurisdiction.
RULE
11.?STIPULATION OF FACT; INTERROGATORIES
TO DETERMINE.
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.
RUL OF PRACTICE
AND PROCEDURE XV
RULE
12.?CLAIMANTS, APPEARANCES.
Any claimant may appear in his own
behalf or have his claim presented through a duly qualified representative. The
representative may be either an attorney at law, duly admitted as such to
practice in the courts of the state of West Virginia, or one who has the
qualifications, in the judgment and opinion of the court, to properly represent
and present the claim of a claimant. Where the representative is not an
attorney at law, then such representative must have the written authority of
the claimant to act as such.
RULE
13.?BRIEFS.
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 presented to and furnished any
opposing counsel, the state agency involved, and the attorney general. The
court may designate the time within which reply briefs may be filed.
RULE
14.?AMENDMENTS.
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.?CLAIMS, DISMISSAL ON FAILURE TO PROSEC UTE.
Whenever any claim shall have
regularly appeared on any docket of this court four times and shall not be
moved for trial by the claimant and the state shall be ready to proceed with
the trial thereof, the judge presiding, upon motion of the state or upon his
own motion may dismiss the claim unless sufficient reason is shown by the
claimant why such claim cannot be tried. An order dismissing such claim shall
not be vacated nor shall
XVI
COURT OF CLAIMS ____
the trial thereof be reopened except by a
notice in writing sup- ported by affidavits showing sufficient reason why the
order dismissing such claim should be vacated and the trial thereof per
initted.
RULE 16.?CERTIFIED
COMES.
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,
MEMORANDUM
BY THE DEPUTY CLERK XVII
Memorandum
by the Deputy Clerk
ORGANIZATION
OF THE COURT
The law establishing the West
Virginia state court of claims was passed by the Legislature March 6, 1941,
effective from passage, and the act was approved by Governor M. M. Neely. The
Governor prior to July 1, 1941 named the first membership of the court as
follows: Honorable Walter M. Elswick of Hinton for a six-year term expiring
June 30, 1947, Honorable Robert L. Bland of Weston for a four-year term
expiring June 30, 1945 and Honorable Charles J. Schuck of Wheeling for a
two-year term expiring June 30, 1943. As these appointments expire all
appointments shall be for six years.
The judges qualified and the court convened at the office of the secretary of
state in the Capitol Building in the city of Charleston, West Virginia on July
14, 1941, that being the first day of the regular July term 1941. The court
organized by electing Honorable Robert L, Bland presiding judge for the ensuing
year.
At this term the court formulated and adopted rules of practice and procedure
governing proceedings before the court. Also at this time, with the approval of
the court, Win. S. O?Brien, secretary of state and as such ex officio clerk of
the court, designated John D. Alderson of Richwood, a regular employee of his
office, as deputy clerk, who qualified and began his duties August 1, 1941.
Lenore Thompson was employed as secretary-stenographer to the court.
SCOPE
OF WORK
Thirty-three claims were filed during
August and up to September 15, 1941, of which seven were dismissed for lack of r.?rima
facie jurisdiction, and twenty-six cases were docketed for hearing at the
regular October term 1941, which was the first regular hearing term to be held.
The court at the October
XVIII MEMORANDUM BY THE DEPUTY
CLERK
term engaged the services of Charles V. Price of Charleston as official court
reporter; and at that term Clarence W. Meadows, attorney general, designated
Eston B. Stephenson, his special assistant, to represent the state before the
court.
Since the October term 1941 the volume of business before the court has
steadily increased. At the January term 1942 the number of cases docketed was
thirty; at the April term 1942 forty-one cases were placed on the hearing
docket, and at the July term 1942 there were forty-two; and at the October term
1942 fifty-three claims were set on the hearing docket and five other claims
were dismissed for lack of prima facie jurisdiction to entertain them. At a special term in February 1942, held
in Wheeling five cases which had arisen in that section of the state were
docketed for hearing. The present report covers the time from the organization
of the court up to November 30, 1942, a period of approximately eighteen
months. During this period a total of 168 claims have been disposed of making
demand in excess of $285,000.00. The awards made during this period total
$82,496.70 and embrace 127 separate claims. Due to the number of claims filed
and the volume of work entailed during the first fiscal year the court was
unable to consummate all the business before it within the 150 days allowed for
per diem by the court act.
TEMPORARY
QUARTERS OF THE COURT
The court of claims being a new court
did not have any regular quarters at the capitol. Although the court act
specifled the office of the secretary of state as the regular meeting place of
the court, yet there was not adequate space for a clerk?s office and hearing
rooms in the suite of rooms occupied by the office of the secretary of state,
and it became necessar? to obtain quarters elsewhere and designate them by
court order with the approval of the secretary of state as a part of his office
to meet the requirements of the court act. Honorable R. E. Talbot, state
treasurer, Honorable H. N. Martin, superintendent of buildings and grounds and
Honorable Cleveland M. Bailey, budget director, were designated by the Governor
a a committee to locate and obtain suitable quarters for the court. The
committee by arrangement with Honorable J. R. Aliff,
MEMORANDUM BY THE DEPUTY CLERK
clerk of the
House of Delegates, obtained for temporary use, during the period covered by
this report, rooms No. 238 and 240 belonging to the House of Delegates as a
hearing room and clerk?s office respectively.
OPERATING
EXPENSE OF THE COURT
The ttai administrative expenditures
of the court of claims the first fiscal year, July 1, 1941 to June 30, 1942
inclusive, were $15,177.37. The appropriation for the fiscal year being
$25,000.OQ there remained at the close of the year a net unexpended balance of
$9,822.63.
The expenditures for the first fiscal year were classified as follows:
Judges? per diem -_---_-_$ 6,750.00
Judges? expenses__ 1,669.15
Personal services 11 months for
secretary-stenographer and
janitor-messenger ?
?-
Law books
Furniture and fixtures
Court reporter
Current expense?stationery,
dockets, etc
808.76
Total (expenses) 15,177.37
Unexpended balance 9,822.63
1botal (appropriation) 25,000.00
Since the second
fiscal year does not end until June 30, 1943, it cannot be included in this
report.
PAYMENT
OF DEPUTY
CLERK
The above summary does not include
the salary of the deputy clerk, for under the present court act he is required
to be a regular employee of the office of the secretary of state. Since the
budget for the office of the secretary of state had been made up prior to the
date on which the court of claims act was passed, the secretary?s budget did
not provide for a deputy clerk for the court, and neither did the appropriation
for the court nor the court act itself authorize the payment of the
1,629.51
230.00
2,010.95
2,079.00
XX
MEMORANDUM BY THE DEPUTY CLERK
salary of a deputy clerk out of the
appropriation made for the operation of the court. The services of a deputy
clerk were necessary to the proper functioning of the court and in order that
the court might have the full time services of a deputy clerk his salary has
been paid monthly by the Governor out of the Governor?s contingent fund,
excepting a five dollar monthly token payment from the secretary of state so as
to classify the deputy clerk as an employee of the secretary?s office.
COURTS
OF CLAIMS IN OTHER STATES
From general inquiry it seems that
West Virginia was the fourth state in the union to enact a court of claims law
permitting claims to be filed and prosecuted against the state and state
agencies. The other states preceding West Virginia in establishing a court of
claims so far as learned were Illinois, Michigan and New York. (There is also a
federal court of claims in Washington.)
These courts have been as far apart as the poles on at least one fundamental;
they have administered their respective acts with such widely divergent results
that the West Virginia state court of claims has had mainly to blaze a new
trail and do its own pioneering. This has also been made necessary in part
because of new and novel questions arising in a hitherto unexplored field in
our state. In Illinois the court of claims refuses to apply the doctrine of respondeat
superior to the state and consequently denies liability for damages caused
by the negligence of the state through its employees.
?The doctrine of respondectt superior is not applicable to the State
(Illinois) as a sovereign power, and it is not liable for damages, injuries or
death, resulting from the negligence of its officers, agents or employees under
any theory of law or equity.??Bctrica, claimant, v. State of
Illinois, respondent, 10 Iii. Court of Claims 47 (Oct. 12, 1937). On the
other hand the New York rule has been stated thus ?. . . the State (New York) has waived its immunity from
liability for the torts of its officers and employees and consented to have
that liability
MEMORANDUM
BY THE DEPUTY CLERK XXI
determined by the court of claims in
accordance with the same rules of law as apply to an action in the Supreme
Court against an individual or corporations.??The court of claims of the state
of New York (p. 5)?James J. Barret, presiding judge, May 19, 1938.
FIVE ROCEDURES PROVIDED
FOR IN THE COURT ACT
The opinions of the West Virginia
state court of claims for the first eighteen months of its existence are
reported in full herein. These opinions cover 85 claims filed by claimants
under the regular procedure; also 82 claims filed under the shortened procedure
section of the court act embodying claims concurred in by the state departments
concerned and approved by the attorney general, the records whereof were made
up and submitted by the departments involved.
The court being new and in its formative period and the state agencies perhaps
not at the outset having become thoroughly familiar with all the various
procedures provided for in the act, namely (a) regular procedure, (b) shortened
procedure, (c) advisory determination procedure, (d) claims arising under
existing appropriations and (e) claims arising under special appropriations,
only one advisory opinion?that at the instance of the state auditor?is
contained in this report. Section 18 of the, court act provides in part that ?. . . 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.? While the advisory
section has not been availed of, with the one exception noted, during the
period of this report, yet it is believed that as the various functions of the
court become better known the advisory determination procedure promises in the
future to provide one of the most practical and useful avenues of service which
the court may render to the departments and agencies of the state government.
REPORT OF THE COURT OF CLAIMS
For Period July 1, 1941 to November 30, 1942
(1) Approved claims and awards not
satisfied but referred to the Legislature for final consideration and
appropriation:
Name of Claimant
Amount Claimed
Amount Awarded
No.
107
109
108
110
73
34-S
22
24
186?S
56-S
129-S
39-S
184-S
185-S
1
1
76
204-S
Adkins, Dewey
Adkins, G. B.
Adkins, Joel H.
Adkins, Walter & D. B. Wilson, d/ba Adkins & Wilson
Ashworth, Vernie E.
Aspinail, William H. & Company, a corporation
Atkinson, Clarence R.
Babb, Roy C.
Bailey, B. D. & Sons
Balsley, George M.
Bennett, C. C.
Biggess, E. R.
Blair Willison Company, Inc..
Blair Willison Company, Inc..
Brown, James E.
Brown, James E., Adm. of the estate of Rocie M. Brown, deceased.
Brooke County Court
Broyles, Minnie
Name of
Respondent
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 Tax Commissioner
State Road Commission
State Road Commission
State Road Commission
State Tax Commissioner
State Tax Commissioner
State Road Commission
State Road Commission
State Auditor
State Road Commission
$ 680.75
1,111.25
1,233.75
1,256.50
50.00
50.54
20,000.00
257.00
243.28
28.92
89.57
8.00
570.91
603.79
15,000.00
8,292.42
50.00
$ 411.95
681.35
798.56
756.89
50.00
50.54
4,000.00
257.00
243.28
28.92
89.57
8.00
570.91
603.79
4,000.00
2,000.00
7,760.09
50.00
Dateof
Detennhiation
September 19, 1942
September 19, 1942
September 19, 1942
September 19, 1942
June 15, 1942
November 26, 1941
December 2, 1941
October 26, 1942
October 29, 1942
January 24, 1942
July 28, 1942
January 12, 1942
October 29, 1942
October 29, 1942
November 12, 1941
November 12, 1941
June 15, 1942
November 17, 1942
REPORT OF THE COURT OF CLAIMS
(Continued)
(1) Approved claims and awards not
satisfied but referred to the Legislature for final consideration and
appropriation:
Name of Claimant
Caivert Fire Insurance Company
Canterbury, Brookie, Admx. of the estate of Bert Canterbury, deceased
Carson, Howard
Casto, Harman
Cecil, George B.
Chapman, John
Chapman, W. W. & Mae
Chesapeake & Ohio Railway Company
Cobb, Hanna (Mrs.)
Consolidated Engineering Company
Cottle, A. S.
Cottle, Curtis
Cox, David
Crabtree, Dock
Damron, Rebecca
Damron, Wayne, and Calvert Fire Insurance Company, a corporation
Damron, Zillie
Elliott Brokerage Company Ellis, Rosa
State Road
Commission
State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Board of Control
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 Tax Commissioner State Road Commission
Amount Claimed
June 15, 1942
January 24, 1942
January 12, 1942
April 13, 1942
April 13, 1942
August 21, 1942
December 19, 1941
January 24, 1942
November 23, 1942
April 13, 1942
October 23, 1942
November 17, 1942
April 13, 1942
August 21, 1942
Name of Respondent
State Road Commission
Amount
Awarded
Date of
Determination
No.
73
79
61-S
41-S
11
88-S
75
29
59-S
106
85-S
134
206-S
72-S
121
95-S
120
187-S
19
154.11 June 15, 1942
154.11
10,000.00
16.69
40.00
25,000.00
38.50
5,000.00
114.35
7,00
37,632.46
87.62
5.00
50.00
213.25
383.48
500.00
692.32
2,500.00
CD
CD
0
C
a
1,500.00
16.69
40.00
900.00
38.50
600.00
114.35
7.00
9,750.00
87.62
2,750.00
5.00
50.00
50.00
343.82
100.00
692.32
1,500.00
August 21, 1942 August 21, 1942 October 29, 1942 February 3, 1942
REPORT OF THE COURT OF CLAIMS (Continued)
(1) Approved claims and awards not satisfied but referred to the Legislature for final consideration and appropriation:
U)
|
No - |
Name of Claimant |
|
Name of Respondent -? |
|
:?::11 |
J)j, |
||
|
15-S |
Fields, Harry
(Harrison) |
State |
Road |
Commission |
|
100.00 |
100.00 |
November 12,
1941 |
|
66-S |
Garnette,
Pauline |
State |
Road |
Commission |
|
1.50 |
1.50 |
April 13, 1942 |
|
199-S |
Halsey, R. L. |
State |
Road |
Commission |
|
3.00 |
3.00 |
November 17,
1942 |
|
86-S |
Irons, Charles Irwin, D. C. |
State State |
Road |
Commission Commission |
|
20.75 |
20.75 |
April 13, 1942 October 13, 1942 |
|
89-S |
Jewell Tea Company |
State |
Road |
Commission |
|
25.00 |
25.00 |
April 13, 1942 |
Johnson, enamin,
Jr., infant
Keeley Construction Company, a Corporation
Keeley Construction Company, a Corporation
Kelso, Hugh E.
Kettering Baking Company
Kincaid, Betty Jane, infant
Kincaid, E, W.
Kincaid, Walter Lee, infant
Kiages, E. C. (Mrs.)
Kolar, Evan
Leggett, C. W. & Co.
Lively, Charles
Loar, G. I.
Love, Harry M.
Lowe, Voss R.
Martin, Arnold L.
Maxwell, Donovan A. (Mrs.)
Mealey, Callie, Admx. of the es.. tate of James Clarence Mealey, deceased
Meeks, Lawrence
Minton Chevrolet, Inc.
State and Calhoun
County Boards of Education 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 Tax Commissioner
State Auditor
State Road Commission
State Road Commission
State Road Commission
State Road Commission State Road Commission
State Road Commission
State Road Commission
State Road Commission
REPORT OF THE COURT OF CLAIMS (Continued)
(1) Approved claims and awards not satisfied but
referred to the Legislature for final consideration arid appropriation:
55
77
78
128?S
144-S
149
149-A
148
202-S
200-S
182-S
50
97-S
21
84-S
3
37-S
98
42-S
125?S
2,000.00
860.50
3,360.50
5.00
8.16
7,500.00
100.00
5,000.00
25.28
90.43
565.64
3,041.33
15.13
750.00
28.10
40.00
25.00
6.00
49.22
500.00
860.50
1,810.50
5.00
8.16
500.00
50.00
150.00
25.28
90.43
565.64
3,041.33
15.13
500.00
28.10
40.00
25.00
4,000.00
6.00
4922
April 21, 1942
June 15, 1942
June 15, 1942
July 28, 1942
Octc,ber 13, 1942
November 17, 1942
November 17, 1942
November 17, 1942
November 17, 1942
November 17, 1942
October 29, 1942
February 3, 1942
April 13, 1942
December 5, 1941
April 13, 1942
November 12, 1941
January 12, 1942
August 21, 1942
January 12, 1942
July 28, 1942
|
|
? |
|
|
|
|
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
REPORT OF THE COURT OF CLAIMS (Continued)
(1) Approved claims and awards not
satisfied but referred to the Legislature for final consideration and appropriation:
Name of Respondent
Amount Amount Claimed Awarded
No.
71-S
101
99
102
100
62-S
40-S
70
171-S
60-S
91-S
130-S
63-S
176?S
69-S
48
48
207-S
90-S
177
178
Name of Claimant
Morgan, Bill
Mullins, Dairl, infant
Mullins, Ira
Mullins, Irene, infant
Mullins, Rosa
McAllister, J. A. (Mrs.)
McCormick, Walter
McMillion, Robert Dewey, infant
Nicholson, Gail
O?Ferrell, William (Mrs.) Orndorff, J. Frank
Pennington, C. B.
Perkins, G. H.
Powell, Margaret B.
Raleigh Steam Laundry Richards, Ernestine, infant
Richards, J. C.
Riggs, A. C.
Riley, L. 0.
Roberts, Alfred D., II
Roberts, Alfred D., III, infant
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
State Road Commission
State Road Commission State and Calhoun
County Boards of Education State and Calhoun County Boards of Education
State Road Commission
State Road Commission
State Road Commission
State Road Commission
5.36
26.00
95.00
1,500.00
18.00
5.61
33.90
10.42
6.53
19.28
22.30
5,000.00
449.00
7.00
1,000.00
15,000.00
5.36
1,500.00
2,500.00
1,500.00
200.00
26.00
95.00
250.00
18.00
5.61
33.90
10.42
6.53
19.28
22.30
3,000.00
2,000.00
449.00
7.00
400.00
1,000.00
Date at
Detesralnathu
April 13, 1942
August 21, 1942
August 21, 1942
August 21, 1942
August 21, 1942
January 24, 1942
January 12, 1942
April 30, 1942
October 13, 1942
January 24, 1942
April 13, 1942
July 28, 1942
January 24, 1942
October 13 1942
April 13, 1942
April 21, 1942
April 21, 1942
November 17, 1942
April 13, 1942
November 23, 1942
November 23, 1942
64-S
111-S
169-S
124-S
57-S
44-S
142-S
58-S
47-S
36-S
190-S
43-S
83-S
170-S
67-S
68-S
46-S
183-S
28
160-S
21.63
248.92
13.52
69.37
65.00
5.00
15.91
47.86
85.00
18.36
20.00
28.93
10.20
53.53
15.30
25.00
31.20
14.29
7,611.03
32.75
REPORT OF THE
COURT OF CLAIMS
(Continued)
(1) Approved claims and awards not
satisfied but referred to the Legislature for final consideration and
appropriation;
Rodgers,
George State Road Commission
Rollins, W. F., and the Home In suranc
Company of New York State Road Commission
Sarver Garage State Road Commission
Shingler Meat Company State Road Commission
Silar, Grady State Road Commission
Smith, L. G. State Road Commission
Smith, Ora State Road Commission
Snodgrass, A. R. State Road Commission
Sovine, N. H. State Conservation Commis sion Spencer, J. 0. (Mrs.) State
Road Commission
Spencer, J. H. State Road Commission
Spencer, Sarah State Road Commission
Steele, L. M. State Road Commission
Strother, W. L. State Road Commission
Swiger, Harry (Mrs.) State Road Commission
Thmpson, Elmo H. State Road Commission
Tomich, Louis State Conservation Commis sion United Brokerage Company
State Tax Commissioner
Valley Camp Stores Company, a
corporation State Road Commission
Valvoline Oil CompanY State Road Commission
21.63
248.92
13.52
69.37
65.00
5.00
15,91
47.86
85.00
18.36
20.00
28.93
10.20
53.53
15.30
25.00
31.20
14.29
4,500.00
32.75
January 24, 1942
July 28, 1942
October 13, 1942
July 28, 1942
January 27, 1942
January 24, 1942
October 13, 1942
January 24, 1942
October 13, 1942
January 12, 1942
October 13, 1942
January 12, 1942
April 13, 1942
October 13, 1942
April 13, 1942
April 13, 1942
October l, 1942
October 29, 1942
December 20, 1941
October 13, 1942
|
No. |
Name of Claimant |
|
Name of Respondent |
Amount |
Amount |
Date of |
REPORT OF THE COURT OF CLAIMS (Continued)
(1) Approved claims and awards not
satisfied but referred to the Legislature for final consideration and
appropriation:
No. Name of Claimant Name of Respondent Amount
Amount Date of
C)
Claimed Awarded Determination
(i2
135-S Vandevender, S. G. State Road
Commission 50.00 50.00 July 28, .1942
-4
87-S Walker, C. J. State Road Commission
39.40 39.40 April 13, 1942
C)
143-S Ward, Arzana M. State Road Commission 50.00 50.00 October 13, 1942
20 Wildman, Ray, Adm. of the es tat
of H. L. Wildman, dec?d. State Road Commission 10,000.00 5,000.00 December 5,
1941 o
65-S Williams, Hughie A. State Road
Commission 278.64 278.64 April 13, 1942 Z
0
TOTALS 202,670.93 81,998.70
____
_____________ _____ ? _____ C)
(2) Approved claims and awards satisfied by payments out of regular
appropriations for the biennium:
No. Name of Claimant Name of Respondent Amount Amount Date of Z
Claimed Awarded Determination
131 Doyle, Florence State Conservation
Commis- 318.00 318.00 September 19, 1942
sion and State Auditor
141 Elkins Builders Supply Company State Board of Control 180.00 180.00
September 19, 1942
(3) Approved claims and awards satisfied by payment out of a special
appropriation made by the Legislature to pay claims arising during iie
biennium: (None) I
(4) Claim rejected by the court:
REPORT OF THE COURT OF CLAIMS (Continued)
|
No. |
Name of Claimant |
Name of Respondent |
AmOUflt |
Amount |
fate of |
|
25 |
Beaver, Ed |
Workmen?s
Compensation Commissioner |
.______ |
Dismissed |
September 24,
1941 |
|
16 |
Del Balso
Construction Corporation |
State Tax
Commissioner Summers County Board of Education |
133.65 |
Denied |
Novembet 26
1941 |
|
14 |
Eary, Charles |
Workmen?s Compensation Commissioner |
|
Dismissed |
September 24, 1941 |
|
133 |
Harless, Ada |
State Road
Commission |
15,000.00 |
Denied |
August 21, 1942
|
|
52 |
James, L. B. |
State Road
Commission |
75.42 |
Denied |
February 3, 1942
|
(4) Claims rejected by the court:
REPORT OF THE COURT OF CLAIMS (Continued)
Kidd Lumber
Company
Knicely, Walter R., d/ba Knicely Florists
Lambert, Rachel C., Admx. of the estate of Homer M. Lam- bert, deceased
Lane, Robert F.
Miller, Jess E.
Miller, Ruth
Moore, Sarah E.
Mullins, M. A.
Patton, E. B.
Peterson, Fred S, and Commerce Insurance Company
Rader, J. J.
Reed, Gilbert
Riddile, Forest
Scaveriello, Louisa
Shelton, R. L.
State Road
Commission County Court of Wood County
Lewis County Board of Education
State Board of Control
State Road Commission
Workmen?s Compensation Commissioner
Workmen?s Compensation Commissioner
State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Road Commission Workmen?s Compensation Commissioner
State Road
Commission
State Road Commission
282.00
119.25
53
38-S
13
74
? 138
5
49
8
9
18
30
112
159
4
7
Dismissed
Denied
Denied
_-----
Dismissed
a
April 30, 1942
January 12, 1942
July 22, 1942
March 23, 1942
June 16, 1942
February 3, 1942
February 3, 1942
September 24, 1941
September 24, 1941
December 12, 1941
October 26, 1942
August 21, 1942
November 21, 1942
February 3, 1942
September 24, 1941
1,000.00
350.00
2,500.00
310.71
189.91
3,500.00
6,500.00
Dismissed
Denied
Denied
Dismissed
Dismissed
Denied
Denied
Denied
Denied
Dismissed
Dismissed
|
No |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
REPORT OF THE COURT OF CLAIMS (Continued)
(4) Claims rejected
by the court:
|
No. |
Name of Claimant |
Name of Respondent |
J |
|
D |
|
119 |
Smith Herman (. Smith, Margarita M. |
State Road ConTmission State Road Commission |
750.00 |
Denied Denied |
September 19,
194 |
|
6 |
Taylor,
Alfred I). |
Workmen?s Compensation Commissioner |
10,000.00 |
Dismissed Denied |
SepteMber
24, 1941 |
|
116 |
University
of Omaha |
State Board of Control |
300.00 |
Dismissed |
Juita 16, 1942 |
|
|
TOTAL |
82,056,05 |
|
|
|
|
|
, |
:,, |
|
|
|
Amount Amount
Date of
Claimed Awarded Determination Dismisse December
20, 1941
REPORT OF THE COURT OF CLAIMS (Continued)
(5) Advisory
determinations made at the request of the Governor or the head of a state
agency:
No. Name of Claimant Name of Respondent
10 Loup Creek Collieries Company State Auditor
ci
C12
cD
C
?1
NOTE: The foregoing list of claims and
awards embraced in this report are classified as required by section 25, court
of claims law.
Denial of an award was usually made after full hearing on the merits, while a
dismissal of the claim usually occurred I oc lack of the court?s
jurisdiction to entertain it, in most instances before, but sometimes after,
hearing. z
At the time this report goes to press the court has comp1eted the hearing on 21 additional claims, and by a majority of the court it has dismissed 4 other claims against school boards for lack of jurisdicticn, making a total of 25 claims on which no opinions have as yet been filed. It is expected that opinions on these claims will be filed in time for consideration by the 1943 Legislature.
RELEASES
BY CLAIMANTS XXXIII
SPECIAL
RECOMMENDATIONS OF THE STATE COURT OF
CLAIMS ON RELEASES, ADMINISTRATORS AND
GUARDIANS IN RELATION TO AWARDS MADE
AND COVERED BY THE OPINIONS HEREIN
REPORTED.
The State Court of Claims of West
Virginia in each particular case where an award was approved during the period
embraced by this report, and covered by the opinions herein reported, also made
the following special recommendations to the Legislature and to the state
agencies with respect to all such claims wherein awards were made:
1. That before final payment shall be made of any award for which appropriation
may be made and payment authorized by the Legislature the claimant shall be
required to execute a duly authorized release, releasing the state of West
Virginia and the state agency concerned from all other and further demands or
liability of every kind whatsoever in relation to the claim made and the
matters particularly set forth in said claim, and that said payment shall be in
full and complete settlement of said claim; and that such release shall be
delivered to the state agency concerned or the agency authorized by the
Legislature to make and deliver payment thereof, at or before the time said
payment is made and delivered.
2. That, in addition to the recommendation in section one, in all cases where
the claimant is a duly appointed administrator or administratrix of the
personal estate of a deceased person, such personal representative, before
being entitled to receive payment, shall be required to ifie with the state
agency concerned, or the state agency authorized by the Legislature to make and
deliver payment, evidence that a bond as such administrator or administratrix
has been given and approved by the proper county court in an amount at least
equal to the amount of said payment authorized to be made.
XXXIV
- RELEASES BY CLAIMANTS
It is contemplated that this recommendation shall also apply to cases where the
claimant may have died since the making of the award and the appointment of an
administrator or administratrix has become necessary in order to receive such
payment as may be authorized by the Legislature to be made.
3. That, in addition to the recommendation in section one, where the claimant
is an infant, the guardian of such infant before being entitled to receive such
payment as may be authorized by the Legislature to be made, shall be required
to file with the state agency concerned or the agency authorized by the
Legislature to make and deliver such payment, evidence of his or her appointment
and qualification as such guardian and evidence that bond in at least an amount
equal to the amount of the payment so authorized to be made has been executed
and approved by the proper county court.
OPINIONS
TABLE OF CASES
REPORTED XXXVII
TABLE OF CASES REPORTED
Page
Adkins, Dewey v. State Road Commission 280
Adkins, G. B. v. State Road Commission - 280
Adkins, Joel H. v. State Road Commission 280
Adkins, Walter, et al v. State Road Commission - 280
Ashworth, Vernie E. et al v. State Road Commission 172
Aspinall, W. H. & Company v. State Road Commission 21
Atkinson, Clarence R. v. State Road Commission 26
Babb, Roy C. v. State Road Commission 112-317
Bailey, B. D. & Sons v. State Tax Commissioner -- 332
Balsley, George M. v. State Road Commission -. 75
Beaver, Ed. v. State Compensation Commissioner I
Bennett, C. C. v. State Road Commission 197
Biggess, E. R. v. State Road Commission 68
Blair Willison Company v. State Tax Commissioner - 330
Boley, Jennings C. v. State Conservation Commission 322
Brooke County Court v. State Auditor 179
Brown, James E. and Adm. v. State Road Commission 2
Broyles, Minnie v. State Road Commission - - 340
Calvert Fire Insurance Company, et at v. State Road Commission - 172-236
Canterbury, Brookie, Admx. v. State Road Commission - 173
Carson, Howard v. State Road Commission 79
Casto, Harmon v. State Road Commission 70
Cecil, George B. v. State Road Commission 114
Chapman, John v. State Road Commission 134
Chapman, Robert D. v. State Board Control 183
Chapman, W. W. and Mae v. State Board Control 244
Chesapeake & Ohio Railroad Company v. State Road Commission 55
Clark, James v. State Road Commission - 232
Clark, L. C. v. State Road Commission 230
Cobb, Hanna v. State Road Commission 77
Consolidated Engineering Company v. State Road Commission 358
Cottle, A. S. v. State Road Commission - -- 131
Cottle, Curtis v. State Road Commission -- 313
Cottle, F. F. v. State Road Commission 84
County Court of Brooke County v. State Auditor 179
Cox, David v. State Road Commission 341
Crabtree, Dock v. State Road Commission 128
Damron, Robecca v. State Road Commission - 236
Damron, Wayne v. State Road Commission - 236
Damron, Zillie v. State Road Commission 236
Del Balso Construction Corporation v. State Tax Commissioner 15
Dillon, Mary v. Summers County Board of Education 366
XXXVIII TABLE OF
CASES REPORTED
Dodrill, Herbert v. State Road Commission
Doyle, Florence v. State Conservation Commission
Dragon, John W. v. State Road Commission
Eary, Charles v. State Compensation Commissioner --
Elkins Builders Supply Company v. State
Board Control
Eli jott Brokerage Company v. State Tax
Ellis, Rosa v. State Road Commission -
Fields, Harry (Harrison) v. State Road
Commission
Finley, M. L. v. State Road Commission
Frankel, Sylvia B. v. State Road Commissin.
Fry, Charles Golden v. State Road Commission
Garnette, Pauline v. State Road Commission -
General Exchange Insurance Company et at v. State
Road Commission (No. 127-S)
Gentry, Joe v. State Road Commission
Gibson, J. R. v. State Road Commission --
Gibson, Roma v. State Road Commission ? Gorrell, Wayne v. State Road Commission
Griffith, James P. v. State Road Commission -
Gulf Oil Corporation v. State Road
Commission
Halsey, R. L., v. State Road Commission ...
Hailess, Ada v. State Road Commission
Haiper, Harold R., et at v. State Road Commission
Hart, Aubrey v. State Road Commission -
Harvey, Fred v. State Road Commission
Harvey, Rosa v. State Road Commission 345
Hash, Tom v. State Road Commission 139
Heiman, Mathew v. State Road Commission 19B
Hershberger, Edward J. v. State Road Commission - 52
Hicks, A. H. et at v. State Road Commission - - 204
Hivick, Edwin v. State Road Commission .. 138
Home Insurance Company (No. 111) v. State Road Commission
Houchins, Ezekiel v. State Road Commission
Irons, Charles v. State Road Commission
Irwin, D. C. v. State Road Commission
James, L. B. v. State Road Commission . . - -
James, R. L. v. State Road Commission -
Jewell Tea Company v. State Road
Commission
Johnson, Benjamin Jr. v. Logan County Board of Education
Johnson, Thomas L. v. State Road Commission
Jones, J. E. v. State Compensation Commissioner
Keeley Construction Company (No. 77) v. State Road Commission Keeley
Construction Company (No. 78) v. State Road Commission
Page
251
269
107
1
264
333
88
- - 11 199 303 48
204
191
226
226
141
192
307
337
241
12
304
345
201
32
132
306
90
34S
135
153
253
1
165
168
TABLE
OF CASES REPORTED XXXIX
Page
Kelso,HughE.v.StateRoadConunission 195
Kettering Baking Company v. State Road Commission 302
Kidd Lumber Company v. State Road Commission 182
Kincaid, Betty Jane v. State Road Commission 334
Kincaid, E. W. v. State Road Commission 334
Kincaid, Walter Lee v. State Road Commission 334
Kiages, E. C. (Mrs.) v. State Road Commission 339
Knicely Florists v. State Road Commission 72
Kolar, Evan v. State Road Commission 338
Lambert, Rachel C., Admx., v. State Road. Commission 186
Lane, Robert F. v. County Commissioners of Wood County 160
Leggett, C. W. & Company v. State Tax Commissioner 324
Lively, Charles v. State Auditor 102
Loar, G. I. v. State Road Commission 140
Loup Creek Collieries Company v. State Auditor 59
Love, Harry v. State Road Commission 33
Lowe, Voss R. v. State Road Commission 130
Martin, Arnold L. v. State Road Commission 9
Maxwell, Donovan A. (Mrs.) v. State Road Comniissi 68
Mealey, Callie, Admx., v. State Road Commission 214
Meeks, Lawrence v. State Road Commission 70
Miller, Jess E. v. Lewis County Board of Education 205
Miller, Ruth v. State Board Control 97
Minton Chevrolet, Inc.. v. State Road Commission 194
Moore, Sarah E. v. State Road Commission 93
Morgan, Bill v. State Road Commission 127
Muflins, M. A. v. State Compensation Commissioner 1
Mullins, Dairl v. State Road Commission 214
Mullins, Ira v. State Road Commission -- - 214
Muilins, Irene v. State Road Commission 214
Mullins, Rosa v. State Road Commission 214
McAllister, J. A. (Mrs.) v. State Road Commission 80
McCormick, Walter v. State Road Commission 69
McMillion, Robert Dewey v. State Road Commission 162
Nicholson, Gail v. State Road Commission - 310
O?Ferrell, Wm. (Mrs.) v. State Road Commission 7-8
Orndornf, J. Frank v. State Road Commission 137
Patton, E. B. (Eric) v. State Compensation Commissioner 1
Pennington, C. B. v. State Road Commission 198
Perkins, G. H. v. State Road Commission 81
Peterson, Fred S. v. State Road Commission_ ? ?----_ 22
Powell, Margaret B. v. State Road Commission -311
ladec, J. J. v.
State Road Commis,ion
1,L gb Stea,rr Laundcy v. State Read Commm
Reed.
Gilbe. L v. Siat. Road C Inlrossion
Richards, Ernestine v. Calhoun County Board of Education
Rb bo:u., J. I..?. v. Calhoun County Board of Education
Ii .1?(,,. V. So. b. Roao (dommRsi.rir
I ig. A. (? . Stale Floe I Commisdoir
L 0. ?:.
Snrte flood C)ooncssl.,a
Robe i.. A. ci D. II v Sinai Road Comrrbsion
N b ,,
Alie:1 D. III v. State Road Commission fl
tg s, Gcnige v. S:aai Road Commission
liolLirs, W. .
et at v. State Road Commission
Sa?ver Ga age v. State Read Commission
Scaverielic, Louisa v. State Road Commission
ShaRon. fl L. v. State Compensation Commissioner
ShnglLr Meat Company v. State Road Commission
Siiui, Grady v. State Road Commission
Smith, Heintan G. v. State Road Commission
Smith, L. G. v. Stale Road Commission
Smith, Marguerite M. v. State Road Commission
Smith, Ora v. State Road Commission
Snodgrass, A. R. v. State Road Commission
Soviric, N. H. v. State Conservation Commission
Spencer, J. D. (Mrs.) v. State Road Commission
Spencer, J. H. v. State Road Commission
Spencri, Sarah v. State Road Commission
Steele, L. M. v. State Road Commission
Strotlier, W. L. v. State Read Coinnrission
Swi ,
lla;ry, Mrs. v State Road Commission
Ta Jo,. Alfred v. S tate Cocnpensatioi Comn?iissiocier ?i?!i aipson,
Elmo H. v. State Road Commission
Timnis Wrn, Edward, Adm. v. Staic Board Control ?i?oia kh, Louis v. State Ccsi
yahoo (?ocnmission
Uiiivci ,ity of Omaha v. State Board Contiol
Unned Brokerage Company v Stare Tax Commissioner
v Cameo Stores Company v. SRte Road Commission Va toe rJt I ?i?wocrry v. State
Road Commission
S. (1. v. State Road Commission
Worker, C. J. v. State fiord Ceinmhsier
M. v, State Road Coarmiasion
Wiidm.rn. Rev. Adrn. v. State Road Commission
Williams Hrrmhie A. v. State React Commission
Wilson. D. B. cm l
v. State Road (?rncrrinsion
XL TABLE OF CASES REPORTED
Page
109-317
126
219
142
142
318
341
.13G
351
351
82
201
308
86
193
83
258
74
258
300
76
299
67
312
71
129
309
124
I
125
41
298
15.5
329
32
305
20h
133
301
.33
122
280
Cases Submitted and Determined in the
Court of Claims of the State of
West Virginia
(Nos. 6, 7, 8, 9, 14, 23 and 25?Claims
dismissed.)
ALFRED TAYLOR, Claimant, v. WORKMEN?S COMPENSATION COMMISSION, Respondent.
R. L. SHELTON, Claimant, v. WORKMEN?S COMPENSATLON COMMISSION, Respondent.
M. A. MULLINS, Claimant, v. WORKMEN?S COMPENSATION COMMISSION, Respondent.
E. B. PA?19:?ON, Claimant, v. WORKMEN?S COMPENSAT ON COMMISSION, Respondent.
CHARLES EARY Claimant, v. WORKMEN?S COMPENSATION COMMISSION, Respondent.
J. E. JONES, Claimant, v. WORKMEN?S COMPENSATION COMMISSION, Respondent.
ED BEAVER, Claimant, v. WORKMEN?S COMPENSATION COMMISSION, Respondent.
Opinion filed October 24 1941
JURISDICTION. The juridsiction of the
state court of claims does not extend to any claim for a disability or death
benefit under chapter 23 of the code of West Virginia governed by the workmen?s
compensation commission.
Filed in August and September 1941 and court declined to docket same at special
term September 23, 1941.
Appearances:
Eston B. Stephenson, Esq., special assitant to the Attorney General, -and T. C. Townsend, Esq., for the state.
2 REPORTS STATE
COURT OF CLAIMS [W. VA.
WALTER M. ELSWICK, Judge.
The facts set forth in each of these seven claims show that each of these
claimants request the court to reopen a state compensation claim embraced
within the provisions of chapter 23 of the code of West Virginia, and these
claims are considered together. Chapter 20, section 14 of the acts of the
Legislature of 1941, code chapter 14, section 14, provides that the
jurisdiction of the state court of claims shall not extend to any claim for a
disability or death benefit under chapter 23 of the code of West Virginia
dealing with workmen?s compensation claims as well as providing for remedies
thereunder. All of these claims falling within the remedial provisions of
chapter 23 as appears from the facts stated in the petition of each of said
claimants the court finds that it does not have prima facia jurisdiction
and declines to docket for hearing each of said claims, and it was so ordered.
(No. 1?James E. Brown awarded $4,000.00; James E. Brown, Adm.,
awarded $2,O00.00)
JAMES E. BROWN, in his own behalf, Claimant, and JAMES
E. BROWN, Adm. of the estate of Roxie M. Brown,
deceased, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Novem.ber 12, 1941
ACT OF GOD. Testinioney shows that the
injuries complained of were caued. by negligence and the lack 0f reasonable
care in carrying on the road operations at the point or place where the
accident occurred, and consequently could n&t be attributed to an act of God.
An act of God is a direct, violent, sudden or irresistible act of nature which
could not by the exercise of ieasonable care and diligence have been avoided or
resisted.
W. VA) IEPORTS STATE COURT OF CLAIMS 3
Joint claim No. 1, filed October 11,
1941.
Appearances:
Messrs. Watts & Poffenbarger
(L. F. Poffenbarger, Esq. and Roy S. SLims, Jr., Esq.),
for the claimants;
Eston
B. Stephenson, Esq., special
assistant to the Attorney General for the state.
CHARLES J. SCHUCK, Judge.
This is a joint claim filed by James E. Brown in his own right and James E.
Brown as the administrator of the estate of Roxie M. Brown, deceased, in which
the joint claim as presented asks for remuneration in the sum of $15,000.00 by
reason of an accident occurring on route 60 near Cedar Grove in Kanawha county,
West Virginia, on the 17th day of March
1932.
It appears that James E. Brown, who had been employed by the state road
commission for some time previous to the accident, was driving with his wife in
an automobile between seven-thirty and eight o?clock on the evening of March
17, 1932, and on the said route 60, from a grocery store at Cedar Grove to his
home located in Shrewsbury; that while driving on said highway as aforesaid and
while passing a certain point on said highway near a deep cut in the
mountainside, a boulder, estimated as weighing from sixty to seventy tons, slid
or fell from the said mountainside crushing the claimant?s automobile, causing
injuries to the claimant?s wife, from which she died several hours afterwards,
and causing him severe and critical injuries necessitating his confinement in
the hospital at Montgomery for a period of one month, and subsequent treatment
under the care of the physician in charge of said hospital for a period of one
month, and subsequent treatment under the care of the physician in charge of
said hospital for a period of about eleven months thereafter. By the said
accident the claimant, Brown, sustained, among other injuries, a
4 REPORTS STATE
COURT OF CLAIMS [W. VA.
compound fracture of the skull, the
fracture of several ribs, a hemorrhage in the left lung, a hemorrhage in the
knee cap of the left leg, which leg was badly crushed, the tearing of the
ligaments of the said leg, and other injuries, all of which tended to put
the said claimant in a critical condition as shown by the testimony of the
physician in attendance. To these claims the state road commission
maintains that the falling of the rock, or boulder, was not occasioned by the
negligence or lack of reasonable care
on the part of the
said road department, or any of its duly appointed employees or servants, and could
therefore be attributed to an act of God.
This then is the question that concerns us at the very outset
of the consideration of this record in
determining whether or not the claimants are entitled to any award.
A careful reading of the record of the
case shows that the rock in
question was suspended at the height of some ten or twelve feet
above route 60 on a grade or cut which
was inclined approximately forty-five degrees, in a shale formation and that the road commission was called upon frequently,
previous to the time of the accident, to clear a ditch which had been constructed beside the highway and
some three or four feet therefrom
and which ditch, about three feet
in width and from twelve to eighteen
inches in depth, ran along the toe or foot of the embankment, cut or
mountainside, on which the said rock
or boulder was lodged or suspended.
(Record pp., 79? 86, Peters 99-103, ShatTer 120-124). The testimony tends to show further that several employees
of the state road commission
considered the rock dangerous and
hazardous to persons using the highway in question, and that on one occasion at least, as
shown by the testimony (record pp. 73-93) of
the witness, P. H. Hackney, a former road commissioner employee In charge of
equipment, he called the attention of the
maintenance foreman employed by the state road commission to the hazardous condition surrounding the suspension of the rock or boulder on the mountainside in question. This witness, as shown by the record in page 95, consIdered
the rock dangerous and especially
so in view of the type of formation upon. which
W. VA]
REPORTS STA1E COURT OF CLAIMS 5
it was sitting or lodged, which formation
was of a shale composition and in the judgment of the said witness constantly
sliding and slipping and undermining the foundation of the rock in question.
The opinion of this witness is supported by other witnesses working for the
commission at the time of the accident and at the place where the accident
occurred. See the testimony of the witnesses Peters and Shaffer already
referred te.. C. B. Hoisciaw, a licensed and qualified civil engineer, and
acquainted with the geological formation of the mountainside where the accident
happened and who had worked at that particular place and taken cross sections
of the hill in question, gave it as his opinion that the cutting away of the
toe of the hill caused the boulder or rock to slip onto the said highway. (See
record pp. 134-144). The record otherwise shows that employees engaged in their
work at the time and place where the accident happened appreciated the
hazardous and dangerous condition that existed and frequently discussed the
matter among themselves, all of which tended to show that the position of the
rock and the formation upon which it rested were of such a type and character
as in their judgment to make it highly dangerous to pedestrians and persons
passing along or using the said highway at the place where the accident
happened.
Under these circumstances and testimony, which seem to be uncontradicted, can
the falling or slide of the rock or boulder be attributed to an act of God? We
understand an act of God to be a direct, violent, sudden and irresistible act
of nature which could not by any reasonable care have been foreseen or
resisted.
There was, of course, so far as the record reveals, no direct, violent, sudden
or irresistible act of nature, but on the other hand several witnesses have testffied,
as shown by the record, that there was an almost constant crumbling of the
shale formation which was the foundation upon which this rock rested and which
crumbling frequently filled the ditch in question with shale, stone and dirt
and frequently required the attention of the state road commission or its
employees in keeping the said ditch clean in order that the water might be
properly
6 REPORTS STATE
COURT OF CLAIMS [W. VA.
drained from the said mountainside and carried to One Mile creek a short
distance away. The hazardous and dangerous condition of the r?ck as shown by
the record, was appreciated by several of the witnesses who have testified, as
shown by the testimony of Charles Shaffer, a former road employee (record pp.
119 to 127); the employees were familiar with the condition presented; that it
was a shale formation; that the rock was loose; that in February, 1932, a month
before the accident, the ditch in question had again been cleaned immediately
under the rock, all of which cleaning and clearing of debris in the ditch had
tended to undermine the foundation causing it to slide and fall onto the
highway.
In view of this and similar testimony there could be no sudden or irresistible
act of nature which would cause the accident and which could not have been
avoided by the use of reasonable care on the part of the department in question
in removing the said rock and thus eliminating the danger to those passing
along the highway at the place where the accident happened.
We are of the opinion in this connection that the testimony and evidence as
revealed by the record shows conclusively and without contradiction that the
accident was caused by the failure to remove this rock or boulder when it was
known to be hazardous and dangerous, and when by reason of the constant faIling
of the shale and soil foundation it was liable at any moment to fall or slide
into and upon said highway and cause damage or injury to anyone who might be
passing at the time of said slide or fall. Having disposed of this question the
next and important feature of the claim is as to the amount that i. to be
awarded the claimants for the luSS and damage they may have sustained.
As already indicated the claimant. James E. Brown, was critically injured and
required medical attention both in the hospital and out of it for a year after
the time of the accident, while his wife, who was riding with him at the time,
died within a few houra after the accident by reason o[ the inuries received.
W. VA] REPORTS STATE COURT OF CLAIMS 7
It is true that the road commission employed the claimant, Brown, for some five or six
years from and after the spring of 1933 for which he (Brown) was paid
approximately $4,800.00, and it is likewise true that at a session of the state
Legislature, 1934, the amount of $569.70 was awarded the claimant, Brown, to
pay for his wife?s funeral expenses as well as hospital and medical care, and
medicine which was required in his own treatment. At least so far as the record
reveals this was the distribution made of the amount appropriated by the
Legislature. In making our award we have, of course, considered these matters.
The testimony shows that Brown was paid the usual wages of those of his own
class at so much per hour for the hours worked and that he rendered services
for the amount received during his employment by the road commission from 1933
to the time of his dismissal therefrom. It also appears that on several
occasions the claimant, Brown, has appealed to the Legislature for remedial
legislation in the shape and form of an appropriation which would compensate
him for the loss of his wife and the injuries sustained by himserf, and that in
each instance, except the amount which has already been herein set forth, the
Legislature refused any further award. Since these applications, however, the
claimant, Brown, has had his leg amputated, which operation took place in March
1941 (being the present year). Both Dr. Stallard, the physician who first
attended him immediately after the accident and who continued his services for
nearly a year thereafter, and Dr. Claude B. Smith, the doctor who performed the
actual amputation, testified, as shown by the (record pp. 52 to 58 and 104 to
107) that the amputation was occasioned and made necessary by reason of the injuries
following the accident; however, an ulcer which had been present on the leg in
question of the claimant before the time of the accident, superimposed itself
and the condition of the said ulcer aided in bringing about the necessity for
the amputation. What percentage or what division of responsibility may be
attached to these various physical conditions is not shown by the record and we
can simply make our own deductions as to the part that was played by the pres
8 REPORTS STATE
COURT OF CLAIMS [W. VA.
ence of the ulcer in causing the amputation. We are of the opinion, however,
that the ulcer, which seemed to be aggravated, progressive in its nature, was
of the class that would become serious to the health of the said claimant and
no doubt contributed in a large degree to bringing about the physical condition
which necessitated the amputation of the leg. For this condition and situation,
of course, the state road commission would not be responsible. However, the
condition of the claimant?s skull is such that headaches are frequent and he
bears a large indentation on the forehead which the physicians in charge
testified he would always have and which was caused by the operation necessary
to relieve the pressure on the brain and the brain tissues caused by the
injuries in question. Another element that enters into the matter of the amount
of the award is the fact that the testimony shows (record at page 70) that the
automobile in which the claimant and his wife were riding at the time of the
accident was completely demolished and that it was worth about twenty to fifty
dollars as junk when turned into the automobile repair agency shortly after the
accident. The automobile had cost $517.00 two months previous to the date of
the accident, March 17, 1932, and allowing for depreciation we still are of the
opinion that the claimant sustained a loss of approximately $400.00 in this
regard by reason of the accident.
There were no minor children dependent on the wife at the time of her death. So
far as the record reveals no children had been born to the claimant, Brown, and
the wife who was killed. They were in humble circumstances, with the claimant,
Brown, earning at times as high as $120.00 per month, but we feel that a fair
deduction from the testimony would indicate that his average income extending
over a period of years would be seven or eight hundred dollars a year. The
record does not show any loss of love or affection on the part of the children
of the wife, Roxie M. Brown; in fact their whereabouts or addresses are not
definitely known and none of them appeared before the court in support of the
claim filed on behalf of their mother?s estate. Under these circumstances,
feeling that the evidence warrants and impels an award to the Roxie M. Brown
W. VA] ZEPORTh STATE COURT OF CLAIMS 9
estate, by reason of her wrongful
death, we fix the amount of said award at two thousand dollars ($2,000.00) and
recommend that the said sum be duly appropriated and paid to the administrator
of the estate, upon the signing and execution of a proper release, relieving
the state from any further liability or claim of any kind to the said Roxie M.
Brown estate, by reason of the accident in question.
In the matter of the individual claim of James E. Brown, we feel that an award
of four thousand dollars ($4,000.00), including the loss of the automobile,
would be proper and adequate to compensate him for all injuries sustained, and
we so find.
Judges Robert L. Bland and Walter M. Elswick both concur.
(No. 3?Claimant awarded $40.00.)
ARNOLD L. MARTIN, Claimaxt,
V.
STATE ROAD COMMISSION, Respondent.
Ops4on Filed November 12 194.1
Award for damages for injuries to
an automobile driven and occupiec by the claimant while driving on
the highway from Lockbridge toward Elton, in Summers county, West
Virginia, and near what Is known as Elton Mountain, and caused by
a slide rushing in and upon the said automobile and causing
damages thereto.
Appearances:
Arnold L. Martin, in his own right;
Eston
B. Stephensan, Esq., special
assistant to the Attorney General, on behalf of the state road commission.
10 REPORTS STATh COURT OF CLAIMS [W. VA.
CHARLES SCHUCK, JUDGE.
This claim was, duly filed with the court, asking that claimant be reimbursed
in the amount of $75.00 for damages to his automobile, while being driven on
the highway referred to above and occasioned by a slip or slide suddenly
falling from the mountainside. No claim for personal injuries is made and
apparently no such injuries of any consequence were suffered by the claimant,
as shown by the record pages 11-12-13-14.
The special assistant attorney general announced at the beginning of the
hearing of the case that in the matter of the claim in question an agreement
had been reached between the claimant and the state road commission by virtue
of which the claimant was to be paid the sum of $40.00 in full settlement of
any and all claims of any kind that he may have against the state or the state
road com--r ission by reason of the said accident. The said amount to include
not only property damages but as well any injuries that he may have personally
suffered by reason of the said accident. The claimant also informed the court
that he was willing to accept the aforesaid amount in full settlement as
indicated, and having been duly sworn and having described fully by his
testimony, the circumstances surrounding the accident, the damage to his
automobile and all other facts necessary to prove his claim, and the attorney
general recommending the settlement as agreed upon by the parties hereto, as
shown by page 14 of the record, the court after due consideration is of the
opinion that the said amount of $40.00 is a just and adequate settlement in
full satisfaction of any claims of any kind or character that the claimant ma
have against the state or the state road commision, either far property damage
or personal injuries occasioned by th t referred to -
It is thci-efoi-e recommended that the
Legislature l:c an
appropridtion in th an?aunt of forty dollars (S40.flO) . pa-abIe
Ia the said Arnold L. Martin. upon the signing and x- ei . of
a full release by him to the state of WTesl Virgiuia a:1 } sf.
r ?d einiu iSSiOfl.
W. VA) REPORTS
STATE COURT OF CLAIMS 11
(No. 15?Claimant awarded $100.00.)
HARRY (HARRISON) FIELDS, Claimant
V.
STATE ROAD COMMISSION, Respondent
Opinion Filed November 12, 1941
Award for the ioss of a mule
caused by the said animal falling into an unprotected pit previously used as a
toilet, and under the control of the state road commission at the time of the
accident, and located on a certain right-of-way owned and controlled by the
said road commission at and near Lenore, Mingo county, West Virginia.
Appearances:
Eston B. Stephenson, Esq., special assistant to the Attorney General, and J. H. Feingold, Esq., of the state road commission.
CARLES J. SCHUCK, Judge.
The claimant and the representative for the state road commission made known to
the court at the time the above claim was called for hearing that an agreement
had been reached by virtue of which the amount of $100.00 was fixed as the
value of said mule, and which amount the claimant representd he would accept in
full settlement of any and all claims he had against the state or the state
road commission by reason of the above occurrence. After hearing the statement
of the special assistant attorney general, and as well the statement of the
representative of the state road commission, the court finds that the pit or
excavation in question and heretofore used as a toilet by the workingmen
engaged in the road improvement near Lenore, in Mingo county, was unprotected,
the building or structure erected thereon having been removed before the time
of said accident, and that the sum of one hundred dollars ($100.80) is just and
adequate, and so finds, and makes its recommendations that at the next session
of the legislature the amount of one hundred dollars ($100.00) be appropriated
for the use and benefit of the said Harry (Harrison) Fields, and be
12 REPOR STATE COURT OF CLAIMS [W. VA.
paid to him upon the signing and execution of a full and complete release to
the state and the state road commission by reason of the accident herein
referred to.
(No. 12?Claims denied.)
HAROLD R. HARPER, and NELLIE M. HARPER,
his wife, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Op2nion Filed November 24, 1941
An award will not be reominended
in a case where it appears from the evidence that the claimant has not heeded
warnings and circumstances attendant to the hazards of travel on a highway
being repaired by state road employees in the application of tar and slag, and
has failed to exercise ordinary care and caution for the safety of himself and
fellow travelers upon the highway, and where it is found from the evidence
that the state road employees were exercising due care and caution in the
performance of their work as well as to warn travelers of the
hazards of travel attending the work being done.
Appearances:
David A. McKee, Esq., for the claimants;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state, and J. H. Feingold, Esq., of the state road commission.
WALTER M. ELSWICK, Judge.
The claimant, Harold R. Harper, accompanied by his wife and brother-in-law, was
driving on state route 250 a short distance after leaving the town of Hundred,
on August 7, 1941, when he came to a portion of the road that was being tarred
W.VAJ REPORTS
STATE COURT OF CLAIMS L3
and slagged by state road employees.
Before coming to the tarred portion of the road he passed, as the evidence
shows, a sign ?fresh oil? and a sign ?men working? with a state road metal flag
on top of same. And before entering the tarred portion of the road he came to a
spreader box used in spreading road materials where a flagman was standing and
who flagged him to a stop or slow down. It would appear from the evia nce that
this spreader box was located a distance of from 300 feet to 500 feet back from
a narrow bridge in the direction of his travel. (Darrah record p. 100,
Wiedebusch record p. 109). There was also a sign ?one way bridge? on the right
side of the road near where the spreader box was standing. (Weidebusch record
p. 109, Phillips record p. 60).
There is a conflict in the testimony as to whether the flagman indicated by a
signal for him to drive on, but at any rate claimant continued to drive on past
the flagman and spreader box with his car in high gear until he reached the
tarred portion of the road where he continued on in high gear as he testified,
at the rate of about fifteen miles per hour, to a point where he skidded and
collided head-on into another car coming from the opposite direction, owned and
operated by John Grandon, at the end of said bridge, the impact of the two cars
causing the damages complained of. Grandon testified that the Harper car, in
his opinion, was being driven at a speed of from twenty-five to thirty miles
per hour when it hit his car.
The Grandon car was being driven over the bridge and had been slowed down to
almost a stop at the time of the collision. Tar had been spread on the right
side of the road from this bridge some distance toward the spreader box and the
Harper car was then being driven on Harper?s left side of the road which would
have been in the pathway of the Grandon car.
This collision occurred while the sun was shining in the afternoon with clear
vision and an unobstructed view of the attendant circumstances. One witness
(O?Leary record p 88) testified that one could have seen the Grandon car coming
as far back as one tenth of a mile or better. Harper could have
14 REPORTS
STATE COURT OF CLAIMS [W. VA.
seen the Grandon car before it came to
the bridge. (Phillips record p. 61). The claimant beyond question was put on
notice that the road was being tarred and that due care and caution should be
exercised in traveling thereon, as well as to keep a lookout for cars
approaching from the opposite direction.
Soon after the collision occurred the claimant admitted that the collision was
due to his fault and agreed to settle the damages to the Grandon car. (Record
pp. 18, 73, 82, 83 and 85).
There was evidence adduced that there was a berm on each side of the road of
sufficient width to have enabled the two cars to pass practically all the
distance back from the bridge to the slagged portion of the road. The Harper
car was pushed out of the road onto the right berm of the road after the collision.
(Darrah record p. 104). Only one side of the main roadway between the spreader
box and bridge had been tarred. (Record pp. 57, 64, 73, 100). The road was
twenty feet wide and tarred portion eight feet wide. (Record p. 88).
While there is some conflict from the testimony as to the width of the berm on
each side of the main traveled portion of the road and as to whether or not the
claimant could have driven outside of the tarred portion and either come to a
stop or passed the other car, it appears from the evidence that the claimant
could have either come to a stop when he saw, or should have seen, the
approaching car or pulled over on the berm of the road and stopped to let the
other car pass; that under all the circumstances in the case the claimant was
not exercising ordinary care and caution in keeping his car under control when
his car skidded on the tarred portion of the road, causing the damages
incurred. He owed this duty not only to himself, but to fellow travelers and
employees who may be upon the highway. It appears from the evidence that the
state road employees were exercising due care and caution in the performance of
their work, as well as to warn travelers of the hazards of travel attending the
work being done, and that the work was being done in a careful manner, and as
was usual in the neighborhood; that the collision occurred by reason of the
W. VA] EEPORTh STATE COURT OF CLAIMS 15
claimant?s failure to exercise due care and caution to keep his car under
control required under the attendant circumstances of the case. The failure of
the claimant to exercise such care was the direct and proximate cause of the
collision.
The state is not an insurer as to the condition of its roads and highways, nor
as to the acts of its agents and employees. The L1 aimant was not found to be entitled to recover damages based upon the
evidence, and no award is recommended by the court.
(No. 16?Claim denied.)
DEL BALSO CONSTRUCTION CORPORATION, Claimant,
v.
STATE TAX COMMISSIONER, Respondent.
Opinion
Filed Nover,eber 26, 1941
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 gaso?ine 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 cn gasoline used for certain specific purposes.
Appearances:
David Biasotti, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
WALTER M. ELSWICK, Judge.
In this case the claimant, Del Balso Construction Corporation, filed a claim
for refund of $13365 for taxes paid on gasoline purchased during the month of
May 1941 used as a motor
16 REPORTS STATE
COURT OF CLAiMS [WVA.
fuel for diesel engines not operated upon the public highways or streets of
this state. It appears from the evidence that no claim for refund was filed
with the state tax commissioner within sixty days from the date of purchase or
delivery of the same, the most recent purchase and delivery having been made
approximately sixty-three days prior to date of filing for refund. The state
tax commissioner refused to make payment of refund for the reason that
application for refund had not been filed within the sixty-day period as
provided by chapter 11, article 14, section 20 of the code of West Virginia, as
amended and reenacted by acts of the legislature 1939, chapter 124.
The right to receive a refund of taxes in certain instances where the gasoline
purchased is not used in motor vehicles upon the public highways or streets of
this state is given to the user under said section 20, article 14, chapter 11
of the code as reenacted by acts of 1939, chapter 124, which provides for a
refund of tax on gasoline used for certain specific purposes to be made by the
state tax commissioner, conditioned on application being filed, by the person
using same, with the tax commissioner within sixty days from the date of
purchase or delivery of the gasoline, which specific uses are set forth in the
present statute as follows:
?Any person who shall buy in quantities of twenty- five gallons or more, at any
one time, gasoline as defined by this article, for the purpose of and the same
is actually used (a) as a motor fuel for diesel engines not operated upon the
public highways or streets of this state, or (b) as a motor fuel to operate
tractors and gas engines or threshing machines for agricultural purposes, when
such operation is not, in whole or in part, upon the public highways or streets
of this state, or (c) as a motor fuel to operate aeroplanes or other aircraft,
or (d) by any railway company subject to regulation by the public service
commission of West Virginia, for any purpose other than upon the public
highways or streets of this state, or (e) in the business of manufacturing, or
in the production of natural resources, either as a motor fuel or for any other
purpose except upon the public- highways and streets of this state, or (f) as a
cleaning fluid in any laundry or
W. VA] REPORTS
STATE COURT OF CLAIMS 17
dry cleaning business, or (g) as a motor fuel in motor boats or other water
craft operated upon the navigable streams of this state, may, if the gasoline
tax imposed by this article shall have previously been paid upon such gasoline,
be refunded a sum equal to the amount of such tax, upon presenting to the tax
commissioner an affidavit, . . . Provided,
however, That the tax commissioner shall cause refund to be made under
authority of this section only when application for refund is filed with the
tax commissioner. .
. within sixty days from the date of
purchase or delivery of the gasoline.?
The claimant asks this court to make an award with recommendation that the
Legislature direct refund of this amount paid and to disregard said section 20
of article 14, chapter 11 of the code as amended and reenacted by chapter 124
of the 1939 acts of the Legislature.
To determine such right of the claimant on its contention herein it is
necessary to observe the apparent policy of the Legislature relative to refunds
on gasoline in uses of this nature as will appear from an examination of the
several changes made in the statute permitting refunds from time to time since
the passage of the gasoline tax act and the adoption of the section relating to
the refund provision now contained in said section 20.
The first act imposing an excise tax upon gasoline was chapter 34 of the acts
of the Legislature of 1923, which insofar as it pertains to the imposition of
the tax read as follows:
?A state tax of two cents for each gallon, is hereby imposed on all gasoline
sold in this state at wholesale as the words ?at wholesale? are hereinafter
defined.?
There was not any exemption as to any quantity, or use of the same provided
for, nor was there any provision for refund made for any purpose in the 1923
act.
The 1923 act was reenacted by chapter 2 of acts of the Legislature of 1925,
extraordinary session, which imposed a tax of three and one-half cents per
gallon thereon upon every person
18 REPORTS STATE COImT OF CLAIMS [w. VA.
a distributor, retail dealer or
importer under the terms of the act based on the quantities of all gasoline
sold, purchased or used in this state, which act by section 17 thereof provided
for a refund of tax paid on gasoline used for certain specified purposes,
provided that application for refund was made as set forth therein, as follows:
?Any person who shall buy, in quantities of twenty- five gallons or more at any
one time, any gasoline as defined in this act for the purpose of, and the same
is actually used for operating and propelling boats, tractors used for
agricultural purposes, or who shall purchase and use any of such gasoline for
cleaning or dyeing or other commercial uses, except in motor vehicles operated,
or intended to be opcf?ated in whole or in part imon any of the public
highways, streets or alleys of this state, which gasoline shall have been
prevmuslv included in the measure by which the excise tax imposed by this act
is determined, shall be reimbursed and repaid a sum equal to the amount of such
tax, upon presenting to the tax commissioner an affidavit ..,? provided, that,
application for refund as provided herein must be filed with tax commissioner
within sixty days from the date of sale or invoice, on forms prepared and
furnished by the tax commissioner, or not at all.?
Said chapter 2 of the 1925 acts was reenacted by chapter 18 of the 1927 acts
which enlarged the classifications prescribing uses of gasoline on which
refunds were permitted but retained a proviso requiring that application for
refund should be made within sixty days. which refund provision of the 1927
acts was adopted by the official code of 1931 as chapter 11, article 14,
section 20, and then appeared as follows:
?Any person who shall buy, in quantities of twenty- five gallons or more at any
one time, any gasoline as defined in this article, for the purpose of, and the
same is actually used for, operating and propelling boats. aeroplanes, tractors
used for agricultural or other purposes, road rollers. steam shovels, compressors,
pumps. stationary gas engines, threshing machines or other gasoline-operated
machinery, except motor vehicles; or who shall purchase and use such gasoline
for cleaning
W. VA] REPORTS
STATE COURT OF CLAIMS 19
and dyeing or for manufacturing or other commercial uses, except in motor
vehicles, which gasoline shall have been previously included in the measure by
which the excise tax imposed by this article is determined, shall be reimbursed
and repaid a sum equal to the amount of such tax,...: Provided, That the tax
commissioner shall cause refund to be made under authority of this section only
when application for refund, as herein provided, is filed with the tax
commissioner, upon forms prepared and furnished by the tax commissioner, within
sixty days from the date of purchase or delivery of the gasoline: . .
By chapter 110 acts of the Legislature
1937, said section 20 was reenacted and so limited as to exclude any provision
for a refund of tax on gasoline used for any purpose except when the same was
purchased ?for the purpose of and the same is actually used for, operating and
propelling tractors and gas engines used for agricultural purposes and
threshing machines, .
. .? This act reenacting said section 20
contained the same proviso that the tax commissioner shall cause refund to be
made only when application for refund is filed with the tax commissioner within
sixty days from the date of purchase or delivery of the gasoline.
Under the limited user classification of the 1937 act no right was given to
receive a refund for taxes on such uses made of gasoline as the claimant had
under the 1939 act of the Legislature in the instant case if application had
been filed with the tax conunissioner within the sixty-day period. A refund
could be made under the 1937 act by the tax commissioner only on taxes on
gasoline purchased for the purpose of and actually used for agricultural
purposes and threshing machines without further exceptions and that done only
when application for refund was filed with the tax commissioner within sixty
days from the date of purchase or delivery of the gasoline.
However, said section 20 of the code (under which claimant seeks refund) was
amended and reenacted by acts of the Legislature of 1939 chapter 124 as
hereinbefore set forth to include the uses made of gasoline as in the instant
case by the
20 REPORTS STATE
COURT OF CLArMS [W.VA.
claimant and to enable it to secure a refund provided, how-. ever, that the tax
commissioner shall cause refund to be made under authority of this section only
when application for refund is filed with the tax commissioner within sixty
days from the date of purchase or delivery of the gasoline. It is further to be
noted by this amendment that the uses of gasoline to entitle one to file application
for refund are limited and specified under seven specific classifications and
uses and does not include all stationary engines. The privilege of filing for
and the right to receive a refund is personal with the person so using the
gasoline, for the amendment provides:
?The right to receive any refund under the provision of this article shall not
be assignable, and any assignment thereof shall be void and of no effect. Nor
shall any payment be made to any person other than the original person entitled
thereto using gasoline as hereinbefore in this section set forth: . . .?
The right or privilege to receive any
refund being conditioned upon the person entitled thereto to file application
with the tax commissioner for refund within the sixty-day period specified in
all the acts since and including 1925, permitting in such instances a right to
claim refund, tends to show a definite policy of the Legislature to deny a
right to receive a refund by provisions of general law when the person who
might have been entitled to a refund failed to comply with the provisions of
the statute granting such right, and no award can be recommended for a special
act enabling the claimant to receive such refund in conflict with the
provisions of the general law.
This view seems to be more convincing since the Legislature did not see cause,
while from time to time reenacting this law, to permit all persons to receive
refunds on taxes on gasoline not being used in motor vehicles on public
highways or streets of the state, but has from time to time changed the
classification as to the uses of gasoline for which claim could be filed.
In view of the foregoing changes of the law it is believed that the Legislature
deemed the sixty-day period a reasonable one for all users of gasoline
permitted to receive refunds under
W. VA]
I{EPORTS STATE COURT OF cLAiMS 21
said section 20 of the code, and that it is the policy of the Legislature to
deny the right to receive same unless the person so using gasoline complies
with the conditions required by the general law. Award denied.
(No. 34-S?Claimant awarded $50.54.)
WILLIAM H. ASPINIALL & COMPANY, a corporation,
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed November 26, 1941
ROBERT L. BLAND, Judge.
Claimant, William H. Aspinall & Company, a corporation, seeks reimbursement
for the sum of $50.54 which amount it was obliged to pay for the repair of one
of its trucks which was damaged by a state road commission truck. The accident
occurred about nine o?clock in the morning, on March 8, 194L Claimant?s truck
was parked, facing west, in front of a grocery store on the right side of West
Second street, in the city of Weston. State road truck 730-22, with a snowplow
attached, was being driven by one of the employees of the state road
commission, out of Depot street into West Second street. When the driver of the
road commission truck turned east into West Second street he observed a car
starting out from behind a parked truck on West Second street; and, in order to
avoid what he thought might result in a collision, he drove the state road
commission truck to the left of the street and ran into the front part of the
claimant?s parked ear, thereby causing the damage for which said sum of $50:54
is asked.
The state road commission does not contest the claimant?s right to an award for
said sum, but concurs in the claim for
22 REPORTS STATE COURT OF CLAIMS [W.VA.
that amount; and the claim is approved by the special assistant to the attorney
general as one that should be paid.
We have carefully considered the case upon the record submitted, and are of
opinion that it should be entered as an approved claim and an award made
therefor.
We, therefore, make an award to the claimant, William H. Aspinall &
Company, a corporation, in the sum of fifty dollars and fifty-four cents
(S50.54), subject to the approval and ratification of the Legislature.
(No. 18?Claim, denied.)
FRED S. PETERSON and COMMERCE INSURANCE
COMPANY, Claimants,
v.
STATE ROAD COMMISSION, Respondent.
Opiuion Filed December 2, 1941
Where the evidence makes it purely
speculative or highly conjectural as to whether or not a state driven truck
operated by and for the state road commission caused the injuries and damages
complained of, an award will not be made.
Appearances:
Don Casto, Esq., for the claimants;
Estou B. Stephenson, Esq. special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
Claimants seek to recover damages for injuries to an automobile heretofore
owned by the claimant, Fred S. Peterson, and insured by the said Commerce
Insurance Company, the contention being that the said automobile was struck and
W.1.TAI
REPORTh STATE COURT OF CLAIMS 23
damaged sometime during the night or morning of December 20, 1940, while it was
parked on Seventh street in the city of Parkersburg, in front of the home of
the said Fred S. Peterson. It was a 1940 model of Plymouth make, a four-door
sedan. Complainants seek to charge the state road commission with damages,
alleging that early on the morning of said December 20, a road truck owned and
operated by the said oad commission negligently collided with the said Plymouth
automobile causing the damages complained of, severely injuring the automobile
and scattering the contents of the rear or turtle back of the car in and upon
the said street on which the automobile was parked. From the evidence it seems
to have been a rainy, dreary morning with visibility poor and at a time when
automobilists on the street in question were not yet aided with the natural
daylight but had to rely on the street lights to guide and protect them. The
evidence clearly shows that there were at least two collisions with the said
Plymouth car, one by another Plymouth car, owned and operated at the time by
one Ed Van Camp, and the other by the state road commission truck in question.
Considering first the case as submitted by the claimants nowhere is it revealed
that any testimony was presented on their part upon which an award could be
based or a recommendation made by the court so far as showing any negligence on
the part of the employee (driver) of the state road conunission. The claimant,
Peterson, did not see the collision, nor did he hear the noise or sound made by
any impact; he was awakened by his family, and shortly afterward made his
appearance on the street to learn, if possible, the details of what happened so
far as the collision with and damages to his car were concerned. The only other
witness testifying for the claimants was unable to identify the truck and failed
to place any responsibility on the driver thereof; she heard two distinct
noises which she concluded had been made by collisions of cars, the first of
which was the loudest; and she testified further that the first crash to which
her attention was attracted could have been the impact sufficient to drag
claimant?s car upon and across the terrace on the said street, and some
24 RORTS STATE
COURT OF CLAIMS [W. VA.
twenty feet away from the Peterson home (record pp. 36-
37) rfhat there
were two collisions is shown by the evidence;
the first liv the
cr known as the Van Camp automobile, and
the second,
at least a slight collision involving the
state road truck in question. It must be reasonably assumed that the first
collision was by the Van Camp car. If this be true, and damages were caused by
this first crash, then under no circumstances could the state road commission
be held for any improper or negligent operation of its truck: and if the said
first crash was sufficient to drag the said Peterson car over and upon the
pavement and some twenty feet away from the Peterson home, then again, the
state road commission could not be held, since this impact and dragging of the
car would no doubt he sufficient to inflict the damaged alleged.
After these impacts or collisions both the driver of the Van Camp car and the
state road truck returned to the place of the accident. It was then found that
the Van Camp car as shown by the testimony of Peterson himself (record p. 8)
was damaged to the extent of having the right fender bent as well as having the
rear bumper torn loose, all of which would tend to show that there had been a
rather severe impact between these two cars. Immediately upon the return to the
scene of the accident of persons involved, with the exception of Peterson
himself but including police officials of Parkersburg who had arrived on the
scene, they made what they deeied a careful, thorough investigation and
searched for any marks or scratches or any other evidence that would be shown
on the truck and which would indicate that it had had a collision with the
Peterson car in question. No marks, indentations, or even scratches were found,
save only that there was a dry spot on the rear right tire where that part of
the truck had come in contact with the Peterson car. Considering the severity
of the injuries to the Peterson ear and the apparent force of the un? pact oi collision that caused the injuries and damages,
we are of the opmioii that the state red troek could not have caused the said injuries ,nd consequently could not
have caused the said damages, and thai. if it I ad been im olved some marks or
indentations, or a least scrOl (-iUs. would necessarily have been
W. VA] REPORTh STATE COURT OF CLATh!S
25
found somewhere on the said state road truck. An attempt was made by the
testimony of Peterson to show some evidence of yellow paint particles being
mixed with the grey of the Peterson car which, as Peterson himself testified,
was found a day or two after, while his car was in the garage. We are of the
opinion that if such a condition existed the yellow paint (the truck having
been painted yellow) did not come from the uck in question, since there was no
mark or indentation of any kind on the bumper of the truck. The bumper was
silverized or of nickel and not painted yellow, and, therefore, any collision
with the truck bumper could not have left yellow particles of paint on the
Peterson car, to be noticed several days after the accident. If any other part of
the truck had struck the Peterson car, by reason of which there could be
particles of the yellow paint imbedded in the color of the Peterson car, then
surely there would have been some marks or abrasions of some kind on the truck
in question showing that it had collided with the Peterson car and caused the
injuries complained of. No such marks or indentations or even scratches could
be found, notwithstanding the examination referred to and made not only by the
truck driver and the driver and occupant of the Van Camp car, but especially so
by the police officers of the City of Parkersburg, and to which one of said
officers testified.
We appreciate that the testimony shows that the road truck was very closely
following the Van Camp car at the time of the collision between the Peterson
car and the Van Camp car, perhaps too close for safety, but cannot conclude
from all the circumstances that the road truck was being driven in such a
manner as to be the proximate cause of the injury.
Under all of these circumstances the testimony is purely speculative and we
would be carried into the field of guess and conjecture if we were to determine
that the driver of the state road truck was responsible for the damages
complained of and the injuries inflicted to the Peterson car. This position, of
course, is impossible for us to assume in determining whether there was any
negligence on the part of the truck driver, and therefore we hold that no award
should be made.
26 REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 22?Claimant awarded $4,000.00.)
CLARENCE R. ATKINSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opt moe Filed Decemeber 2, 1941
1. Where the evidence shows that c[aimant. who was ernpIoeci on a road
project in Pre,ton county, was paid for his seivices by the Fedeini
Goveininent, but was working under the control, supervision and direction of a
foreman or supe? visor of the state road commission, he is not a fcllow servant
of the &aid toreman or supervisor and earmnot e ffcated as such in the
instant case.
2. In view of the apparent reasons and puposes for the creation of this court
as manilested by the Legislature in the act creating it, the court does not
concede that the fellow-servant rule as formerly understood or construed by the
courts will govern it in determining claims submitted to it for decision; and
therefore holds that the decision in the ease of Corrigan V. The Board of Comrnissioflers of Ohio Coantmj. 74 W. Va. 89, and relied upon
by the state in its motion to dismiss, cannot control in deciding the merits of
this claim.
3. In our opinion the evidence fails to reveal any contributory negligence on
the part of the claimant and therefore, this defense is not sustained.
Appearances:
L. V. Ez?erlrart, Esq.. and Frank
B. Everhart, Esq.,
for the claimant;
Eston B. Stephenson. Esq., special assistant to the Attorney General, for
the state;
J. H. Feinjo1d. Esq., representative of the state road commission.
CHARLES J. SCHUCK, Judge.
In August 1934 the claimant, Clarence R. Atkinson, was employed on a road
Project in Preston county whereby it ws
W. VA] REPOR STATE COURT OF CLAIMS 27
sought to improve a certain road between Terra Alta and Cranesville, and which
work, by reason of the stony and rock foundation and formation, necessitated
the use of dynamite for blasting purposes. The men employed on the project were
paid for their labor by the Federal Government but were under the direction and
supervision of foremen or bosses employed and naid by the state road
commission. The testimony shows that the handling of the dynamite, which was
under the control of one of the said foremen, was carried on in a reckless and
negligent manner, was exposed along the roadside in open containers, was
handled by different persons, and at times sticks of dynamite were allowed to
lie along the roadside previous to being used for blasting purposes. The
claimant among other duties was called upon to drill holes in the rock
formation in which the sticks of dynamite were afterward inserted and then
exploded, in order that the stone or rock could be more easily removed from the
bed of the road in question preparatory to preparing said road for the
improvement contemplated. It was when drilling one of such holes that an
explosion occurred by reason of which the claimant was permanently blinded and
sustained other severe injuries from which he still suffers at the present
time.
The road operation in question was carried on by drilling the holes, then
filling them with the necessary dynamite, to which wires were attached, which
wires in turn were attached to a battery and through the manipulation of the
battery an electric current was communicated to the dynamite, causing an
explosion and shattering the rock for the purposes of removal. The testimony
also shows that during this operation, traffic was allowed to go over the road
at times under highly dangerous conditions when the dynamite had already been
inserted in the holes and just before an intended explosion.
On the day on which the accident happened it had been raining to such an extent
as to interfere with the work of the men employed, and during one of the
rainfalls in the morning of that day it was concluded by the foreman in charge
of the work that the men employed could eat their noonday meal and then
28 REPORTS
STATE COURT OF CLAIMS 1W. VA.
ret titti to their work after the rain had ceased. During this interim it seems that the rain had
washed sand and dirt into the holes already partially drilled, filling them to some extent and
causing cleaning and
further drilling to properly prepare
them in order that the dvnam it e could he inserted and exploded for the purposes
intended.
The evidence shows I hat the foreman on the work, one Matheny,
and employed by the state road
commission designated a certain hole to he drilled deeper after the rainfall, and
Ol?(leie(l I lie clainiaiul to (10 the d
tilling, iii the process of which the
claimant was injured as herein slated;
during the period when the men employed were resting or eating at
or near noon and before the (hilling of the hole was resumed, some one had
carelessly and negligently inserted the dynamite in the said hole, and without
any notice to the claimant at the time he
began to drill it deeper, in accordance
with the order of the said instructions given him by the said foreman Matheny.
M;itheny was in full charge of this work, and, consequently, chitiged with I
he (lilly of knowing that the hole in question did not contain any dynamite likely
to explode at the time he ordered he claimant to drill the hole deeper
The slate c itt Let ids that
Matheny was a fellow servant or a
fellow employee (>1 the claimant and therelore it could not be held responsil)lc for any injuries
caused to claimant by reason of the
negligence an(l carele-ssiiess of I lie said]
MiIheny in charge of the sai(l protect
- We can lint agree vi Lii thii proposit inn
Since the chili tiant was pitI(l
wholly by the Federal Government and not by the slate road commission; and
since his work seemingly was under the
absolute control and supervision
of the foreman, Malheiiy, who stoo(l in a superior position as compared to the cliii niiiiil and wlin (lVh it liet ty)
was paid b r It is service fbi by
tl I? -ileriti ( c.tvirntiient but by tin? stale toad comlnission ?die evidence
also shows that, the men (?tflplnyr(l (iii the project atirl in I lie same stains as I he clainiiint, cot 11(1 is
aid were 01(1(14 rI lout one pail
4! t
hi? piojt-rt lii t1t0tl1rI by tin? said loreman as he
would see it to iliieij atul
no tioiilit a faili: it to coinpi: ?ath such oilers itS? (Ilt((?Lit)iiS
\V0l 1(1 lia\( O1(il? 4l!SfltiSsi I ?sit
W. VA] REPORTS
STATE COURT OF CLAIMS 29
The hole in question was drilled under the supervision of the foreman, Matheny,
and then was marked by him for further drilling, and under his specific
instructions, claimant proceeded to drill said hole deeper. The evidence shows
that this particular work had theretofore been carried out by one Sines, but
that he was not working on the project on the day in question, an the oniy
inference that can be drawn from the tesimony is that the foreman himself
inserted the dynamite in the said hole and for the time being forgot about such
action when he ordered it to be drilled deeper by the claimant. In any event,
in view of the fact that this part of the work was carried on under the
personal supervision of the foreman, whether he actually inserted the dynamite
or not, he would be responsible for the condition presented at the time he
ordered the claimant to do that particular kind of work. To give this order
without the proper inspection to ascertain whether the hole in question could
be drilled deeper without any harm or injury to the claimant was negligence;
and as herein mditated, since the said foreman was not in any sense a fellow
servant of the claimant, the latter would not be bound by the rules sought to
be invoked as a defense by the state.
A careful reading of the act creating this court, as manifested by the
Legislature, undoubtedly shows that the intent of the Legislature was that the narrow
interpretation as formerly used in connection with the employment of fellow
servants was not to control or govern, and that in considering a claim for an
award this rule, as formerly invoked, was not to be carried into effect.
Rather, it would seem, a more liberal construction was to be given where fellow
servants were involved, consistent, however, with the moral rights of all
parties, including the state or any of its agencies.
Realizing the fact that in many instances innocent servants were injured by
reason of the carelessness and negligence of a fellow servant with whom they
were obliged to work and labor, and over whom they had no control, the
Legislature in its wisdom passed the workmen?s compensation act by virtue of
which a fund is now provided for the relief and assistance of
30 REPORTS STATE COURT OF CLAIMS
[W. VA.
injured employees; and providing that
the individual employer must make cetain payments into a fund to take care of
such cases and providing further that if the employer does not take advantage
of the privileges thus afforded by the provisions of the act, he is barred from
interposing as a defense to any action for injuries the so-called common law
defense, including the fellow-servant defense. Should the state compel an individual
employer to take these steps to protect himself and c?sraoe its own
responsibility when injuries come to its own employees through the carelessness
and negligence of another employee? It seems to us that unless the state
specifically exempted itself or its various agencies by the provisions of the
act creating this court, it should and must, in equity and good COLISCiCflCC be
obliged to reasonably compensate an innocent or guiltless claimant for the
negligence and carelessness of one who might he commonly termed a fellow
employee of the injured claimant.
As indicated herein, however, we do not feel that the relation of fellow
servant, as understood by the courts when laying down the rule heretofore
governing, existed in the instant case.
We also fail to find anywhere in the record that the claimant was guilty of any
negligence that contributed to his accident. Undor the circumstances he had the
right to assume, when ordered to drill the said hole deeper, that the foreman
or supervisor on the work had taken all necessary and reasonable precautions to
avoid an accident, and that he would not be ordered to work in a highly
dangerous place without the proper steps being taken to protect him in such
work. The claimant simply followed as a workman the directions of his superior,
and by reason of such act was injured, as alleged in his petition asking for an
award.
The claimant has heretofore been paid the sum of $3500.00 by the Federal
Government, five hundred of which sum was used in the payment of his hospital,
physicians? and doctors? bills, and other expenses incidental to his injuries,
but has received no payment whatever from the state. It is true that he is a
world war veteran, at present about forty-nine or fifty years
W. VA] REPORTS STATE COURT OF CLAiMS 31
of age, and that he is receiving a pension of $30.00 per month for his support
and maintenance. He has a wife and family of five children, the youngest of
whom is eleven years of age at the present time. Owing to the condition brought
on by his blindness, he has not been able to work since the accident. An effort
has been heretofore made on several occasions to have the Legislature recognize
the justness of his claim, and ?n several occasions, bills were introduced
seeking to pay out of the state treasury to the claimant the sum of $3,000.00.
These bills, however, for some reason never made much progress in the
Legislature, and were never passed for payment by that body, and no
appropriation made. No doubt the claim was not as fully developed as when
presented before this court, and in view of the fact that a year has elapsed
since the bill was introduced and that the complainant must wait until the next
session of the Legislature before any award can be paid, we feel that our
conclusion with reference to the amount is just and equitable.
Considering all of the circumstances and the fact that there is in work of this
kind and character a certain amount of risk on the part of the employee, we
feel that an award of four thousand dollars ($4,000.00) is proper, and we
recommend to the Legislature that an appropriation be made accordingly for the
benefit of the claimant, and that he be paid the said amount upon the execution
of a full and complete release to the state road commission for any further claims
or demands agains the state or state road commission by reason of the injurie
complained of and suffered by the claimant through th accident.
32 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 26?Claimant awarded $125.00.)
EZEKIEL HOUCHINS, Claimant
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed Decem.ber 4, 1941
ROBERT L. BLAND, Judge.
On the afternoon of October 22, 1937, a sorrel mare, aged seven years and
weighing approximately twelve hundred pounds, owned by Ezekiel Houchins, of
Huntington route No. 2, stepped through a hole in the floor of a wooden bridge
loacted on secondary road No. 24, in Barboursville district of Cabell county.
As a result of the accident the mare?s right front leg was badly broken above
the knee; and as there was no chance for the animal?s recovery it was
immediately killed and sent to the Huntington Rendering Company. The hole in
the bridge through which the mare stepped had existed for several days prior to
the date of the accident. This defect in the bridge had been observed by a
foreman of the state road commission, but no action was taken to repair the bridge.
The state road commission concurs in the payment of the sum of $125.00 as
compensation to the claimant for the loss sustained by him, and the attorney
general approves that sum as the amount which should be paid in settlement of
the claim.
Te are of opinion that the claimant is entitled to the above amount; and
therefore award to him, the said Ezekiel Houchins, the sum of one hundred
twenty-five dollars ($125.00) against the state of West Virginia in full
settlement of his claim as filed, subject to the ratification of the
Legislature.
W. VA] 1EPORTh
STATE COURT OF CLAIMS 33
(No. 20?Ray Wildman, Mm., awarded $5000.00.)
(No. 21?Harry Love, awarded $500.00.)
RAY WILDMAN, Adm. of the personal estate of H. L.
WILDMAN, deceased, Claimant,
V.
STATE
ROAD COMMISSION, Respondent.
HARRY LOVE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed Decenther 5, 1941
Where it appears from the evidence
that the state road commission kept a warning sign on a suspended bridge for a
long period of time to the effect that the bridge was unsafe for over a
three-ton gross load without making inspection of or repairs to the bridge, as
provided by general law, to keep it safe for a three-ton gross load; and it
appears that the persons who are injured or killed by the collapse of the
bridge did not take particular care and caution as to the weight of the load
carried thereon and such weight cannot be arrived at with definite certainty,
such evidence should be weighed and considered in the light of all the circumstances
to reduce the amount of the award to be made.
Appearances:
H. Roy Waugh.,
Esq., for the claimants;
Estcm B. Stephenson, Esq., special assistant to the Attorney General, and J. H. Feingold, Esq., chief clerk of the state road commission, for the state.
WALTER M. ELSWICK, Judge.
The evidence in these two claims was heard together and the damages arising
being brought about by the same cause both claims are treated in the one
opinion.
These claims grow out of the collapse of a section of a swinging bridge which
spanned the Little Kanawha river from the
34 REPORTS STATE
COURT OF CLAIMS [W. VA.
hard-surfaced state road running from Glenville toward Burnsyule and connected
with a secondary road across the river leading to Gilm?r Station in Gilmer
county. West Virginia. The bridge in question was constructed in 1924 (record
p. 67) by wooden framework fastened to iron rods attached to cables, with
wooden stringers and wooden floors, with an iron or sheet of meta1 runways on
top. (Record p. 68). There was a sign hanging on the cross beams overhead of
the bridge which read ?not safe for over three tons gross load? (Love record p.
106). although there is no evidence in the record to show that this bridge had
been inspected or for what particular reason this sign was disph-yed. (Record
pp. 177. 179).
It further appears from the evidence that about midday on the 24th day of March
1939. Harry Lowe. one of the claimants, was driving his t uck across this
bridge in the direction of Gilrner Station with H. L. Wildman riding with him
in the cab of the truck and one Clifton Taylor riding on the truck bed when one
section of the bridge collapsed causing the truck and the occupants to fall
through into the Little Kanawha river about 30 to 40 feet below the bridge.
?The cab of the truck turned upside down and H. L. Wildman was killed by the
fall, he being found dead when his body was soon thereafter rescued from the
river. The said truck owned by the said Harry Love was a V-8 Ford 1937 model
two-ton truck and had a value of from seven hundred to nine hundred dollars
(record pp. 27 and 66) and was completely demolished leaving a salvage value of
about $25.00 (Love record p. 28). Harry Love received a cut or tear of one ear
and an arm injury (Darnell record p. 65), and testified that he expended from
$7.50 to $9.50 on treatment by a physician and was disabled from work from
thirty-five to forty days (Love record p. 89).
It appears from the evidence that the truck fully equipped with steel bed body
was registered or rated with the road commission as weighing 5060 pounds
(Mitchell record p. 144), and that the steel bed body which was not being used
at the time of the bridge collapse weighed from 1600 to 1800 pounds
(Love record p. 133). The truck bed being used at the time was of
W. VAT REPOR STATE COURT OF CLAIMS
wooden framework and as testified by Harry
Love was approximately 7 feet wide, 13 feet long and 16 inches high (Love
record p. 129), or as testified by R. Hardman was 12 feet 8 inches long, 6 feet
8 inches wide and 2 feet deep (Hardman record p. 161); but the weight of this
wooden bed body does not appear from the evidence. When crossing the bridge
Harry Love testified that he was hauling stovewood blocks cut approximately 18
inches long from green oak slabs and had them piled in loosely with the bed
about two-thirds full without an endgate on the truck bed (Love record pp. 26,
56 and 127); that he might have had a cord of slab wood on the truck and in his
opinion the stovewood which he was hauling would have weighed 1700 or 1800
pounds (Love record p. 55), and that the weight of himself and two passengers
was approximately 445 pounds (Love record p. 55); that in the year 1937 he had
hauled two and three tons of coal over the same bridge (Love record p. 54).
There was evidence adduced tEat there is a wide variance in the weight of
different kinds of wood (Darnell record p. 119 and Lewis record p. 182). With
the exception of an offhand opinion (record p. 182) of one witness, deemed
somewhat speculative due to an expressed lack of familiarity of the variances
of wood weights (record pp. 175, 176, 181 and 182) there was no evidence
adduced showing that the wood on the truck weighed more than 1700 or 1800
pounds.
On the day before the bridge collapsed a number of truck loads of lumber had
been hauled over this bridge by other persons. (Darnell record p. 74). The
bridge had been weak- ened by hauling lumber across it (Dye record p. 150).
Before approaching the bridge it appears from the evidence that Harry Love made
a remark to Wildman, the decedent of some nature such as ?The bridge might
break down with you? (Love record p. 38) and Wildman replied with a remark of
some nature such as ?He will go down if I did? (Love record p. 38) or ?If we go
down, we all go down together.? (Love record p.51).
36 REPORTS STATE
COURT OF CLAIMS [W, VA.
However, from the evidence we find that the cause of the collapse of the bridge
was the decay of the support timbers called crossbeams permitting the rods
suspended to the cables to pull through the crossbeams at the section where the
truck fell through and causing the whole section to collapse. (Love record p.
44 and p. 98, Darnell record pp. 72, 73, Lewis record p. 184 and Hudnall record
pp. 200, 201). Some of the cross- beams had badly decayed at the ends where the
rods ran through the beams. A piece of one of these crossbeams was sawed off
and produced as an exhibit, marked ?exhibit z? (record p. 90). It was partially
decayed or rotten (Darnell record p. 90), badly decayed (Lewis record p. 184).
From the evidence of the witnesses Hudnall and Darnell it appears that there
were other beams similarly decayed. The witness Hudnall testified that most of
the beam ends were defective, probably half of them on the bridge decayed like
the exhibit presented to the court (Hudnall record pp. 199, 201). The witness
Lewis, an inspector of bridges, testified that if he had made an inspection of
the bridge and found these timbers in this decayed condition he would have
condemned the bridge for decayed timber, (Lewis record p. 189); that there
would have been no difficulty for an inspector to discover rotten cross- beams
(Lewis record p. 192). The witness Hudnall, an assistant road
maintenance foreman, testified that he had notifled Mr. Gainer, the
superintendent of roads of Gilrner county, of these defective and decayed
timbers and that there would be no difficulty to see or locate these defective
timbers. This notice was given the last time he made repairs on the bridge
about five to six months before it collapsed. (Hudnall record pp. 201-202).
It appears from the evidence that this bridge was in constant use by the public
(Dye record p. 155, Hardman record p. 165) and that it was the only outlet at
the time across the river to Gilmer Station (Darnell record p. 73).
By chapter 84 of the acts of the legislature of 1941 it was declared that:
W. VA] REPORTh STATE COURT OF CLAIMS 37
?Whereas on March 24, 1939, and for
some years prior to that date, the state road commission and the state road
commissioner had jurisdiction and were charged with the maintenance of said
public road or highway, in Gilmer county, West Virginia, leading from state
highway number 5, formerly state highway number 35, over and across the Little
Kanawha river to Gilmer Station in said county; and
?Whereas, included in said public road, described as aforesaid, and as a part
thereof, was a suspension bridge suspended across said Little Kanawha river;
and
?Whereas, because of its defective condition said bridge collapsed on March 24,
1939, while H. L. Wild- man was lawfully traveling on said road and bridge, and
said H. L. Wildman as a result of the collapse of said bridge sustained
injuries resulting in his instant death;?
And by said act of the Legislature it was provided:
?The state road commission is hereby authorized and empowered, in its
discretion, to pay to Ray Wildman, administrator of the estate of H. L.
Wildman, deceased, a sum not to exceed ten thousand dollars to be distributed
by the said administrator as provided in section six, article seven, chapter
fifty-five of the code of West Virginia.?
Chapter 85 of said acts of the Legislature of 1941 contained
a similar declaration and recital as contained in said chapter
84 describing the cause and resulting personal injuries to Harry
Love and the destruction of his truck, and provided:
?That the state road commission is hereby authorized and empowered, in its
discretion, to pay to Harry Love a sum not to exceed seven hundred and fifty
dollars as and for damages sustained by him in the collapse of a public road or
highway bridge near Gilmer Station in Gilmer county.?
No particular fund is designated by either of these acts from which any payment
may be made and no listings were
38 REPOR STATE
COURT OF CLAIMS EW. VA.
made under the general budget appropriations bill by the Legislature. Hence it
would appear that there are no funds available with the road commission during
the fiscal biennium from which any payments could have been made under said
acts.
From a consideration of the evidence we are of the opinion that the bridge was
in a decayed and defective condition at the time of its collapse, and that an
inspection of this bridge by the road commission would have revealed its
condition, necessitating repair of the bridge under the law; that the road
commission was negligent in failing to inspect and repair the bridge and that
its collapse was caused by the decayed condition at the time. But we are
further of the opinion from the evidence that both the decedent, H. L. Wildman,
and the claimant, Harry Love, were aware of the fact that there was a certain
amount of risk and hazard involved in crossing the bridge as they undertook to
do, considering their conversations immediately prior to entering the bridge,
its known and obvious condition apparent to them when using same, the
uncertainty as to the weight-load of the truck, and all circumstances
surrounding the case. As to the decedent, Wildman, it might be said that while
he had the right to fravel on the bridge and highway a truck of the kind loaded
with green oak slabs would not be construed as a passenger vehicle when for his
own safety in view of the warning sign he could have walked across the bridge
having a span of from 180 to 200 feet. And as to the claimant, Love, he knew
that the bridge ?wiggled and wabbled around? under a truck load and the weight
of the truck body and bed and the load and the warning sign should all have
been heeded and observed; all should have been within his knowledge .
considered for his safety; the court
cannot say with definite certainty from the evidence just what was the weight
of the load and wooden bed.
However, since there is some question as to whether the bridge would have been
safe for a weight of less than three tons we are of the opinion that there is
liability upon the part of the state road commission but such liability should
be lim
W. VA] REPORTS STATE COURT OF CLAIMS 39
ited and considered in respect to the risk and hazard assumed by the decedent
H. L. Wildman and the claimant Love in crossing the bridge without heeding the
warning sign, the apparent condition of the bridge, and having in mind at the
time some certainty as to the weight or burden placed upon the bridge. Tests of
the strength of a bridge bearing a warning sign should not be made by those
using same as a gamble on the weight of the load. That justice and equity may
1e done between the parties in such a case we are of the opinion that
contributory negligence should not be considered as a complete bar of reilef or
of liability when it appears from the evidence that there is negligence and
neglect on the part of the employees of the road commission and such negligence
contributed to and was the proximate cause of the injuries suffered by
claimants. In our opinion such evidence should be weighed and considered in the
light of the circumstances in fixing the amount of the damages on which to make
an award to which claimants may be entitled; and it is thought that this was
the intent of the Legislature when it was left to the discretion of the road
commission to determine the amount of damages, if any, as just and proper to be
paid in these cases considered herein.
Considering the wise and just policy of the Legislature in the passage of these
acts and other acts involving similar relief we are of the opinion that while
our courts in the cases of Phillips v. Ritchie
County Court, 31 W. Va. 477, 7 S. E.
427 and Watkins v. County
Court, 30 W. Va. 657, 5 S. E. 654, no
doubt cautiously considered the statutes existing at the time, we find nothing
in these decisions to prevent the Legislature from granting relief for injuries
sustained by reason of the negligence and neglect of employees of the state
road commission to comply with the general law; nor do we find any principle
involved in these cases to have prevented the Legislature from imposing by
statute such additional duties and liabilities upon the county courts respecting
the maintenance of roads and bridges.
It appears from the evidence that the decedent H. L. Wildman left surviving him
a widow and nine children, the young-
40 REPORI?S STATE COURT OF CLAIMS [W. VA.
est of whom was born June 10, 1934;
that he was a sober and industrious man of modest financial circumstances, in
apparent good health, and was 58 years, 11 months and 11 days of age at the
time of his death. He had earned at times as much as $200.00 per month, and for
six or seven years prior to his death had earned about twelve to thirteen
hundred dollars per year.
From all the evidence adduced in the Wildman case, weighed in the light of the
foregoing views, we are of the opinion that an award of five thousand dollars
($5000.00) should be made to Ray Wildman, as administrator of the estate of H.
L. Wild- can, deceased, as a just and reasonable award of damages under the
circumstances of the case for the death of the said H. L. Wildman, conditioned
that such an award be paid only after evidence is produced to the state road
commission that said administrator has entered into an additional bond in an
amount equal to said award, with security to be approved by the county court of
Gilmer county, West Virginia, and that said administrator shall execute and
deliver a full and complete release, releasing and discharging said state road
commission from all claims, demands and damages whatsoever by reason of the
said death of the said H. L. Wildman, deceased, and it was so ordered.
And from all the evidence adduced in the Harry Love case, weighed in the light
of the foregoing views, we are of the opinion that an award of five hundred
dollars ($500.00) should be made to Harry Love as a just and reasonable award
of damages under the circumstances of the case for personal injuries suffered
by him as well as damages to his truck by reason of the collapse of said
bridge, conditioned that the said Harry Love shall execute and deliver a full
and complete release, releasing and discharging said state road commission from
all claims, demands and damages whatsoever sustained by reason of personal
injuries and damages sustained to his truck arising from the collapse of said
bridge, and it was so ordered.
And it appearing that no appropriations were made available for the payment of
these damages by the road commis
W. VA] REPORTE
STATE COURT OF CLAIMS 41
sion for the fiscal biennium, it is recommended that such appropriations be
listed in the appropriation budget bill of the next regular session of the
Legislature for the payment of said awards.
(No. 33?Claim denied.)
WILLIAM EDWARD TIMMS, Adm. of the personal estate
of JAMES D. TIMMS, deceased, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion Filed December 19, 1941
Where the evidence shows that one
is fatally injured while in the course of his eniployment as an employee of a
department of the state and such state department at the time of the injury is
a subscriber to the state workmen?s compensation fund, has paid the premiums
and complied with all the provisions of chapter twenty-three of the code, the
court of claims is without jurisdiction to make an award for the death of such
employee although there were no dependents of the employee within the
classification of dependents contained in the general law under said chapter
twenty-three of the code which denies death benefits to all who are not
dependents of the employee within the class therein specified.
Appearances:
J. P. MalLoy, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General for the
state.
WALTER M. ELSWICK, Judge.
James D. Timms was employed as an attendant in ward seven at West state
hospital for the insane on the 11th day of November 1938, and while in the
course of his employment
42 REPORTh STATE COURT OF CLAIMS LW. VA.
as such attendant he was fatally injured by one of the inmates of said ward
seven of said hospital striking him with a mop on the back of his head near the
crown of his head and producing an intercranial hemorrhage of which he died the
following day. The injury occurred between seven and eight o?clock in the
morning while he, the said James D. Timins, had the sole care and custody of
twenty-three inmates in the ward. There were fifty-one male inmates occupying
ward seven and the said James D. Timms and Minor S. Fleming were the only
persons serving said ward as attendants. Mr. Fleming had taken twenty-eight of
the inmates to the dining haIl for the breakfast meal. The twenty-three who
remained in said ward under Mr. Timms? care were ?untidy or unclean? and were
to be fed later in their ward. A number of them were of the criminally insane
type and some, or at least the one who struck the decedent, had homicidal
records. The decedent, James D. Timms, had been an employee of said hospital
for about forty years prior to his death, It was customary at the hospital to
have the sweeping and mopping of the ward done by the inmates to give them
exercise.
William Edward Timms qualified as administrator of the estate of James D.
Timms, deceased, and filed claim for $10,- 000.00 for the wrongful death of
said James D. Timms, deceased, alleging in his notice that it was unsafe to
leave only one attendant in the ward with said inmates and that the decedent?s
death was caused by the negligence of those having control and supervision of
the Weston state hospital by not retaining a sufficient number of attendants to
care for the inmates of said ward.
There is a conflict of testimony in the evidence as to whether or not there had
been an enforced rule or order issued to attendants prohibiting inmates from
having mops or brooms or to do any mopping while only one attendant was on duty
in the ward but the result of our decision governed by the statutes applicable
in this case, considered in the light of all the evidence, does not prompt a
determination of those issues on the question of liability as fixed by the
general law. For at the
W. VA] REPORTS STATE COURT OF CLAIMS 43
time that the decedent received the fatal injury the state board of control of
West Virginia, under whose control and supervision the Weston state hospital
was operated, was a subscriber with premiums paid to workmen?s compensation
under chapter 23 of the code of West Virginia, and had complied with the
provisions of said code relative to posting of notice and eporting the
accident. (Record pp. 52 and 53). Application papers were mailed to the West
Virginia board of control at Weston state hospital, Weston, West Virginia by
the compensation commissioner on November 18, 1939, for the use of the
dependents of James D. Timms in filing claim for compensation. The only paper
filed with the commissioner was a claim for the funeral bill prepared by
Sweeney and Toothman, undertakers at Weston, West Virginia, for the sum of
$379.07. The sum of $150.00 (the maximum sum allowed on funeral expenses) was
paid by check of the workmen?s compensation commission to the undertakers, who,
having been paid their bill in full by the Timms family before receipt of said
check, endorsed same over to William Edward Timms who received payment on same.
(Record pp. 10 and 53).
The said James D. Timms left surviving him two sons, said William Edward Timms
and James Mathew Timms, as sole heirs at law and sole distributees of his
estate. Both of said Sons were adults and neither was dependent upon their
father?s earnings for their support, nor was there any other person dependent
in whole or part for his or her support upon the earnings of the said James D.
Timms at the time of his death who could qualify as the word ?dependent? is
defined in chapter 23 of the code.
The state of West Virginia by the attorney general filed a written plea to the
notice of claim filed herein, alleging that the jurisdiction of this court does
not extend to a hearing and determination of the claim of the nature filed
since it is a claim for a death benefit under chapter 23 of the code and that
jurisdiction is expressly excluded by virtue of chapter 14, article 2, section
14 of the code. A replication in writing was flied by the claimant to said plea
and issue joined, and the
44
REPORTh STATE COURT OF CLAIMS [W. VA.
court proceeded to hear the testimony
adduced by and on behalf of both the claimant and the state. After hearing the
evidence we are of the opinion that the court does not have jurisdiction, under
the statute, and deem it necessary to set ortb those portions of chapter 23 of
the code in effect at the time of the fatal injury pertaining to the state of
West Virginia and all its governmental agencies or departments as an employer,
the exoneration of liability of employers paying into the compensation fund and
complying with the law relating thereto, the provisions relative to waiver of
an employee of certain rights of action continuing in service after notice of
the relationship given as prescribed by said statute, and the limitation on
death benefits to dependents payable as set forth therein.
Chapter 23, article 2, section 1 of the 1937 code of West Virginia, Michie?s
code section 2511, provided:
?The state of West Virginia and all governmental agencies or departments
created by it are hereby required to subscribe to, and pay premiums into the
workmen?s compensation fund for the protection of their employees, and shall be
subject to all requirements of this chapter, and all rules and regulations
prescribed by the commissioner with reference to rates, classification and
premium payments. .
. The premium and actual expenses in
connection with governmental agencies and departments of the state of West
Virginia, shall be paid out of the state treasury from appropriations made for
such agencies and departments, in the same manner as other disbursements are
made by such agencies and departments, and such premiums of state agencies and
departments shall be paid into the fund in the same manner as herein provided
for othc employers subject to this chapter.?
Chapter 23, article 2, section 6 of the code, Michie?s code section 2516,
provided:
?Any employer subject to this chapter who shall elect to pay into the workmen?s
compensation fund the
W. VA] REPORTh STATE COURT OF CLAIMS 45
premiums provided by this chapter shall
not be liable to respond in damages at common law or by statute for the injury
or death of any employee, however occurring, after such election and during any
period in which such employer shall not be in default in the payment of such
premiums and shall have complied fully with all other provisions of this
chapter: Provided, That the injured employee has remained in his service with
notice that his employer has elected to pay into the workmen?s compensation
fund the premiums provided by this chapter. The continuation in the service of
such employer with such notice shall be deemed a waiver by the employee and by
parents of any minor employee of the right of action as aforesaid, which the
employee or his or her parents would otherwise have.?
Chapter 23, article 4, section 1 of the code, Michie?s code section 2526
provided:
?The commissioner shall disburse the workmen?s compensation fund to the
employees of such employers as are not delinquent in the payment of
premiums..., or to the dependents, if any, of such employees in case death has
ensued, according to the provisions hereinafter made; ..
Chapter 23, article 4, section 10,
Michie?s code section 2535 provided:
?In case the personal injury causes death . . . the
benefits shall be in the amounts, and to the persons, as follows:
(a) If there be no dependents, the disbursements
shall be limited to the expense provided for in sections
three and four (Michie?s code sections 2528 and 2529)
of this article; .
.
Said section three (Michie?s code section
2528) provided for disbursements for medicine, hospital treatment, artificial
limbs, etc., and said section four (Michie?s code section 2529) provided for
payment of funeral expenses of decedent not to ex
46 REPORTS STATE
COURT OF CLAIMS [W. VA.
ceed $150.00. There was not any further provision for the payment of benefits
in case of death where there are no dependents as defmed in section ten (g)
article four chapter 23
of the code, and there was no person
within that classification to claim benefits by reason of the death of James
Timms as in the instant case.
But claimant in this case insists that since there were no persons who were
dependents upon the decedent James Timms who could receive benefits under the
workmen?s compensation act embraced in chapter 23 of the code, a liability for
damages for wrongful death exists irrespective of chapter 23 of the code and
that this court has jurisdiction to determine and to make recommendations as to
the merits of his claim; that by reason thereof section 14, article 2, chapter
14 [Michie?s code 1147 (9)] excluding this court from jurisdiction as to any
claim for a disability or death benefit under chapter 23 of the code &s not applicable to claimant?s claim. In theory he would
say that when the act was first adopted it was left optional with the employer
to pay into the fund, and optional with the employee to waive the right of
action by continuation in his employment, but that with the prevalence of
employers paying into the fund by the popularity of the act with employers
there is no choice left with the employee but to continue in the employment.
While we do not undertake to rule upon the reason or wisdom of the general
statute for denying benefits to children of a decedent who are not classified
as dependents under the code, we are compelled to bear in mind the provisions
of section 6 of article 2, supra, specifically stating that any employer shall not be
liable to respond in damages at common law or by statute for the injury or
death of any ernplo3 ee however occurring when such eniployer has elected to
pay into the fund the premiums provided by chapter 23. The general statute by
said chapter 23 of the code specifically provides that continuation in the
service of such employer with notice of such relationship shall be deemed a
waiver by such employee of such rights of action. This having been so treated
by the general law under chapter 23 of the code, regardless of the merits
W. VA]
REPORTh STATE COURT OF CLAIMS
47
of an individual claim, chapter 14,
article 2, section 14, excluding this court from jurisdiction of such a claim,
would govern.
We find from an examination of chapter 23 article 4, sections 15 and 16, that
the time therein prescribed has expired for filing application for benefits to
dependents as well as granting a final award by the commissioner or appeal
therefrom and :aimant?s position in this case would necessarily have the same
status, under said general statutes, as a case having had a final decision
denying benefits by the workmen?s compensation commissioner, with request that
the claim be reopened and reheard under a special act granting specific relief
to the claimant. (By a recent decision of the Supreme Court, not as yet
reported, in six cases against the workmen?s compensation commissioner, in
which Truax-Traer Coal Company and others were plaintiffs the court held that such
a special act violates the provision of the state constitution against the
enactment of special laws where a general law would be proper and can be made
applicable; that the ?due process? and ?equal protection? provisions of the
state and federal constitutions interdict such a special act of the
Legislature, and that the constitutional separation of the departments of
government inhibits the Legislature from nullifying or modifying by a special
act a final decision of a quasi-judicial tribunal which has been regularly made
aid become final under the general law relating thereto.
We are therefore of the opinion that this court is without jurisdiction to make
an award, and an order will be entered denying an award for the reasons herein
stated.
48 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 17?Claimant awarded $900.00.)
CHARLES GOLDEN FRY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed December 19, 1941
1. When the state road commission by
the act of 1933 assumed control and authority over the primary and secondary
roads of the state, the duty was imposed upon it to guard all dangerous places
on the public roads and bridges by suitable railings or barriers, so as to
render the said roads and bridges reasonably safe for travel thereon by day or
by
night.
2. Where the claimant is charged with contributory negligence which from the
evidence presents a mixed question of law and fact, and en which reasonable
minds may differ, the question of such negligence will be considered in
determining whether or not an award should be made, and, if made, the amount
thereof.
Appearances:
M. J. Ferguson, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
The claimant, Charles Golden Fry, while returning to his home about ten o?clock
at night on the 9th day of April 1940, from the town of East Lynn in Wayne
county, and akig state route No. 37, was injured by stepping off or falling
over an abutment from eighteen to twenty feet high, forming part of the
approach to a certain bridge on the said route 37, and crossing what is known
as Little Lynn creek. The claimant sustained a compound fracture of his jaw,
lost some twelve to fifteen teeth, was in the hospital about ten days, and at
the present time has trouble in masticating his food.
W. VA] REPORTE STATE COURT OF CLAIMS 49
It appears from the evidence that the road leading to the approach of the
bridge in question makes a decided bend or turn shortly before the traveler
thereon reaches the said approach, and that if one is not acquainted with this
situation and would continue straight along the said road, he would come to the
place where the claimant fell off, as the traveler must make the bend or turn
in the road to properly approach the bridge. Claimant had lived in that
vicinity for several years and knew the condition that existed; he knew that
there were no barriers or guardrails at the place in question where the
accident happened, notwithstanding its dangerous condition. In fact, his own
father, several years before, had fallen off the same abutment at almost the
same place and been killed. In view of this situation and his knowledge of the
attendant conditions, the state, among other defenses, charges the claimant
with contributory negligence and asks that no award be made to him.
The evidence shows that the night was dark, that the claimant had been to the
town of East Lynn earlier in the evening, and had remained at a tavern or
saloon until shortly before ten o?clock, when he started home. The evidence
further shows that there was no other way for him to return to his home except
by the road and bridge in question, and that according to his own testimony he
had used precaution in approaching the said bridge by walking slowly and
feeling his way with his feet as best he could. He had no lights of any kind,
nor did he take any precaution to obtain a lantern or flashlight in his
endeavor to find his way home over the said bridge and road. That the place
where he fell was highly dangerous to the traveling public, there can be no
question; in fact, the pictures of the scene of the accident introduced in
evidence show conclusively the highly dangerous condition of the approach to
the bridge, and fully establish the fact that the state road had not diis-.
charged its duty to the traveling public when it failed to construct and erect
barriers or guardrails at the place in question.
Previous to the year 1933, when by virtue of the act passed by the Legislature,
the state road commission took over the care and control of all primary and
secondary roads in the state,
50
REPORTS STATE COURT OF CLAIMS LW. VA.
the several counties had imposed upon them the legal obligation of making these
roads reasonably safe for travel thereon both by day and by night. In the case
of Wells v. County
Court of Marion County, 85
W. Va. 663, 102 S. E. 472, and which was a case almost on ?all fours? with the
instant case, the court held
?The law imposes upon a county court or other pub- lie authority in maintaining
public roads and bridges the duty to so guard all dangerous places by suitable
railings or barriers as to render them reasonably safe for travel thereon by
day or night.?
In assuming control and authority over these roads, and including, of course,
the one involved here, the state road commission must necessarily be charged
with a duty equal or tantamount to that which was heretofore imposed upon the
several counties, and consequently must of necessity guard all dangerous places
on the highways by suitable railings or barriers so as to render travel thereon
reaonably safe both by day or by night. Reason and justice, equity and good
conscience require us to put this charge upon the road commission, and we do so
accordingly.
The question now arises as to whether or not the claimant can be charged with
contributory negligence, and, if so, in what degree.
It is true that he knew about the dangerous situation on the road and at the
approach to the bridge; that there was a turn in the road close to the said
approach; that his father had been killed at about the same point; that he had
lived in that vicinity for several years previous to the time of the accident,
and tht he was fully acquainted with the danger incident to the use of the road,
especially in the nighttime. He had gone to the town of East Lynn to learn
whether or not he was expected to work in the mine the next day. He could only
travel by the road in question. Surely there was nothing illegal in these acts,
and it must be assumed that up to the time that claimant started his homeward
journey, he was entirely within his legal rights in all of his acts and
movements that evening. The question of
W. Va.] REPORTS
STATE COURT OF CLAIMS 51
any negligence is somewhat involved, since it can be assumed that some men,
under the circumstances, would have provided themselves with a lantern or a
light of some kind in making the return journey. In this regard, however, we
hold that the claimant could not have been guilty of contributory negligence in
not exercising the same judgment that some other traveler would have done, but
if so guilty, such negligence could only he considered in making a reduction in
the award that may be found just and equitable under all the circumstances. If
the contributory negligence relied on is such as to confuse the minds of men
and cause them to reasonably differ, then it is a question which must be
considered in connection with all of the circumstances surrounding the
injuries; and where claimant may not be entirely free from making contribution
to his in- juries, and where he may be charged with not exercising the degree
of care and caution that some other traveler would exercise under the same
conditions, these circumstances should be taken into consideration in making an
award. [n the instant case, claimant suffered a compound fracture of his jaw,
the loss of ten or twelve teeth, confinement in a hospital for about ten days,
and from his own testimony still suffers from his injuries by reason of his inability
to properly masticate his food. All doctors? bills and hospital charges have
been paid by the relief agencies and, consequently, cannot enter into the
matter of an award by this court.
We are of the opinion that under all the circumstances, considering again the
highly dangerous place at which the accident happened, and at which place
barriers or guardrails should have been constructed to protect the traveler,
especially so at night, and in view of the fact that if there was any
contributory negligence on the part of the claimant, it was reduced to a
minimum, that there should be an award of nine hundred dollars ($900.00), and
we recommend that an appropriation accordingly be made by the Legislature, and
the amount in question paid to claimant upon the execution of a full and
complete release to the state and the state road commission for all damages of
every kind occasioned by reason of the accident in question.
52 REPORTS STATE
COURT OF CLAIMS EW. VA.
(No. 31?Claimant awarded $2000.00.)
EDWIN J. HERSHBERGER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed December 19, 1941
1. When the state road commission by
the act of 1933 assumed control and authority over the primary and secondary
roads of the state, the duty was imposed upon it to guard all dangerous places
on the public roads and bridges by suitable railings or barriers, so as to
render the said roads and bridges reasonably safe for travel thereon by day or
by night.
2. Where the claimant is charged with contributory negligence which from the
evidence presents a mixed question of law and fact, and on which reasonable
minds may differ, the question of such negligence will be considered in
determining whether or not an award should be made, and if made, the amount
thereof.
Appearances:
H. G. Muntzing, Esq., and Paul
J. Hartman, Esq., for the claimant;
Eaton B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
Edwin S. Hershberger, the claimant, was injured on September 21, 1940, by
falling off the approach to a certain bridge tha spans the north fork of the
south branch of the Powmac. at and near the town of Circleville, in the county
of Pendleton. The accident happened in the nighttime and resulted in a fracture
of the left leg of claimant, by reason of which his left leg is shorter than
his right leg by an inch to an inch and a half. He was confined in the hospital
at Harrisonburg, Virginia, for about sixteen days, and he claims that he is now
incapacitated from doing the work he was able to perform previous to the
W.Va.i REPORTS STATE COURT OF CLAIMS
time of the accident. He &xpended the sum of
$150.00 in hospital and doctors? bills. The point in the road where he
fell is approximately from seven and one-half to ten feet above the level of
the surrounding ground, and at or near a curve or bend in the road leading to
the said bridge. There were no guardrails or barriers to protect the traveler
at night, nor were there any lights of any kind to show him the way when
traveling on the said road or approach to the bridge after dark. It is true
that some attempt was made to show that the lights reflected from the windows
and business places in Circleville some distance away might help the traveler
at night, but this testimony was uncertain and does not aid us in the
determination of the issues presented by this claim.
The claimant was traveling along said road as has been stated, in the
nighttime, and seemed to be taking every precaution reasonably required of him.
It is true that he didn?t have any light or lantern to assist him in finding
his way, and that he had passed over this road at least on several occasions
before. He was not, however, a resident of the community where the accident
happened, but rather lived some six or seven miles from there, and occasionally
came to the town of Circieville, at which time, however, he usually drove in
his automobile. Since the new improved state highway located near the highway
in question has been completed some four or five years ago, he testified that
he has not used the road on which the accident happened until the night of
September 21, 1940. We fail to find anywhere in the evidence that the claimant
was guilty of any contributory negligence, and taking into consideration all
the circumstances, as revealed by the evidence, we find that he was taking all
the reasonable, necessary precautions that his duties as a traveler on the road
at the time in question required of him. Barriers or guardrails had at one time
been constructed along this road, but for some purpose not revealed in the
evidence, had been removed; and since the state road commission took charge of
the road after 1933, there have been no guardrails or barriers to protect the
traveler on the road. That this condition was highly dangerous is evidenced
further by the fact that several accidents have happened at and near
54 REPORTS STATE
COURT OF CLAIMS [W. VA.
the point where claimant was injured. A truck went over the abutment near
this point, and on several occasions cattle have fallen off the approach to the
bridge to the nearby ground. Claimant had the lawful right to be on the said
road at the time in question, and we hold that the proximate cause of the
injury was the failure of the state road commission to provide proper
guardrails and barriers, especially so at the dangerous place where the
accident happened, thereby rendering the said road and approach to the bridge
unsafe for travel thereon either by day or by night.
We reaffirm the law as set forth in syllabi
one and two in the claim of Charles Golden Fry v. State RQad Commission, and hold that the law there announced specifically
applies to the instant case. And we find further that the claimant was not
guilty of any contributory negligence such as would have tendency to deny or
lessen an award to be made.
For several years past, claimant has been earning about $18.00 per month,
together with his board and laundry, as a farm employee; all of which would
probably mean an income of about $60.00 per month in some other occupation. He
also maintains in his testimony that he could earn more if he was not
handicapped and incapacitated by the injuries caused by the accident. He is
forty-eight years of age and from appearances and the general condition of his
health, would seem to have an earning power for some years to come.
Considering all the evidence and circumstances adduced, we are of the opinion
that the claimant is entitled to an award of two thousand dollars, ($2,000.00)
and so recommend to tL Legislature at its next session. We further recommend
that the said amount, so found as damages, be paid to the said claimant upon
the execution of a full and complete release by him to the state and the state
road commission for all damages occasioned by his injuries and brought about by
the accident in question.
W.Va.] REPORTS
STATE COURT OF CLAIMS 55
(No. 29?Claimant awarded $114.35.)
CHESAPEAKE AND OHIO RAILROAD COMPANY,
Claimant5
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed December 19, 1941
Where a common carrier delivers a car
on a sidetrack or switch, in the usual and customary place for unloading, and
has used the proper degree of care in placing the car for unloading purposes,
and the car is equipped with brakes and appliances that are safe and sound when
properly used, the carrier is relieved of further responsibility, unless there
is a contract enlarging its duty in this respect; the consignee then becomes
responsible for the skill and care of its employee in unloading the car or
replacing it for unloading purposes; and if the car is damaged by reason of the
lack of skill or care on the part of such employee of the consignee when so
replacing it or unloading it, the consignee is liable for the damage caused.
Appearances:
Tom
T. Bciker, Esq., for the claimant;
Eston B. Ste phenson, Esq., special assistant to the Attorney General for the
state.
CHARLES J. SCHUCK, Judge.
On August 22, 1939, the claimant company, through its train crew, placed on a
siding or switch at Lookout, Fayette county, two certain cars loaded with
material consigned to the state road commission; one of which cars was provided
with what is commonly termed a stem\rake; while the other was provided with
what is known as the ajax brake. The evidence shows that in order to expedite
the unloading of the cars, they had to be placed at a certain point over a pit
which allowed the unloading to the best advantage; that the first of these
cars, or the one equipped with the stem brake, was placed at this par-
56 REPORTS STATS COURT OF CLAIMS [W. VA.
ticular point, and that after it was unloaded it was moved a sufficient
distance along the said spur or switch in order that the second car could be
properly placed for unloading purposes. It was while this second car was being
placed for this purpose by an employee of the state road commission that the
said second car got out of the control of the said employee, collided with the
first car, which had been moved and unloaded, and caused the damage complained
of by the railroad company.
Several questions, of course, are involved, both of law and fact; and the first
of these is the question of the duty of the common carrier in making delivery
of the cars to the consignee.
A careful consideration of the adjudicated cases, as well as the text of law
writers on the subject, tend to hold that where a carrier is not required or
expected to remove the freight from cars, as in the case of grain in bulk,
coal, lumber, and so forth, delivery of the car in a safe and convenient
position for un. loading, either at a warehouse, elevator, or other place
designated by the contract, or where no place of delivery is thus designated or
fixed, on its sidetrack in the usual and customary place for unloading by
consignees, and it is found that the brakes and appliances when properly used
are sufficient and safe, then the carrier has discharged its full duty to the
consignee so far as the delivery and unloading of the car is concerned, unless
there is a contract to the contrary which enlarges the duties of the carrier,
but which does not concern us so far as this claim is coiicerned, since there
is no contract to that effect in the evidence. Michie on carriers, vol. 1, sec.
845, p. 530; Corpus Juris, vol. 10, sec. 326, p. 233, and also sec. 364, p.
253.
Such delivery places the cars under the dominion of the consignee, and it then
becomes the duty of the consignee to have persons of proper skill and care to
handle the cars to replace them for unloading purposes, if it is found that the
cars are to be moved to a more advantageous place on the switch previous to
unloading; and if, by reason of the lack of skill and care, the
W. Va.] REPORTS
STATE COURT OF CLAIMS 57,
cars in question are injured or damaged then the consignee is responsible to
the carrier for such damages.
We adopt this view of the law in its application to the circumstances
surrounding the claim presented. The conductor and brakeman that placed the car
in question both testify that the brakes were in good order, and that the car
was securely placed and held when the brakes were properly set. This testimony
is further supported by the member of the train crew that moved the cars after
the collision complained of, and found that the brakes were in perfect order.
The mechanic of the railroad company who made the repairs likewise testifies
that the brakes were in perfect order when tested by him previous to making the
repairs. The trainmaster of the claimant company testifies among other matters
that this particular car on which the employee of the road commission lost
control was equipped with the ajax brake, the most modern used by railroad
companies on freight cars, and a brake that has never been known to jam or
cause trouble.
That the cars were properly and securely set on the said switch is sustained by
the testimony of the state road kommission employee who tried to replace the
car in question for unloading purposes, when he stated that they were obliged
to use a pinch bar after the cars had been uncoupled and before the car in
question could be moved to the desired place, and that the pinch bar was used
on this car on which the state road commission alleges the brakes were
defective (record p. 63).
Was the state road employee who was seeking to properly place the car in
question qualified to do the work; did he have sufficient skill to do the work
he was called upon to perform in replacing the car for unloading purposes? We
do not think so. It seems that he ha4 been selected because of the fact that he
had been employed for a goodly number of years on what is commonly termed as a
road gang of the railroad company, and that while his duties were those of a
laborer, and did not include the handling or placing of any cars for unloading
purposes, that nevertheless he had moved cars on several occa
58 REPORTS STATE
COURT OF CLAIMS [W. VA.
sions. This statement is contradicted by the claimant?s train- master, who
states, among other things, that when cars are involved and are to be unloaded for
track maintenance purposes, that a train crew is always present for the purpose
of placing the cars to be unloaded. The state road employee had never been a
brakeman nor employed in a position that would give him the necessary
experience so far as his connection with the railroad was concerned.
The extent to which the brake is released, the distance the car is to travel in
being replaced, the time necessary to rewind the brake to stop the car at the
place desired, or to ?spot? it, to use a railroad term, are all elements
entering into the proper and safe handling of a car, and of necessity require
experience and a certain degree of skill to successfully complete the operation
of placing or replacing the car.
Under all the circumstances and the evidence in the case, we conclude that the
claimant company is entitled to an award of one hundred fourteen dollars and
thirty-five cents ($114.35), and herewith recommend that the Legislature at its
next session shall make an appropriation accordingly, upon the execution of a
release by the claimant company to the state or 4he state road commission, in
full satisfaction of all damages claimed by reason of the damages to it,
occasioned by the occurrence or accident which has been made the basis of this
claim.
W. Va.] REPORTS STATE
COURT OF CLAIMS 59
(No. 10?Advisory Opinion.)
LOUP CREEK COLLIERIES COMPANY, a corporation,
Claimant,
V.
STATE OF WEST VIRGINIA, at the
relation of EDGAR B.
SIMS, Auditor, Respondent.
Opinion Fded December 20, 1941
Advisory opinion by ROBERT L. BLAND,
Judge. To the Auditor of the State of
West Virginia:
Your request for an advisory
determination whether or not the auditor of the state of West Virginia is
authorized to execute and deliver to the Loup Creek Collieries Company, a corporation,
a release of that certain judgment of the state of West Virginia, at the
relation of Edgar C. Lawson, auditor, v. George
Chambers, et als, dated February 27,
1933, for the principal sum of fifteen thousand thirty-three dollars and
ninety-seven cents ($15,033.97), with interest and costs, which judgment is
docketed in the clerk?s office of the county court of Wyoming county, West
Virginia, in judgment lien docket 6, at page 2, insofar as said judgment may
constitute a lien against the property acquired by the Loup Creek Collieries
Company, a corporation, as set out in the petition filed by said company
against the state of West Virginia at the relation of Edgar B. Sims, auditor of
the state of West Virginia, suggests the propriety of the following
observations in relation to such procedure.
The jurisdiction of the state court of claims extends to and embraces only
claims and demands, liquidated and unliquldated, 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; to like
claims and demands which may be asserted in the nature of setoff or
counterclaim on the part of the state; and the legal
60 REPORTS STATE
COURT OF CLAIMS {W.VA.
or equitable status, or both, of any claim referred to the court by the head of
a state agency, for an advisory opinion.
Section 18 of the court act, relating to advisory determination, should be read
in connection with subsection 3 of section
13. Said section 18 allows the Governor or the head of a state agency to refer
to the court of claims for an advisory determination the question of the
equitable or legal status, or both, of a claim against the state, or one of its
agencies, apparently means a claim which the state as a sovereign commonwealth
should, in equity and good conscience, discharge and pay. It is, we think,
claims of this nature that may be properly referred to us for advisory
determination. The statute expressly pro.vides that the advisory determination
procedure shall apply only to such claims as are within the jurisdiction of the
court.
Does the instant case come strictly within the advisory jurisdiction of the
court of claims? Treating the petition of the claimant, filed with the clerk,
in which its contentions are clearly set forth, as the record and nature of its
claim, and upon which an advisory determination is sought, we deduce the
following facts:
By deed dated October 22, 1937, Ashton File and others conveyed to the
claimant, Loup Creek Collieries Company, a corporation, the undivided one-hall
interest formerly owned by George Chambers in four certain tracts of land in
Oceana district, Wyoming county, West Virginia, containing in the aggregate
329.86 acres, more or less; that the state of West Virginia, suing for the
benefit of Will P. Cook, Sheriff of Wyoming county, obtained judgment in the
circuit court of said Wyoming county, on the 16th day of July 1930, against
George Chambers and others, for the principal sum of eighty thousand three
hundred twenty-three dollars and seventy-eight cents ($80,323.78), which said
judgment was duly docketed in the office of the clerk of the county court of
said county; that by reason of said judgment on March 21, 1933 a chancery suit
was instituted in the circuit court of Wyoming county, under the style of County Court of Wyoming County v. George Chambers,
W. Va.] REPORTS STA COURT OF CLAIMS
61
et
ais, for the purpose of subjecting
to the lien of said judgment the one-half undivided
interest in the aforesaid tracts of land situate in Oceana district of
said Wyoming county; on March 4, 1933,
prior to the institution of said suit there was docketed in the clerk?s
office of said county court a judgment dated February 27, 1933, obtained by the
state of West Virginia, at the
relaoii of Edgar C. Lawson, auditor, v. George
Chambers, t als, for the principal
sum of fifteen thousand thirty-three dollars and ninety-seven cents ($15,033.97) with
interest and costs; that in the said chancery suit brought by the
county court to subject said property of George Chambers to the lien of said
judgment for eighty thousand three hundred
twenty- three dollars and seventy-eight
cents ($80,323.78) the state of West Virginia was not named
as a party defendant, nor was
there an order of publication or of
reference, nor did the state of West Virginia ifie any answer
therein; that pursuant to orders and decrees made and
entered in said chancery cause the property of George Chambers,
after due advertisement, was sold at
public auction, and in accordance with
said sale, which was confirmed by
decree entered in the case, R. D. Bailey, special commissioner, conveyed said
property to the county court of Wyoming county, by deed dated October 11, 1933,
the purchase price at said sale being the sum of one thousand six hundred
thirty-five dollars ($1,635.00), which amount was in-
sufficient to discharge the said judgment in favor of the county court
of Wyoming county in the amount of eighty
thousand three hundred twenty-three
dollars and seventy-eight cents ($80,323.78), and that the county
court, in the manner provided by law, made sale of said property to Ashton File;
that the proceedings in said chancery
suit of County Court v. George Chambers and
others, in the Circuit Court of
Wyoming county, appear not to have been in strict compliance with the
provisions of article 3 of chapter 38 of the code of West Virginia, especially in
that no notice was given to the state
of West Virginia, a lien creditor,
prior to the distribution of the proceeds
realized from the sale of said property
in said suit; that while the first lien judgment of the
county court, for eighty thousand
three hundred twenty-three dollars and seventy
eight cents ($80,- 323.78) was far
greater in amount than the
actual value of the
62 REPORTS STATE COURT OF CLAIMS 1W. VA.
said real estate and there was no equity isa said real estate
in favor of said second lien judgment of the state of West Virginia
for fifteen thousand thirty-three dollars
and ninety-seven cents ($15,033.97), and while the
proceeds from said sale were insufficient to pay off said
first lien against said property, which
lien was set out in
said suit as the only lien against said
property of George Chambers, the
failure to give said notice constituted a cloud upon the title of said
property now owned by claiment, Loup Creek Collieries Company, a
corporation.
From the foregoing statement of facts it will be seen that the claim of the Loup Creek
Collieries Company, a corporation, is not such a claim as the state of West Virginia as a
sovereign commonwealth should discharge and pay. It is rather a claim to have
a supposed cloud upon title to real estate removed. It is not a claim that is
embraced within the jurisdiction of the court of claims, under the act
creating the court. We have neither power to deal with it nor
authority to advise concerning
it. We must, therefore,
respectfully decline to answer the
specific question referred for the
court?s consideration.
(No. 28?Claimant awarded $4500.00.)
VATJEY CAMP STORES COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed
January 12, 1942
1. When the state road commission has
charge of the maintenance of a national highway, as in the instant case, on
which there is a culvert constructed across a stream, the failure of the
commission to remove accumulations of dirt and debris in the stream bed to
maintain the clearance or opening under the culvert as originally constructed
and of sufficient size to permit the stream in times of ordinary flood or
freshet, r?asonably expected, to flow through the clearance as fast as the
stream does, an award will be made for damages to property of another ap
W. Va.] REPORTS
STATE COUttT OF CLAIMS 63
proximately caused by the negligent damming and the consequent overflow of the
stream.
2 Where it appears from the evidence that there are circumstances bearing upon
the reasonableness of an award presenting a mixed question of law and fact, and
on which reasonable minds may differ, and such circumstances are of a
mitigating nature such as would justify a reasonable reduction of damages
recoverable, then such circumstances will be considered in determining whether
or not an award should be made, and J made the amount thereof.
Appearances:
Albert Lacts, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, and J. H. Feingold, Esq., chief clerk of the state road commission, for the state.
WALTER M. ELSWICK, Judge.
On the 12th day of September 1938, there was a heavy rainfall in the hilly area
drained by Gashell?s run, a branch of Little Wheeling creek, in Ohio county,
West Virginia, which caused a marked rise or freshet in the waters of Gashell?s
run branch. The state road commission of West Virginia having charge of the
maintenance and repair of national route 40 had permitted an accumulation of
debris and dirt to remain under a culvert spanning Gashell?s run and it appears
from the evidence adduced that by reason of this partial filling of the opening
of said culvert there was not sufficient clearance under the culvert to carry
the water underneath and the water of said run dammed up against said culvert
and overflowed its banks. This overflow of said stream extended on the north
side of said highway a distance of 354 feet west from the culvert to a
storehouse owned by Valley Camp Stores Company where the water entered its
basement doing material damage to a stock of merchandise stored therein upon
which loss the claimant bases its claim for damages herein.
About two weeks before the overflow of the run an official of the Valley Camp
Stores Company reported the condition of
64 REPORTS STATE COURT OF CLAIMS_?__[W. VA.
the bed of the stream under the culvert, and probable damages, to the then
county superintendent at the district highway corn- mission office at
Triadelphia, about two and one-half miles distant from Gashell?s run, but no
action was taken by the commission to remove the dirt and debris accumulation until
after the aforesaid heavy rain and overflow of the stream?s banks had caused
the damage for which claimant files claim. (Record pp. 7, 8, 45 and 128). The
testimony adduced by the claimant was to the effect that the accumulation of
dirt and debris in the stream bed on the north or inlet side of the culvert had
left a clearance of only eight inches between the accumulation of the fill and
the base of the span of the culvert. (Record p. 38). From the state?s evidence
it certainly appears that there was a sufficient accumulation of dirt and
debris to reduce the clearance under the culvert to a dimension entirely
inadequate to permit the full flow of the stream?s rise from a heavy rain to go
under the culvert. For it would appear from its evidence that this filling in
of debris and dirt had reduced at least one-third of the clearance (record pp.
124, 130, 136), and that was a clearance of only three feet on the north or
inlet side of the culvert (record pp. 131, 135). The culvert had a span of 23
feet and the area drained by Gashell?s run was approximately 685 acres and such area would require an opening under
the culvert of four feet by twenty feet sufficient to drain the area of
Gashell?s run. (Record p. 162). The fill under the culvert was excavated by
state road commission employees after the overflow to leave an open clearance
of 5 feet high with a span of 23 feet and it is reasonable to conclude from the
evidence that these were the original dimensions of the open clearance when the
culvert was constructed.
It further appears from the evidence that the rainfall in the area drained by
Gashell?s run and the rise of the stream on September 12, 1938, the date of its
overflow, was probably the greatest that had been known in twenty-eight to
thirty years, the rise of the stream being from five to six feet, but it is
found that the proximate cause of the overflow and resulting damage to the
Valley Camp Stores Company was the failure and neglect of the then state road
commission officials and employees to
W. VAJ REPORTS
STATE COURT OF CLAIMS 65
keep a sufficient clearance or opening under the culvert to permit drainage of
the area in question in times of heavy rains.
The net loss or cost to the Valley Camp Stores Company of the merchandise
damaged to the extent of its value being destroyed was the sum of $7,611.03,
based upon the claim filed and eviience adduced, after allowing a salvage value
of apnroximately $ThO0,00. The court is of the opinion that an award should be
made to claimant but not for the full amount claimed. There is much authority
holding individuals liable in damages to another for obstructing the natural
flow of a water course during freshets or ordinary flood, among which are the
following cases decided by our Supreme Court: Neal v. Ohio River
Railroad Company, 34 S. E. 914, 47 W. Va. 316; Uhl v. Ohio River
Railroad Company, 49 S. E. 378, 56 W. Va. 494, 68 L. R. A. 138, 107 Am. St.
Rep. 968; Taylor v. Chesapeake and Ohio Railroad Company, 100 S.
E. 218, 84 W. Va. 442, 7 A. L. R. 112; Trump v. Bluefield Waterworks
and Improvement Co., 129 S. E. 309, 99 W. Va. 425. An analogous decision
holds that a city cannot escape liability for consequential damages to abutting
property in the performance of a public work under maxim damnum abs que
injuria since the common law rule in that respect has been changed by
article 3, section 9, of the constitution of West Virginia. Javins v. City
of Dunbar, 157 S. E. 586, 110 W. Va. 271. A county court was held liable
for acts of state road c?mmission in changing the course of a stream, Carden
v. Nicholas County Court, 157 S. E. 411, 110 W. Va. 195. From all
the evidence and circumstances before the court we are of the opinion that an
award of $4500.00 would constitute a reasonable recommendation in this case,
and in reducing the amount as claimed we give the following explanations
applicable to the evidence adduced at the hearing of the case:
From the evidence in this case it appears that the Valley Camp Stores Company
did not make report of its damages to the state road commission until January
1939 when a claim was filed at the 1939 session of the Legislature. The road
cornmission had no opportunity to view the damages or to assist in salvaging
any of the merchandise. There was also evidence
66 REPORTS STATE
COURT OF CLAIMS LW. VA.
to the fact that laborers of the Valley Camp Stores Company were careless in
handling the salvaged goods which no doubt reduced the salvage value.
It further appears from the vidence that the grade level of Gashell?s run
between the culvert and Little Wheeling creek is practially the same as Little
Wheeling creek and approaches said creek at practically right angles raising
some question as to a practical depth of grading of Gashell?s run to prevent a
backing up of Little Wheeling creek in the run in times of a freshet such as
the evidence in this case revealed. The evidence reveals that Little Wheeling
creek did back up into Gashell?s run in 1937 during a flood in that valley and
caused similar damages to the Valley Camp Stores. It also appears from the
evidence that from the general lay of the land and the construction of the
present buildings and premises surrounding the culvert and Gashell?s run that
it would be practically impossible to raise the bridge without creating
liability in damages to others by reason of a change of the grade of the
highway. This being a national highway, no doubt such course would not be
required of the state road commission under its maintenance supervision.
While it appears from the evidence that a concrete curb was constructed around
the top surface of the opening to the basement windows of the claimant
company?s store building, after the 1937 flood, there is a question as to
whether a larger amount of salvage could not have been realized from the stock of
merchandise if the concrete curbs had been constructed on a higher pitch from
the suface of the ground, there being no explanation made as to the heights of
the curbs as constructed But this would not be controlling as to the reduction
of the amount of the award if another feature did not appear from the evidence.
From the evidence it appears that the Valley Camp Stores Company had permitted
one of its affiliates to dump mine gob on the southern side of the highway
which covered the outlet opening of a smaller culvert about 600 feet west of
the Valley Camp Store No. 3. It appears from the testimony that this outlet
opening had been covered by about
W. VA.] REPORTh
STATE COURT OF CLAIMS 67
three feet of mine gob. (Record pp. 147, 148, 167).
The overflow waters subsided within a short time, it appearing that the
basement had drained within 45 minutes, (record p. 60).
It also appears that after Gashell?s run overflowed if this smaller culvert had
been open a part of the overflow water would have drained in that direction by
all probability reducing the amount of damages sustained by the claimant.
An award of four thousand five hundred dollars ($4500.00) is recommended and an
order was entered accordingly.
(No. 36-S?Claimant awarded $18.36.)
MRS. J. D. SPENCER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed January 12, 1942
ROBERT L. BLAND, Judge.
The record of the above styled claim was referred to the court of claims by the
state road commission in pursuance of section 17 of the court act. The claim is
for the sum of $18.36. The state road commission concurs in the payment of the
claim. The attorney general approves its payment. The claim grows out of a
wreck between state road commission pickup car No. 338-18 and claimant?s
private Plymouth automobile, at Grantsvile, in Calhoun county, on June 15,
1941.
In view of the recommendation of the state road commission and the approval of
the attorney general, we are of opinion that the award should be made.
We, therefore, award to the claimant the sum of eighteen dollars and thirty-six
cents ($18.36).
68 REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 37-S?Claimant awarded $25.00.)
MRS.
DONOVAN A. MAXWELL, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opnon Fded Januai?y 12,1942
ROBERT L. BLAND, Judge.
It appears from the record of this claim, which was referred to this court by
the state road commission, with recoxnmendation for the payment of $25.00,
which recommendation is supported by the attorney general, that on the. 22nd
day of August 1939, a collision occurred between state road commission truck
430-49, operated by Paul Ringler, and an automobile owned by claimant. The
accident occurred on U. S. route No. 119, in Taylor county, West Virginia. The
operator of respondent?s truck, not seeing claimant?s car which had drawn up
behind and stopped, backed the state truck to enter a side road and into
claimant?s car, inflicting damage to it. The Iecord shows that the operator of
the state truck was at fault. L?he claim is one that should be paid.
We, therefore, award the claimant the sum of twenty-five dollars ($25.00.)
(No. 39-S??Claimant awarded $8.00.)
E. R. BIGGESS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
OpinIon Filed January 12, 1942
ROBERT L. BLAND, Judge.
On October 10, 1941, claimant?s Plymouth coupe automobile was parked on East
Washington street, in the city of Charles-
W. VA.] REPORTS STA[E COURT OF CLAIMS 69
ton, West Virginia. State road commission
distributor truck No. 130-90, driven by Joe Taylor, ran into claimant?s car,
damaging both left fenders. The actual cost of necessary repairs amounted to
$8.00. The record shows claimant to be entitled to an award for that sum. Its
payment is recommended by the state road commission and approved by the
attorney general.
An award is, therefore, accordingly made in favor of claimant for said sum of
eight dollars ($8.00.)
(No. 40-S?Claimant awarded $95.00.)
WALTER McCORMICK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed January 12, 1942
ROBERT L. BLAND, Judge.
This claim was referred to the court of claims by the state road commission.
The amount of the claim is $95.00. The state road commission recommends its
payment. The attorney general approves its payment.
The claim is the outgrowth of a collision which occurred at Henshaw, in Kanawha
county, on July 27, 1941, between state road commission truck No. 130-48 with
an automobile owned by claimant, a resident of Julian, West Virginia. In
consequence of the collision the frame of claimant?s car was broken, its body
smashed, and its left front springs and tie rods broken.
Upon the record of the claim presented for our consideration the claimant is
entitled to an award in the sum of ninety-five dollars ($95.00) which is now
accordingly made in his favor.
70 REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 41-S?Claimant awarded $40.00.)
HARMAN CASTO, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed January 12, 1942
ROBERT L. BLAND, Judge.
The accident which is the basis of this claim occurred in front of state garage
R-62, in Mason county, on the 7th day of February 1941. The driver of state
road commission truck No. 138-21 failed to observe the approach of claimant?s
private Dodge automobile, and drove in front of it, and the Dodge car slid on
the snow on the road into the state truck. Claimant?s car was damaged by the
collision. Its fenders were mashed, two front springs broken, and frame and tie
rods bent. Claimant seeks an award for damages in the sum of $40.00. The claim
is referred to this court by the state road commission in which it concurs. The
attorney general approves its payment.
It is, therefore, ordered that claimant, Harmon Casto, be awarded the sum of
forty dollars ($40.00) in full settlement of his damages.
(No. 42-S?Claimant awarded $6.00.)
LAWRENCE MEEKS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed Januai?y 12, 1942
ROBERT L. BLAND, Judge.
On June 5th, 1941, Ervin Asbury was driving state road commission truck 130-127
on Central avenue, in the city of
W. VA.] REPORTS
STA7E COURT OF CLAIMS 71
Charleston, Kanawha county, West Virginia. He stopped on account of traffic at
Patrick street. Claimant, driving in his automobile, was also waiting on
traffic on Central avenue. He was behind the state truck. When the state truck
backed up to allow a car approaching from the right to enter the avenue it
struck the front end of claimant?s automobile, damaging its emblem and
moulding. The state truck proceeded out on Patrick street toward South
Charleston, the driver not knowing that he had backed the truck into claimant?s
car and caused the above mentioned damage.
Claimant is, therefore, allowed an award of six dollars
($6.00.)
(No. 43?S?Claimant awarded $28.93.)
SARAH SPENCER, Claimant,
V.
STATE ROAD COMMrSSION, Respondent.
Opinion Filed January 12, 1942
ROBERT L. BLAND, Judge.
On June 19, 1941, in the city of Charleston, West Virginia, state road
commission roller 124-11, backed into an automobile owned and driven by claimant,
causing damages for which a claim of $28.93 is made. It appears from the record
that claimant unsuccessfully endeavored to avoid the accident, for which faulty
brakes on the state vehicle was responsible. The state road commission concurs
in the claim, which has the approval of the attorney generaL
It is, therefore, ordered that claimant, Sarah Spencer, be, and she is, awarded
the sum of twenty-eight dollars and ninety-three cents ($28.93.)
72 REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 38-S?Claim denied.)
WALTER R. KNICELY, d/ba KNICELY FLORISTS,
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed Januartj 12, 1942
ROBERT L. BLAND, Judge.
This is a claim filed October 10th, 1941, in the court of claims, for
determination upon the record prepared by the state road commission under the
provisions of section 17 of the act of the Legislature creating the court. It
appears from this record that the claim is for ?damage to flowers and plants by
dust and gravel blown by the wind while cleaning and sweeping U. S. route No.
11, in Berkeley county.? The record discloses the following pertinent matters:
?What payment recommended: Full amount, if state is liable,
$119.25.?
?Reason for compensation: State road forces were working on U. S. route 11,
widening pavement and exercising all possible precaution to prevent damage, but
while sweeping a sudden gust of wind rained a cloud of dust which settled on
flowers alongside of road.?
The payment of the claim so recommended as above stated by the head of the
state agency concerned, is approved by the special assistant to the attorney
general.
What should be our determination in the premises? When a claim is submitted to
the court under the ?shortened procedure? provisions of the court act the
statute makes it the duty of the court to consider the claim informally upon
the record; and the statute expressly provides: ?If the court determines that
the claim should be entered as an approved claim
W.VA.1 REPORTS
STATE COURT OF CLAIMS 73
and an award made, it shall so order and shall file its statement with the
clerk. If the court finds .
. . 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.?
As a general rule an award will be made when the payment a claim is concurred
in by the head of the state agency concerned and is approved by the attorney general
as a claim which should be paid; but we think that where it appears from the
record that such a claim should not be paid, it is the duty of the court of
claims to reject the claim.
The claim under consideration is only conditionally concurred in by the state
road commission. It recommends the payment of the claim if the state is liable
therefor. Is the state liable for the payment of the claim? We think it is not.
In its work upon the highway in question the state was engaged in the
performance of legitimate duties. The employees of the road commission were not
guilty of any negligent acts. They were, according to the record under
consideration, ?exercising all possible precaution to prevent damage, but while
sweeping, a sudden gust of wind rained a cloud of dust which settled on flowers
alongside of the road.? For this happening the workmen were not responsible.
They could not anticipate a ?sudden gust of wind,? or that such wind would
?rain a cloud of dust? on the claimant?s flowers. They were not responsible for
this force of nature. They could not prevent it. No acts on their part
constituted a proximate cause of the damage for which this claim is made. The
state is not liable for an act of God. This law is well settled. In the case of
Brown v. State Road Commission, decided
at the October term 1941, of this court, we held: ?An act of God is a direct,
violent, sudden or irresistible act of nature which could not by the exercise
of reasonable care and diligence have been avoided or resisted.?
The award is therefore denied and the claim dismissed.
74 REPORTh STATE COURT OF CLAIMS [W. VA.
(No. 44-S-?-Claimant awarded $5.00.)
L. G. SMITH, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed January 24, 1942.
WALTER M. ELSWICK, Judge.
The record of this clahn was referred to the court of claims by the state road
commission in pursuance of section 17 of the court act. The claim is for the
sum of $5.00. The state road commission concurs in the payment of the claim,
and the attorney general approves its payment. The claim is for damages to the
fender and hub caps of claimant?s automobile, caused by state road commission
truck to No. 150-74 sliding on snow and striking claimant?s car on February 27,
1941.
After reviewing the record and finding no reason for rejecting payment, in view
of the recommendation of the state department involved and the approval of the
attorney general, we are of opinion that the award should be made.
We, therefore, award the claimant, L. G. Smith, the sum of five dollars
($5.00.)
W. VA.] REPORTS STATE
COURT OF CLAIMS 75
(No. 56-S?Claimant awarded $28.92.)
GEORGE M. BALSLEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed Jtinuary 24, 1942
WALTER M. ELSWICK, Judge.
The record of the above styled claim was referred to the court of claims by the
state road commission in pursuance of section 17 of the court act. The claim is
for the sum of $28.92. The state road commission concurs in the payment of the
claim and the attorney general approves its payment. The claim is for loss of
the value of a practically new Royal DeLuxe Whitewall tire casing and a Royal
DeLuxe tube which were cut and ruined when plaintiff?s car struck an iron block
on the highway used as a
warning sign by a painting crew. When
struck the iron block was on claimant?s side of the road, while it is customary
to have them placed on the painted line. The accident took place on route No.
50 near Evansville, West Virginia, on September 26, 1941.
After reviewing the record and finding no reason for rejecting the claim, in
view of the recommendation of the state road commission and the approval of the
attorney general, we are of opinion that the award should be made.
We, therefore, award to the claimant the sum of twenty- eight dollars and
ninety-two cents ($28.92.)
76 REPOR STATE
COURT OF CLAIMS LW. VA.
(No. 58-S?Claimant awarded $47.86.)
A. R. SNODGRASS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed January 24, 1942
WALTER M. ELSWICK, Judge.
On May 12, 1941, state road truck No. 130-72, attempting to turn around, backed
into claimant?s 1937 model Chevrolet car, which had stopped, and as a result
crushed the grill, bent radiator and fan, damaging claimant?s car to the extent
of $47.86 for which amount claim is made. It appears from the investigation
made by the state road commission that the state road truck driver was at
fault, that the operator of claimant?s car had stopped at the time of the
collision. The state road commission concurs in the claim and has referred the
same to the court of claims in pursuance of section 17 of the court act. The
attorney general approves its payment.
After reviewing the record and finding no reason for rejecting an award, in
view of the recommendation of the state road commission and the approval of the
attorney general we are of the opinion that the award should be made.
We, therefore, award to the claimant the sum of forty-seven dollars and
eighty-six cents ($47.86.)
W. VA.]
REPORTS STATE COURT OF CLAIMS 77
(No. 59-S?-Claimant awarded $7.00.)
MRS. HANNA COBB, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed January 24, 1942
WALTER M. ELSWICK, Judge.
On September 25, 1942, near Bridgeport, claimant?s car ran over a metal flag
left in a curve in traffic lane inside newly painted white line where metal
flag could not be seen in time to avoid striking it when claimant?s tire and
tube was punctured and left in such condition that it was necessary to purchase
a new tire and tube at a cost of $13.55, and fifty cents for changing tire. The
claim is presented for $7.00, after allowing depreciation by wear and tear of
tire and tube damaged. The claim was referred to the court of claims by the
state road commission in pursuance of section 17 of the court act, and the
state road commission concurs in the payment of the claim for $7.00. The
attorney general approves its payment.
After reviewing the record and finding no reason for rejecting an award, in
view of the recommendation of the state road commission and the approval of the
attorney general, we are of the opinion that the award should be made.
We, therefore, award to the claimant the sum of seven dollars ($7.00.)
78 REPORTS STATE COURT OF CLAIMS LW. VA.
(No. 60-S?Claimant awarded $5.61.)
MRS. WILLIAM O?FERRELL, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinkm Filed January
24, 1942
CHARLES J. SCH1TCK, Judge.
It appears from the record of this claim, which was referred to this court by
the state road commission, with recommendation for the payment of $5.61, which
recommendation is supported by the approval of the Attorney General, that on
the 2nd day of October 1941, a collision occurred between state road commission
truck No. 938-37 and an automobile owned by claimant. The accident occurred on
route 60, about three miles west of Lewisburg, West Virginia. From the
statements submitted, it appears that the operator of respondent?s truck, in
violation of a rule, attempted to turn the said truck past the flagman in
one-way traffic, and by so doing, collided with claimant?s automobile, damaging
the fenders thereto to the extent of the amount herein claimed. The record
shows that either the operator of the state truck or the flagman in question
was at fault. The claim is one that should be paid.
We, therefore, award the claimant the sum of five dollars and sixty-one cents
($5.61.)
W. VA.] REPORTS
STATE COURT OF CLAIMS 79
(No. 61-S?Claimant awarded $16.69.)
HOWARD CARSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed January 24, 1942
CHARLES J. SCHUCK, Judge.
It appears from the record of this claim which was referred to this court by
the state road commission, with the recommendation for payment of $16.69, which
recommendation is supported by the attorney general, that on the 25th day of
September 1941, a collision occurred between state road truck No. 930-17,
operated by Milton B. Taylor, and an automobile owned by claimant. The accident
occurred in Fayetteville, Fayette county, West Virginia. From the record
submitted, it appears that the operator of the state road truck had stopped at
a red light signal on the highway going into Fayetteville from Oak Hill, and
when the signal turned green, the operator of the said truck attempted to go
forward. His truck, by reason of defective brakes, started backward, striking
claimant?s automobile, and causing the damages in question. The claim is one
that should be paid.
We therefore award the claimant the sum of sixteen dollars and sixty-nine cents
($16.69.)
80 REPORTS STATE
COURT OF CLAIMS
[W. VA.
(No. 62-S?Claimant awarded $26.00.)
MRS. J. A. McALLISTER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed January 24, 1942
CHARLES J. SCHUCK, Judge.
It appears from the record of this claim, which was referred to this court by
the state road commission, with recommendation for the payment of $26.00, which
recommendation is supported by the approval of the attorney general, that on
the 9th day of March 1941, a collision occurred between a snowplow, operated by
the said road commission, and the automobile owned by the claimant. The
accident occurred on U. S. highway No. 60, in Greenbrier county, West Virginia.
From the statements submitted, it appears that the snowplow, operated by the
said road commission, while on the highway in question, slipped across the
white or division line on the said highway and collided with claimant?s
automobile, coming in the opposite direction, inflicting damages to the amount
claimed. Under all the statements and the consideration of the circumstances
surrounding the collision, the claim is one that should be paid.
We therefore award the claimant the sum of twenty-six dollars ($26.00.)
W. VA.] REPORTS
STATE COURT OF CLAIMS 81
(No. 63-S?Claimant awarded $6.53.)
G. H. PERKINS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed
January 24, 1942
CHARLES J. SCHUCK,
Judge.
It appears from the record of this claim which was referred to this court by
the state road commission, with recommendation for the payment of $6.53, which
recommendation is supported by the approval of the attorney general, that on
the 21st day of March 1941, a collision occurred between state road truck No. 930-18
and an automobile owned by the claimant. The accident occurred on state route
41, in Nicholas county, West Virginia. The operator of respondent?s truck, not
hearing the horn or signal warning of the claimant?s car, crowded or drove to
the left of the said highway to avoid rough pavement on the right, and by so
doing, struck the right front fender and wheel of claimant?s automobile as he
was passing from behind, and inflicting damage to the said claimant?s car. The
record shows that the operator of the state truck was at fault. The claim is
one that should be paid.
We therefore award the claimant the sum of six dollars and fifty-three cents
($6.53.)
8 REPORTS
STATE COURT OF CLAIMS
[W, VA.
(No. 64-S?Claimant awarded $21.63.)
GEORGE RODGERS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed January
24, 1942
CHARLES J. SCRUCK, Judge.
It appears from the record of this claim, which was referred to this court by
the state road commission, that the claimant should be given an award by this
court, but that the amount of damage claimed, to-wit, $21.63 is too high. The
justness of the claim is approved by the attorney general. The accident
occurred near Petersburg, in Grant county, West Virginia, and was occasioned by
a collision between respondent?s truck No. P-30-60 and claimant?s automobile. A
review of the statements submitted for consideration by this court clearly
indicates that the collision was caused in the operation of the respondent?s
truck; the said truck having been loaded with a protruding grader which
collided with claimant?s parked automobile at the place in question.
It appears that the only matter in controversy between the claimant and
respondent is the amount of damages to claimant?s automobile. A careful
examination of the record reveals that the only statements submitted show the
damages in the amount of $21.63, and since to reduce this amount would be pure
conjecture or guess on our part, we make an award for the amount in question,
with the recommendation that the same be paid to the claimant.
We therefore award the claimant the sum of twenty-one dollars and sixty-three
cents ($21.63.)
W. VAJ REPORTS STATE COURT OF CLAIMS 83
(No. 57-S?Claimant awarded $65.00.)
GRADY SILAR, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed Janua.ry 27, 1942
WALTER M. ELSWICK, Judge.
On August 23, 1941, state road truck No. 138-27 was being driven by a state
road employee on the state highway in the town of Whittaker in Kanawha county,
West Virginia, following about 400 feet behind claimant?s car. Claimant?s car
pulled off the road into a highway leading to his home, giving the proper
signal that he was making the turn off the highway, at which time the truck was
about 30 feet distant behind him. The truck driver, withozt heeding the
warning, continued on and struck claimant?s car, damaging both right front and
rear fenders and the door on the right side, necessitating repairing of door
and fenders, at a cost of $65.00. Claimant?s car was a 1938 model Dodge. It
would appear from the record that the driver of claimant?s car was not at
fault, but that the driver of the state road truck failed to heed the warning
signal that the operator of claimant?s car had given.
- The payment of the costs of repairing claimant?s car is
recommended by the state road commission, which recommendation is approved by
the attorney general. The claim was ified and submitted by the state road
commission, with the clerk, on December 18, 1941. Additional proof was
submitted on January 26, 1942.
From the record submitted, we are of the opinion that an award should
be made and an order will be entered recommending an award of sixty-five
dollars ($65.00.)
84 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 35?Claim dismissed.)
F. F. COTTLE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 27, 1942
The state court of claims will not
entertain jurisdiction of a claim upon which a proceeding may be maintained by
or on behalf of the claimant in the courts of the state.
Appearances:
Eston B. Stephenson, Esq., special assistant to the Attorney General.
WALTER M. ELSWICK, Judge.
The allegations of the petition ified in this case, insofar as they are
material to the question of jurisdiction of this court are as follows:
That claimant, a resident of Cabell county, West Virginia, is the owner of real
estate abutting on fifth street road, state road route No. 52, about one-half
mile from Huntington city limits; that in December 1936, the state road
commission constructed the said highway in front of claimant?s house, and that
?the construction of this highway caused the channel of a stream to be so
diverted that it has been and will continue to damage the complainant?s
property and during highwater endangers his home.?
The state road commission, by the attorney general, filed a special plea to the
petition alleging that the cause of action of claimant, if any, can be
determined by a mandamus proceeding in the proper circuit courts of this state
against the state road commission, and that by reason thereof said claim is
thereby excluded from the jurisdiction of the state court of claims, by
W. VA.] REPORTS STATE COURT OF CLAIMS 85
virtue of subsection 7, section 14, chapter 20, acts of the Legislature 1941.
A copy of said special plea filed was mailed to Robert S. Starcher, Huntington,
West Virginia, attorney for the claimant, on the 17th day of January 1942, and
the claim came on for hearing on the question of jurisdiction of the state
court of claims on the 26th day of January 1942. On said date no appearance was
made by claimant either in person or by counsel, and the court took the
question of jurisdiction of the claim under consideration.
Prior to the passage of chapter 20 of the acts of the Legislature of 1941, the
Supreme Court of our state in the case of Riggs v. State Road Commission, 120 W. Va. 298, 197 S. E. 813, affirming Hardy v. Simpson, Road Commi8sioner, 118 W. Va. 440, 191 S. E. 47, held that where highway
construction or improvement results in probable damage to private property
without an actual taking thereof, and the owners in good faith claim damages,
the state road commissioner has statutory duty to institute proceedings within
a reasonable time after completion of work to ascertain damages, if any, and,
if he fails to do so, after a reasonable time, mandamus will lie to require the
institution of such proceedings.
These decisions are based upon the imperative provision of our constitution,
article 3, section 9, that ?private property shall not be taken or damaged for
public use, without just compensation.? While the remedy provided for therein
remains unchanged these decisions would remain as precedents for the courts of
our state as to the procedure followed, and so long as the same exist, the
jurisdiction of the state court of claims does not extend to any claim upon
which a proceeding may be maintained by a claimant in the courts of the state,
as provided for in subsection 7, section 14 of chapter 20 of the acts of 1941.
It appears from the petition in this case that the claim of F. F. Cottle filed
herein is such a claim as may be proceeded on under the decisions in the Riggs and Hardy cases,
and being a claim of such nature it is excluded from the jurisdiction of this
court, and an order was entered accordingly.
86 REPORTS STATE
COURT OF CLAIMS EW. VA.
(No. 4?Claim dismissed.)
LOUISA SCAVERIELLO, Claimant,
V.
STATL ROAD COMMISSION, Respondent.
Opinion filed February 27,. 1942
The act creating this court, section
14, relating to the jurisdiction of the court, specifically excludes from its
jurisdiction any claim which may be maintained by or on behalf of the claimant
in the courts of the state.
John D. Downes, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
The claimant, Louisa Scaveriello, has heretofore ified her petition in this
court, asking for an award of $6500.00 for damages caused to certain lots and
buildings located on what is known as Deckers Creek road, Sabraton, Monongalia
county, West Virginia. Claimant maintains that the damages were caused by
reason of the state road commission taking certain parts of claimant?s property
in carrying out state project No. 3274, and entailing further, the removal of
certain buildings located on said lots or property. The record further shows
that this project was carried out, and the damages, if any, to the property in
question, caused prior to May 16, 1933, the time at which the state, through
its state road commission took over the control, maintenance, and upkeep of
highways in the state of West Virginia. The state has filed a special plea to
the jurisdiction of this court, setting forth that no cause of action lies
against the state road commission, but that the remedy, if any, is exclusively
against the county court of said Monongalia county, in which the real property
in question is located. No
W. VA.] REPORTS STATE COURT OF CLAiMS 87
replication has been filed or answer of any kind been made to this plea,
notwithstanding notice of its filing having heretofore been given in ample time
to the claimant through her attorney of record.
Assuming that all matters set forth in the plea are true, we must, under the
law, sustain the plea and dismiss the claim from further consideration.
Previous to May 16, 1933, the right of action under our law for damages to
land, growing out of the construction or repair of a state road, was
exclusively against the county court of the county in which the land lay. See Trump
v. State
Road Commission, 116 W. Va. 625, which was decided November 26, 1935.
The claimant had the right, and was vested with the power at the time that the
damages were caused to her property, to take action in the circuit court of
Monongalia county against the county court of the said county, and having
failed to do so, is now, in our opinion, barred from having the matter of her
claim considered by this court.
The act creating this court, section 14, relating to the jurisdiction of the
court, specifically excludes from its jurisdiction any claim which may be
maintained by or on behalf of the claimant in the courts of the state.
We are of the opinion that the claim under consideration falls within the class
excluded by said section 14 of the act, and are, therefore, constrained from
further consideration.
88 REPORTS STATE
COURT OF CLAIMS 1W. VA.
(No. 19?Claimant awarded $1500.00.)
ROSA ELLIS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed FebrucLry 27, 1942
During the course of repairing and
reconstructing a bridge, which bridge is kept open to pedestrians and travelers
while said repairs are being made, it is negligence on the part of state road
commission employees to throw a hot rivet used in connection with the making of
said repairs while a pedestrian is crossing the said bridge and in close
proximity to where the said rivet is being thrown, and which, if improperly
thrown, is likely to strike and injure such pedestrian. If injury results from
such negligence, the state road commission is liable.
Appearances:
Clarence J. Benson, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state; J. H. Fiengo&1, Esq., and John
Gillespie, Esq., for the state road
commission.
CHARLES J. SCHUCK, Judge.
On or about the 10th day of February 1932, the state road commission was
engaged in repairing a certain bridge crossing the Guyandotte river at Gilbert,
West Virginia. As part of the work of making said repairs, the workmen engaged
thereon were obliged to use hot rivets in welding certain brackets or supports
to the said bridge for the purpose of constructing the sidewalk thereon to be
used by pedestrians. During the time that said repairs were being made, the
walk on said bridge could not be used, and pedestrians were obliged to use that
part of the bridge theretofore used for vehicle or automobile travel. It was
while a pedestrian? on said bridge that the claimant was struck by a hot rivet
being thrown from one workman to another and which rivet was to be used in
connection with the aforesaid repairs.
W. VA.] REPORTS
STATE COURT OF CLAIMS 89
It appears that the custom was to heat
the rivets and then to throw them from the workman using the furnace for
heating the rivets to another workman who was known as the ?catcher? previous
to inserting the rivet in the steel work of the bridge, and which ?catcher?
used a bucket for the purpose of receiving the rivet. The evidence shows that
on the occasion in question the receiver, or ?catcher? missed the rivet, the
rivet striking 1e bed of the bridge and bounding in the direction of the
claimant, striking her on the leg. inflicting a severe burn which required
medical attention both at her home and at a hospital, and requiring as well her
confinement to her home for several months.
The evidence clearly shows that the claimant had passed the ?catcher? going in
the same direction in which the rivet was thrown, and was in such close
proximity to the operation in question that she could easily be seen, or ought
to have been seen, previous to the time of the throwing of the rivet. In view
of the fact that the bridge was open to pedestrians and travelers, and
considering the nature of the work that was being carried on. it became the
duty of the state road commission and its employees to exercise the highest
care in protecting pedestrians and travelers from injuries during the time that
the said bridge was in the course of repair.
The evidence of the several witnesses, including one of the witnesses offered
by the state, and who was engaged in the work at the time, conclusively shows that
the claimant was in the exercise of her rights in crossing the bridge at the
time and place in question. and had exercised all necessary care as such
pedestrian and that the employees as hereinbefore noted, especially so the
employee who was throwing the rivet at the time, had not taken the necessary
precaution to protect the claimant as such pedestrian. The act of throwing the
rivet, under the circumstances, before the claimant had gotten a sufficient
distance from the ?catcher? to be safe from any injury, was negligence on the
part of the employee, for which the state road conunission is I iable.
The claim tiled is in the amount of $2500.00. The evidence shows that claimant
entailed expenses, including doctors? and
90 REPORTS STATE
COURT OF CLAIMS [W.VA.
hospital bills, in the amount of approximately $300.00; that she was obliged to
have a maid in her home for a period of four months to do the work and to
render the service which the claimant had theretofore done, and which she could
not do by reason of her injuries. The evidence further shows (record pp.
33-54), that she suffered severe pain for a long period; that her suffering at
times was acute and intense. Under all of these circumstances and conditions,
and considering the evidence adduced in the hearing of the cause, we feel that
an award for fifteen hundred dollars ($1500.00) is just and proper, and
therefore recommend the said amount to the Legislature accordingly, in full
payment and satisfaction for claimant?s injuries and damages.
(No. 52?Claim denied.)
L. B. JAMES, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed February 27. 1942
When, upon the hearing of a claim for
an award for reimbursement for money paid for repairs to an automobile driven
by claimant into a tree blown by storm upon a public highway, proof offered in
support of such claim fails to show negligence on the part of the state road
commission, or establish a right of action for such damages, a motion of the
attorney general to dismiss the claim will be sustained, an award denied and
th-? claim dismissed.
L. B. James, claimant, pro Se;
Eston B. Stephenson, special assistant to the Attorney General for the
state.
ROBERT L. BLAND, Judge.
W. VA.]
REPORTS STATE COURT OF CLAIMS 91
On the evening of September 5, 1941, claimant, L. B. James, a minister of
the gospel, was driving his 1937 model Chevrolet automobile on state route No.
15, between Bergoo and Cherry Fails, in Webster county, West Virginia. He was
enroute to Cherry Falls, about one and one-half miles above Webster Springs,
where he was engaged in conducting a revival meeting. About five o?clock i. M. of that
day, and before his departure from Bergoo, a very heavy and severe rain and
wind storm occurred and continued for perhaps an hour. The road traversed a
more or less mountainous and wooded section, with fair grade a part of the way
and curves at intervals. The day had been warm and after the subsidence of the
storm, steam formed from two to three feet in height upon the hard-surfaced
highway. This vapor was very heavy close to the road and a traveler thereon
could not see more than fifteen feet in front of him, but above the mist
visibility extended for quite a distance. This condition of the road was
described in the evidence as ?fog? and prevailed from the time claimant left
Bergoo. He was accompanied in his car by a companion and was driving
at a speed of from twenty-five to thirty miles per hour. When he arrived at a
point about three and one-half miles east of Webster Springs he ran his car into
a tree which had been blown by the storm into the highway. This tree, having
been shorn of its foliage, was around ten or twelve inches in diameter, its
length not being shown, and laid partially across the paved portion of the
road. It fell from the side of the road on the right as claimant traveled. It
would appear from the evidence that it did not occupy the full width of the
pavement. When the car hit the tree, its axle, right front wheel, frame and
springs were damaged. In order to repair this damage and place the car in
proper condition claimant paid $75.42. He seeks an award for the reimbursement
of that amount.
The claim is predicated upon the theory that failure to remove the tree from
the highway, or to give proper warning of its danger, constituted negligence on
the part of the road commission or which the state is liable.
92 REPORTS STATE
COURT OF CLAIMS [W. VA.
Where negligence is relied upon it must be fully proven, and the burden rests
upon the claimant. When alleged negligence is not proved there cannot be an
award made on that ground.
The evidence does not disclose when the tree was blown by the storm upon the
highway, how long it had remained there, or that the road commission had
received notice that it had fallen on the road, or had a reasonable time to
remove it from the highway before the accident occurred. All sections of a
state highway cannot be patrolled at the same time and the road commission
cannot be held negligent for failing to anticipate just when and where a tree
may be blown by storm upon highways under its control. Such responsibility
would be unreasonable. Safety in traveling on a public road in time of storm?or
at any other time?cannot be guaranteed by the state.
It appears from the testimony of claimant himself that although the highway
traveled by him passed through a heavily wooded section on both sides for a
part of the way and all the way on one side, and that the steam or ?fog? on
this road was so heavy that he could not see for a distance of more than fifteen
feet ahead, and that the road was ?pretty curvy? he, nevertheless, drove his
car at a rate of speed of from twenty- five to thirty miles an hour and was
driving at that speed when he drove into the tree. In view of the storm, with
its attendant dangers, and the obscured vision of the road on account of the
steam or fog arising from its surface, was this careful driving? Can it be said
that claimant was without contributory negligence on his part? When asked by a
member of the court if he did not feel that it was highly dangerous driving
under all the circumstances to which he had testified, he answered:
?Yes, sir.? Where it appears from the testimony of claimant himself that he is
guilty of contributory negligence in driving on the highway in question under
circumstances shown by the evidence in the instant case, an award will not be
made.
When claimant concluded the offering of evidence in support of his claim, the
assistant attorney general moved to dis
W. VA.] REPORTS STATE COURT
OF CLAIMS
miss said claim for failure to establish negligence on the part of the road
commission.
The evidence offered and relied upon by claimant in support of his claim does
not prove negligence on the part of the state road commission. We think
claimant was guilty of contributory negligence in the premises. The evidence is
insufficient to justify an award upon the facts proved.
The motion of the assistant attorney general is, therefore, sustained, an avard
denied and the claim dismissed.
(No. 49?Claim denied.)
SARAH E. MOORE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed February 27, 1942
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.
Cecil
B. Dean, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
ROBERT L. BLAND, Judge.
By her complaint filed herein on September 28, 1941, claimant, Sarah E. Moore,
a resident of Little Hart creek, in Lincoln county, West Virginia, asks an
award of $2500.00 damages to compensate her for personal injuries received in
an accident which she sustained on January 28, 1936. She contends that a
94 REPORTS STATE
COURT OF CLAIMS [W. VA.
day or two prior to that date employees of the state road commission, while
working on state route No. 10, in Lincoln county, about two miles west of the
town of Ranger, removed the snow from the surface of said road, and while
removing the snow from the ditch line of the highway, with a road grader,
placed, or caused to be heaped, a ridge or layer of snow, ice and mud from
twelve to fourteen inches in height, upon and across the highway, path and
steps leading from claimant?s home to said highway. She further claims that the
said highway, path and steps, blocked by the said snow, mud and ice was the
only usable way or road of getting to said highway from her home; and that due
to such negligent act in placing and heaping said snow, mud and ice as
aforesaid, and leaving the same so placed and heaped, while she was using said
highway, path and steps leading from her home to said state route No. 10, in an
attempt to go to said highway, she stepped on top of said pile or heap of snow,
mud and ice, and the same being frozen into a crust on top, broke under her
weight and caused her to fall, breaking both bones in her left leg between the
ankle and knee.
Respondent has filed a general denial of liability. Claimant must prove her
claim by a preponderance of the weight of evidence. She must show that her
claim is one for which an award may be made. To do this she testified on her
own behalf, and introduced as witnesses her husband, Francis Leet Moore, and
her two daughters, Siddy Midkiff and Ruby Black, who gave evidence in support of
her claim. Beyond showing her unfortunate accident, which has undoubtedly
caused her much pain and suffering and necessitated the expenditure of money
for medical and surgical treatment, the evidence on which she relies is vague,
unsatisfactory and without probative value, and falls far short of establishing
a case of negligence on the part of respondent.
It appears from the record that on either the 24th or 25th day of January 1936,
there was a heavy snowfall in the vicinity of claimant?s home. This snow fell
upon state route No. 10. For the convenience and safety of traffic it was
necessary to remove this snow from the highway. A motor patrol grader was used
W. VA.] REPORI?S STATE COURT OF CLAIMS 95
for the purpose of doing so. It removed the snow from the highway and
deposited it in a windrow, at least two feet outside of the edge of the paved
portion of the road. This deposit of said snow formed a small ridge, claimant
and her witnesses not being in agreement as to its actual height. In her
complaint claimant alleges that it was from twelve to fourteen .nches in
height, and the evidence does not show it to have been higher than fourteen
inches. This snow was distributed uniformly along the side of the road.
Claimant?s property abutted for its full width upon state route No. 10. The
dwelling house thereon was located from twenty-five to thirty yards from the
highway. The lawn between this dwelling house and highway was, according to
claimant?s statement, ?slanting.? A walk or pathway led from the house to the
road. At the point where the premises abutted on the highway there was a small
bank. From this bank to the thoroughfare were three flagstone steps. The snow
on the walk or pathway from the dwelling house to the highway had been swept by
claimant?s husband. On the day of the accident claimant and her husband had
walked down this pathway to route No. 10 on their way to visit a nearby
neighbor. Claimant?s husband stepped from the third flagstone over the small
ridge of snow deposited upon the edge of the highway. Claimant, however,
stepped onto the snow and broke her leg. Apparently neither claimant nor her
husband regarded the windrow of snow as dangerous at the time they attempted to
enter upon the highway, nor does it appear from the evidence that it was in
fact dangerous. The evidence does not show that claimant?s husband warned her
against danger in crossing to the highway, or offered her assistance in doing
so. Both claimant and her husband knew that this small windrow of snow was on
the outer edge of the highway. It presented no impediment to claimant?s access
to the highway. Claimant?s husband testified that he had swept the pathway from
the house to the road, including the three flagstone steps. This ridge of snow
was two feet from the outer edge of the pavement and between the pavement and
these steps, evidently leaving a distance between the snow and road
right-of-way. It therefore appears
96 REPORTS STATE COURT OF CLAIMS
W.VA.
from the evidence that claimant
had an unobstructed outlet from her premises to the highway before the ridge of
snow was reduced
The mere fact of injury received on a state highway raises no presumption of
negligence on the part of the state road commission. Under the act creating the
court of claims negligence on the part of the state agency involved must be
fully shown before an award will be made. In this case it is not shown by the
evidence that claimants injury resulted from the road commission?s negligence.
Negligence has not been established.
We think that lack of caution and the exercise of ordinary care on the part of
claimant was responsible for the accident which she sustained and not the
action of the road commission in removing the snow from the surface of the
highway in a windrow along the side of the road, which under all the
circumstances disclosed by the record was necessary to be done in the interest
of the public use of the road, and which work would appear to have been
performed in the usual approved manner observed by respondent in cleaning snow
from highways.
Under the facts proved by claimant she has failed to establish negligence on
the part of the road commission. Under this evidence we cannot make an award in
her favor.
An award is, therefore, denied.
W. VA.l REPORTS STATE COURT OF? CLAIMS 97
(No. 5?Claim denied.)
RUTH MILLER, Claimant
V.
STATE BOARD OF CONTROL, Respondent.
Opinion filed February 27. 1942
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.
Appearances:
Messrs. Rollins & Lilly (Lawrence
E. Rollins, Esq. and David Lilly, Jr., Esq.), for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
On the 6th day of April 1940, one Lloyd Adkins, Jr., then sixteen years of age,
was adjudged a delinquent within the meaning of the laws of the state of West
Virginia, by the Kanawha county juvenile court, and as his parents were unable
to properly care for, protect, and discipline him, he was ordered to be
committed to the West Virginia industrial school at Pruntytown; the
superintendent of the said school was designated as the guardian for the said
Lloyd Adkins and was directed to receive him into his custody as such
superintendent, to hold, care for, train, and educate him until such time as he
should attain the age of twenty-one years. Before his commitment to the said
reform school it was found and known by the Kanawha county juvenile authorities
that Adkins was afflicted with syphilis, and information to that effect was
some time later conveyed to the board of control of the state of West Virginia
and to the authorities at said industrial school as well. Thereupon the state
director of the department of pub-
98 REPORTS STATE
COURT OF CLAIMS [W. VA.
lie assistance was advised by the state board of control that the said Adkins
would be accepted at the industrial school only on certain conditions, which
included a statement from the county health officer or some medical officer to
the effect that the said Adkins had reached a noninfectious state, and
detailing the treatment that he had already received, as well as recommending
the treatment which he should receive after being admitted to the said industrial
school. A further condition before his admission, was the requirement that the
West Virginia industrial school for boys should have an examination made of the
said Adkins by Dr. C. M. Ramage, superintendent of the Fairmont emergency
hospital, a state institution, to ascertain whether his disease was
noninfectious; and for the purpose of conducting the said examination and
continuing any necessary treatment, the said Adkins was taken to the said
hospital at Fairmont, where he was admitted on February 11, 1941, and where an
examination disclosed that he was suffering from the disease in question,
although no lesions were present to indicate that the disease was infectious to
others.
Under Dr. Ramage, the superintendent of the said hospital, the treatment was
continued for several weeks and had reached the point where, from the evidence,
Adkins was still confined to his room and bed, yet, nevertheless, by reason of
his improved condition, was in the beginning of March, 1941, allowed bathroom
privileges. On March 3, 1941, having in some manner secured clothing, he was
discovered by the head nurse to be dressed in the said clothing, and was
immediately ordered to his room to undress and go to bed. He entered the room
and closed the door, seemingly obeying the order of th. head nurse, and shortly
thereafter leaped through a window and escaped. On the same day of the escape,
and shortly thereafter, the said Adkins stole a DeSoto automobile belonging to
the claimant, Ruth Miller, and at or near Shinnston, West Virginia, wrecked and
damaged the said automobile to the amount set forth in the petition filed
herein for an award. The said Adkins was subsequently tried in the criminal
court of Marion county for stealing the said automobile, and upon
W.VA.1
REPORTS STATE COURT OF CLAIMS 99
a plea of guilty, was sentenced to the state penitentiary. Upon this statement
of facts, this court is asked to make an award for the damages suffered by the
claimant in the loss and injury to the said automobile, occasioned by the said
Adkins, as herein shown and set forth.
At the very outset of the consideration of the claim, a number of questions
present themselves in the determination of how far, if at all, the state or its
agency, the board of control, would be liable for acts of negligence, if any,
or nonfeasance on the part of the hospital authorities or those who had Adkins
in custody at the time of his treatment at the Fairmont hospital. A careful
search of the authorities and decisions failed to reveal any adjudicated cases which
would fit the facts presented in the instant case, although a number can be
found in which states, counties and municipalities are held not liable for the
acts of agents or officials, assuming that such acts were negligent in their
character.
The act creating the court of claims, in our opinion, contemplates a broad,
wide and liberal construction, and places a moral liability on the state, so
far as an award may be concerned, when heretofore, as herein indicated, states
and their governmental agencies were in no sense liable for the acts of
negligence or nonfeasance of agents or officers. However, assuming for the
purpose of our decision that the interpretation that we place on the act
creating the court is correct, are we not still bound to find further that the
acts of those in charge of the hospital at Fairmont were of such a negligent
character and nature, as under ordinary conditions would make the said
officials and agents personally guilty of negligence and answerable in damages
for the injury to claimant?s automobile?
It is true that the Adkins boy, as shown by the evidence, had been guilty of a
number of automobile thefts, that he had made several escapes from custody,
that for one of his age he had already shown criminal tendencies to a marked
degree, and that he was likewise suffering from the disease in ques
100 REPORTS
STATE COURT OF CLAIMS [W. VA.
tion as heretofore noted. He had been
confined to his bed in the said hospital for about three weeks, when, by reason
of the progress that he had made toward recovery, so far as the communication
of his disease to others was concerned, he was allowed what are commonly termed
bathroom privileges.
In the very beginning, we must recognize that the institution involved, and
where Adkins was held in custody, is a hospital and not a prison or
reformatory; that those in charge were physicians and nurses, not law
enforcement officers. That the board of control as a state agency, so far as
the evidence reveals, had not yet accepted Adkins as a ward of the state and
could not, therefore, be charged with the full responsibility, so far as his
custody was concerned, until all the conditions and requirements for his
acceptance had been fully met and satisfied. He was still, in our opinion, in
the care and custody of the juvenile court of Kanawha county, and not in the
absolute custody of the state board of control.
However, putting all these matters aside, has negligence on the part of the
attendants at the Fairmont hospital been shown?
?a factor which is necessary before the state or its agency, the board of
control, could be held liable for an award by this court. We do not think so.
At the beginning of March of the year of his confinement at the hospital, to be
exact, on the 3rd day of March, he was found to be clothed, having obtained the
clothing in some manner not known to the authorities in charge of the hospital.
He was immediately ordered to undress and return to his room an?l bed, and
seemingly entered his room for that puroose, and after having closed the door,
he made his escape.
The hospital authorities were obliged to exercise ordinary care in controlling
the custody of the said Adkins, and it being an emergency hospital under the
control of the state, and having, no doubt, many cases for treatment and
observation, it could not be expected that the hospital would be put on the
same basis as a penal institution or obliged to exercise the same
W.VA.] REPORTS STATE
COURT OF CLAIMS 101
vigilance as is exercised in the ordinary penal or reform institution in
controlling the custody of prisoners confined therein; nor did it have the
means at its command, so far as the evidence reveals, to prevent such escape.
The nurse in question had the right to assume that, under all circumstances,
Adkins was about to obey her command. And while it may have been a mistake to
allow him to enter he room without an attendant, yet this act of itself could
not be construed as negligence since, under all the circumstances, reasonable
minds could well differ as to what should have been done in the exercise of
ordinary care; and considering further the season of the year, can we say that
the nurse did not act properly and discreetly, and that she was not exercising
ordinary care under all the attendant circumstances?
With these facts in mind, we fail to find that there was such negligence as
would make the attendants or those in charge of the hospital guilty of such
negligent acts or such nonfeasance as would make the board of control liable.
We repeat that, while the act creating this court is broad and wide in its
scope, and while we conclude that a liberal interpretation and construction
must be placed on its various provisions, yet the state cannot be held liable
merely because someone theretofore not fully in its custody had committed a
tort, by reason of which a citizen spifered damage. There still must be
negligence, as herein indicated, on the part of the state agency, department or
employees to justify the finding of an award.
102
REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 50?Claimant awarded $3,041.33.)
CHARLES LIVELY, Claimant,
V.
STATE AUDITOR, Respondent.
Opinion filed February 27 1942
Where it appears from the record and evidence applicable to a claim, that
the Legislature by successive appropriation acts makes reference in each
instance to a former act of the Legislature which former act also refers to a
concurrent resolution specifically directing that certain items in the costs of
printing and binding, such as maps and half-tone illustrations and circular
matter necessarily used in the completion of the work directed to be done,
shall be paid out of the appropriations for printing, binding and stationery
fund, known as the legislative printing fund appropriation, and said successive
acts, by construction placed thereon by officers charged with their execution
have been interpreted to include such costs, when such interpretation is the
plain meaning of such acts, an award will be made to one who has been refused
payment of such costs out of such appropriations, by the auditor, and has
personally paid for same, when it is found that no part of said claim has been
repaid to such claimant or to anyone for him.
Appearances:
Charles Lively, claimant, in his own behalf;
Eston B. Stephenson, special assistant to the Attorney General, for the
state.
WALTER M. ELSWICK, Judge.
Charles Lively, the claimant, by acts of the Legislature first extraordinary
session 1933, the regular sessions 1935, 1937 and 1939 was intrusted by said
sessions of the Legislature to edit, compile and publish the ?West Virginia
Blue Book? formerly known as the ?West Virginia Legislative Hand Book and
Manual and Official Register? for the years 1934, 1935, 1936, 1937, 1938, 1939
and 1940, under the same provisions as to distribution as were adopted in the
legislative sessions of 1921,
W. VA.] REPORTS STATE COURT OF CLAIMS 103
including all expenses incurred in
the employment of contributors, preparation of matter, clerical hire,
stenographic services and proofreading. While editing, compiling and publishing
the said blue book for said years the said Charles Lively was put to personal
expense in providing for cuts, engraving, halftone illustration, and circular
matter for which he billed and filed requisitions with the state auditor for
payment. The tate auditor refused payment for these expenses. It appears from
the evidence and records presented to the court that the state has not, during
the years that the claimant edited the blue book, paid for any such expenses.
However, it does appear that the state paid the former editors for such
expenses including photographs used in the publishing of said blue book from
the year 1921 to and including the year 1933, the acts being so interpreted by
the editors and auditor as to include such expense for the editions published
prior to 1934. The wording of the legislative appropriation acts from the year
1921 to and including the year 1933 was of the same subject and nature used in
the appropriation acts for the said years during which the claimant edited the
blue book.
? The appropriation act passed at the 1941 session of the legislature also
contained the same provisions for printing the blue book for the years 1941 and
1942 by reference to the first act of 1921. It also appears from the evidence
that from the present interpretation of said current act of 1941 the auditor is
of the opinion that said appropriation included the costs of such cuts,
engraving, half-tones and circular matter, and that he has approved a
requisition by the present editor of the blue book, the successor to the
claimant, Charles Lively. Such expenses for editing and publishing the
1941 edition of the blue book as provided for in the 1941 session of the
Legislature were included in the printer?s bill, the same not having been
billed directly to the editor.
It further appears from the evidence that during the time the claimant was
editor of the blue book such cuts, engraving and half-tones were prepared by
the Charleston Engraving
104 REPORTS STATE
COURT OF CLAIMS [W. VA.
Company and billed directly to Mr. Lively, the claimant, and he, the editor,
delivered same to the printer. Prior to the time that the claimant, Lively,
became the editor of the blue book the procedure had been for such cuts to be
delivered to the printer and to be billed to the auditor by the printing
company, and that was the procedure which the claimant undertook to follow, but
the auditor refused to approve any billing or requisition including such
expense for engraving, cuts, half-tones or circular matter.
When the claim came on for hearing the chief clerk in the auditor?s office, as
will appear from the evidence, made a search of the auditor?s office to
ascertain whether or not any part of this claim had been paid by the state to
any printer by such expenses having been included in the printer?s bill and it
appeared after such search being made that no part of the claim as presented
has been paid by the state of West Virginia. The claimant in presenting his
claim had credited the state with $119.46 for the value of cuts the printer had
purchased for the
1941 edition which amount was included in the printer?s bill for the year 1941
and the claimant also has turned over to the present editor, Hon. A. Hale
Watkins, a master plate for the state seal, and a plate for the state flag,
including all copper plates or whatever cuts he now has that were included
within the particular items set forth in his claim herein for the use and
benefit of the state in future publication of said blue book.
It also appears from a letter addressed to the court of claims under date of
November 13, 1941, signed by the state auditor, enclosing the bills submitted
by the claimant, aggregating a net amount of $3,041.33, that the auditor admits
that he refused to allow reimbursements to the claimant for such expenditures
when he first came into office as auditor, under a misapprehension of the law,
and continued such course during all the time that Mr. Lively, the claimant,
performed this work. The auditor, however, states in this letter that:
?In the light of what I have learned about the law and accounting generally of
the state, I am inclined to
W.
VA.) fl?OR1?S STATE COURT OF CLAIMS 105
believe that I perhaps erred in denying
Mr. Lively reimbursements for these
claims.
?I refer this matter to you for recommendation and your decision as to whether
the Legislature should approve a sum to
pay this claim at the next session of the Legislature.?
It further appears from the evidence and the acts examined that the
appropriations heretofore made had lapsed and reverted for all the previous
years so as to prevent any payment on such requisitions by the auditor at this time.
The general appropriations act of 1921,
chapter 1, section 73-a mentioned and referred to in all of said acts, specifically refers
to Senate concurrent resolution No. 7, when making appropriations for the
printing of the hand book for the years 1922 and 1923. Herein specified amounts are included
in the appropriation for each of said years, but the intent of the Legislature seems
to be clear by reference to Senate concurrent resolution No. 7 that the costs of printing
and binding the hand book, including
any maps, engraving and half-tone illustrations therein
and circular matter necessary in connection with the work of preparing and distributing
the book shall be paid out of the appropriation for printing, binding and stationery
and not out of the specified funds set aside to the editor for
editing, compiling and publishing the hand
book. Said Senate concurrent resolution
No. 7, adopted April 21, 1921 provides:
?The cost of printing and binding the hand book, including any maps and half-tone illustrations used therein, and circular matter necessary in connection with the work
of preparing and distributing the book,
shall be paid out of the appropriations
for printing, binding and stationery.?
It further appears from the evidence
that the chimnt, Lively, has not included in his claim an expense
of from $400.00 to $500.00 which he has incurred in the use
of photo-
106
REPORTS STATE COURT OF CLAIMS [W.VA.
graphs in editing the blue book during his years of service, while a former
editor charged and received payment for the expense of photqgraphs from the
appropriation of legislative printing.
The construction given the series of acts of the Legislature following the year
1921 up to and including the year 1933 as well as the interpretation placed
upon the 1941 act, all passed making reference to the 1921 act, which embodied
Senate concurrent resolution No. 7, should have great weight in the decision of
this case as would appear from the decision of our Supreme Court in the
following cases: State ex rel. Brandon
v. Board of Control, 100 S. E.
215, 84 W. Va. 417; Mortgage Company of Maryland v. Loi-y, 160 S. E. 1, 110 W. Va. 520, and cases cited.
In view of the evidence and the wording of all of said acts of the Legislature
we are of the opinion that the claim is one based on simple justice and right,
and is such claim that the state of West Virginia should pay. From the proof
submitted the claim of three thousand forty-one dollars and thirty-three cents
($3,041.33) has been personally paid by the claimant which was an expense
intended to be covered by former appropriations, for which said sum an award
for reimbursement is made by order duly entered.
W. VA.]
REPORTS STATE COURT OF CLAIMS 107
(No. 2?Claim dismissed.)
JOHN W. DRAGON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed Me.rch 23, 1942
Where upon motion of the attorney
general to dismiss claim for want of jurisdiction, no answer is made by
claimant to rule to show cause why his claim should not be dismissed, and it
appears from the record that he is without right to maintain his claim, such
claim will be dismissed.
No appearance by claimant;
Eston B. Stephenson, special assistant to Clarence W. Meadows, Attorney
General, for respondent.
ROBERT L. BLAND, Judge.
Claimant filed his original claim herein on August 11, 1941. On August 21, 1941,
the attorney general and the special assistant to the attorney general filed an
objection in writing to the jurisdiction of the court to entertain said claim,
but the said claim was placed on the trial calendar of the regular October
term, 1941, for investigation and hearing on October 22, 1941. The claim was,
at said term of the court, continued, on motion of claimant, with leave to
amend his petition. Claimant?s amended petition was duly filed on February 15,
1942. Claimant alleges, substantially, that he is a resident of Weirton, an
unincorporated town or city in Hancock county, West Virginia; that the streets
and alleys of Weirton are secondary roads of the state of West Virginia; that
on June 16, 1938, and for a long time prior to that date there was a large hole
in the 3000 block of Elm street in said town or city of Weirton four feet wide,
two and one-half feet deep and fifty or more feet in length; that on said last
mentioned date his mother, Katie Dragon, fell into said hole and dislocated her
shoulder; that his said mother was a diabetic and by reason of said fall into
said hole she became bedfast and that her death occurred on November 24, 1940;
that after said accident claimant was obliged
108 REPORTS
STATE COURT OF CLAIMS [W. VA.
to leave his employment at the Weirton
Steel Company in order to give his said mother proper nursing and attention and
sustained loss of wages at the rate of twenty-five dollars per week from
December 29, 1939, until June 23, 1941; that it was necessary to administer
insulin to his said mother three times a day; that he administered such
insulin, purchased her medicine, paid her medical and other bills and defrayed
her funeral expenses; that he was obliged to expend $2,054.84 for medicine,
doctor bills, funeral expenses and other necessary expenses incident to his
mother?s sickness and death; that failure to repair said hole in Elm street
constituted negligence on the part of the state road commission for which the
state of West Virginia is liable. He seeks an award for an amount sufficient to
compensate him for expenses incurred and paid by him on account of his mother?s
sickness and death, and for the loss of time which he sustained in his
employment at the Weirton Steel Company, and fixes the sum at $3,24.84. A plea
denying liability was filed by the attorney general. The claim was placed on
the trial docket for hearing on February 24, 1942, at a special term of the
court of claims held in Wheeling, the county seat of Ohio county, West
Virginia. At said special term of the court the attorney general filed a
special plea to the jurisdiction of the court to entertain said claim on the
ground that Elm street was not a part of the state highway system on June 16,
1938, and that the state road commission has never maintained said Elm street
or designated it as a part of the highway system of West Virginia. When said
claim was called for investigation and hearing on said 24th day of February
1942, said claimant did not appear in person or by counsel to prosecute the same.
By leave of the court, respondent was permitted to introduce evidence showing
that Elm street in Weirton was never at any time a part of the highway system
of the state of West Virginia, and the attorney general moved to dismiss said
claim. A rule was issued and served upon the claimant requiring him to show
cause, if any he could, why said claim should not be dismissed. Having failed
to make any return to said rule or to show any cause why the claim should not
be dismissed, said motion of the attorney general was sustained and the said
claim dismissed.
W. VA.] REPORTS
STATE COURT OF CLAIMS 109
(No. 30?Claim dismissed; reinstated?see subsequent opinion.)
J. J. RADER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
opinion fried M.Lreh 23. 1942
Where a claim is duly filed in the
court of claims and twice placed upon its trial docket for hearing, without
appearance on the part of claimant to prosecute the same or show reason for his
failure so to do, such claim will be dismissed, subject to the right of
claimant to have the same reinstated upon showing to the court proper reason
for such reinstatement.
No appearance by Claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
ROBERT L. BLAND, Judge.
Claimant, J. J. Rader, filed his petition in this proceeding on September 22,
1941, and therein alleged substantially the following facts: That he is damaged
and has suffered loss by reason of a highway accident in Grant county, West
Virginia; that on the 27th day of July 1938, in the course of his usual
business, he was traveling on that road or highway located in Grant county,
between the towns of Greenland and Scheer, said highway being under the care,
supervision and control of the state road commission of West Virginia, and kept
and maintained by it for public use and travel; that he was traveling and
?operating on said road or highway at about 12:30 in the afternoon on said 27th
day of July 1938, a light mail truck, and that despite careful and cautious
operation of said truck by him said truok was damaged and rendered unfit for
use and he was bruised and injured in a head on collision with a heavy lumber
truck, driven and operated by one Ernest Rotruck; that said collision or
accident occurred on a curve in said road where the
110 - REPORTS STATE COURT OF CLAIMS [W.VA.
state road commission had permitted said road to become unsafe for
ordinary, reasonable and lawful use by reason of brush and undergrowth growing
into and on the borders of said road, overhanging said road, so as to make it
impossible for the driver of either of the trucks so involved to see the other
and avoid the collision; that at the time of said collision or accident the
view ahead from the place of said collision or accident was limited to a space
of not more than thirty feet; that within two days after said collision
occurred the said road commission, by its agents and employees, had cut and
cleared away such bush and undergrowth to a reasonable distance from the
borders of said road, affording a view ahead at the point of said collision of
at least three hundred feet; that said collision occurred without negligence or
fault on the part of petitioner and without negligence on the part of said
Ernest Rotruck, the driver and operator of said other truck involved, and was
caused solely by the obstructed view and dangerous condition of said road or
highway as permitted to exist by said road commission, and that the damage to
petitioner?s truck amounted to the sum of $118.91, and that he is justly and
equitably entitled to have an award for said amount. It further appears from
the record that on February 4, 1941, a bill was introduced in the House of
Delegates of the Legislature of that year, being House Bill No. 145, to provide
for the authorization of the payment by the state road commission to said
claimant of the said sum of $118.91. No action having been taken on said bill
by the Legislature, the same was certified by the clerk of the House of
Delegates to the court of claims. But, being required so to do by this court,
claimant filed a new claim as above stated. The special assistant attorney
general filed a general denial of liability of said claim on November 15, 1941.
Said claim was placed upon the trial calendar of this court, at its regular
October term 1941, for hearing on November 17. When the calendar was called
there was no appearance on the part of claimant in person or by counsel,
although the court reporter was in attendance as were also witnesses summoned
on behalf of the state, and no reason was assigned at that time for failure of
claimant to appear and prosecute his said claim. Claimant was thereafter
notified that said claim would not be placed
W. VA.]
REPORTS STATE COURT OF CLAIMS 111
upon the trial calendar for hearing until he should ask to have it fixed
for hearing and be ready to proceed with proof in support of his claim, which
he accordingly did. Said claim was then placed on the trial calendar for
hearing on the 26th of February 1942, at a special term of this court held in
the city of Wheeling, the county seat of Ohio county, for the convenience of
the parties concerned. When said claim was rached on the calendar of the court
at said special term, the claimant did not appear in person or by counsel to
prosecute his said claim, and the special assistant to the attorney general
moved that said claim be dismissed for failure of prosecution after having been
placed upon the court?s calendar for hearing upon two separate occasions. While
it is the policy of the court of claims to give every claimant whose claim
falls within the prima facie jurisdiction of the court a full hearing
upon its merits, when a claim is placed upon the court?s calendar for
investigation and hearing he will be required to appear and prosecute the same
or show satisfactory reason for his failure so to do; and when a claim is twice
placed upon the trial calendar for hearing and the claimant fails to appear and
prosecute the same it will, on motion of the attorney general, be dismissed on
condition that it may be reinstated provided such claimant shall show
satisfactory cause to the court why such claim should be reinstated upon the
court?s calendar for investigation and hearing, and such order was made in the
instant case.
112 - REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 24 --Claim dismissed; reinstated?see subsequent opinion.)
?ROY C. BABB, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed March 23, 1942
Where a claim is duly filed in the
court of claims and twice placed upon its trial docket for hearing, without
appearance on the part of claimant to prosecute the same or show reason for his
failure so to do, such claim will be dismissed, subject to the right of
claimant to have the same reinstated, upon showing to the court proper reason
for such reinstatement.
No appearance by claimant;
Eston B. Stephensoiz, special assistant to the Attorney General for the
state.
ROBERT L. BLAND, Judge.
By his claim filed in this proceeding on September 13, 1941, Roy C. Babb seeks
an award of $257.00 to reimburse him for the amount expended by him for
hospital and dental bills on account of his daughter, Barbara Babb, a minor
under the age of twenty-one years. It appears from his said claim that on July
27, 1938, claimant?s said daughter, Barbara Babb, was riding in a light mail
truck, driven by J. J. Rader, on a state secondary dirt road, near Greenland,
in Grant county, West Virginia; that at a point approximately one-tenth of a
mile east of Greenland said mail truck collided with a heavy lumber truck,
driven by Ernest Rotruck; that said accident occurred at Greenland Gap at a
point where there was a sharp curve in the road, where the overhanging bush and
trees at or near the edge of the road, and on both sides of the road, obscured
vision straight ahead; and, on account of such lack of visibility, neither the
driver of the light mail truck nor the driver of the lumber truck could see the
other approaching; that the trucks, respectively, were being driven at a speed
of from ten to fifteen
W. VA.] REPORTS
STATE COURT OF CLAIMS 113
miles per hour; that the mail truck in which claimant?s daughter was riding was
on the inside of the curve in the road, and the lumber truck, loaded with
gravel, was on the outside of the curve of the road, and that on account of
said collision between said two trucks claimant?s said daughter, the said
Barbara Babb, suffered personal injuries and loss of several teeth. It further
appears from the record that on February 4, 1941, a bill was introduced in the
House of Delegates of the Legislature of that year, being House Bill No. 145,
to provide for the authorization of the payment by the state road commission to
said claimant of the said sum of $257.00. No action having been taken on said
bill by the Legislature, the same was certified by the clerk of the House of
Delegates to the court of claims. But, being required so to do by this court,
claimant filed a new claim as above stated. The special assistant attorney
general filed a general denial of liability of said claim on November 15, 1941.
Said claim was placed upon the trial calendar of this court, at its regular
October term, 1941, for hearing on November 17. When the calendar was called
there was no appearance on the part of claimant in person or by counsel,
although the court reporter was in attendance as were also witnesses summoned
on behalf of the state, and no reason was assigned at that time for failure of
claimant to appear and prosecute his said claim. Claimant was thereafter
notified that said claim would not be placed upon the trial calendar for
hearing until he should ask to have it fixed for hearing and be ready to
proceed with proof in support of his claim, which he accordingly did. Said
claim was then placed on the trial calendar for hearing on the 26th of February
1942, at a special term of this court held in the city of Wheeling, the county
seat of Ohio county, for the convenience of the parties concerned. When said
claim was reached on the calendar of the court at said special term the
claimant did not appear in person or by counsel to prosecute his said claim,
and the special assistant to the attorney general moved that said claim be
dismissed for failure of prosecution after having been placed upon the court?s
calendar for hearing upon two separate occasions. While it is the policy of the
court of claims to give every claimant whose claim falls within the
114 REPORTS
STATE COURT OF CLAIMS L w. V. .
prima facie jurisdiction of the court a full hearing upon its
merits, when a claim is placed upon the court?s calendar for investigation and
hearing he will be required to appear and prosecute the same or show
satisfactory reason for his failure so to do; and when a claim is twice placed
upon the trial calendar for hearing and the claimant fails to appear and
prosecute the same it will, on motion of the attorney general, be dismissed on
condition that it may he reinstated provided such claimant shall show
satisfactory cause to the court why such claim should be reinstated upon the
court?s calendar for investigation and hearing, and such order was made in the
instant case.
(No. 11?Claimant awarded $900.00.)
GEORGE 13. CECIL, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13, 1942
Where it appears from the hearing that there was not a meeting of the minds
between the claimant and the department concerned upon what appears from the
evidence to have been nominal awards for compensation for personal injuries
sustained by claimant, through negligence of employees of the department in the
course of their employment, and it appears from the evidence that claimant is
entitled to additional compensation for the injuries sustained, an award will
be recommended to the claimant taking into conmidetation amounts heretofore
paid as cornpensation.
Appearances:
David A. Mckee, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
WALTER M. ELSWICK, Judge.
W. VA.] REPORTS STATE COURT OF CLAIMS us
This case was heard by the court at a special term held at Wheeling, West
Virginia, on the 25th day of February 1942. It appears from the evidence that
on October 27, 1936, the claimant, George B. Cecil, was employed as a day
laborer by the state road commission at a stone quarry on Riley hill, above
Middle Grave creek, in Marshall county, West Virginia. On the morning of said
day claimant had been transported from Moundsville to the stone quarry in the
cab of a state road truck operated by a state road employee. In the evening,
about four-thirty o?clock, when their day?s work was complete, another state
road truck drove up to where claimant and a companion were standing and stopped
for the purpose of offering to furnish claimant and his companion
transportation back to Moundsville. Claimant testified that when the truck
stopped, his companion, Robert Darrow, entered the bed of the truck, but at
which time claimant failed to enter same. After the truck had been driven ten
to fifteen feet further down the hill and again stopped, claimant entered the
bed of the truck. The driver of the truck, Burson Davis, testified that on the
evening in question he had two companions in the cab of the truck with him, and
that upon arriving at the place where Mr. Cecil and his companion were
standing, he stopped. He testified that he thought they motioned for him to go
ahead and he contirwed to drive on not knowing that the two men had entered the
back end of his truck until one of the companions in the cab announced that the
accident complained of had occurred. Robert Darrow, claimant?s companion, was
in the United States Army on the day of the hearing and was not produced as a
witness. Neither were the truck driver?s two companions in the cab produced as
witnesses. From the evidence it appears that the driver drove the truck down
the road fr?m Riley hill toward Middle Grave creek at a modeate rate of speed
until he left the hill and then upon a straightaway he picked up speed from
twenty-five to thirty miles per hour. Claimant testified that the truck bed did
not have any seat, and contained mud and water which did not permit him and his
companion to sit down. They stood up leaning on to the cab of the truck until
it came to a harp curve turning first to right then to the left. When the truck
116 REPORTS STATE
COURT OF CLAIMS [W. VA.
made the turn to the right claimant by the swing of the truck was thrown
against his companion standing on his left, and as the truck Swung? to the left
claimant was thrown out of the truck backwards, falling into the roadway and
was thereby injured, for which he claims compensation. Claimant was not
acquainted with the road, and it appears from the evidence that the driver did
not slow down his speed when approaching the curve in question. It appears from
the evidence that a reasonable and safe rate of speed around this curve would
have been from ten to fifteen miles per hour while the driver was exceeding
that rate of speed. After the injury claimant was taken by the road employees
to Dr. S. F. Yoho of Moundsville, West Virginia, who rendered him first aid,
and then sent him to Reynolds memorial hospital at Glendale, West Virginia. He
had received a laceration at the back of his head and a fractured vertebra.
Claimant was x-rayed on October 28, 1936, by Dr. Haislip of said hospital. From
the x-ray it appeared that claimant had received a fracture of the first lumbar
vertebra and lower dorsal, (record p. 6). Other x-ray pictures were taken on
November 16, 1936 and on December 6, 1936. The latter radiographs of the lumbar
and lower dorsal spine showed a compression fracture of the first lumbar
vertebra body in good position and alignment and showing healing. The ninth
thoracic spine also showed a compression fracture, and good position and
alignment. Dr. Haislip by profession a roentgenologist and radiologist with
wide experience in treatment of such injuries (record p. 13) testified that
persons sustaining fractures such as the one which claimant received usually
have some limitation of motion in their spines, and while some do continue
working, others don?t. ?It just depends on how badly they can stand the pain
and how badly they need the work and various other factors? (record p. 15). It
also appears from his evidence that the injury received is ?a permanent
compression of the bodies and when they are, mashed down, unless you can get
them right out right away, they stay mashed down?; that it would interfere, so
far as the full proper function of it is concerned and would cause pain
frequently or most of the time throughout life (record p. 17). Dr. Haislip
further testified in his opinion
W. VA.]
REPORTS STATE COURT OF CLAIMS 117
claimant would have some pain, but as
to how much, ?it?s more likely a personal item.? It also appears from the
testimony of said physicians that the age of the person injured would be a
factor considered, the older the person is the longer the period of recovery.
The claimant remained at the hospital for a period of seven weeks, and during
the first week was unconscious or delirious. At the end of seven weeks he was
removed to his home where he received further treatment by Dr. Yoho during the
year
1937.
He was carried on the payroll of the state road commission until the 15th day
of April 1937, receiving approximately $160.00 as wages during all of which
time he was unable to work. It would appear that he was then dropped from the
payroll and still remained unable to work. However, he was permitted to perform
some light work for the road commission for a short time in 1938.
Before sustaining the injuries complained of it appears that the claimant was
an able-bodied man and a good worker. He had worked on farms most of his life,
but had also worked as a teamster several years receiving wages from one dollar
to six dollars per day. At the time of the injury he was mployed at a stone
quarry receiving $3.20 per day. He was then approximately fifty-one years of
age, married and the father of four children, and is the father of another
child born since said time. The children?s ages now range from two to eighteen
years. Since the injury claimant has been unable to perform the labors which he
had been accustomed to do. He can only perform light work today and such work
is likely to be accompanied by pain. This view is substantiated by his
testimony, his wife, and the physicians attending him following the injury
heretofore referred to.
There was an appropriation made by the Legislature, under the general
appropriation act of 1937, to George Cede, who is the same person as claimant,
for the sum of $304.18. From
118 REPORTS STATE
COURT OF CLAIMS [W. VA.
the record it appears that said sum was applied as follows:
To Reynolds memorial hospital for hospitalization of claimant $157.50; to Dr.
S..F. Yoho for medical services rendered claimant $55.00; and to claimant was
paid the sum of $91.68 in the year 1937 as appears by receipt signed by
claimant flied in evidence as ?exhibit B.?
There was another appropriation made
by the Legislature, under the general appropriation act of 1939 to claimant, as
George Cecile, for the sum of $332.59, which amount was receipted by him on
April 19, 1939, but from which sum the wages he had drawn from date of injury
until April 15, 1937 were deducted when the check was endorsed and delivered
for payment. From these two appropriations it appears that a total of $636.77
has been paid to and on behalf of claimant on account of said injury.
The state road commission, by the attorney general, filed a general denial of
liability on the claim and a special plea of release. It appears that both
receipts signed by claimant, namely, the one for $91.68 in 1937 and the one for
$332.59 in 1939, contain the words ?in full settlement.? The receipt taken
under the 1937 appropriation calls for ?Claim No. 128? while the receipt for
the 1939 appropriation calls for ?Claim No. 53.? The latter receipt contains a
sentence which reads ?The state road commission is hereby released from further
liability in connection with above numbered claim.?
Claimant testified that he didn?t ifie a claim with the road commission or
Legislature and didn?t have any knowledge of any claim being before the
Legislature until sometime in June 1937 he received a notice by mail to come to
Moundsville to endorse a check that had come to pay his doctor and hospital
bills, that being a notice of the arrival of the check for $304.18 included in
the general appropriation act of 1937, (record pp. 32 and 33). He says that he
was not consulted about his claim, had no conversation with any of the state
road officials, and
W. VA.]
REPORTS STATE COURT OF CLAIMS 119
had no representative to present his
claim before either the state road commission or the Legislature and the road
commission was unable to show how the claims were presented, by whom, or that
Cecil, the claimant, knew the same were before the Legislative Committees.
(Record p. 108). The next notice the claimant had was by a note handed to him
in 1939 by a neighbor boy asking him to come into the road shed at Moundsville
to get the balance of his compensation, this being notice of the arrival of a
check for the $332.59 included in the general appropriation act of 1939. He
testifies that he knew nothing about the matter having been before the
Legislature. (Record p. 29). On the following day, June 19th, he went to the
office of the road commission at Moundsvile and conferred with Mr. J. N. Pyles,
the then maintenance superintendent of Marshall county. He testifies that the
check for $332.59 was presented to him, with request that he endorse it and
sign a receipt for the full amount to be sent back to the state road
commission, but to permit the maintenance superintendent to deduct from the
amount of the check the amount of wages the claimant had received from the date
of his injury to the 15th day of April 1936, which was done, and it appears
that the amount so deducted was forwarded by the maintenance superintendent to
the state road commission (record pp. 29 and 106). Claimant testifies that he
could not read print without his glasses and that he did not have his glasses
with him. He says that he asked what the paper was and was told ?That it was
nothing but a receipt to be sent back to the state road commission to show that
you received your money off of the payroll?your balance.? (Record p. 30).
Claimant testifies that he could not read the receipt or release and that it
was not read to him when he signed it, but relied upon what he was told, as
above stated, it represented. Mr. Pyles, the maintenance superintendent,
testified that he read the receipt or release over to the claimant when he
signed it. He says that ?Mr. Cecil, if I recall, asked me to read it over to
him, which I did at that time.? (Record p. 109). It doesn?t appear that he had
afly specific instructions concerning the delivery of the check except to see
that the deduction was made for wages paid Cecil during his confinement from
the injury. He did not
120 REPORTS STATE
COURT OF CLAIMS [W. VA.
know at whose suggestion Cecil had come to the office, but says that Cecil told
him he had received a notice to come to the office. (Record p. 105). Such
matters were usually handled through the district engineer?s office, and the
matter pertaining to the delivery of this check was the only connection which
he had concerning the Cecil case. (Record pp. 107 and 110). It appears that two
men by the names of John Jefferson and George Kelly were in the office when the
check was endorsed and the release signed. (Record pp. 29 and 77). John
Jefferson, who was foreman on the job when Cecil was injured, testified that he
didn?t remember whether the release was read to Cecil. (Record p. 76). Kelly
was not produced as a witness.
The appropriations made to Cecil by the Legislatures of 1937 and 1939 were not
founded upon a bill showing a recital of facts or other memorandum indicating
that the Legislatures had knowledge of the details concerning the nature of
claimant?s injuries or the factors concerning their cause. There is nothing to
indicate from these appropriations that either was made in contemplation of a
full release and discharge of liabilities for his injuries. Cecil?s claim was
not a contractual one, but in the nature of an unliquidated tort, and the road
commission could not have settled his claim without the approval of the
Legislature and from funds designated by it. The Legislature did not direct a
form of release as settlement and it does not appear that claimant was consulted
about the claims or had knowledge of any intention on the part of the
Legislatures to make a final award of compensation to him, nor does it appear
that the road commission at any time sought to obtain his consent to a final
award for approval by the Legislature.
Furthermore, it doesn?t appear that claimant contcmplated or intended to
release his claim in full. For within thirty days from the date he received the
check authorized by the 1939 appropriation he came to the office of the road
district engineer to file his claim for compensation. He was instructed by the
road engineer to present it in writing and later, on May 19, 1939, he by letter
addressed to the road engineer set forth his claim for compensation which
letter was filed as state?s ?ex
W. VA.] REPORTS STATE COURT OF CLAIMS 121
hibit No. 1.? A reply was made to this
letter on May 24, 1939 without reference to any release signed by claimant, but
requesting claimant to call at the office again for a personal discussion
relative to making recommendation on the claim to the Charleston office.
Pursuant to said request the claimant met with the district engineer and was
requested to have a physical examination made by three physicians. He conferred
with Dr. Yoho and Dr. Ashworth at Moundsville and was advised to go to Dr.
Wiler at Wheeling for an x-ray. When he went to Dr. Wiler he learned that he
could not secure an x-ray without a permit from the state road commission, or
by payment of the fee of $15.00 which he says he did not have. He didn?t pursue
the course of securing examinations further. Near the beginning of the hearing
the state, by its attorney general, made a request for a physical examination
of claimant, but the request was withdrawn near the conclusion of the hearing.
(Record pp. 54 and 114).
We are of the opinion from the evidence that the amounts paid to claimant and
on his behalf are not adequate compensation for his injuries; that the road
commision employees were negligent in the manner of his transportation at the
time of the injury, and that it was its custom and practice to transport its
employees to and from their work; that there was not a meeting of the minds of
the claimant and officials of the road commission as to any full and final
settlement being made to him for the compensation which he was entitled to
receive. We are of the opinion, from the evidence, that claimant is entitled to
an additional award of nine hundred dollars ($900.00), and an order will be
entered accordingly.
Under the procedure prescribed for the court of claims, we trust that the
complications relative to consultation of departments with claimant as well as
the question of the purpose and intention of appropriations involved in this
case, can be avoided, when awards upon a full hearing, or consent agreements
under the shortened procedure, are recommended.
122 REPORTS STATE
COURT OF CLAIMS EW. VA
(No. 65-S?Claimant awarded $278.64.)
HUGHIE A. WILLIAMS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13, 1942
CHARLES J. SCHUCK, Judge.
Claimant, Hughie A. Williams, of McMechen, Marshall county, West Virginia,
seeks reimbursement in the sum of $278.64, which amount represents the damage
to a truck owned by the said claimant and damaged by a state road commission
shovel, together with the damage for the loss of the use of the said truck
during the time that the repairs were made to It. Claimant?s truck was stopped
near the top of the hill or cut known as the Reilly hill detour in said
Marshall county, on June 28, 1941, and while stopped as aforesaid, a state road
shovel coasted down the hill, hitting and crashing into the said truck and
causing the damages aforesaid.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the speial assistant to the attorney general as one that should 1e
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of two hundred seventy-eight dollars and sixty-four
cents ($278.64).
W. VA.] REPORTS
STATE COURT OF CLAIMS 123
(No. 66-S?Claimant awarded $1.50.)
PAULINE
GARNE?fl?E, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed AprU 13, 1942
CHARLES J. SCHUCK, Judge.
Claimant, Pauline Garnette, seeks reimbursement in the sum of $1.50 for damages
caused to her car, which was parked at and near what is known as Crown Hill, in
Kanawha county, and the fender of which car was scraped and injured by a state
road commission truck?130-48?pulling a tar pot, and used in connection with
repairing the highway on which the accident took place. The accident happened
December 11, 1941. The state road commission truck caused the damages in the
aforesaid amount.
The state road commission does not contest claimant?s right to an award for the
said sum of one dollar and fifty cents ($1.50), but concurs in the claim for
that amount; and the claim is approved by the special assistant to the attorney
general as one that should be paid. We have carefully considered the case upon
the record submitted, and are of the opinion that it should be entered as an
approved claim, and an award made therefor.
124 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 67-S?Claimant awarded $15.30.)
MRS. HARRY SWIGER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13, 1942
CHARLES J. SCHUCK, Judge.
Claimant, Mrs. Harry Swiger, of Shinnston, West Virginia, seeks reimbursement
in the sum of $15.30 for injuries to her car caused by state road truck 430-87,
which collided with and ran into the claimant?s car while stopped at a red
traffic light on Main street, Shinnston, on July 18, 1941. It appears that
claimant had stopped her car in obedience to a red traffic light on said Main
street, at the time aforesaid, and while so stopped, the said road commission
truck, through the fault of the driver thereof, ran into the rear of claimant?s
car, causing the damages aforesaid.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of fifteen dollars and thirty cents ($15.30).
W. VA.] REPORI?S STATE COURT OF CLAIMS 125
(Case
No. 68-S?Claimant awarded $25.OO.)
ELMO H. THOMPSON, Claimant,
V.
STATE ROAD COM1VIISSION, Respondent.
Opinion Filed April 13, 1942
CHARLES J. SCHUCK, Judge.
Claimant, Elmo H. Thompson, seeks reimbursement in the sum of $25.00, which
amount he was obliged to pay for damages to his car, caused by state road
shovel No. 1025-2, which drifted back and collided with another state truck,
which in turn collided with and damaged claimant?s parked car, and caused
damages to the front fender, grill, and hood thereof. It appears that the said
state road shovel got out of control of the driver thereof and backed into
another state truck, which truck collided with and damaged claimant?s car. No
fault or negligence is found on the part of the claimant.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record subnutted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of twenty-five dollars ($25.00).
126 REPORTE STATE COURT OF CLAIMS [W. VA.
(No. 69-S?Claimant awarded $22.30.)
RALEIGH STEAM LAUNDRY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13, 1942
CHARLES J. SCHUCK, Judge.
Claimant, the Raleigh Steam Laundry, of Beckley, West Virginia, seeks
reimbursement in the sum of $22.30, which amount it was obliged to pay for the
repairs to one of its trucks, damaged by a state road truck. The accident
occurred No-. vember 21, 1941, while claimant?s truck was parked at the side of
Johnson road, Beckley, West Virginia. State road truck 1030-36 was parked on
the opposite side of the road about fifty feet from claimant?s truck, and while
the driver of the state road truck was absent therefrom, the brakes on the same
released, causing the said state road truck to collide with and damage the
claimant?s truck in the amount aforesaid.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of twenty-two dollars and thirty cents ($22.30).
W. VA.] REPORTS
STATE COURT OF CLAIMS 127
(No. 71-S?Claimant awarded $5.36.)
BILL MORGAN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13, 1942
CHARLES J. SCHUCK, Judge.
Claimant, Bill Morgan, seeks reimbursement in the sum of $5.36 for injuries to
his Dodge sedan, caused by state road truck No. 430-139, in December 1941. It
appears that the said state road truck, hauling broom drag, which said drag
extended over the sides of the truck, scraped the left side of claimant?s car,
causing the damages in the amount aforesaid.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of five dollars and thirty-six cents ($5.36).
128 REPORTS STATE
COURT OF CLAIMS [W. VA.
(Case No. 72-S-?Claimant awarded $50.00.)
DOCK CRABTREE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13,
1942
CHARLES J. SCHUCK, Judge.
Claimant, Dock Crabtree, seeks reimbursement in the sum of $50.00, which amount
represents the damages caused to the property occupied by the claimant on route
37, in Wayne county, West Virginia. The damages were caused on June 6, 1941. It
appears from the record that the w.P.A.,
working under the direction and
supervision of the state road commission, and engaged in widening a culvert
located near the property of the claimant, blocked the said cuivert in such a
manner as to cause water to be diverted from a nearby stream into and upon the
premises of the claimant, and flooding his grounds, cellar and well. The claim,
as presented, was in the amount of $100.00. A compromise agreement was entered
into for the sum of $50.00, in full settlement of all damages caused as
aforesaid.
The state road commission does not contest the claimant?s right to an award for
the said amount, to-wit, fifty dollars ($50.00), but concurs in the claim for
that amount; and the said claimant agrees to receive the said amount in fuli
settlement of his claim; and the claim is approved in said amount by the
special assistant to the attorney general as one that should be paid. We have
carefully considered the case upon the record subn.itted, and are of the opinion that it should be entered as an
approved claim, and an award is made accordingly.
W.
VAJ RU?ORTS STATh COURT OF CLAIMS
(No. 83-S-?Claimant awarded $10k)
L. M. STEELE Claimant,
V.
STATE
ROAD COMMISSION, Respondent
Opnioti
F4led Apr-iL 13,1942
CHARLKS J. SCHUCK, Judge.
Clrnmnt, L. M. Steele, of Charleston, West Virginia, seeks reimbursement in the
sum of $1020, which amount elaimant
was obliged to pay for repairs to
his trunk, caused by state road truck 130-18 backing into clainianes car on the 13th
day of February 1942, in the city of Charleston, and causing the damages aforesaid.
The state road commission does not contest the claimant?s right to an
award for the said amount, but concurs in the
claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that
should be paid. We have carefully considered the case upon the
record submitted, and are of the opinion that it should be
entered as an approved claim, and an award is made accordingly in the
suni of ten dollars and twenty cents ($1020).
130 REPORTh STATE
COURT OF CLAIMS LW. VA.
(No. 84-S?Claimant awarded $2810.)
VOSS R. LOWE, Claimant,
V.
STATE ROAD COM1VflSSION, Respondent
Opfruon
Filed April 13,1942
WALTER M. ELSWICK, Judge.
It appears from the record of this claim, referred to this court by the state
road commission, with recommendation for the payment of $28.10 which
recommendation is supported by the approval of the attorney general, that on the 19th day of
July 1939, a collision occurred on the Harrisville-Pullman
road, about two miles from
Harrisville, between state road truck trailer No. 330-56 and an automobile owned by claimant and operated by L. E. Miller. A three-inch board extended from the
trailer on left side in the passway of claimant?s vehicle. As the two vehicles
approached each other, claimant?s car
collided with the board so
extending and was damaged as follows:
The fender was badly damaged, and
the horn, bumper and radiator
were damaged. It appears that the operation
of the trailer in such manner by
the road commission employee w&. the cause of the collision. An itemized
statement of me costs of making the repairs filed with the claim amounted to
the sum of $28.10. The claim is one that should be paid. We therefore recommend
an award of twenty-eight dollars and
ten cents ($28.10).
W. VA.] REPORTS
STATE COURT OF CLAIMS 131
(No. 85-S?Claimant awarded $87.62.)
A. S. COTrLE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13, 1942
WALTER M. ELSWICK, Judge.
The record of this claim was referred to this court by the state road
commission, with recommendation for the payment of $87.62, which recommendation
is supported by the approval of the attorney general. It appears from the
record of the claini presented that on the 17th day of January, 1941, at about
seven o?clock A. M., a collision occurred between a state road commission
truck and claimant?s car at an intersection of U. S. routes 19 and 21 with a
side road, about two miles from Fayetteyule, West Virginia. It appears from the
record that claimant?s car was not going over thirty-five miles per hour at the
time of the collision and that the state road truck, without using precaution,
backed out of the road intersection into the main highway directly in the path
of claimant?s car, without giving any warning. It appears from the record that
several investigations were made by officials and employees of the road
commission. Claimant?s car was a 1937 model Ford. He sustained damages to his
car from the collision as shown by an itemized statement made by King Coal
Chevrolet Company of Oak Hill, West Virginia, as follows: Damage to left door,
left quarter panel, left running board, left rear fender, hub cap, right door,
right rear fender, right running board. Said statement shows the costs of
making repairs aggregated the sum of $87.62. From the record it appears that
the driver of the state road truck was at fault and that the claim should be
paid.
Therefore, we recommend payment to the claimant of the sum of eighty-seven
dollars and sixty-two cents ($87.62).
132 REPORTS
STATE COURT OF CLAIMS [W, VA.
(No. 86.-S?--Claimant awarded $20.75)
CHARLES IRONS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed Aprd 13, 1942
WALTER M. ELSWICK, Judge.
On March 5, 1941, state road truck No. 430-38 being driven by a state road
employee out of Gregorys Run road onto old route 50 at Wilsonburg in Harrison
county, West Virginia, the driver had come to a full stop at a stop sign near
the main road. He saw a truck coming in his direction and ventured onto the
highway in third gear. Upon entering the highway he then saw a passenger car
coming in his direction. He then applied his brake but failed to stop, and cut
the truck to the left as much as he could, but the truck bumper caught the
claimant?s car on the left rear. It appears from the record that the truck
driver was negligent. The record shows that the driver had been using the same
truck on the day of the collision and from his own statement it appears that he
had stopped the truck at the stop sign immediately before the collision.
Investigation showed brake line had cracked and brake fluid had slowly leaked
out. It should have been observed if the truck had been driven cautiously.
Claimant?s car was damaged as follows: Damaged left rear fender, dent and cut
in left door and cut in left rear fender. Claimant?s car was a 1936 Chevrolet
coach. The costs of mar. ing repairs as appears from an itemized statement by
SchuIte Layfleld Body Company amounted to $20.75. The state road commission
concurs in the payment of the claim and has referred the same to the court of
claims in pursuance of secfon 17 of the court act. The attorney general
approves the payment. We are of the opinion that the sum of twenty dollars and
seventy-five cents ($20.75) should be paid to claimant and award said sum to him.
W. VA.] REPORTS
STATE COURT OF CLAIMS L33
(No. 87-S?-Claimant awarded $39.40.)
C. J. WALKER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinkm Filed April 13, 1942
WALTER M. ELSWICK, Judge.
On February 22, 1941, state road truck No. 430-138 was being used on route 20
to haul cinders just outside the city limits of Clarksburg, West Virginia,
where road employees were engaged in spreading cinders on a slippery road. Some
cars and trucks were stalled on both sides of the road at a curve. As the truck
was being driven almost out of the curve it sud.. denly skidded sideways to the
lower side of the road and hit claimant?s car that was stalled. The truck bed
striking claimant?s car damaged the right door, panel and hood. The costs of
making the repairs as shown by an itemized statement by Schulte-Layfield Body
Company of Clarksburg amounted to the sum of $39.40. Upon investigation made by
the state road district engineer and maintenance engineer it appeared that the
collision could have been avoided and that the claim should be paid. The state
road commission concurs in the payment of the claim and has referred the same
to the court of claims in pursuance of section 17 of the court act. The
attorney general approves its payment.
After reviewing the record and finding no reason for rejecting an award, we are
of the opinion that the award should be made in the sum of thirty-nine dollars
and forty cents ($39.40) and an order was entered accordingly.
134 REPORTS STATE
COURT OF CLAIMS
EW. VA.
(No. 88-S?-Claimant awarded $38.50.)
JOHN CHAPMAN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13, 1942
WALTER M. ELSWICK, Judge.
On November 26, 1941, the state road commission was blasting rock in Birch
River Road No. 30 in Webster County, West Virginia, near the residence of the
claimant. A rock thrown by the blast fell through the roof of claimant?s
residence, scattering sand, rock and dust practically all over the house. One
bed was broken, rug damaged and the wallpaper and boards torn from ceiling. It
appears from the record that claimant, the owner, should be reimbursed for
damages. An itemized statement of the damages furnished by the claimant amounts
to the sum of $38.50. The state road commission has made investigation and
recommends payment of the claim which has the approval of the attorney general.
We are of the opinion that the claim is one that should ?e paid and, therefore,
award the claimant the sum of thirty-eight dollars and fifty cents ($38.50).
W. VA.] IEPORTS
STATE COURT OF CLAiMS 135
(No. 89-S?Claimant awarded $25.00.)
JEWELL TEA COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
OAnion FUed April 13, 1942
WALTER M. ELSWICK, Judge.
On July 28, 1941, state road truck No. 230-42 was parked on left side of road
near the city of Huntington, West Virginia. Claimant?s car had pulled in behind
the truck and stopped. The driver of the state road truck, without looking,
backed into claimant?s car splitting hood and denting grill. The costs of
making the repairs as found by investigation of the district engineer and
maintenance engineer amounted to the sum of $25.00. The state road commission
concurs in the payment of the claim, which has the approval of the attorney
general. From the record it appears that the driver of the state road truck was
at fault and that the claim should be paid.
We, therefore, make an award to the claimant for the sum of twenty-five dollars
($25.00).
136
REPORTS STATS COURT OF CLAIMS [W. VA.
(No. 90-S?Claimant awarded $7.00.)
L. 0. RILEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13, 1942
WALTER M. ELSWICK, Judge.
On July 14, 1941 the operator of state road truck No. 230-8 stopped at a road
sign in Wayne county, West Virginia. Without looking, he backed up the truck a
few feet to relocate the road sign and struck claimant?s car. In doing so he
did damage to both headlight lens, rims and bulbs of claimant?s car, also made
a scratch on right front fender. Upon investigation made by the district
engineer and maintenance engineer of the road commission it appears that the
state road truck driver was at fault, and that the costs of making repairs on
claimant?s car amounted to $7.00. The state road commission concurs in the
payment of the claim which has the approval of the attorney general. We,
therefore, award the claimant the sum of seven dollars ($7.00).
W. VA.] REPORTS
STA COURT OF CLAIMS 137
(No. 91-S?Claimant awarded $33.90.)
J. FRANK ORNDORFF, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13,
1942
ROBERT L. BLAND, Judge.
Claimant, J. Frank Orndorff, of Opequon, Virginia, seeks an award of $33.90.
The state road commission concurs in the claim and its payment is approved by
the attorney general. The claim grows out of the following facts as disclosed
by the record of the case made by the state road commission and ified in the
court of claims on March 14, 1942. A state road was under construction in Hardy county,
West Virginia. It appears that on November 26, 1941, state road commission
shovel P 25-4 was being operated alongside of said road, about four miles from
Wardensville. This shovel had picked up a large rock on dipper points. As the
dipper was being swung across the road to deposit the rock over a hill on the
lower side of the road, the operator of the shovel observed a pickup truck
approaching alongside of the shovel. This truck was owned by claimant and was a
1937 Ford model, bearing Virginia license No. T 54-211. The operator of the
shovel stopped the dipper suddenly and the rock rolled off right in front of
claimant?s approaching truck. When the rock landed on the road it struck
claimant?s truck causing such damage to it that necessary repairs amounted to
the said sum of $33.90. Claimant?s truck had been signalled ahead by a state
road commission inspector who was without knowledge of the shovel operation.
Respondent admits responsibility for the accident. From the facts set forth in
the record we find the claim to be just and proper.
An award is, therefore, made in favor of the claimant, J. Frank Orndorff, for
the sum of thirty-three dollars and ninety cents ($33.90).
138 REPORTS STATE
COURT OF CLAIMS
[W. VA.
(No. 92-S??Claimant awarded $4.59.)
EDWIN HIVICK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13, 1942.
ROBERT L. BLAND, Judge.
On June 2, 1941, a 1940 Ford truck, bearing license No. 214-329, owned by
claimant, Edwin Hivick, of Jerryville, West Virginia, was parked on Main
street, in Richwood, Nicholas County, West Virginia. As a truck of the prison
labor division of the state road commission, license No. P 30-41, driven by
William P. Harkins, and loaded with stoves and supplies, passed along this
street, a stove plate lid fell from the truck and struck claimant?s car,
damaging its right rear fender. The cost of repairing such damage amounted to
$4.59, for which the claim involved in this case is made. The driver of the
state owned truck admitted the accident. We are of opinion that from the facts
shown by the record that the claim in question should be allowed.
An award is accordingly made in favor of claimant for four dollars and
fifty-nine cents ($4.59).
W. VA.] REPORTS
STATE COURT OF CLAIMS 139
(No. 93-S?Claimant awarded $179.78.)
TOM HASH, Claimant,
V.
STATE ROAD COMIVHSSION, Respondent.
Opinion Filed April 13, 1942
ROBERT L. BLAND, Judge.
The claim involved in this case is based upon an accident which occurred on a
small wooden bridge on secondary road No. 30, in Cabell county, West Virginia,
at a point about one hundred feet south of the junction of secondary road No.
28. On August 10, 1941, one Odell Thompson was driving a 1940 Ford 1%-ton
truck, owned by claimant, Tom Hash, of route No. 1, Barboursville, West
Virginia. He was returning with the truck from North Carolina with a load of
bulk peaches for delivery at the Hash farm about a mile from where the accident
occurred. As he was crossing the bridge about nine o?clock on the night of the
above mentioned date the floor of the bridge first gave way under the left rear
wheel of the truck, causing the truck to tilt sidewise and thereby spill its
load of peaches in the creek bed. Thereafter the right rear wheel of the truck
broke through the bridge. The collapse of the bridge damaged the truck badly
and caused the loss of the peaches with which it was loaded. It appears from
the record that the bridge was in a state of decay and badly in need of
repairs. The accident was the direct result of rotten log stringers. No notice
was posted on either end of the bridge indicating maximum safety weight of
load, as required by law.
The necessary cost of repairing the truck amounted to $39.78. It is shown that
the truck carried one hundred and fifty bushels of peaches. The value of the
peaches was $1.00 per bushel. Twenty bushels, of the value of fifty cents per
bushel, weie salvaged. The claimant?s actual total damages are $179.78.
Respondent recommends the payment of this amount. Such
140 REPORTS STATE
COURT OF CLAIMS EW. VA.
payment is approved by the attorney general. We find the claim to be
meritorious.
Award is, therefore, entered in favor of claimant, Tom Hash, for the said sum
of one hundred and seventy-nine dollars and seventy-eight cents ($179.78).
(No. 97-S?Claimant awarded $15.13.)
G. I. LOAR, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion Filed April 13, 1942
ROBERT L. BLAND, Judge.
This case comes to the court of claims under the ?shortened procedure?
provision of the court act. Its record was prepared by respondent and filed
herein March 14, 1942. Claimant seeks an award of $15.13. Respondent concurs in
the claim. The attorney general approves it as a claim that should be paid. On
January 7, 1941, a state road commission snowplow, working on secondary road
No. 9, near Tallmansville, in Upshur county, West Virginia, threw a piece of
ice upon an automobile owned by claimant while it was parked on the rtght side
of the road, breaking its windshield, to repair which claimant paid $15.13, as
shown by itemized, receipted bill.
In view of the showing made by the record, an award is now made in favor of
claimant, G. I. Loar, for the sum of fifteen dolars and thirteen cents
($15.13).
W. VA.] REPORTS STAlE COURT OF CLAIMS 141
(No. 94-S?Claimant awarded $24.09.)
WAYNE GORRELL, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Gpnion
Filed ApriL 21, 1942
ROBERT L. BLAND, Judge.
The original record of this claim prepared by respondent, was referred to and
filed in the court of claims on March 14, 1942. It was supplemented by an
affidavit made by J. H. Feingold, chief clerk of the state road commission, on
the 15th day of April 1942. It appears from the record that on October 10,
1941, a Buick sedan automobile, bearing Ohio license S278X, owned by claimant,
Wayne Gorrell, of route No. 1, Steubenvile, Ohio, was parked under Weirton
overhead bridge, at Weirton, in Hancock county, West Virginia, which was a
public parking place where it was the custom of the public to park motor
vehicles. Notwithstanding a very heavy wind was blowing on that day employees
of the road commission engaged in the work of painting underneath said bridge
without taking any precautionary measures to provide against accident to cars
placed under the bridge. While this wind was blowing the painters attempted to
move the ladder and the wind forced the ladder from their hands and it fell on
the hood of claimant?s automobile parked under the bridge. The actual cost
incurred by claimant in repairing this automobile as the necessary result of
this accident, shown by an itemized bill therefor, was $24.09, for which sum he
asks an award. The payment of this amount is recommended by the state agency
concerned, and approved by the attorney general. Since the record discloses
that it was the duty of the employees of the road commission to have had some
person remain at the foot of the ladder to prevent it from falling on motor
vehicles or pedestrians beneath said bridge, their failure to do so constitutes
such negligence as will authorize an award in this case.
In view of all the facts disclosed by the record, the concurrence of the state
road commission in the claim and the npproval of the attorney general of its
payment, we are of opinion to, and do now, award the claimant the sum of
twenty-four dollars and nine cents ($24.09).
142 REPORTS
STATS COURT OF CLAIMS [W.VA.
(No. 48?Claimant awarded $5,000.00.)
J. C. RICHARDS, Claimant,
V.
BOARD OF EDUCATION OF CALHOUN COUNTY,
and
STATE BOARD OF EDUCATION, Respondents.
Opinion Filed April 21, 1942
Where no remedy is provided by general
statute, against the county boards of education for failure to provide safe
equipment used in the public schools, an award will be recommended to the
Legislature to appropriate funds for the medical care and treatment and
compensation to a pupil permanently injured by burns received by reason of a defec.tive
and unsafe open-flame gas stove used in a public school where such pupil was
attending, as a matter of justice and right and as contemplated in the thorough
and efficient system of free schools directed to be provided for by the
Legislature in article XII of the constitution.
Appearances:
Louis Reed, Esq., for the claimant;
L. C. Hamilton, Esq. and Harold
Proudfoot, Esq., for the board of
education of Calhoun county, West Virginia;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
WALTER M. ELSWICK, Judge.
On the second day of October 1940, while attending, as a pupil, a one-room
public school known as the Klipstine school near Big Springs, in Calhoun
county, West Virginia, Ernestine Richards, a child then eight years of age, was
seriously burned when her clothing caught on fire from an exposed open-blaze
gas stove. The stove used was not equipped with any brick, gratings, screens or
other protection from the open flame, it appearing from the evidence that the
brick or grating had been broken and removed. The defective condition of the
stove had
W. VA.]
REPORTS STATE COURT OF CLAIMS 143
been reported by the teacher in charge to
both a repairman employed by the board of education of Calhoun county and to the
assistant county superintendent of said county some several weeks prior to the
time said child was burned, with request that the stove either be repaired or
replaced with a new one. (Record pp. 44 and 45). It had not been repaired on
the day the child was burned. There was no supervision of the sc?ioolroom at
the time the child was burned, though the injury occurred during school hours.
Ernestine Richards, prior to receiving the burns was a nor mal child in general
good health. (Record pp. 20 and 68). The burns extended from a point midway on
her thighs covering the back of her body up to her shoulders and over parts of
her arms and legs with an extended strip on the front of her body up to her
breast, those from the point midway on her thighs to her shoulders consisting
of second and third degree burns. (Record pp. 21 and 36). The burned portions
of her back were exhibited to the court. She was treated for burns at St.
Joseph?s hospital at Parkersburg, West Virginia, for three months during which
time three nurses were required each day to nurse and care for her by
succeeding shifts. Later she was removed to a private apartment rented by her
father and nursed by two aunts and her mother daily for ten weeks while still
receiving treatment for burns by physicians of said St. Joseph?s hospital. She
is still required to wear a cotton padding over her burns to which applications
of oil are made daily to prevent cracking and crusting. She sustained burns
over the kidneys and is now suffering from an abscessed kidney. Her temperature
rises abnormally and she is affected by excessive urination and becomes
delirious at times. She complains of pains in her side and head and is affected
mentally. The burns are of a permanent nature, of which she will not by all
probability recover.
J. C. Richards, the father of Ernestine Richards, filed a claim for
compensation for the injuries with the court of claims on October 6, 1941, and
notice was mailed by the clerk of the court to the state board of education
that such claim had been
144 REPORTS STATE
COURT OF CLAIMS EW. VA.
filed; a copy of such notice was mailed to
the board of education of Calhoun county, and a copy mailed to the attorney
general of the state .of West Virginia. The case was docketed for hearing on
January 21, 1942, and evidence adduced by the claimant and state on said date.
The claimant, by counsel, filed a statement or bill of particulars of the claim
for hospital bills, medical attention, nursing, compensation for injuries,
etc., showing the nature of the claim, which is in the sum of $5000.00. From
the evidence it appeared that the father had incurred indebtedness for more
than $1002.00, exclusive of doctor and hospital bills, and of special care and
attention required by the father and mother and their family. It also appears
that the hospital bill amounted to $284.00 and that a bill for her treatment by
Dr. Harris amounts to $150.00. The father is an oil and gas worker of modest
financial circumstances and has exhausted all of his funds and credit in the
care and treatment of said child since said injury.
The attorney general, on behalf of the state, moved to dismiss the claim n the
ground that the state court of claims was without jurisdiction to hear evidence
and make recommendations as to the merits of an award in the case on the ground
that a state agency was not involved within the meaning of the jurisdiction of
the court of claims. We were therefore confronted with the question of
interpretation of article 2, chapter 14 of the code as amended by the 1941 acts
of the Legislature, pertaining to the purpose and jurisdiction of the court of
claims.
Section 1 reads as follows:
?The purpose of this article is to provide a simple and expeditious method for
the consideration of claims against the state that because of the provisions of
section thirty-five, article six of the constitution of the state and of
statutory restrictions, inhibitions or limitations cannot be determined in a
court of law or equity; and to provide for proceedings in which the state has a
special interest.?
W.VA.J
REPORTS STATE COURT OF CLAIMS 145
The first subsection of section 13,
defining the jurisdiction of the court, states that jurisdiction 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.?
It is conceded that this is such a claim that no action can be maintained in a
court of law or equity against the board of education of Calhoun county for the
reason that it is a part of the educational system of the state established in
compliance with article 12, Section 1, of our constitution for the purpose of
administering the state system of public education.
?The exemption of the government from liability is based on the theory of
sovereignty. The acts of the government were those of the king. In our state,
instead of the king being the sovereign, the powers of government reside in all
the citizens of the state. The idea was also that certain things worked for the
good of the mary, and the welfare of the few must be sacrificed in the public
interest.? Krutili v. Board of
Education of Butler Dist., 99 W.
Va. 466, 129 S. E.
486.
In a worthy case the king, however, must have been impressed by the fallacy
shown by the petition on which he granted equitable relief in the first
instance thereby creating a basis for what we now have, known as equity
jurisdiction in the judicial sense.
The free school system which the Legislature is directed to provide by article
12 of the constitution, is a matter of general state concern, and not a
municipal or district affair, as much or more so than its highway system. The
word ?system? itself imports a unity of purpose as well as an entirety of
operation, and the direction to the Legislature to ?provide, by general law, a
thorough and efficient system of free schools?
146 REPORTS
STATE COURT OF CLAIMS [W. VA.
means one system. City of Ardmore v. State, 109 Pac. 563, 26 Okla. 366; Kennedy v. Miller, 97
Cal. 429, 32 Pac. 558.
And the idea of unity of purpose and entirety of operation is emphasized and
made more apparent by the term ?the free school system of the state? found used
in section 9 of article 12 of the constitution.
Webster?s new international dictionary, second edition, de? fines the word
?system? as follows:
?An aggregation or assemblage of objects united by some form of regular
interaction or interdependence; a group of divers units so combined by nature
or art as to form an integral whole, and to function, operate, or move in
unison and, often, in obedience to some form of control; the body considered as
a functional unit.?
An excerpt from the opinion in the case of State v. Ogan, 63 N.
E. 227, 228, 159 md. 119, quoting from City
of Lafayette v. Jenners, 10
md. 70, 77, is apropos here:
?And we have seen that common schools, as a whole, are made a state
institution,?a system coextensive with the state, embracing within it every
citizen, every foot of territory, and all the taxable property of the state.?
?Essentially and intrinsically,? said the court in State v. Haworth, 122 md.
462, 465, 23 N. E. 946, 7 L. R. A. 240, ?the schools in which are educated and
trained the children who are to become the rulers of the commonwealth are
matters of state, and not of local, jurisdiction. In such matters the state is
a unit, and the legislature the source of power. The authority over schools and
school affairs is not necessarily a distributive one, to be exercised by locdl
instrumentalities, but, on the contrary, is a central power, residing in the
legislature of the state.?
Section 5 of said article 12, of our constitution, reads as follows:
?The Legislature shall provide for the support of free schools by appropriating
thereto the interest of the invested ?School Fund,? the net proceeds of all
W. VA.1 REPORTS
STATE COITRT OF CLAIMS 147
forfeitures and fines accruing to this State under the laws thereof; the State
capitation tax, and by general taxation of persons and property or otherwise.
It shall also provide for raising in each county or district, by the authority
of the people thereof, such a proportion of the amount required for the support
of free schools therein as shall be prescribed by general laws
This section of the constitution makes it obligatory upon the Legislature to
provide for the support of free schools, and it is given plenary, if not
absolute, power for this purpose. Kuhn
v. Board of Education, 4 W. Va.
499, 508. In this case the court said:
?The establishment of such schools is, therefore, not merely permissive, but
obligatory, on the legislature. The system ?provided for? by them is required
to be ?thorough and efficient.? Who is judge of the thoroughness and
efficiency? Certainly, the legislature. When the people, through the
constitution, delegated that power to the legislature, they made the
legislature sole judge of the kind or kinds of free schools that should be
established and supported. It was not left to the caprice of an individual, or
any number of persons that might be influenced by personal motives or local
prejudice, but was wisely confided to the wisdom of the united representatives
of the people who, coming from all sections of the State, could best devise a
system ?thorough and efficient.?
From this clause (now section 5) it is plain, the people intended that the
?thoroughness? and ?efficiency? of the system of free schools, adopted by the
legislature, should in no wise be prejudiced by the want of ample means. They,
make it obligatory upon the legislature to provide for the support of such
schools, not only ?by appropriating thereto the interest of the invested school
fund? etc., but also by ?general taxation on persons and property or
otherwise,? thus placing in the hands of the legislature, for that purpose,
plenary, if not absolute power.?
While said section 5 of article 12 of the constitution, gives the Legislature
such plenary power to provide for the support of free schools by appropriations
and also by general taxation
148 REPORTS
STATE COURT OF CLAIMS [W.VA.
on persons and property or otherwise, it is to be observed, however, that
only in the last part of said section, referring to such a proportion of the
amount required for the support of free schools to be raised in each county or
district, where situate, by authority of the people thereof, is found the
qualifying term of expression, applicable only to the counties or districts,
?as shall be prescribed by general laws.? Hence it would appear that if
compensation is made in the instant case it should be by a direct act of
appropriation by the Legislature, since no remedy has been prescribed by
general laws to enable county boards to raise funds for such compensation for injuries.
See Jcirrett v. Goodall, 168
S. E. 763, 113 W. Va. 478; Krutili v. Board of Education, supra.
Under our laws, every person who has a legal or actual charge of a child or
children no less than seven nor more than fourteen years of age shall cause such
child or children each year to attend a free day school for the full school
term of the district or independent district in which such person resides,
under penalty of punishment of fine or imprisonment for failure to comply with
this provision of law. Code of West Virginia chapter 18, article 8, section 1.
Provision is made for adequate means of transportation of all children of
school age, at public expense, who reside more than two miles distant from
school, and for insurance against negligence of drivers of school busses and
other vehicles operated by the board. Can it be said that the responsibility on
the part of the state should cease the moment the child enters the schoolroom?
There is no question from the evidence, that the stove used in the instant case
was unsafe and dangerous for use by small children. The claim in question is
one ex delicto against the state which the state as a sovereign commonwealth
should in equity and good conscience discharge and pay, as provided for a
hearing as to its merits under chapter 14, article 2, section 13 of the code.
The state owes a duty to safeguard and protect the life, health and well-being
of a child intrusted to its care by its parent or guardian under the law
compelling its attendance
W. VA.]
REPORTS STATE COURT OF CLAIMS 149
as a matter of the welfare of the state. It has plenary power to make
appropriation to compensate the injured child while the local board has no such
power under existing general laws.
The Legislature has power to make any appropriation to a private person in
discharge of a moral obligation of the state, and an appropriation for such
purpose is for a public, and not a private, purpose. It is the general doctrine
that the Legislature is the sole judge whether a provision by a general law is
possible under the provision in the constitution to the effect that no special
law shall be enacted, in all cases where a general law can be made applicable. Wooclall v. Dctrsit, 71
W. Va. 350, 44 L. R. A. (N. S.) 83, 77 S. E. 264, Ann. Cas. 1914 B, 1278, and
authorities cited. In this case the court said:
?We must assume that the legislature considered, whether or not its purpose in
making the appropriation to relator could best be accomplished by a general, or
by a special, act, and determined in favor of the latter; and, having so
determined, the court is not at liberty to say that it abused its discretion,
unless it clearly appears from the character of the appropriation that a
general law would have answered the purpose as well. This is not clear; there
are many matters that might very justly and properly be considered by the
legislature in determining the merits of claims of the same general nature as
relator?s, which could not well be embodied in a general law. For instance the
needs of the claimants and those dependent upon them might very properly
influence the legislature in determining the amount it would apply to discharge
an obligation purely moral. The most that we can say is, that it is doubtful if
a general law would be as proper to accomplish the purpose which the
legislature had in view as the special appropriation and we must resolve the
doubt in favor of the validity of the act?
In a recent case of Glover v. Sims, 121 W. Va. 407, 3 S. E. 2nd 612, involving a principle
of simple justice and right, our Supreme Court in upholding the
constitutionality of appropriation made by the Legislature to pay a printers
claim against
150 REPORTS
STATE COURT OF CLAIMS [W.VA.
the athletic department of the state university as an incidental expense of
the department, the coui t said:
?Emp] mt ically are e im} re seu that the legislative action of 1937 and 1939
n?aking the appropriations to (over 11w plaint ill?s claini nd otlier against
the athletic department of the lniversitv. was based on ?simple mIStice and
right?, he?ause the underlying facts are declaratory of a str( ng moral
obligation of the state to pay these debts The physical welfare of young ifl(?n and
woin n cannot with propriety be ignored. Education i a proper function of state
government and includes apploin iate physical development as well as mental and
moral?
While constitutional inhibitions prohibit a right of action to be provided for
against time slaha or against its governmental agencies delegated to perform
its governmental duties, appropriations have been made and upheld from time to
time, by the Legislature, to persons sustaining injury from the performance of
governmental functions by other departments of the state, where the interests
of the state were immediate and direct and justice demanded such action. While
the same latitude of supervision may not he exeremsed by the state board of
education over the conduct of public schools as is exercised by other stale
departments, it would seem that the same right exists. and the same remedy is
available, to those injured through negligence of school officials in the
performance of the duties of the state toward children attending public
schools, as is being awarded to others injured by other state agencies, for
similar nonfeasance or malfeasance. Where it would be proper for the
Legislature to make an award in any case, no other exception as to jurisdiction
is found under section 13 of the act entitled ?The Jurisdiction of the Court?
which contains the following specific expression: ?The jurisdiction of the
board, except for the claims excluded by section fourteen, shall extend, etc.?
Certainly such claims of the nature of claimant?s claim were not within the
classes of claims excluded from the jurisdiction of the court enumerated in
said section fourteen of time act and expressly referred to in said section
thirteen.
W. VA.] REPOR STATE COURT OF CLAIMS 151
County boards -of education are not
made self-sufficient agencies under the system provided for by the constitution
and the statutes as is provided for the counties and municipalities. The system
of education provided for and intended by the constitution is one co-extensive
with the boundaries of the state. It cannot be said that cities and counties
were placed in the same category with the system of free schools directed to be
provided by the Legislature by the emphasis of article XII of the constitution.
Said article is devoted exclusively to the subject of education. While section
6 of article X provides that the credit of the state shall not be granted to,
or in aid of any county, city, township, corporation or person, nor shall the
state ever assume or become responsible for the debts or liabilities of any
county, city, township, corporation or person, no such restriction or
limitation is found as to the aid or support of the educational system of the
state. On the contrary, in the affirmative, we find in section 5 of said
article X of the constitution that the power of taxation of the Legislature
shall extend to the support of free schools within the state.
In the opinion of a majojrity of the members of the court, this claim is one
coming within subsection 1 of said section 13 of the act, not specifically
excluded by section 14 of the act, against the state, which, as is expressed by
said section 13 of the act, the state as a sovereign commonwealth should in
equity and good conscience discharge and pay. The evidence fully justifies an
award for the full sum of five thousand dollars ($5000.00) sought by claimant
and -an award for said amount is recommended by a majority vote.
Judge Schuck dissents and files a statement of his views.
CHARLES J. SCHUCK, Judge, dissenting.
A county board of education is not a state agency as contemplated by the act
creating the court of claims, and therefore, the said court has no jurisdiction
over a claim arising against such county educational unit or board.
152 REPOtTS
STATE COURT OF CLAIMS [W. VA.
On October 2, 1940, Ernestine
Richards, a child of tender years, to-wit, eight years of age, was a pupil in
what is known as Klipstine schQol in Calhoun county, West Virginia. The school
building was a one-room country school in which the pupils of all grades were
kept and taught in the same room, and which schoolroom was heated by two
open-face stoves burning natural gas, and so far as the evidence shows, with no
screen or protection of any kind whatsoever encircling or around either of said
stoves to protect the children in the said school from injury by fire. During
the morning recess period on the said day, the Richards child, in some manner,
came in contact with the open flame from one of the said stoves and was terribly
burned and scarred on her back, hips and limbs, so much so that she is
permanently injured and made subject to disease which, in the opinion of the
medical witness, may have a tendency to shorten her life. Being a child of such
tender years, of course no negligence can be imputed to her so far as her acts
may be concerned, and this claim, at its very outset presents, to my mind, an
intolerable situation which must ultimately be cured by proper and appropriate
legislation, as hereinafter referred to.
The board of education of Calhoun county was, in my judgment, negligent in
allowing these stoves to be unprotected, especially so in view of the fact that
children of tender years were compelled to attend the school under our state
law, and were entitled to every protection so far as a safe and secure place
for obtaining their early education was concerned. The evidence undoubtedly
shows negligence on the part of the board of education of Calhoun county.
The attorney general, through his assistant, moved to dismiss the proceedings
against the state board of education, named as one of the respondents, and
against the county board of education, on the ground that a state agency was
not involved, and, therefore, this court was without jurisdiction in
determining the issue or in making an award.
It is true that the state board of education is named as one of the defendants
or respondents, but in my opinion, under all
W. VA.] REPORTS STATE COURT OF CLAIMS 153
the facts -and circumstances in this case, was not a party to the
infliction of the injuries in question, had no connection whatever, in law or
in fact, with the accident, and cannot be considered as an involved agency. The
all important question that presents itself, then, is as to whether or not the
board of education of the county of Calhoun is such a state agency as is
contemplated in the act creating this court.
The act passed March 6, 1941, and duly approved by the Governor, contains,
among other provisions, the following:
?Sec. 2... .
?State agency? means a state department,
board, commission, institution, or otier administrative agency of the state
government.?
Section 13 of the act provides that the jurisdiction of the court, except for
claims of a certain nature, shall extend, among other things, to the following
matters:
?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.?
The jurisdiction of the court is therefore limited, in my opinion, to claims
against the state, state agencies, departments or institutions.
It is true that our state constitution provides that the Legislature shall
provide by general law for a thorough and efficient system of free schools. We
have been endeavoring throughout the years to carry this provision into effect
by the establishment of county units in the nature of county boards of
education which, by the recent acts of the Legislature, have been given full
county-wide powers so far as their prerogatives and functions were concerned,
and county-wide control of the educational administration affairs of the
county, with a few exceptions, so far as the control of the state board of
education is concerned. It is contended by counsel for the claimant that our
Supreme Court of Appeals in the case of Krutili
v. Boarcl,
154 ? ? REPORTS STATE COURT OF CLAIMS [W.VA.
99 W. Va. 466, had held that a school board is an agent of the state and acts
as such when carrying out its duties, A careful reading of the case in question
will reveal that this language is but dictum and that the case turned on an
entirely different proposition, to-wit, that there was no statutory authority
in the sate of West Virginia by which an action could be maintained for
negligence or nonfeasance against the county board of education as such, where
injuries resulted to a pupil or student in one of its schools by reason of said
negligence or nonfeasance.
What did the Legislature intend by the use of the language ?state agency?? An
examination of the authorities shows that as a general proposition, a state
agency is one over which the state, as such, through its Governor or other
properly elected or appointed officers, has charge and control, and which
agency is not subject to the whims or caprices of any individual municipality,
county, or locality. State agencies or state institutions have also been
defined as those belonging to, or
owned by, or under control of the
state and not such as might belong to, or he controlled by, any county units.
And this is true, even although the local unit has been established by act of
the Legislature and has been the recipient of contributions for its support and
assistance from the state.
In Clutif ant v. State, 37 Ohio State 60-61, the state of Ohio, in
dealing with a similar question, held ?state institutions? as set forth in the
Ohio constitution, providing that the trustees of benevolent and other state
institutions should be appointed by the Governor, meant institutions belonging
to and owned by the state, and not to such as might belong to the particular
municipalities or counties, although established under the legislative
authority of the state, and receiving contributions for their support from the state
and governed by state laws.
In Brock v. Bruce, 2 Atlantic 598-606, 58 Vt. 261, it was held:
?The constitutional provision requiring every officer, whether judicial,
executive, or military, in authorit?y
under this state,
to take and subscribe the oath of
office? does not apply to a
W. VA.]
REPORTS STATE COURT OF CLAIMS 155
school district officer?such officers are ?in autlvority under their respective municipalities,?
and are not regarded as in authority
under the state. If, under this decision school district officers are not
officers of the state, and consequently not agents thereof, how can it be
maintained that a county educational unit would be an agency or institution of
the state?
In State v. Dillon, 2 S. W. 417-419, 90 Mo. 229, it was held that the words
?state officer? as used in the Missouri constitution, were to be understood as
having been used in their popular sense and refer only to such officers whose
official duties are coextensive with the boundaries of the state and not to
officers whose functions are confined to counties or townships.
If the matter of state-wide boundaries is to govern us in the instant claim, as
held in the Missouri case, then officers who function merely for counties,
towns or townships are not state officers, and applying the same reasoning, we
must be forced to the conclusion that county units of education, being limited
so far as the boundaries are concerned, in carrying out their functions, are
not state agencies and therefore, excluded from the jurisdiction of this court
by the provisions of the act creating it.
In Massachusetts the Supreme Court held in
re opinion of Justices, 46
N. E. 118-119, 167 Mass. 599, which was a proceeding in which the Supreme Court
of that state was called upon to render an opinion to determine whether or not
a county commissioner was an officer of the commonwealth, and therefore subject
to impeachment under the provisions in the Massachusetts constitution, relating
to the impeachment of state officers, the court said:
?The office of county commissioner is created by statute and the Legislature
can by statute determine in what manner an incumbent may be removed from
office. They have some duties or functions which concern the people of the
state at large. But it seems to us that they are essentially a local body. They
are elected by the people of a county, and their duties re
REPORTS STATE
COURT OF CLAIMS FW.VA
late chiefly to the affairs and interests of the county.
We have been unable to find any plain intimation by legislatures. ct)urts. or
writers of authority, that county c(mmissiorwrs have ever been ..?? treated as state officers
Ii not state officers, then, of course, they cannot be state es. And if the
board of county commissioners, although
subjec to much control by the state, cannot be held to be a sutle agency. then
much les, in my opinion, is a local board of (ducation a state agency and
subject to the provisions of the act creating this court.
A trong analogy of statutory construction is found, in my opinion, in the case
of Welsier v. Board
of Education of Raleigh Couutq, 116 W. Va. 395, which held that the workmen?s
compensation act does not a)ply to employees of the county board of education,
nor does it give a right of action for injuries received in the course of their
employment, occasioned by the negligence of the employer. I think it must be
fairly assumed that the court?s decision clearly indicates that a county board
of education is not a state agency or department and, therefore, does not come
within the general designation of the statute relating to relief under the
workmen?s compensation act. If the county board of education is held not to be
a state agency in this respect, then it naturally follows that it cannot be
held to be a state agency in any other respect, and consequently, does not come
within the provisions of the act creating the court of claims.
In the 36 Cyc., page 852, state officers and agents are defined as follows:
?State officers are those whose duties concern the state at large, or the
general public, although exercised within defined limits, and to whom are
delegated the exercise of a portion of the sovereign power of the state.
They are in a general sense those whose duties and powers are coextensive with
the state, or are not lim
W. VA.] REPORTS STATE
COURT OF CLAIMS 157
ited to any political subdivisions of the state, and are thus destinguished
from municipal officers strictly, whose functions relate exclusively to the
particular municipality, and from county, city, town, and school district
officers.?
I most reluctantly adopt the foregoing view and give the assurance that I had
hoped that it could be found that the board of education of Calhoun county was
a state agency and could be held liable. It is a claim that should be
considered by the Legislature and I would recommend:
First: That if at all possible, an enabling act should be passed by the next
Legislature, by reason ofwhich adequate compensation will be given to the
claimant and her father for the damages occasioned by her injury, which in turn
was occasioned by the negligence of the board of education of Calhoun county;
Second: I further recommend the passage of the necessary legislation that will
enable a citizen, a student or pupil to bring an action in tort against any
county board of education where injuries and damages are caused by reason of
the negligence or nonfeasance of the said board. This legislation, of course,
is suggested also in Krutili v. Board of Education,
supra.
For the reasons herein set forth, I
would be constrained to allow the motion to dismiss.
158 REPORTS STATE
COURT OF CLAIMS [W, VA.
(No. 55?Claimant awarded $500.00.)
BENJAMIN JOHNSON, Jr., an infant, whose
claim is filed
and prosecuted by BEN JOHNSON, Sr., his father
and next friend, Claimant,
V.
BOARD OF EDUCATION OF LOGAN COUNTY and
STATE BOARD OF EDUCATION, Respondents.
Opinion Filed April 21,
1942
This claim is controlled by the
opinion of a majority of the court of claims filed in the case of claim No. 48,
J. C. Richards v. Board of Education of
Calhoun County
and State Board of
Education.
Messrs. Townsend & Townsend, b W. J.
Thompson, Esq. and Joseph Thomas, Esq.,
for the claimant;
Clarence W. Meadows, Attorney General, Eston B. Stephenson, special
assistant to the Attorney General, and Claude
A. Joyce, prosecuting attorney of
Logan county, for respondents.
ROBERT L. BLAND, Judge.
Claimant, Benjamin Johnson, Jr., seven years of age, whose claim is filed and
prosecuted by Benjamin Johnson, Sr., his father and next friend, was a pupil in
the elementary department of Holden central school, at Holden, in Logan county,
West Virginia, during the school year of 1940-41. He seeks to obtain an award
in damages for personal injuries sustained on June 10, 1941, a few days before
the end of the school term. He was in the second grade of the school, in room
No. 10, taught by Miss Ethel Taylor. For the accommodation and use of the
pupils of this room the school officials had installed a series of five
connected metal wall lockers, in the hallway leading from the balcony on the
second floor of the building over the gymnasium. In these lockers the pupils
kept their books,
W. VA.]
REPORTS STATE COURT OF CLAIMS 159
clothing, etc. They were approximately
five feet in height, twelve inches deep, and at least twelve inches wide. When
L. H. Hutchinson, principal of the school, was asked how the lockers were
secured or safeguarded, he answered: ?They were not fastened to the top of the
wall, but they had a little stick on the bottom that kind of slanted them back
a little bit, probably three inches to half an inch thick.? The lockers were
not fastened or anchored to the wall, but stood in an insecure position on this
small piece of board on the concrete floor. On the morning of the accident,
about ten or fifteen minutes before school opened, Miss Taylor, the teacher,
was in the school room and heard children screaming. She ran to the hallway and
found that this section of five connected metal wall lockers had fallen on two
of the pupils, claimant Benjamin Johnson, Jr., and a companion, George Brand.
The Johnson child was standing near the fallen lockers, with blood on his face,
while the other boy was still under the lockers, from which position he was
extricated by the teacher with the assistance of other pupils. The Johnson boy
was hurried to the hospital of Di. J. W. Lyons, in Holden, where he was given
necessary surgical attention. It was found that the child had received a bad
and ugly wound of the forehead and scalp, extending from his righ eye to the
crown of his head. The upper eyelid was lacerated and there was also a
laceration below his right eye. The wound was through the scalp down to the
skull. The skull was exposed almost the entire length of the wound. A great
number of stitches were rendered necessary?one witness testifying that there
were one hundred and eight. Notwithstanding the skillful aid of the surgeon
given to the child, the scars in his scalp, forehead and eye constitute a
permanent disfigurement, and he has suffered pain and still experiences
headaches.
It appears from the record that the accident was the direct result of the
negligence of the officials of the school in failing to safeguard said metal
wall lockers and properly and adequately anchor and fasten them to the wall of
the room or compartment in which they were located. This duty the officials of
the school owed to the pupils.
VA.
.ar u e 11 a]? , Bc 1dhoIi J a, Jr., iii ti suco . iwe 1 odi ] elas
($500.cJO) .
b a r?i ??it: of the court for the re4u:ic
nd ui un the rounds set forth n the opnuon
of a inajorily of the court filed in the cas.. f claim No. 48, J. C. Richardr v. Boa ifl of Edncatio?L of Callioz . Covnty
and Slate
I3oord of Education.
Judge Schuck dissents for reasons set
forth in thc stement of his views filed in re the above mentioned claim,
(No. 74?Claim dismissed.)
ROBERT F. LANE, Claimant,
V.
COMMISSIONERS OF THE COUNTY COURT OF
WOOD COUNTY, Respondent.
Opinion Filed April 21, 1942
Appearances:
Lou G. Marks. Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, on
behalf of the state.
WALTER M. ELSWICK, Judge.
It appears from the petition filed herein that on October 13, 1941, the claimant, while serving a ten-day sentence
for drunkenness, fell from
his berth in a cell of the Wood county
jail to the concrete floor of said jail, which fall he alleges was caused by the breaking of a chain supporting the said berth, and that by reason of the said occurrence, he suffered permanent injuries to his hip and leg. The jail in question was in charge of,
W. VA.] REPORTS
STATE COURT OF CLAIMS 161
and under control of, the sheriff of
said Wood county, insofar as the management and control of the said jail was
concerned, as appears from claimant?s petition.
The question that immediately presents itself for consideration is whether or
not the claim, as presented, is such as can be entertained or investigated by
this court. The injuries complained of having arisen while the claimant was
confined in a county jail, under the exclusive control and supervision of the
county, the remedy, if any to be provided, must necessarily be against the
county or county officials in charge, for it is specifically provided by
section 6, article 10 of the constitution of this state, that:
?The credit of the State shall not be granted to, or in aid of any county,
city, township, corporation or person; nor shall the State ever assume, or
become responsible for the debts or liabilities of any county, city, township,
corporation or person; .
.?
Assuming the allegations of claimant?s
petition to be true, as they are therein set forth, it does not appear that he
would have a right to maintain his claim before the Legislature under the
constitution. This being so, certainly the claim, on the facts presented, is
such as cannot with propriety be entertained or investigated by this court.
By analogy, we are further persuaded that the Legislature did not intend that
this court should have jurisdiction over claims such as the one under
consideration, as section 14 of the court of claims act specifically prohibits
this court from hearing any claim arising from injuries or death to an inmate
of a state penal institution. As inmates of state penal institutions cannot
have any claim for damages caused by the negligence of those in charge of the
state institutions heard or entertained by this court, much less, then, in our
opinion can an inmate of a county jail receive consideration of any claim that
he may have for damages occasioned while he was an inmate of said jail.
We, therefore, refuse to entertain the claim as presented.
162 REPORTS STATE
COURT OF CLAIMS [W.VA.
CHARLES J. SCHUCK, Judge, concurring.
I concur in the conclusion reached by Judge Elswick with reference to the claim
in question, but assign the reason for my concurring to be, namely: That the
court of claims is without jurisdiction to entertain a claim for damages
resulting from injuries occasioned to one while confined as an inmate in a
county jail, as the county court, or conunissioners of said county, or the
sheriff thereof in charge of said jail, are not, in my opinion, ?state
agencies? as contemplated by the act creating this court.
I concur fully in the reasoning set forth in the last paragraph of Judge
Elswick?s opinion.
(No. 70?Claimant awarded $250.00.)
ROBERT DEWEY McMIL LION, an infant, whose claim is
filed and prosecuted by GEORGE D. McMILLION,
his father and next friend, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed April 30, 1942.
The state road commission is charged with the duty of keeping the bridges
on highways in reasonably good repair, and the failure to do so, by reason of
which a child of tender years is injured, makes the road commission liable,
even though the injured child may have had occasion to use the bridge in
question a number of times while the bridge was out of repair. Such child of
tender years cannot be charged with contributory negligence.
Appearances:
The Claimant in person and by George
D. McMillion, his father and next
friend;
W. VA.]
REPORTS STATE COURT OF CLAIMS 163
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
Robert Dewey McMihion, a boy ten years of age, while riding a bicycle in and
upon a bridge spanning what is known as Cabin creek, near Leewood, Kanawha
county, West Virginia, on or about the 14th day of June 1941, was thrown with
said bicycle off said bridge into said Cabin creek, by reason of a defect in
the flooring of said bridge, there being no guardrails to protect the said
infant from falling into the creek as aforesaid. The evidence shows that one of
the planks in the floor of the said bridge was loose and elevated at one end
from three to four inches above the general bed or floor level of the bridge.
The evidence also shows that there were no guardrails on th bridge in question,
except that there was a rail about eighteen inches in height on either side of
the bridge as the only means of protecting pedestrians or vehicle travel. The
evidence shows that the claimant, while riding on his bicycle on the said
bridge, on the day in question, in the morning of the said day, struck the said
projecting plank and was thrown or catapulted over the said bridge into the
creek below, and sustained a fracture of his arm which required hospital and
medical treatment for a period of some five or six weeks, during which the
claimant suffered, to a greater or lesser degree, by reason of the injury
inflicted.
The state attempted to show that the claimant had crossed the bridge on a
number of occasions, and knew of the defect in question; that claimant was
obliged to pass over the bridge several times daily on his way to school, and
that if he did not notice the defect, he ought to have noticed it because of
the numerous times he passed over said bridge. The evidence shows that the
defect in question was allowed to remain five or six weeks before the injury to
the claimant or before the plank or board was nailed down to be even with the
general level or floor of the bridge. The evidence also shows that the work of
REPORTS STATE ( OTJRT OF CLAIMS IW.VA.
mi? lag
down Ihe plank or making the necessary
repair was by orn who lived near to or idjacent to the bridge and in
no .?ay connected with tile rood culamission. The evidence also shows that
claimant has fufly recovered.
I
;suming that the evidcrwe would be
such as to sustain the states contention, which, however, is not the case, yet
the ten? r age of the claimant would free him from any charge of (ootributory
negligence. Under these circumstances, there is no question in our minds of the
liability of the state road cornrni sion to compensate the claimant for the
damages caused.
The evith nec shows conclusively that the father of the infant claimant, who
presented this claim, was under no expense whatever, either for hospital or
doctors? services, the said expenses having been covered by his insurance, the
premiums of which were not affected in any way by reason of the accident in
question. The father, therefore, suffered no loss whatsoever by reason of the
accident to his son, and, in our opinion, is not entitled to any part of the
award which is hereinafter made.
We are of the opinion, from all the circumstances and the evidence adduced,
considering the pain and suffering of the claimant, and the time he was
inconvenienced by reason of the injuries in question, that the sum of two
hundred and fifty dollars ($250.00) should be paid him as damages; and we
recommend an award in the said sum accordingly. We further recommend that this
sum be paid to the guardian appointed for the claimant by the proper court,
upon the giving of a bond in a sufficient amount to cover the award, and upon
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 165
(No. 70?Claimant awarded $860.50.)
KEELEY CONSTRUCTION COMPANY, a corporation,
Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion jUed June 15, 1942.
Where the state road commission,
by its contract may or may not furnish road metal (stone or other material) to
keep lanes of traffic open to the traveling public, during the construction and
improvement of a highway, and the testimony shows that it has been the custom
of the said road commission to furnish such material or metal at its own cost
or expense, on other road projects, then the contractor is entitled to a
reasonable charge or claim for gathering and furnishing the said road metal or
material so used on a highway during the improvement and construction thereof.
Appearances:
Messrs. Wyatt and Randolph. (Byron B.
Randolph, Esq.) for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
On or about the 23rd day of May 1939, the state road commission entered into a
contract with the claimant, a contracting company, for the purpose of building,
improving, and making a certain public road in Randolph county, West Virginia,
running from what is known as Valley Head to Monterville, about four miles in
length, and known as project No. F. A. 205-B (1). Work was commenced on this project during
the summer of 1939, and not having been completed, the work was carried on
through part of the winter and the project finished in the summer of 1940.
During the said winter and spring of 1939-40 a
166 REPORTS STATE
COURT OF CLAIMS [W. VA.
lane was kept open for traffic, and it became necessary to use stone as a base
in order that traffic could pass, since the season of the year had made it
impossible to use the said lane without using what is commonly termed road
metal, meaning thereby stone or similar material, to form a base for the said
road, in order that it could be used for traffic. The evidence shows that a
number of very heavy trucks were passing over this lane daily, and thereby
cutting deeply into the road and making it necessary to use the material
aforesaid to make the road passable. In its attempt to take care of the highway
in question for traffic purposes, the state furnished and the contractor spread
on the said lane some ten or twelve tons of what is known as No. 6 stone, a stone
about three-fourths of an inch in diameter, and which evidently was found
inadequate for the purpose intended. It became necessary to have larger and
more substantial stone for the base of the traffic lane, and this material was
furnished by the contractor, for which it makes it claim. The state refuses to
pay the claim, maintaining that a provision contained in the standard
specifications concerning road construction, which said specifications were
made part of the contract in question, exempts the state from payment. The
specifications contain the following provision, to-wit:
?All temporary facilities herein provided shall be at the expense of the
contractor, except that the commission may reimburse the contractor for the
furnishing and placing of suitable road metal for stabilizing traffic lanes or
temporary detours, or may do such work with its own forces as may be directed
by the engineer.?
That it was necessary to have other and different material than that furnished
by the state to stabilize the lane in question and make it usable for traffic,
there can be no question; and there is further no question that, so far as the
contract was concerned, that the contractor was not specfficafly charged with
the duty of supplying at its own cost and expense the road material or stone
necessary to be used to stabilize the traffic lane.
W.VA.1 REPORTS
STATE COURT OF CLAIMS 167
There was some controversy in the evidence
as to whether or not the state had theretofore made allowance to contractors
for supplying what is termed as road metal, but we feel that a fair analysis of
the testimony submitted, including the testimony adduced by the state, clearly
shows that where the state desires a traffic lane to be stabilized and kept
open for the traveling public, it has assisted the contractor in bringing about
the desired result and has paid the expense of furnishing the material and the
contractor has been obliged to stand the expense of spreading the material and
thus putting the road in proper condition. The evidence shows that it was a
difficult road, by reason of its location in the hilly or mountainous sections
of Randolph county, to be kept passable during the winter months, and that it
required considerable attention, so far as material was concerned, in stabilizing
the said traffic lane. Evidence is also produced by the claimant that its
superintendents in charge of the work were specifically ordered by those in
charge of the work for the state to supply the material necessary to keep the
said lane passable, but this part of the testimony is denied by the state?s
witnesses. However, we repeat that a fair deduction, from all the evidence,
leads to the conclusion that under similar circumstances the state has
heretofore paid contractors for supplying the said road material or metal when
the state desired to keep the road open and stabilized for public travel and
traffic, and we feel that the contracting company had the right to rely on this
custom in supplying the necessary material to properly stabilize the traffic
lane. Its claim is in the amount of $860.50. In fact, the claimant, by its
witnesses, maintains that the work and expense entailed in gathering the
material necessary to keep the said lane open to traffic was many times the
amount that is here claimed. Under all the circumstances, we feel that in
justice to all parties an award should be made to the claimant and therefore,
find accordingly in the amount of eight hundred sixty dollars and fifty cents
($860.50).
hEPcPTS S?A?T
vOT.ET ,)F C?l A\iS
\V. VA
N ? c: n,ta..uid
SlS1Jh
KEELEY Coxsiu].?Ioc C0\IPANY, a corporation.
c::: .ati:,
V.
STATE ROAD COMMISSION. Respondent.
G? od Ja 15, 194:
Where the ttc road comn.lssin contracts for the making and building of a
public toad or hihwav and requires the work to be completed in a Certain number
of working dtvs. and the contractor is subsequently prevented from carr inz out
his part of the contract through no fault of his. but by reason of
the failure of the state road commission to consummate and complete contract with
a railroad company for the removal and relocation of the tracks of said
railroad company, and which tracks, as locat,?d, prevent the carrying out of
the said highway irnprovment and the contractor is thereby delayed for a long
period of the best working days, considering the season of the year in which
the said projec is being carried on, the contractor is entitled to be
reimbursed for any actual expenses and damages he has suffered by reason
of the said delay.
Appearances:
Messrs. Wyatt
and Randolph (Byron B. Randolph.,
Esq.) for the claimant;
Eston
B. Stephenson. Esq.. special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
The claimant company. on or about the latter part of February 1940. entered
into a contract with the state road commission for the improving and building
of a certain public road in Lewis counlv. West Virginia, extending from the
city of Weston to Deanville, and known a project No. F. A. 220?13
(1) .
The contract provided that the work should
he completed and the improvement finished within 175 working days, and involved
certain rights of way then hold and owned by the Bait irnore
W. VA.1 REPORTS
STATE COURT OF CLAIMS 169
and Ohio Railroad Company, and used by the said company for its road bed and
tracks in that particular locality. It was necessary in carrying out the work,
as contemplated by the contract, to have the said railroad company remove its
tracks to a new or adjacent location, which new rights of way for the railroad
company were to be obtained by the state road commission by purchase or
condemnation from the owner or owners thereof; and which said new rights of way
were necessarily to be obtained in ample time and thus not interfere with the
work of the road improvement. It was necessary to have the railroad company?s
tracks removed in order that the road improvement could be carried on as
contemplated by the contract with the claimant company. From the evidence it
appears that the contract between the railroad company and the state road
commission had been executed on or about December 1935, and that later, in
1939, condemnation proceedings were instituted to obtain title to the several
tracts involved. Within a few weeks after the contract for the road improvement
had been executed and bond given by the claimant company, as required, the
claimant proceeded with the work, rented space and ground for the storage of
its grading and paving equipment, and seemingly did all things necessary to
carry out its part of the contract. The work proceeded until about the 23rd day
of July 1940, when, by reason of the fact that there were some difficulties
between the said railroad company and the state road commission in obtaining
title to the tracts of land involved, it became necessary to stop and halt the
work until such time as the tracks of the railroad company could be moved to
their desired location. With the contract between the railroad company and the
state, the claimant, of course, had nothing to do, was not a party to the same,
and could not in any way be held accountable for the delay occasioned by the
failure to have the said contract executed and the tracks removed to the new
location. In consequence of this situation, the claimant was obliged to remain
idle on the work for a period of nearly a month, to be exact, from July 23 to
August 20, of the year 1940; naturally, a month of the best and most profitable
working days of the season. During this delay the claimant kept considerable of
170
BE1?OBTS STATE COURT OF CLAIMS LW.VA.
its (?(lliil)IlleIlt on the ground and local iou, and uiow is ask? JIli (hit iige o(?casiolwd by tlw delay during the lime it was tuniil)le to (10
iiiw Work and (0111(1 11(11 IemoV(? any of its ((jIlipIneli II.) aiiv oilier Work tic oh, since, as the testimony shos, there was a possibility that. diiil work would he re? Slillied vht?ii tIn? (?Out call iii (luI(?Stiou) between the state nuid the i?1ill?O(uj (?0ll1NlluV \V(S I x1?1?uited. Ii1(? e?ideuu(?(? shows that the (?huiuinilit Was
(?a cry iii?? oil auiot hu,?i? riiid project at and iuear (?l;ul?lss1)uui, 1tiVest Viruiiiuiu, iiud some
twenty?five tic lhiu?tv lilileS boom he \ork ((I project lmei?eiii concerned. and
that event umally
mill (If the cqlIipun(?nt was uuuov(?d from lime I (?WiS county project to the Clai?ksbiii?g mt?ojcct. (iaiiuuaiit ilsui iiiuiiitiiins that it is
(?lit it
led to (ial)iag(?5 liv I?(?asOll of
tin? fact that it was tunable to contract for aii? other job or project duu?ing time time of the de? lay, since, as luereium set 1(11th, work in iglit be
i?estinied at any iav, and, (?omusequlelut lv would prevent the (?laiuuiant fi?oiui carry? 1mg 0111 any otlieu? voilc 01 project. Till?
evidetice does not dis? ulos&? that the clailtualut
coIuuI)imluV lua(1 the opport tinily of obtain-? jug Otl)(?i?
vot?k of a siiiiilai? kind tui? cliau?acteu?, arni at best claim? lug (lalilages iii thus I?esi)ecl
?Otll(l be only prol)Ielmmaticul and sI)eculat ive aiu(h tiier(?foi?(? (?;ulmnot be consi(ieu?(?d by tus in deter? uuiiluiiug
11w uuuat icr (If aim award iiuudeu? time lads as 1)u?esented. tin? chiiuimiuumt (?ouni)auivS claiuuu, as fi1(?(i, 5 ill the auumOLuuiI of
$3360.50, ummude tip of :1
uuuiimui)eu? (If it(?ulms tul 11w u?eiital value of I he (?(lLuil)uii(?iu
I l0(?iit (?(1 at West oim and 1(1 Ic dti ring I lie said i)ei?iod of the delay iii ??slulut(loWl)? (if tile l11?OJe(t i?i?ouui 11w evidence it is itppal?(?lit
that 5010(? (If the e(tIipnieImt for which rental cluiurgt? is IulI(he could, at iiihi less expense than
the (?liarge, luav&? beeti l?(?iuiOV(?(l to liii? (?lau?kslmuii?g
l)l?0J(?c?t
,
and Ihat in fact sOlli(? (?qtlipnmelut W15 So uuuoved.
Short lv after time project in quest ion bad been lully coin? PI(?ttni, alit1 Wlill(?
timt? iiiit tei? (If (lalinug(?s cutiSe(l by delay was fresh iii tIn? umuiul(iS of all l)ai?ti(?S
colucerume(1, l1i(?
(?hiiiiiuiliit
coin? paiuy
I)i?CS(?ilte(l 1(1 tlit? l?0l(l (?OhuilliiSSiOit an itt?iuutzt?d bill or statenwuit in tin? auuiouuut 1f
$1810.50 as dauuiages
caused by the delay or S(lslX?tiSiOl) of I lu(? woi?k
and asking pay nient iii
the said juiuiotunt. The claiuuuauit coluul)aluV
00W iuuuintaiims thai. this state?
W. VA.] REPORTS STATE COURT OF CLAIMS 171
ment did not include the rental value
of the equipment used for paving purposes, and that, therefore, the increase,
as now claimed, should be allowed. However, the evidence shows (record pp.
52-53) that at the time the work was stopped and the ?shutdown? took place, the
excavating had not yet been completed, and was not fully completed until the
latter part of September of the same year, as shown (record pp. 53-54).
Assuming that it would have taken some days to complete the grading after the
day when the delay began, and taking into consideration the date when the
grading was actually completed, we must arrive at the conclusion that if the
work had not been interfered with or delayed, it would still have been the
latter part of August or the beginning of September before all grading had been
finished and completed, and the project made ready for paving. The delay,
therefore, so far as the paving equipment was concerned, did not interfere with
any of the claimant company?s other projects, since such equipment could not
have been used at Clarksburg, owing to the fact, as shown (record pp. 54-55)
that no paving was to be done on the Clarksburg project until the spring of the
following year, and the evidence further fails to show any other job or project
where such paving equipment could have been used; we feel, therefore, justified
in holding that, so far as the paving equipment on the Weston project was
concerned, no damages were sustained by the claimant, and no rental value
should be allowed therefor.
In consequence of these deductions, we hold that the statement or bill in the
amount of one thousand eight hundred ten dollars and fifty cents ($1810.50),
submitted by the claimant against the state shortly after the project in
question was fully completed, reflects the only damage to which the claimant
company is entitled, and we recommend an award accordingly to the Legislature.
172 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 73?Vernie E. Ashworth, awarded $50.00; Calvert Fire Insurance
Company, awarded $154.11.)
VERNIE E. ASWORTH, and CALVERT FIRE INSURANCE
COMPANY, a Corporation, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed June 15, 1942.
Where it appears from the evidence
that one using a state owned public bridge in a careful manner sustains
personal property loss by reason of the defective condition of the bridge, an
award will be made to such person and his assignee for compensation of such
loss.
Appearances:
Herman Bennett, Esq., for the claimants;
Eston B. Stephenson, Esq., special assistant to the Attorney
General, for the state.
WALTER M. ELSWICK, Judge.
From the evidence in this case it appears that on August 20, 1941, an
automobile owned by claimant Vernie E. Ashworth was being driven by his son
Vernie E. Ashworth, Jr., on a state road leading out of the village of Kayford
in Kanawha county, West Virginia. While the car was being driven about ten
miles per hour across a bridge, a board from the runway flooring of the bridge
flew up and hit the left wheel of the automobile causing the driver to lose
control of the steering wheel. The automobile turned over and rolled into the
creek below and sustained damages necessitating repairs to the same. It was
taken to Prichard Motor Company and the costs of making necessary repairs on
the automobile amounted to the sum of $204.11. The owner of the automobile
carried collision insurance with Calvert Fire Insurance Company, a corporation,
with a fifty dollar deductible clause policy. The insurance company
W. VA.] REPORTS STATE COURT OF CLAIMS 173
paid the claim subject to said deductible clause policy and has filed claim
for $154.11, and the owner of the automobile has filed claim for the fifty
dollar loss sustained for which he has not received compensation. From
investigations made by the state road commission, the attorney general admits
that the bridge in question was under the supervision of the state road
commission and that the actual damages to the automobile was the sum of
$204.11. The state road commission also made investigation as to the merits of
the claims and found that the collision was caused by the defective condition
of the bridge.
From the evidenced adduced we are of the opinion that the state road commission
should be held liable in damages for the collision occasioned by the defective
condition of the bridge, and therefore recommend awards based upon the evidence
as follows: To Vernie E. Ashworth the sum of fifty dollars ($50.00); to Calvert
Fire Insurance Company, a corporation, the sum of one hundred fifty-four
dollars and eleven cents ($154.11), and orders on each claim were entered
accordingly.
(No. 79?Claimant awarded $1500.00.)
BROOKIE CANTERBURY, Admx. of the personal estate of
BERT CANTERBURY, deceased, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled June 15, 1942.
The state road commission will be held
liable in damages for the negligent and wrongful acts of its agents and
employees toward a w. i?. A. employe while doing special services on a state project
which services are distinguished from the services of other w. p A. employees,
where it appears from the evidence that the W. P. A. employee was receiving
special orders from state road foremen and bosses and was no longer under the
supervision of his w. i?. A. foremen while engaged in such work with state road
employees.
174 REPORTS STATE
COURT OF CLAIMS [W. VA.
Appearances:
W. H. D. Preece. Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General,
for the state.
WALTER M. ELSWICK, Judge.
On the morning of September 10, 1940, near the hour of seven, Bert Canterbury
was picked up by a state road truck driver in front of Canterbury?s home at the
mouth of Goodman Branch, three miles below the City of Williamson, in Mingo
county, West Virginia. The cab of the state road truck was occupied by the
driver, Clyde Hardin, and Ralph Allen, both employees of the state road
commission of West Virginia. They were on their way to work on a state road
project on Trace creek in said county.
At that time there was also a w. P. A. project in operation about one to three miles below the
state road project on said creek. Bert Canterbury for some time prior thereto,
and on said 10th day of September, 1940, was a w. p? A. employee
and had orders from both the w. p A. foreman and the state road foreman on said projects to
work at the state road project as driller under the supervision of Ralph Allen
one of the occupants of the state road truck in which he, Canterbury, was being
driven.
After the said state road truck had traveled eight or nine miles toward their
place of work and came to a sharp down grade curve, upon approaching Naugatuck
bridge the driver lost control of the truck, where it skidded against the
bridge abutments, turned over, and fell about thirty-eight feet into Pigeon
creek. Bert Canterbury was riding in the back end or body of the truck, and the
truck with its contents of cement, oil drums and cans fell upon him, killing
him instantly.
From the evidence it appears that on the morning in question it was raining and
the road over which the truck was being driven was wet and slippery. It also
appears that the driver of the truck was at the time of the collision and for
some time
W. VA.] REPORTS STATE COURT OF CLAIMS 175
prior thereto driving the truck at a reckless rate of speed, although he knew the condition of
the road and that ?the worst curve that there was on that
stretch of road? was at the point
where the collision occurred (record p.
123). Ralph Allen, the occupant of the cab of the truck, testified
that he had protested and requested the driver not to drive so fast, down the
road about a mile before coming
to the bridge where the collision occurred;
that he had then remonstrated
the driver that the road was slippery
and dangerous; that the driver replied
that there was no danger, and that the
road was all right (Record p. 89) - Other
witnesses who were along the highway where the truck had passed testified that in their opinion
the truck was being driven,
when passing them, from 50 to 55 miles per hour. (Record pp. 14 and 28). One witness who viewed the
collision, was attracted by the noise from
the truck, and speed it was making,
immediately prior to the collision. He had
had experience as a driver of
automobiles and taxis and estimated the speed of the truck when coming around the curve down the hill toward the bridge to have been from 50 to 55 miles per hour.
(Record p. 54).
It appears further from the evidence that the
decedent, Canterbury, was not placed in a position to view the road or to make protest against
the reckless manner of driving the truck although it is doubtful, if such protest had been made, whether the
driver would have heeded, when it appears
that he bad disregarded
protests made by Allen, a short time before the time of the
collision, who was in the cab and who could view the road
in the direction of travel. From the evidence it appears that the
truck was making a loud noise, and
that there were bars around the
back window of the cab of the truck.
It also appears from the
evidence that the decedent, Bert Canterbury,
was engaged in special work for the state road commission which distinguished his work from
that of other employees of the w. i. A. project. The
w. i?.
A. crew was digging ditches,
and the state road crew was ?taking a
cliff off.? (Recordp. 97). Canterbury was working
with the state
road crew, drilling rock, running the
air hammer or drill (record pp. 82,
176 REPORTS STATE
COURT OF CLAIMS [W. VA.
97). His immediate superior was Ralph Allen, who occupied the extra seat in the
cab of the truck at the time Canterbury entered the truck, and when the same
skidded and fell from the bridge. The state undertook to prove that state road
commission officials had a standing enforced rule or regulation prohibiting
truck drivers from carrying persons other than employees of the commission,
unless it was equipment that it carried insurance on, such as passenger cars
and pickups. The truck in question was a ton-and-a-half truck with dump body.
The same truck had been used by the same truck driver to carry Canterbury home
from the same project a number of times, even on the evening before he was
killed. There was no evidence indicating that the truck driver had been warned
against the use of the truck for the purpose, and he testffied that he had not
received any specific instructions not to permit the decedent to ride in the
back end of the truck. (Record p. 120). Furthermore, the truck drivers had
received instructions a number of times to go and get Canterbury at the w. P. A. project
and transport him in the same type of truck to the state project where Ralph
Allen worked. On the return trips home if another person was in the cab of the
truck with the driver, Canterbury would ride in the back end of the truck
(record p. 119). It doesn?t appear from the evidence in the case that
Canterbury had been instructed not to ride the truck in either its cab or bed.
The commission had a rule that only one person could occupy the cab with the
driver which seems to explain why Canterbury was riding in the back end of the
truck at the time he was killed.
It also appears from the evidence that the W. P. A. officials had
regulations which prohibited its employees from being transported in vehicles
which were not equipped with seats and covers. To come within their regulations
dump truck beds had to be securely chained to the chassis. It appears from the
evidence that neither the state nor w. P.
A. regulations were enforced as to the
decedent. Considering the special type of work which the decedent was doing and
the instructions given him, as well as the manner in which he had been
previously transported to and from the project we are of the opinion that the
W.VA.] REPORTS
STATE COURT OF CLAIMS 177
decedent was not chargeable with contributory negligence with reference to
violation of any such rules or regulations issued by either the state
department or the w. .
A. Under the circumstances he no doubt believed that he was expediting his
duties as an employee by reporting to work with his boss and returning to his
work with the same driver who had transported him home on the evening before.
And he was riding in the truck wth the person to whom his W. P. A. foreman
had intrusted his care while away from the w. P. A. project. He was no longer
to be classified with the other W. P.
A. employees in regard to the state
road commission?s duty toward him. Furthermore, it was not the nature of the
truck, but the careless manner by which it was being driven that caused
decedent?s death.
Brookie Canterbury, as administratrix of the estate of Bert Canterbury,
deceased, ified claim for the wrongful death of decedent for the sum of
$10,000.00. At the close of the hearing of evidence in the case, the state of
West Virginia, by its attorney general, moved that the petition be dismissed
for the following grounds:
First, that the principal, state road commission, is not liable to third
persons for negligence, if any, of agents who act outside the scope of their
employment.
Second, even if negligence does exist, which the state road commission denies,
still the evidence is uncontradicted, and corroborated in this case that the
claimant was negligent in not bringing home to the truck driver a notice of the
reckless way in which the truck driver operated the truck.
A third ground, namely, that the w. P.
A. employee in question cannot recover
in this case, as his injury was the direct result of his own disobedience of
orders and regulations given to him by the w. P. A. and state road commission
foremen in charge of this particular project.
As to the first ground so assigned, we are of the opinion from the evidence for
the reasons hereinbefore set forth that the
178 REPORTS STATE COURT OF CLAIMS 1W. VA.
truck driver was at the time of the collision acting within the course of his
employment.
As to the second ground assigned we are of the opinion from the evidence that
the truck driver was negligent and that his acts were the direct and proximate
cause of the collision; the truck driver had been requested to slow down within
a mile of the scene of the collision by Ralph Allen who occupied the cab with
the driver and who could view the road ahead; the decedent was not placed in a
position to view the road or to remonstrate with the driver.
As to the third ground assigned we do not find from the evidence that the
decedent had received orders or regulations not to ride on the truck while
working on the state project, but it appears from the evidence that he at times
had received orders to ride on the truck in question by the foreman of the
particular state project; that while working on the state project he was doing
special work which distinguished his services from that of other w. P. A. employees
who worked on the w. i. A. project.
Having found that Bert Canterbury met his death by reason of the negligence of
the truck driver, in assessing the damages, we have considered evidence in the
record that the Federal Government through its compensation department has been
paying to Brookie Canterbury, since decedent?s death, the sum of $22.50 per
month; that out of said sum $4.00 is payable to their son Evert Canterbury
until he arrives at the age of 18 years; that Brookie Canterbury will continue
to receive the sum of $18.50 compensation so long as she remains the widow of
Bert Canterbury, deceased.
It further appears from the evidence that Bert Canterbury was 52 years of age
at the time of his death; that he left surviving him his widow, Brookie
Canterbury, and three children, namely: Octavia Canterbury, a daughter, 23
years of age, Sadie Canterbury, a daughter, 20 years of age, and Evert
Canterbury, 17 years of age, who were all of his heirs and distributees. At the
time of his death he was earning wages of $42.00
W. VA.] REPORTS
STATE COURT OF CLAIMS 179
per month, and his family did not have any other income or means of support
during his lifetime.
From all the evidence in the case we are of the opinion that the sum of fifteen
hundred dollars ($1500.00) would be a fair and just award and recommend that
said sum should be paid to his administratrix upon the execution of a proper
bond by her to be approved by the clerk of the county court of Mingo county,
West Virginia, and an order was entered accordingly.
(No. 7&?Claimant awarded $7,760.09.)
COUNTY COURT OF BROOKE COUNTY, Claimant,
V.
STATE AUDITOR, Respondent.
Opinion filed June 15, 1942.
Where the evidence establishes that a
former commissioner of school lands obtained funds from the sale of property
sold for delinquent taxes, and after deducting the costs of the sale, remitted
the balance of the funds to the state auditor, and no disbursement or
distribution was ever made of the said fund, as required by law, then an order
will be entered by this court, making an award and ordering distribution
accordingly.
Appearances:
Walter E. Mahan, prosecuting attorney of Brooke county, and Abraham Pinsky, assistant prosecuting attorney of Brooke county, appearing for the
claimant;
Eston B. Stephenson, special assistant to the Attorney General, for the
state.
CHARLES J. SCHUCK, Judge.
180 REPORTS STATE
COURT OF CLAIMS [W. VA.
On the 24th day of June 1931, in a suit styled the State of West Virginia v. Sara B.
Ennis, et al, the commissioner of
school lands reported to the circuit court of Brooke county that he had sold at
public auction a tract of land belonging to the Aetna Development Company, the
larger portion of which was located in Brooke county, and a contiguous part in
Hancock county, for a sum of $8,970.60; the said tract having been delinquent
for taxes for the years 1926-1928-1929; that after deducting the expenses of
sale there was a net balance of $8,292.42, which amount was subsequently
remitted to the then state auditor by the check of the said commissioner of
school lands, dated July 21, 1931. The sale of the said lands was confirmed by
an order subsequently entered by the circuit court of Brooke county, West
Virginia, and a later and diligent search of all the records, both in the state
auditor?s office, as well as the records of the office of the sheriff of Brooke
county, covering the years that were involved, and up to the present time,
failed to reveal any distribution of the fund in question to the various public
bodies entitled thereto. The fact being that so far as the evidence reveals,
the amount in question is still reposing in the office of the state auditor, no
distribution of any kind ever having been made. The matter of the failure of
distribution was discovered by the present assistant state auditor, and after
communicating with the proper authorities in Brooke county, namely, the
prosecuting attorney and sheriff thereof, and finding no distribution had been
made, so far as any exaniination of the books of the offices in Brooke county
reveal, this claim is presented accordingly on the part of Brooke county,
asking that the refund be made to it from the funds now claimed to be still in
the hands of the state auditor. A photo- static copy of the check from Robert
L. Ramsey, the then commissioner of school lands, and payable to Edgar C.
Lawson, the then state auditor, in the amount of the claim, is in evidence
together with a photostatic copy of the endorsement on that check showing
payment to the auditor through the then treasurer of the state of West
Virginia. The testimony of both the assistant state auditor, Hugh N. Mills, and
the testimony of Abraham Pinsky, assistant prosecuting attorney of Brooke
county, shows, after a diligent search of all the records avail-
W. VA.]
REPORTh STATE COURT OF CLAIMS 181
able in the offices of the various
officials concerned, that no distribution of the fund was ever made and no
return or refund thereof made to Brooke county, as intended under the laws of
the state. No order showing disbursement had ever been entered by the circuit
court of Brooke county in the matter, and in order to fully protect the present
state auditor, this court insisted on testimony that would show how and to whom
the amount in question should be disbursed and distributed. Considering all the
evidence we are of the opinion that Brooke county is entitled to the refund in
question, and an award is made accordingly, by virtue of which distribution is
to be made as follows, to-wit:
To the state auditor for the benefit of school
fund representing publication fees $ 4.00
To the state of West Virginia, on the basis of
the 1926-28-29 levies 528.33
On the basis of the 1926-28-29 levies, to the
county of Brooke 2,840.18
For the support of Brooke county schools 4,235.66
For retirement and interest on school bonds
for Brooke county 684.25
$8,292.42
It is further recommended that the next legislature take appropriate and proper
action to carry into effect the award hereby made.
182 REPORTS STATS COURT OF CLAIMS LW. VA.
(No. 53?Claim dismissed.)
KIDD LUMBER COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Op?nion IlIed July 22,
1942.
Messrs. Sayre & Bowers,
for the Claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General,
for the state.
CHARLES J. SCHUCK, Judge.
This claim was first filed December 15, 1941, and
at the following January term
(1942) was formally placed on the docket and a day set for
trial, the claimant having been duly and properly served with
notice. On the day
fixed for hearing the claim, claimant failed
to appear notwithstanding the
fact that the state road commission, the department involved, was ready to
proceed, and the hearing or trial was
by the cburt continued to the April 1942
term.
In March 1942 the claim was again set
for hearing, the trial day fixed, being Thursday, April 30, 1942, and the claimant through
its attorney duly notified. Acknowledgment of
the notice was later received
by the clerk of the court and duly filed
On the day set for the trial
neither claimant nor any person or attorney acting for it appeared, and thereupon the state road commiqsion moved to dismiss the claim from further consideration
by the court, and after due deliberation
and consulering all the circumstances,
we sustain the motion, modifylig
it, however, to the extent that the
dismissal of the claim shall be without
prejudice and with the right to have
the claim reinstated if good cause
is shown. An order will be entered
accordingly.
W. VA.]
REPORTS STATE COURT OF CLAIMS 183
(No. 104?Claim dismissed.)
ROBERT D. CHAPMAN, Claimant,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion filed July 22, 1942.
Where it appears from the notice or
petition of claimant filed that from the facts stated no liability exists on
the part of the state, the court of claims does not have prime fecie
jurisdiction and will refuse to docket the claim for hearing upon such notice
or petition.
WALTER M. ELSWICK, Judge.
Notice of this claim was filed with the court of claims on March 27, 1942. The
notice states that on and before November 5, 1933, claimant was the
superintendent of the colored boys? industrial school at Lakin, West Virginia,
a state institution governed, by statute, by the state board of controL The
notice also states that claimant, as such superintendent, was required to live
on the premises of said industrial school in quarters owned and maintained by
the state. Because of this situation, he alleges, claimant stored his furniture
in a building owned by the state of West Virginia and located on said
industrial school premises. Claimant also stored in said building clothing and
personal effects belonging to himself and his family.
While said furniture, clothing and personal effects were so stored in said
building owned by the state, the notice states that said storage building was
destroyed by fire on November 5, 1933, and that all of said furniture, clothing
and personal effects were destroyed and lost by claimant. He files an itemized
list of the furniture, clothing and personal effects stored in said building
which were so destroyed by the fire. The amount of the loss alleged to have
been sustained by the claimant was the sum of $1,608.90.
184 REPORTS
STATE COURT OF CLAIMS 1W. VA.
There is not any allegation of
negligence on the part of any state agency asserted. Nor is there any
allegation of facts such as to show the existence of any relationship between
the claimant and the state or any of its agencies such as would create a
liability for the loss sustained by claimant. At most, from the facts stated in
the notice it might be implied that the board of control was a gratuitous
bailee of the property. However, there is not any allegation that any
representative of the board of control, except the claimant, had possession,
custody or control of the building or the contents therein destroyed. Even in
the case of a gratuitous bailment for the sole benefit of the bailor slight
care only is required of the bailee, and such bailee is not liable unless
guilty of fraud or gross negligence. HecLtherington
v. Richter, 8 S. E. 609, 31 W.
Va.
858.
Under the facts stated, there appears to have been nothing done on the part of
the state agency to have prevented the claimant from carrying insurance on the
property destroyed by fire, as he would have been required to have done for his
own protection if the property had not been moved on to the state?s premises.
The state agency would not have been required to carry insurance on the
property and was not an insurer. From the facts stated in the notice of the
claim filed, it appears that no liability would rest upon the state to pay the
claim asserted and that the court of claims would not have prima facia jurisdiction.
For that reason we refuse to docket the claim for hearing, and an order is
entered accordingly.
W. VA.] REPORTS
STATE COURT OF CLAIMS 185
(No. 116 Claim dismissed.)
UNIVERSITY OF OMAHA, Claimant,
V.
MARSHALL COLLEGE, and STATE BOARD OF
CONTROL,
Respondents.
Opinion filed July 22, 1942.
An athletic board or department of a
state controlled college is not
a state agency as contemplated by the act creating the court of claims and
a contract entered into with such board or department is not enforceable
in said court, the court being without jurisdiction to hear and determine
a claim based on the provisions or conditions of the contract in question.
W. R. King, Esq., (Omaha, Nebraska) for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
This is a claim for damages arising under a contract entered into between the
University of Omaha of Nebraska and the athletic board or authorities of
Marshall College and occasioned by the failure of the said Marshall College
athletic authorities to play a certain basketball game, thereby failing to
carry out the provisions of the contract in question and as alleged causing
damages to the University of Omaha in the sum of three hundred dollars.
Without considering the merits of the claim, we are of the opinion that the
athletic board of Marshall College is not a state agency under the act creating
this court; not being an administrative agency of the state government and not
having the power to bind the state as such, by any agreement or contract which
in equity and good conscience would be enforceable against the state. The
functions of the said athletic board are not controlled by the state, nor are
its contracts subject to the approval of or supervision by a state agency.
Under these circumstances we dismiss the claim as being without our
jurisdiction.
186 REPORTS STATE
COURT OF CLAIMS EW. VA.
(No. 13?Claim denied.)
RACHEL C. LAMBERT, Admx. of the personal estate of
HOMER M. LAMBERT, deceased,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 22, 1942.
Where the evidence in the case shows
the highway on which the accident happened was improved and eighteen feet wide,
with no obstruction and no defect in the highway, and the claimant?s decedent
was killed by reason of the car in which he was riding leaving the said highway
and striking a depression or hole in the berm, then there is no cause of action
against the state road commission and the claim will be denied and dismissed.
Messrs. Showalter & Bog gess, for the claimant;
Estan B. Stephenson, Esq., special assistant to the Attorney General, for
respondent.
ROBERT L. BLAND, Judge.
It appears from the record of this case that on October 14, 1940, Homer M.
Lambert was instantly killed in an automobile accident in Monongalia county,
West Virginia, on route No. 73, at the foot of the hill south of Pisgah Church.
This is a claim ified by Rachel C. Lambert, administratrix of the personal
estate of the said Homer M. Lambert, deceased, for an award in damages for the
death of her said decedent. The claim is prosecuted upon the theory that the
failure of the state road commission to keep and maintain said road in good
condition for public travel was responsible for the accident and death.
Claimant and respondent have submitted the case upon a duly signed stipulation
of facts. We are met at the threshold of our examination of these facts by the
question whether they show a cause of action against the state. A cause of
action must exist before liability arises. Yeager v. Blue field, 40
W. Va. 484; Williams v. Main Island
Creek Coal Company, 83 W. Va. 464.
W. VA.1 1EPORTS STATE COURT OF CLAIMS 187
In re claim No. 49, Sandi 1. Moore v.
Stoic Road Commission, we held:
??The mefl? fact of i tij ii rv received on a stale highway raises ho presumption
oil hiegIig(?Iiee (iii ilk?
})flrt of lift?
site 1o)a(I O?OlliflhiSSh()ll lJfl(l(?1 tli(? act cr&?(nig tI1(?
(?0)1111
of (?liifli?- li(?(li(?llC(? On 11)0? 1)aIl Of lli&? state ageliev iiivoilv&?ol iiiiist ho? fully shown l)(?fOI?e all ihWar(I vil1
be made.?
lli&?
oiii l?s? O(?(?Li
flilli
is oil li(?
ii II 01110)1)1 l(? ii tILL? I iiiit? of I li(? ao?? Ci0l(?Iit ?Veh?(? l?i/liss liiitIi (uiiiIl lIi(l tIll? siil lloiii&?i? P0/i. I,ul1i? 11(11. ?I?ll(? f)0?t I 0)11 a Io??s lout ?I ho? ear iii ?IuicIi I hey V(?r(? ridiI1L vius l?iuit drio?mu
tw?eiitv?fivo? liiiles per lionir 5ind Oil Ilu? (?XI I(?hlft? iii Ii I 1)1 Ii(? ;id ii Il0j(] uuilio? ooiiiiii iii (lit? 01)1)05110? OIilS?(?t ((Ii, \vI1(?11 i lopl)ed oIl I lie hard stu riace al)rthpl ly into
a (I it (?II or low iiaos? OIL lie ho?iiii of
li(? i0;l(l aIl(l
I hIrIl(?(l over I
??s?It?(? (I()?ii 1110? &?iiul )iiiIclli(?Ihi It IS (?liaii(?(l bit ?I
lie loW
(iii
(ho?
l)eriii iIhiliie(Ii;it(?Iy next toi the (?OIi(?I(?t(? suii?fict?
o?xislt?d for 11 (1151111c(? Of I Wo) hiiIll(lr(?(1 f??i
01? iilOI(? ILIOIiL (he l)(?li(1 u)i? curve iii lie uoiu(] 111111 v;iIie(l iii (1(1)111 fioiu six to ieii iiit?hics The
state 0(11(1 coillIlilissioli 1111(1 neglig(?I1tlV
suIllere(1 lliis
defect to exist for several weeks, but repaired it imine? (hale! ii her thio
a(?ci(leil I
1\/liss (iirolI is slio\vll to)
he
a (liver of some live years (?xlll?II( ui((? 1111(1 a(5?0)r(liuiL Ii) lio?i t?tjiii;ito?
ho? luiItohilOI)il(?
was l)eiiiL riven at I lie ii liii? of I lie ioo?itieii I
a( ;uhoii I I went v?five uiii leS (((?I? loin?, it iS OlIScloSe(l l)V
Ilii? Stipulation of lads 111111 iii (?I1(lel(VI
(ri Ii1 ILL LO?t I lie VCliIdle iii
oler t?oiut roil a ft eu? gel t ihie, hack ((II tie luuio I sii i.iao?o? it again left I lie rOiliOl ;nid Iii i?iie(I OVeI? (lOVi1 au (?101 iiiknieii I.
.Jaines ?hiiouii;is,
?hio was follow ilug 111)0111 (lii i?Iy feel l)eli 111(1 tIll? I :il1iI)eIt (?iii,
StIlt (?5 11111 it WILS I ruvehiuig hel
weeli I
hilt y?live 1(11(1 foit? liii lo?s ?r luoum i, aii(l I fiat when its iiglit lear WIh(?(?i
(lroppe(l odi the edg(? of (ho? rola(l it svayed ((I tli(? oiUiei side (if I li<? road amid (?Iihil(? Iuch?(iss hit? road aiii OV(?h?
I lie hill. Miss Carroll, (lie (hi?iV(?I, rehiieflhl)ers (bOlt she got (lie
ear
l)aek on the highway after dropiihug oil? I lie l)(?hy11 1)111 has 110 recollect iou (ii what bial)po?uied
after that. When aid I?eadhie(l
hoer Sli(?
was 1(1(11(1 lo
liavo? si IsIIiilh(?(l
a blow and bruise oil (lie
188
REPORTE STATE COURT OF CLAIMS [W. VA.
head in addition to a broken back. The
Lambert car was not being approached by another vehicle or pedestrian traveling
the highway at the time and place of the accident from the opposite direction.
Trooper W. D. Sergeant of the West Vriginia department of public safety made an
official investigation of the accident on the date of its occurrence. He found
that the tire marks of the automobile on the highway began sixty-one feet south
of the north end of the white line on the road and ran south along the west
edge of the hard-surface for a distance of forty-nine feet. This tire mark came
back on the highway and ran toward the east side of the highway in a curve line
and thence back across the road to the west side. The length of this tire print
was one hundred and fifty feet to the west edge of the hard- surface and
extended on west for a distance of twenty feet to the edge of the berm. Number
two tire mark began where a number one tire mark came back on the highway and
ran parellel with number one tire mark to the west edge of the berm. The car
was sitting upright, headed north, seventy- nine feet from the west edge of the
hard-surface to the right rear wheel of the vehicle. The decedent was lying on
his back forty-two feet west from the left rear wheel of the automobile, with
his head south.
The automobile was a 1934 Ford Tudor vehicle, bearing West Virginia license No.
142-886, and was the property of the decedent and subject to his direction and
control. It does not appear from the record why it was being driven by Miss
Carroll.
Can it be said that the highway was ?unsafe for reasonable use in the ordinary
methods of travel? on the day of the accident?
The state is not an insurer against accidents upon its public highways. Claims
against the state for injuries or death upon its public roads should be based
upon legal or equitable right. For such claims only may awards properly be
made. It appears
W. VA. I
ItEPOIl?i?S STATE COUiT (.F? CLAIMS 18
that West Virginia onto No. 73 is an mprovod, liardurfacroad, with concrete
an(l cement top eighteen feel in v idth.
The road Commission is not required to mako the ii avel d part of the highway
the whole width of tho road as laid OUt. It
has the power to determine how with
the road shall be extended and used for public travel. By placing the concrete
on this road of the width of eighteen feet it fixed the limits of the road. It
determined that part of the road appropriated to the use of automobiles,
vehicles and public travel generally. The width of eighteen feet of
hard-surface road would seemingly he sufficient to accommodate public travel
with convenience and safety. It is not
expected that travel will occupy all parts of a road. The width of
eighteen feet is sufficient to allow for passage of vehicles.
The defect, if it may be called a defect, was not on the traveled part of
the road or that part of the road appropriated to public use. The complaint is
directed against the berm of the road. It is charged that there was a
depression or low place in this berm, but it is not shown that such
depression or low place constituted an impediment to safe travel on the road.
There was no obstruction of the road. The berm of the road is not used for travel. It is for the support and
protection of the stone base and hard-surface.
Can it be said that the depression in the berm of the
road was the direct or proximate cause of the accident? The occupants of the
car were not forced onto or 0ff the berm of the road for the purpose
of avoiding a collision. There was, as above
stated, no traffic coming from the opposite direction. It was not
neessary to travel on the ext rcme
right of the road. The improved portion of I he road was stil 11(1 ent to
accommodate the reasonable and necessary requirements of the Lamabert car. The duty to keep he highway in condition reasonably safe for travel
thereon oxteiils only I o the I raveled I)ortion of such highway. Although the
petition charges that the reason for traveling on the xt come edc of the
road was to avoid traflic. the fact show no reason for doin so. since there was
190
REPOR STATE COURT OF CLAIMS EW.
VA.
no approaching traffic. Can it be said that the decedent was in the
exercise of reasonable care at the time of the accident? The depression or low
place in the berm did not constitute a defect in the road used for travel.
Under the facts disclosed by the record the accident would have occurred if the
road had been twice its width of eighteen feet. We are of opinion that the loss
of control of the car by its driver was the immediate cause of the accident.
The claim has been carefully and ably presented by counsel, but upon the agreed
statement of facts we are unable to see that claimant has a cause of action
against the state. Where the record of a claim fails to show cause of action
against the state for damages for the death of a person killed in an automobile
accident on a public highway of the state such claim will be denied and
dismissed.
The claim is accordingly denied and dismissed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 191
(No. 122-S?Claimant awarded $14.28.)
JOE GENTRY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied July 28, 1942.
ROBERT L. BLAND, Judge.
Claiming that the operator of a state road commission truck was at fault and
responsible for an accident which occurred to his 1941 model Pontiac Coach on
February 27, 1942, one- half mile west of Logan county line on U. S. route 52,
in Mingo county, West Virginia, claimant made claim against the state road
commission for $14.28, which amount he was obliged to incur in repairing and
painting the left front fender and left rear fender of his said automobile.
Respondent prepared a record of the claim and filed it with the clerk of this
court on May 26, 1942. After the road commission had made a satisfactory
investigation of the circumstances out of which the claim arose it concurred in
its payment. The attorney general, upon an examination of this record, approved
the claim as one that should be paid. It is shown that on the above mentioned
date state road commission truck No. 230-27 collided with claimant?s car and
was at fault in the premises. The state truck, while being driven around an
elevated curve in the road, skidded into claimant?s car and caused the damages
in question. Our examination of the record shows the claim to be a proper one
for an award.
We, therefore, award Joe Gentry the sum of fourteen dollars and twenty-eight
cents ($14.28) in full settlement of the damages sustained by him to his said
car by reason of said accident.
192 REPORTS STATE
COURT OF CLAIMS
[W. VA.
(No. 123-S?Claimant awarded $58.03.)
JAMES P. GRIFFITH, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied July 28, 1942.
ROBERT L. BLAND, Judge.
The record of this claim was prepared by respondent and filed with the clerk of
the court of claims on March 26, 1942.
On March 7, 1942, at approximately 8:00 o?clock A. M., Earl
Conaway, a foreman for the state road commission, was driving state road
commission pickup truck No. 638-11 west on U. S. route 250, between Littleton
and Cameron, in Marshall county, West Virginia. There was snow and ice on the
highway which was being removed by the road commission truck. Approximately two
miles east of Cameron the driver of respondent?s vehicle ran into a snowbank,
and the rear end of the pickup truck skidded on the ice into claimant?s
.Chevrolet two-door automobile, bearing West Virginia license No. 141-969,
driven by Vincent Griffith. The left side of claimant?s car was damaged in
consequence of this collision. To repair this damage claimant paid the sum of
$58.03 as shown by itemized invoice accompanying the record of the claim. The
investigation made of the accident by the road commission discloses its
responsibility for the occurrence. Upon such investigation, and being satisfied
with the correctness of the claim as filed, the road commission concurs in its
payment. The attorney general has approved the claim as one that should be
paid. Upon our examination of the record we are of opinion that said claim
should be entered as an approved claim and an award made therefor.
An award is, therfore, accordingly made in favor of the claimant, James P.
Griffith, for said sum of fifty-eight dollars and three cents ($58.03) in full
satisfaction of all damages sustained by him as a result of said collision.
?W.
VA i IIEPOR?L TF? CIJ F )1 CLL
P\1
(N i2?S
C1irnjL{ t(2.)
SHINGLER MEAT COMPANY. Claimant,
?7
STATE ROAD C?)MMISSF N. l ondenl
O4nion (ilcd Jal 28. i12.
ROBERT L BLAND, Judge.
On March 5, 1942. slate roar commission truck 130-128, operated by Tom Strader,
Cnhli(1(c1 v,ith claimant s Chevrolet truci bearing iicen-e Ne. 13122.?T. iwo
miles v:est of Ivydale in Clay county, Vest Virginia, on route 19. As a result
of this co11iien the bod? of cl:imant?s said truck was badly damaged and its
left rear fender severed. To repair this damage claimant incurred costs
amounting to $69.37, made up of the following items: Replacing left rear
fender, $12.00; replacing left rear hub cap, $1.00; repairs to radiator, $4.00:
repairing left front fender, $2.00; repainting body, $32.00; repairing inside
panel, $4.00; repairing hood, $1.00; paint for new and repaired parts, $12.00;
tax $1.37. Claim for this amount was presented to the state road commission.
Upon investigation of the circumstances attending the accident the road
commission concurred in the claim and filed a record thereof with the clerk of
this court on May 26, 1942, as authorized by section 17 of the court act. Said
claim has been approved by the attorney general as one that should be paid. On
the day of the accident only one- half of the road was open for
traffic on account of the heavy snow that prevailed, The road was covered with
snow and ice and the driver of the road omnussion truck admits responsibility
for the collision. Under all of the circumstances disclosed by this record, the
concurrence in the claim by the state agency involved and the approval of the
payment of the claim by the attorney general, we are of opinion that it is a
proper claim to be entered as an approved claim and an award made therefor.
194 REPORTS STATE
COURT OF CLAJMS 1W. VA.
We, therefore, award to the claimant, Shingler Meat Company, the said sum of sixty-nine dollars and thirty-seven cents ($69.37) in full settlement of all damages sustained by said
claimant on account of said collision.
(No. 125-S?Claimant awarded $49.22.)
MINTON CHEVROLET, INc., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied July 28, 1942.
WALTER M. ELSWICK, Judge.
The Minton Chevrolet, Inc., filed claim against the state road commission for
the sum of $49.22. From the facts stated it appears that on March 16, 1942, a
state road truck drove to right side of road near George Creek Coal Company
store in the village of Hetzel, Logan county, West Virginia. The truck pulled
in and stopped behind a parked vehicle to allow approaching traffic to pass. A
Pontias car owned by claimant, Minton Chevrolet, Inc., and driven by Willard
Mayborne pulled up behind the state road truck and stopped. While the Pontiac
car remained parked, the state road truck, driven by Otis Kinser, a state road
employee on duty, was backed into the Pontiac car causing damages aggregating
$49.22 as shown by an itemized invoice filed with the claim.
It appears from the record submitted that the state road truck driver was at
fault. The state road commission concurs in the claim, which has the approval
of the attorney general.
An order will, therefore, be entered awarding to claimant, Minton Chevrolet,
Inc., the sum of forty-nine dollars and twenty-two cents ($49.22).
W. VA] REPORTS STATE COURT OF CLAIMS 1$
(No. 126-S-?Claimant award.d
$5.00.)
HUGH E. KELSO, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fried July 28, 1942.
WALTER M. ELSWICK, Judge.
On September 2, 1941, a state road truck driven by a state road employee on
duty from the direction of Bethel Church to Gardner Quarry in Mercer county,
West Virginia, collided with claimant?s car. Claiamnt?s car had just approached
a sharp curve and had little opportunity to avoid the collision. From the
records submitted it appears that the state road truck was close on inside of curve which was the proximate cause
of the collision.
It appears that claimant expended the aum of $5.00 for repairing the left front
fender to his car by reason of the collision. The payment of the costs of
repairs I: recommended by the state road commission, which recommendation is
approved by the attorney general.
We are of the opinion that an award should be made and an order will be entered
recommending an award of five dollars
($5.00).
196 REPORTS STATE
COURT OF CLAIMS [W.VA.
(No. 128?S?Claimant awarded $7.95.)
MATHEW HEIMAN, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
OAnkmn filed July 28, 1942.
WALTER M. ELSWICK, Judge.
On February 28, 1942, a state road truck driven by a state road
commission employee skidded and
collided with claimant?s car near the
Junior Pocahontas Coal Corporation property in McDowell county,
West Virginia. The glass was broken in the left door of claimant?s ear. Claimant?s
car was a 1939 Chevrolet sedan owned and driven by
claimant. It appears from the record that the driver of the state road truck was at fault and that the costs of replacing the
glass amounted to the sum of
$7.95.
The claim was referred to the court by the state road commission, with
recommendation for the payment of seven dollars and ninety-five cents
($7.95) to claimant, which recommendation Is supported by the approval of the attorney
general.
We are of the opinion from the statements submitted that the claim is
one that should be paid in the amount
submitted and an order
will be entered with recommendations accordingly.
iu:?u F: S VIE ( . i L.i S
(No. 129?S?Claimant vardd $89.57.>
C. C. BENNETT, Claimant,
V.
STATE ROAD COMMISSION, Respondent,
Opinion filed JuLy 28. 1942.
CHARLES J. SCHUCK, Judge.
Claimant, C. C. Bennett, seeks reimbursement in the sum of $89.57 for injuries
to his Packard automobile caused by state road truck No. 930-66, on January 6,
1942. It appears that the state road truck, hauling chips on what was known as
the Sam Black-Meadow Bluff road at Meadow Bluff, West Virginia, skidded across
the icy highway and in the path or in the front of the automobile being driven
by the claimant; that claimant, who seemed to be driving at the rate of from
ten to twelve miles an hour could not stop his car in time to prevent it
colliding with the state road truck, and consequently suffered the damages
complained of to his car. An invoice showing the damages in the amount aforesaid,
and the payment of said amount, is filed with the claim.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid.
After carefully considering the case upon the record submitted we are of the
opinion that it should be entered as an approved claim and an award is made
accordingly in the sum of eighty-nine dollars and fifty-seven cents ($89.57).
198 REPORTS STATE
COURT OF CLAIMS
LW. VA.
(No. 130-S-?Claimant awarded $10.42.)
C. B. PENNINGTON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed July 28, 1942.
CHARLES J. SCHUCK, Judge.
Claimant, C. B. Pennington, seeks reimbursement in the sum of $10.42 for
injuries to his Terroplane automobile caused by state road truck No. 1030-78,
on the 18th day of February 1942. It appears that the state road truck in
question collided with claimant?s car, the driver of the said state road truck
having failed to see or notice claimant?s car approaching on the proper side of
the said road and consequently bumping into and colliding with the said car,
causing the damage in question.
The state road conimission does not contest the claimant?s right to an award
for the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. The district engineer for the state road commission further states that
the driver of the state road truck was largely responsible for the damage to
claimant?s car, and likewise recommends pay.. ment.
We have carefully considered the case upon the record submitted and are of the
opinion that it should be entered as an approved claim and an award is made
accordingly in the suit of ten dollars and forty-two cents ($10.42).
W. VA.i REPORTS STATE COUflT
OF CLAL?W? 19i1
(N 132-S?Claimant awardtd $O.OO.)
M. L. FINLEY, Claimant,
V.
STATE ROAD COMMISSION, Respundent.
Oiinion filed Ju1 28. 1942.
CHARLES J. SCHUCK. Judge.
Claimant, M. L. Finley, seeks reimbursement in the sum of $30.00 for injuries
to his Chevrolet truck caused by state road commission truck No. 130-81, at and
near Macel mountain, March 10, 1942. It appears that the said state road truck
working over and near a state road shovel was operated in a careless manner and
without regard to the privately owned truck of the claimant. It sems that the
driver of the state road truck was relying on a flagman employed by the state
road commission, who, in turn, was also negligent in cccupying his proper place
where both the road truck driver and the claimant could have been properly
directed and the accident avoided. By reason of the negligence in question
claimant?s truck was damaged and necessitated repairs in the amount as shown by
the invoice filed with the claim.
The state road commission does not contest claimant?s right to an award for the
said amount; and the claim is approved by the special assistant to the attorney
general as one that should be paid.
We have carefully considered the case upon the record submitted and are of the
opinion that it should be entered as an approved claim and an award is made
accordingly in the sum of thirty dollars ($30.00).
200 REPORTS STATE
COURT OF CLAIMS [W.VA
(No. 135-S-? Claimant awarded $50.00.)
S. G. VANDEVENDER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion fIled July 28, 1942.
CHARLES J. SCHUCK, Judge.
Claimant, S. G. Vandeve.nder, seeks reimbursement in the sum of $50.00 for
injuries to his Oldsmobile car caused by state road truck No. 830-80 on January
8, 1942. It appears that the said state road truck, spreading limestone chips
on an overhead crossing at Elkins, West Virginia, threw the said chips so
violently against and upon claimant?s car, which from the record appears to
have been a new automobile, so as to damage it to the extent of requiring
claimant?s car to be repaired. It appears from the record that the amount of
settlement, to- wit, $50.00, is the estimated cost of repairing and replacing
the car in question.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid.
We have carefully considered the case upon the record submitted and are of the
opinion that it should be entered as an approved claim and an award is made
accordingly in the sum of fifty dollars ($50.)
W. VA.] REPORTS
STATE COURT OF CLAiMS 201
(No. 111-S.?W. F. Rollins, awarded $100.00: Home Insurance Company of
New York, awarded $148.92.)
W. F. ROLLINS, and the HOME INSURANCE COMPANY
of New York, a corporation, Clamants,
V.
STATE ROAD COMMISSION. Respondent.
Oiinion fiLed
July 28, 1942.
ROBERT L. BLAND, Judge.
On April 14, 1942, claimants, V. F. Rollins and the Home Insurice Company of
NLw York, filed their petition in the stale c(urt of claims against the state
road commission praying for an award of $248.92. By their petition said
claimants represented that on March 20, 1941, said W. F. Rollins was the owner
of a 1941 model Oldsmobile hearse, motor number 417, 773, serial number 11,717,
and bearing West Virginia license plates 120-501; that said Rollins carried a
one hundred dollar about 10: 00 o?clock A.
M., said Rollins was driving said
vehicle with said Home Insurance Company of New York, being policy number AC
2194, said policy indemnifying said Rollins against loss on account of damage
to said vehicle as result of collision, less one hundred dollar deductible
item. By their said petition said claimants further represented that on l\Iarch
20, 1941, at about 10:00 o?clock A. M.,
said Rollins was driving said vehicle
from Terra Alta, West Virginia, to Kenova, West Virginia; that at a point on
the main highway about two miles out of Terra Alta said vehicle collided with a
snowplow owned and operated by the state road commission of West Virginia: that
at the time of said collision there was considerable snow on said highway and a
high wind was blowing; that said Rollins was operating his said vehicle on his
right side of the road and collided headon with said snowplow which was on the
snowplow?s left or wrong side of the highway, and traveling in the opposite
direction from which said Rollins was proceeding; that
202 REPORTS STATE COURT OF CLAIMS [W. VA.
said Roffins was unable to see said snowplow and avert said collision for
the reason that his vision was obstructed by a cloud of snow caused by the high
wind and the action of the snowplow. Claimants further represented that as a
result of said collision the vehicle of said Rollins was badly damaged, was
repaired by Blair Motors, Inc., of Huntington, West Virginia, the total cost of
said repairs being $248.92, a copy of the itemized invoice covering said damage
and repairs being made a part of said petition as ?exhibit A.?
Claimants further represent that
pursuant to the provisions of said insurance policy the said Home Insurance
Company of New York did pay unto W. F. Rollins the sum of $148.92, covering the
amount of said damage less the one hundred dollar deductible provision; that by
reason of said payment said Home Insurance Company of New York was subrogated
to the rights of said W. F. Rollins to the extent of $148.92, the amount paid
by it as aforesaid.
Claimants charge that on account of said damage done by the state road
commission they were entitled to be reimbursed therefor in the total amount of
$248.92, of which amount said W. F. Rollins was entitled to $100.00 and the
Home Insurance Company of New York was entitled to $148.92, and prayed that
said claim might be held to be a valid and just claim against the state road
commission of West Virginia and for the payment of same.
On June 4, 1942, respondent, state road commission, ified with the clerk of the
court of claims a record of said joint claim and its concurrence therein. This
record so prepared by respondent and filed as aforesaid shows the approval of
said joint claim by the special assistant to the attorney general, as a proper
claim for which an award should be made, so that the claim is heard under the
provisions of section 17 of the court act, and without contest or any evidence
or proof sustaining the right of the claimants to an award other than that
contained in said record so prepared by the state road commission, which
includes a letter addressed to claimant,
W. VA.]
REPORTS STATE COURT OF CLAJIVTS 203
W. F. Rollins, under date of March 21,
1941, by W. L. Moore, safety director of the road commission, district No. 4,
in which he states that his investigation showed that the road commission was
responsible for the accident.
In view of the road commission?s admission of liability, the concurrence of the
road commissioner in the claim and the approval of said claim for payment by
the attorney general, an award is hereby made in the sum of two hundred
forty-eighth dollars and ninety-two cents ($248.92) in settlement of said
claim; one hundred dollars ($100.00) thereof in favor of said W. F. Rollins,
and the residue thereof, or one hundred fortyeight dollars and ninety-two cents
($148.92) to said Home Insurance Company of New York.
204 REPORTS
STATE COURT OF CLAIMS [W. VA.
(No. 127-S?-Claimant awarded $102.89.)
A. H. HICKS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied July 28, 1942.
WALTER M. ELSWICK, Judge.
On February 7, 1942, a state road truck was plowing snow on Kanawha street in
Buckhannon, Upshur county, West Virginia. Two cars were parked on the right
side of the street in the pathway of the truck. As the truck was driven down
the hill by a state road commission employee it swung out to pass the parked
cars and collided with claimant?s car, which was being driven up the hill. It
appears that claimant was without fault but that the state road employee could
have avoided the collision.
Claimant owned a 1939 Chevrolet sedan. The front end of the same was smashed in
the collision necessitating repairs as shown by an itemized invoice filed with
the claim amounting to $102.89. From the record submitted it appears that
claimant carried collision insurance with General Exchange Insurance Company
and that the award should be made payable to claimant, A. H. Hicks, and General
Exchange Insurance Company.
The payment of the costs of repairing claimant?s car is recommended by the
state road commission, which recommendation is approved by the attorney
general.
From the record submitted we are of the opinion that an award should be made
and an order will be entered recommending an award of one hundred two dollars
and eighty-nine cents ($102.89) to claimant, A. H. Hicks, and General Exchange
Insurance Company.
W. VA.]
REPORTS STATE COURT OF
CLAIMS 205
(No. 138?Claim dismissed.)
JESS E. MILLER, Claimant,
V.
THE
BOARD OF EDUCATION of Lewis County,
a Corporation, Respondent.
0-pinion filed July 29, 1942.
A county board of education is not a ?state agency within
the meaning of the act creating the state court of claims.
A. Jerome Dailey, for the claimant;
Eston B. Stephenson, special assistant to the Attorney General, for the
respondent.
ROBERT L. BLAND, Judge.
This is a claim filed by Jess E. Miller, claimant, on the 10th day of June
1942, against the board of education of the county of Lewis, a corporation, for
injuries sustained by him on the 7th day of October 1941, while he was
regularly employed by said board and engaged as a laborer in work being done on
the Junior high school (Weston Central School) building. In his petition
claimant avers that previous to said 7th day of October 1941, he had been
regularly employed by said board of education, receiving the sum of forty cents
per hour for his services, his wages or earnings while so employed amounting to
$4.00 per day; that on the date last aforesaid and while so employed, and
acting under the direction and instruction of the superintendent of laborers,
engaged in said work, he was, without fault on his part, injured by being
struck by a large ?jim pole? used in and about certain construction being done
by said board of education on said school building, in the city of Weston,
Lewis county, West Virginia. He alleges that while in the course of his
employment said ?jim pole? left its mooring or base, and fell, striking him,
knocking him to the
206 RPOR STATh
COURT OF CLAIMS EW. VA.
ground, breaking his leg just below the knee joint, causing a compound
fracture, and doing him other bodily injury from which he still suffers. He
further alleges that he was removed to the City hospital in the city of Weston,
for treatment of his injuries, where he remained as a patient for three weeks,
at which time he was allowed to return to his home, using crutches. He avers
that from the date of his injury until April 28, 1942, he was under care of
physicians, and when discharged from the hospital he was informed that he could
do light work only. He claims that on account of his injuries he has lost, in
actual time, work that would have yielded him $708.00 in wages, and incurred
hospital bills amounting to $133.00. Claimant says that said two sums totaling
$841.00 do not include his mental suffering and physical pain caused by said
injuries, nor take into consideration his head injury and suffering therefrom.
Claimant asks an award of $1000.00 which sum he avers ?is wholly due him, is
unpaid, and is, as claimant is advised, a proper claim for damages against the
board of education of Lewis county, a corporation, and as such is a state
agency, and by reason of the statute a proper claim to be presented to the
state court of claims for consideration and action.?
It is apparent that said claim is asserted and sought to be maintained against
the state upon the theory that the board of education is a ?state agency.? The
statute creating the court of claims is limited specifically to claims ?against
the state or any of its agencies,? acts 1941, chapter 20, section 15,
subsection 1. Such claims must be deemed to be claims against the state of West
Virginia and the several departments of the state government, and not to those
of local government.
The question raised by claimant?s petition, therefore, is whether personal
injuries chargeable to the board of education of Lewis county is a claim
?against the state or any of its agencies.?
As said by Judge Woods, in the opinion in Krutiii v. Board of Edueatkm, 99 W. Va. 466, ?School districts in this state are a
W. VA.]
REPORTS STATE COUhT OF CLAIMS 207
part of the educational systeia of tie? tate. established in Compliance of
article 12, section 1 of our constitution, which makes it the duty of the
Legislature ?to provide, by general law, for a thorough and efficient system of
free schools.? They are involuntary corporations. organized not for the purpose
of profit or gain, but solely for the public benefit, and have only such
limited powers as were clc?rrned necessary for that purpose. Such corporations
are but the agents of the state, for the sole purpose of administering the
state system of public education.? Such a board is a quasi municipal
corporation, ?a public agency and an arm of the law,? but it is not a direct
governmental agency.
Although a board oi education is a unit or subdivision of the state and
exercises sovereinty as a branch of the state government, it seems clear that
an act charged to a county board of education does not come within a claim
against the state. The statute defines the words ?stage agency? as meaning ?a
state department, board, commission, institution or other administrative agency
of the state government.? Acts supra chapter 20, section 2, and among other matters extends the
jurisdiction of the court of claims to those claims ?against the state or any
of its agencies which the state as a sovereign commonwealth should, in equity
and good conscience discharge and pay.? Acts supra, chapter 20,
section 13, subsection 1.
The court act covers claims against the state as a sovereign entity only and
not against the state and its several branches and subdivisions, except, of course,
the state agencies specifically brought within the act and defined in section 2
thereof.
For the reasons herein set out we are of opinion that the claim in question is
not prima facia within the jurisdiction of the court of claims,
and an order was accordingly so made, and the said claim dismissed.
WALTER M. ELSWICK, Judge, dissenting.
A majority of the court refused to docket this claim, and after doing so
refused to permit the claimant to show cause
208 REPORTS STATE
COURT OF CLAIMS 1W. VA.
that the claim should be docketed, and assigned as the reason for its
action that a county board of education is not a state agency within the
meaning of the act creating the state court of claims. No effort was made to
distinguish between the status of an employee of a board of education who is
injured while in the course of his employment and a pupil injured while
attending one of the public schools of the state. In the case of an employee
contracting for employment it can be said that he assumes the risk and hazard
of his employment, and since the Legislature has not provided by general law
for a remedy he is presumed to know the law. It cannot be said that a pupil or
his parents assume the risk and hazards of being injured by negligence of the
officers and employees of the free school system of the state, in view of the
provisions of article 12, section 1 of the constitution, namely: ?The
Legislature shall provide, by general law, for a thorough and efficient system
of free schools,? and in view of code of West Virginia chapter 18, article 8,
section 1, making it compulsory for a child between the ages of seven and
sixteen years to attend a school.
It has been the practice of the Legislature to provide a remedy by special laws
to employees of boards of education injured during the course of their
employment. The gist of these special acts of the Legislature was to authorize
individual boards of education, in their discretion, to make settlement with
the employees injured as will appear from the following special acts of the
Legislature of 1941, namely: (1) House Bill No. 185, chapter 138 authorizing
Gilmer county board of education to make settlement with Rolla Yerkey for
injuries received while an employee of said board; (2) Senate Bill No. 85,
chapter 139 authorizing Greenbrier county board of education to settle claim of
Mabel Fulwider for injuries received from the explosion of a stove while
employed as janitor of said board; (3) House Bill No. 11, chapter 140
authorizing Jefferson county board of education to compromise and make
settlement with Mrs. W. P. Engbrecht for the death of her husband, who fell
while he was washing windows in the high school building in harpers Ferry
district of said Jefferson county; (4) House Bill No. 279, chapter 132, authorizing
Boone county
W.VA.1 REPORTS
STATE COURT OF CLAIMS 209
board of education to pay James Midkiff a monthly sum for life, or to make a
settlement with him, for permanent injuries received by him while in the
employment of said board.
Article 12, section 5 of the constitution pertaining to raising in each county
or district a proportion of the amount required for the support of free schools
provides that the same ?shall be
prescribed by general laws.? It is,
therefore, doubtful if such special acts comply with this provision of the
constitution although our courts have held th,t this provision was not
applicable to a special act providing for the establishment of a high
school. Casto v. Upshu?r
County High School Board, 94 W. Va.
513, 119 S. E. 470.
As pointed out in the majority opinion in the claim of J. C. Richards, et al, (Court of Claims, Case Number 48) there is no such
limitation or restriction in the constitution requiring appropriations by the
Legislature to be made by general laws. The Legislature ha the discretion as to
whether or not its purpose in making an appropriation could be best
accomplished by a general or 1w a special act. See cases cited in the Richards
case, snpra. It is also to be observed that the constitution makes a
distinction with reference to aid and credit between counties and boards of
education. Article 10, section (3 of the constitution provides:
?The credit of the State shall not be granted to, or in aid of any county,
city, township, corporation or person; nor shall the state ever assume, or
become responsible for the debts or liabilities of any county. city, township,
corporation or person; .
.
It is to be observed that a district board
of education is a part of the state educational system created by the
Legislature under article 12 and does not come within the limitation of section
6, article 10 quoted above. On the contrary, article 12. section 5 makes it
mandatory for the Legislature to provide for the support of free schools by
direct appropriations to be levied by general taxation of persons and
properties or otherwise throughout the state.
210
REPORTS STATE COURT OF CLAIMS 1W.
VA.
This court by majority decisions has made two awards to claimants who were
pupils injured while attending the public free schools of the state, whose
claims were filed in the same manner and form as the claim in the instant case,
being claim of J. C. Richards, et al, number 48, in which case I wrote the majority opinion,
and claim of William Johnson, Jr., number 55, in which case Judge Bland wrote the majority
opinion confirming the opinion in the Richards
case by stating that the award was
made for the reasons and upon the grounds set forth in the opinion of a
majority of the court filed in the case of claim number 48, J. C. Richards, et al, v. Board of
Education of Calhoun County and State Board of Education. The
district boards of education involved in each of these claims were named
respondents along with the state board of education, and these claims were
filed in the same manner as the instant claim of Jess E. Miller. In this case
the claimant, Jess E. Miller, was injured in the course of his employment while
engaged as an employee in the construction of a high school building in Lewis
county. There is nothing appearing from claimant?s petition to show that the
state was not interested in the work being done, that the state was not
contributing or did not owe a duty to contribute its proportion of the amount
required for the support of free schools therein as is required by article 12,
section 5 of the constitution. This section makes it obligatory upon the Legislature
to provide for the support of free schools, and it is given plenary, if not
absolute, power for this purpose. Kuhn
v. Board of Education, 4 W. Va.
499,
There was nothing appearing from the pleadings to indicate that claimant had a
remedy under chapter 23 of the code of West Virginia.
The reasoning of the majority opinion filed in this case cannot be reconciled
with the majority opinion in the Richards
and Johnson cases, supra. The
issue was clearly drawn by the reasoning of Judge Schuck in his dissenting
opinions in these cases. They were cases of such grave importance that where
there was a diversity of thought, issues should be made clear and explicit,
with the hope, as expressed in the minority
W.VA.1 REPORTS
STATE COURT OF CLAIMS 211
opinion, that the Legislature would see cause to enact laws affording a remedy
in those and like cases. Certainly that should be our aim regardless of the
mode or manner of the remedy that may be afforded. It can be said that he is
consistent in his view for the majority opinion in this case is based upon the
reasoning expressed in his dissenting opinion in the Richards and Johnson cases.
The majority opinion in this case does not undertake to distinguish the
decisions in the Richards and Johnson cases or to reconcile them with the majority opinion
filed herein and therefore, the issue is left befuddled and the question as to
the status of the Richards and Johnson cases is left in doubt and confusion. Claimants who are
pupils injured in like manner as in the Richards
and Johnson cases, through
negligence of officers and employees of the public free school system of the
state while attending public schools, would not know whether to file claims in
the face of the majority opinion in this case adopting the reasoning of the
dissenting opinion filed in the Richards
and Johnson cases. Such claimants,
having similar claims, although just, would be persuaded not to file their
claims, by every logical conclusion of the reasoning in the majority opinion in
this case. This situation would work an injustice upon them if the awards in
the Richards and Johnson cases should be ratified by the Legislature and paid.
Can it be said with reason when a claim is filed, without permitting a claimant
to be heard upon the pleadings or otherwise, that a district board of education
is not a state agency as contemplated by the act creating the court of claims,
and for that reason alone this court does not have jurisdiction, and in other
cases that the court has jurisdiction to hear claims arising through negligence
of the officers and employees of such board? I recognize a distinction between
that of an emplyce who contracts for employment with a board of education and,
who, it might be said, assumes the risks and hazards of his employment, and
that of a pupil, under the compulsory attendance law who is compelled to attend
school without discretion on the pupil?s part as to the assumption of risks and
hazards by his or her presence at the school.
212
REPORTS STATE COURT OF CLAIMS [W. VA.
The Supreme Court of our state in the
case of Rogers v. Jones, 115 W. Va., 320, 175 S. E. 781 ha dto deal with the
question as to whether the terms of county school officers, including members
of county or district boards of education should commence on the first day of
January as provided for county officers under the constitution of West
Virginia, article 4, section 7, when the act of 1933 creating county or
district units, as interpreted by the court, fixed the first Monday in July as
the beginning of the official term of members of the board. In that case the
petitioner contended that the statute made county officers of members of the
board. The court in its opinion referring to section 7 of article 4 of the
constitution said:
?That section provides that the terms of county officers ?not elected, or
appointed to fill a vacancy, shall, unless herein otherwise provided, begin, on
the first day of January.? We are not in entire accord on whether the board
members are county officers within the meaning of the constitution. We
consider accordance thereon not of major importance, however, in view of the
following provisions of article 12 of the constitution: Section 1. ?The
Legislature shall provide, by general law, for a thorough and efficient system
of free schools? .
. . We cannot conceive that the
constitution would repose such absolute confidence in the judgment of the
Legislature as Article 12 demonstrates, yet at the same time disallow
legislative discretion regarding the one minor matter of when the terms of
certain school officers should commence. Section 7, supra, itself,
contemplated that the beginning of official terms would be ?otherwise provided?
by the constitution. We are of opinion that the sweeping terms of Article 12,
Sections 1 and 3, make such other
provision.?
As was said by our Supreme Court in
the Rogers case, supra, when the court stated that the members were not in
entire accord on whether the board members are county officers, we should not
consider accordance thereon of major importance in carrying out the intent of
the Legislature with respect to creating the court of claims and complying with
the
W. VA.]
REPORTS STATE COURT OF CLAIMS 213
sweeping and mandatory terms of article 12, sections 1 and 3 of the constitution.
It certainly should be of interst to the Legislature that we be consistent with
our reasoning or at least reconciling our views, in making our reports to it,
and to the public when decisions are announced, to enable all claimants of the
same class injured by negligence of the same class of agency to be of equal
status in all our decisions and recommendations, so that there shall not be
confusion among those within the same class, as to whether or not they have a
right to file their claims before this court for final determination to be made
by the Legislature.
For the reasons herein set forth I dissent to the majority opinion filed in
this case.
214 REPORTS STATE COURT OF CLAIMS 1W. VA.
(No. 98?Callie Mealey, Admx., awarded $4000.00; No. 99?Ira Mullins awarded $2500.00;
No. 100?Rosa Mullins awarded $200.00; No. lOl?Dairl Mullins, infant, awarded
$1500.00; No. 12?Irene Mullins, infant, awarded
$1500.00.)
CALLIE MEALEY, Admx., of the personal estate of JAMES
CLARENCE MEALEY, deceased, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
IRA MULLINS,
ROSA MULLINS,
DAIRL MULLINS, an infant, whose claim is filed and prose cute by IRA MULLrNS,
his father and next friend,
IRENE MULLINS, an infant, whose claim is filed and prose cute by IRA MULLINS,
her father and next friend,
Claimants,
V.
STATE ROAD COM1VIISSION, Respondent.
Opinion filed August 21, 1942.
Where a bridge controlled by the state
road commission has been condemned as unsafe for public use or travel, and the
uncontradicted evi-. dence shows that the supports and girders on said bridge
were very rotten and decayed, the commission must take all necessary means to
effectually close and barricade the bridge as a protection to the public; and a
failure to do so, by reason of which persons traveling on the bridge under the
conditions mentioned are injured, is negligence on the part of the commission arid
must be considered as such in connection with determining the validity of a
claim, even though the injured persons may have had a load slightly in excess
of that allowed on the bridge.
Appearances:
Messrs. Salisbury, Hackney &
Lopinsky (D. L. Salisbury Esq. and Emerson W. Salisbury, Esq.), for the claimants;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
W.VA.1
REPORTS STATE COURT OF CLAIMS 215
CHARLES J. SCHUCK, Judge.
The matters here involved, by agreement of counsel, embrace the joint claims of
Callie Mealey, administratrix of the estate of James Clarence Mealey, deceased,
and the claims of Ira Mullins, Rosa Mullins, Dairl Mullins and Irene Mullins,
the two latter being minors.
It appears from the evidence that on October 29, 1939, the said James Clarence
Mealy, together with the Mullins family, was riding on a certain truck owned by
one George Koch, on which truck there was also a load of household goods
belonging to the claimant, Ira Mullins, and that while said truck was passing
over and upon the state road bridge spanning the Elk river at Elkhurst, in Clay
county, West Virginia, the bridge collapsed, precipitating the truck and its
occupants into the Elk river below, causing the death of the said Mealey, and
injuries to the four Mullins claimants. Ira Mullins was moving his family to
Elkhurst from Blue Knob, near Maysel, West Virginia, said town being located on
the south side of the Elk river and requiring the crossing of the said bridge
to reach the town of Elkhurst. The evidence further shows that there was a
circuitous route or road which may have been used for travel from the said town
of Maysel to the town of Elkhurst, but it, as evidence further shows, was
inconvenient, rough, seldom used, and entailed an additional travel of some
nine or ten miles between the points or places in question. It can hardly be
maintained that the failure to take this second mentioned route would be
negligence on the part of the said claimants, in view of all the evidence and
attendant circumstances, and we are of the opinion in this regard to hold
accordingly, that the failure of the claimants to take the circuitous route in
question, considering its condition and location, was not negligence on their
part.
The evidence shows that the bridge in question had been condemned, and that an
attempt had been made by the state authorities to prevent passage or travel
over the bridge, although it had to be kept open for the school children living
on
216 REPORTS STATE COURT OF CLAIMS LW. VA.
the south side of the Elk river and attending school at Elkhurst. The state
maintains that there was a notice on the bridge to the effect that the capacity
of the bridge was three tons gross load, and that to exceed this capacity would
be negligence on the part of the persons using the bridge with an overload.
There is a conflict as to whether or not signs showing the bridge to have been
closed were properly erected to warn the traveling public of the unsafe
condition of the bridge. Also, one witness says (record p. 9) that the word
?closed? was the word used on the sign, while another (record p. 77) maintains
that the word ?unsafe? was used. In any event, we feel that the evidence fails
to reveal that the proper steps were taken to effectually close the bridge to
the traveling public, and that means could have been employed by virtue of
which it would have been made impossible for a truck such as the one in
question to have attempted to cross the bridge that collapsed. There is a
conflict of testimony as to the weight of the load, namely, the truck in
question together with the household furniture, and the weight of the persons
who were riding thereon. A careful analysis of all of the testimony so far as
the claimant case is concerned, shows that the weight of the truck, the
household goods and the occupants of the truck failed to reach three tons,
while, on the other hand, the evidence of the state tends to show that the
combined weight of the truck; household goods and occupants, including the
claimants, exceeded a three-ton load by possibly five hundred to one thousand
pounds. There is also a conflict between the witnesses for the claimants and
the witnesses for the state as to the actual weight of the truck at the time of
the accident, and while we are inclined and have carefully weighed the evidence
as given by the witnesses for the state with reference to the involved matters,
we are, however, further persuaded that by the extremely rotten and decayed
condition of the timbers of the bridge, as exhibited and shown in the evidence,
that the bridge was incapable of holding a load of any weight much less than a
three-ton load, and, therefore, should have been effectually closed to the
traveling public. At least the situation presented in this regard compels us to
hold that the evidence presented by the claimants and all the attendant
circumstances at least favor the contention
W.VAJ
REPORTS STATE COURT OF CLAIMS 217
of the claimants, and, at best, could
only be used in charging the deceased Mealey, Ira Mullins and his wife, Rosa
Mullins, with a certain degree of negligence, which has been considered by the
court in making the award hereinafter set forth. Such negligence, of cotr,
could not be charged to the minor children, Dairl Muiliw? aid Irene Mullin.,.
As indicated, James Clarence Mealey was killed by reason of the injury
occasioned by falling through the said bridge. He had been a carpenter, as well
as conducting a small farm, and had earned at various times as high as eighty
cents per hour for his work and labor. He was fifty-eight years of age, and at
the time of his death was employed as a concrete mixer at Clay, West Virginia.
He was earning about $15.00 a month, together with meals, for about six months
previous to his death (record p. 148). He was the father of five minor children
ranging in ages from two to thirteen. The evidence further shows that he was
incapacitated by the loss of his right hand. The evidence shows also, that his
hospital bill was approximately $115.00 and that his funeral bill amounted to
approximately $262.35, neither of which have been paid. Under all the
circumstances, taking into consideration his physical condition, his earning
capacity, and all other attendant facts, we feel that an award of four thousand
dollars ($4,000.00) should be made to his estate, to be divided among his
family on the basis of one-third to his wife and the remaining two-thirds to be
divided among his five children and paid to a duly and legally appointed and
qualified guardian.
Ira Mullins sustained serious abdominal injuries, the fracture of four ribs,
injuries to his hack and spine, a crushed breastbone and other injuries; was
confined and treated in a hospital at Charleston for approximately a week, and
as a resuit of the injuries was unable to perform his work as a sawyer for
about twenty months. He was earning approximately $125.00 at the time of his
injury. His wife, Rosa Mullins, suffered comparatively slight injuries,
sustaining a cut on her head and injuries to her back, which, however, caused
her to be confined in a hospital a little over a day, but according to her
218 REPORTS STATE COURT OF CLAIMS LW. VA.
testimony, incapacitated her for housework for a period of some three
weeks. She also testified that she suffered severe pains.
Irene Mullins had a very serious laceration and cut on her leg, and suffered
generally from the shock of the accident. She was confined in the hospital at
Charleston for a period of over a month and may suffer in the future by reason
of the injuries received. Dairl Mullins sustained a broken shoulder and broken
collarbone and injuries to one of his kidneys, which injury may affect him in
later life. The hospital bills and doctors? bills, together with the costs of
the ambulance which conveyed the claimants from the scene of the accident to
the city of Charleston, amounted to approximately $500.00; the loss of their
furniture to approximately $100.00. Taking into consideration all the facts and
circumstances surrounding the claims, and as indicated, charging Ira Mullins
and his wife, Rosa Mullins, for some careless conduct in crossing the bridge at
the time in question, and in mitigation of any amount of damages that would
have been due and payable to them as compensation for their injuries, we feel
that a fair allowance to Ira Mullins would be the sum of twenty-five hundred
dollars ($2500.00); to his wife, Rosa Mullins, the sum of two hundred dollars
($200.00); and to Irene Mullins and Dairl Mullins, the infant children, aged
twelve and ten years respectively, to whom no negligence could be charged, the
sum of fifteen hundred dollars ($1500.00) each. The payment to the said Irene
and Dairl Mullins of $1500.00 each is made on condition that a guardian shall
be appointed and qualified by the court before such payment will be made.
W.VA.1 REPORTS STATE COURT OF CLAJMS 219
(No. 112?Claim denied.)
GILBERT REED, Cliamant,
STATE ROAD C?OMMISSION, Respondent.
Opinion flied August
21, 1942.
Where it appears from the evidence
that the special and peculiar benefits
accruing to claimant by reason of
a construction project performed by the state road commission on his land
exceeds the amount of damages, if iny, whici. claimant has susainted, an award
will be denied.
Appearances:
Arla.n W. Berry, Esq., and G. C. Belknap, Esq.,
for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
WALTER M. ELSWICK, Judge.
The claimant, Gilbert Reed, is the owner of a valuable farm lying on each side
of the Little Kanawha river near the Braxton-Gilmer county line at Gilmer
Station, Gilmer county, West Virginia, containing about three hundred acres.
Two-thirds or more of the farm lays across the Little Kanawha river from the
state road route No. 35 (now known as route No. 5). In the year 1938 the state
road commission sponsored the construction of a new bridge at 1/16 of a mile
below the Reed farm, known as the Gilmer bridge, spanning the Little Kanawha
river connecting with a road leading from the state road across the river to
the Gilmer Station side of the river so that this road would run near the farm
owned by claimant. On October 1, 1938, the claimant entered into an agreement
with the state road commission whereby he agreed that the state road commission
could quarry one thousand cubic yards of stone from an undeveloped quarry site
on his lands for the construction of project ?Gilmer
220 REPORTS
STATE COURT OF-CLAIMS [W. VA.
bridge, route Copen Run, Glenville
district, Gilmer county, West Virginia, said quarry site being located at the
mouth of Long Shoal run, Braxton county.?
The consideration for the payment of said stone is recited in the agreement as
being the sum of one dollar ($1.00), cash in hand paid, and of the further
consideration that the state road commission agreed to deposit surplus waste
materials from quarry at junction of Long Shoal Run road and state road route
35; also to install forty (40) feet of culvert at said junction of Long Shoal
Run road and state road route 35, and to reset fence along quarry site after
quarry is abandoned; the state road commission further agreed to remove waste
from barn lot below quarry site to a depth of three and one-half (31/2) feet on upper side and slope toward run; also to
preserve spring near upper end of quarry. The contract further provided that
the road commission should have ingress and egress to and from the Reed lands
at convenient points with machinery and equipment necessary for the proper
construction of the work in said quarry and could operate said machinery and
equipment over, on and across said lands at points deemed convenient to the
road commission, for the purpose of quarrying, blasting, crushing, stocking, handling,
loading and removing of stone from quarry.
The agreement further specifies that the sum of one dollar ($1.00) therein
designated, shall constitute full, final and complete payment for the stone
quarried from said quarry and used for construction purposes, as well as full,
final and complete payment for all damages of every nature whatsoever and all
damages to residue of property which may result to the said claimant, by reason
of the operation of said stone quarry and removal of stone to point or points
of application where needed.
The claimant asserts that he has suffered damages to his said farm, beyond the
special and peculiar benefits received, by reason of the manner of the work
done, namely: First, that the state road commission, by its agents, changed the
quarry site, without any additional agreement; second, that approximately
W.VA.1 REPORTS
STATE COURT OF CLAIMS 221
500 cubic yards of stone was quarried,
of which amount about
250 cubic yards were used in the construction of the Gilmer bridge, after which
no further stone was used out of said quarry in the construction c citd bridge,
the remaining abutments of said bridge being consucted out of concrete, and
that claimant notified the agents of id state road commission, in charge of said
project, not to remove the stone remaining in said quarry which had been
quarried but not used, but that said stone was removed from his lands to a
place on the Copen Run road at or near the mouth of Copen Run, and that
claimant was the o ner of said stone so removed; third, that the amount of
waste material deposited at the junction of Long Shoal Run and state road route
No. 35 was insufficient for the purpose of a barn site; fourth, that most of
said waste stone and material was trucked out to the mouth of Copen Run and
used on state road route No. 35 at several places for side ditches; fifth, that
the fence along quarry site near and on the upper side of Long Shoal Run was
not reset by the state road commission; sixth, that a sufficient wall around
the spring near quarry site was not made, but on the contrary the state road
commission laid up a loose rock wall which did not preserve the spring;
seventh, that the fence around the barn lot was torn out by the state road
commission and never replaced; and eighth, that the right-of-way of the Long
Shoal Run road was changed so as to place it higher above the run, thereby
using a strip of land owned by claimant 200 feet long and 20 feet wide, under a
verbal agreement that said new road would be filled in level with state road
route No. 35, running at right angles thereto, which roadway was changed but
not filled level with said state road route No. 35, nor substantially so, and
that the fence above said road was not replaced.
As to the first assertion of damages pertaining to change of quarry site it
appears from the evidence that all of the 500 cubic yards of stone were
quarried near the mouth of Long Shoal Run in accordance with said agreement
with an intervening space of about 200 feet (record p. 36). Claimant says that
he saved some of the stone on the point from the mouth of
222 REPORTS STATE
COURT OF CLAIMS [W. VA.
Long Shoal Run for his individual use (record p. 10) but there is no
reservation in the agreement to sustain this contention. It further appears
from the evidence that the claimant agreed to this change or extension -of the
quarry in consideration of receiving some of the stone squared up for him,
which he received. (Record pp. 10, 37 and 60).
As to the second assertion of damages that claimant was the owner of the stone
which had been quarried and which was removed from his farm and not used in the
construction of the Gilmer bridge, it appears from the evidence, and the
agreement which claimant entered into with the road commission, that claimant
was vitally interested in the construction of said Gilmer bridge, for if this
bridge had not been constructed by the state road commission he would not have
had any outlet to two-thirds or more of his farm across the river from the
state road except to ford the river, which was impossible (record pp. 5 and
29). It further appears from the evidence that the price of stone in the quarry
to be made into cut stone would be from 25 cents to 50 cents per cubic yard,
varying as to quality and proximity to project (record pp. 112, 113, 127), and
that the price of man stone in the quarry or on the surface would be from three
to ten cents per yard (record p. 127). These prices are mentioned to show the
actual value of the stone quarried and taken from claimant?s land. No stone had
been quarried on this land prior to the quarrying done by the state road
commission and the stone proved to be of poor quality with a large amount of
waste and man stone to handle. (Record pp. 112, 113, 124 and 139).
Claimant was also interested in having a fill made on his land at the junction
of Long Shoal Run road and state road route No. 35 to furnish him with a
foundation for a barn site above the high water level since the old barn which
he had on that side of the river was flooded when there was a rise in the
river. These were the major factors involved as a consideration for the state
road commission to -quarry the stone (record pp. 17 and 29). The contract
provided that the surplus waste material
W. VA.1 REPORTS
STATE COURT OF CLAIMS 223
from quarry was to be deposited on this
barn site. It appears from the evidence that the state road commission did make
a fill from six to seven feet high on said barn site level with or higher than
the road (record pp. 138 and 187) and claimant has since constructed a barn on
this fill 34 feet by 50 feet foundation dimensions (record p. 18) with the fill
extending 24 feet from the barn to the edge of state route No. 35 (record p.
68). There was an old culvert extending 40 feet from the junction of the Long
Shoal Run road and state road route No. 35 which was placed below the drain
level (record p. 53) and the state road commission installed 100 feet of
culvert through the fill with the drain level. The agreement had specified that
40 feet of culvert requested by the claimant was to be installed, but this 40
feet would have extended up to the barn site and the additional 60 feet of
culvert pipe was furnished and laid by the state road commission at claimant?s
request in order to have same extended beyond his barn site (record p. 159).
There was more waste material dumped for the fill and the fill extended further
than was expected when the contract was drawn, which required the culvert to be
extended to the end of the fill. (Record pp. 52, 139 and 159). This additional 60 feet of culvert pipe
cost $1.00 per foot.
It appears from the contract that there was no specific requirement as to how
high the fill should be made, except that surplus waste material was to be
deposited at the site designated. Ordinarily waste material from a quarry would
not be considered as cut stone or man stone, and especially so since it appears
from the evidence that the man stone quarried and placed at the highway was
worth $4.10 per cubic yard (record p.63).
It further appears from the evidence that after the state road commission had
completed the Gilmer bridge the claimant requested the commission officials to
clean up the quarry site including the removal of cut stone and man stone from
the quarry site (record pp. 11 and 12). It does not appear from the evidence
that claimant at that time as much as proposed to
224 REPORTS STATE
COURT OF CLAIMS tW. VA.
take the stone quarried for the costs and expenses of the cleanup. The road
commission expended a total sum of $501.60 in this cleanup and haul, dredging
and straightening the channel of Long Shoal Run through claimant?s property and
constructing a wall around the spring. (State?s exhibit No. 9).
It further appears from the evidence that in addition to the surplus waste
material piled in said fill at said barn site at the junction of said roads, the
state road commission, at the request of the claimant, hauled from said quarry
site and placed on said fill from 175 to 225 cubic yards of man stone in
February 1941; that from this fill made by the road commission, claimant took
therefrom and sold approximately 175 cubic yards of man stone at a net profit
of $4.10 per cubic yard or $717.50 (record pp. 46 and 63). There was
considerable evidence introduced to show that 56 cubic yards of man stone was
hauled to the opposite side of the Gilmer bridge and stacked there, but it
appears from the evidence that this stone was used in making fills for the
approaches to the bridge (record pp. 27 and 201). Hence, the question, under all
the evidence and circumstances in the case, is the claimant entitled to recover
damages for the cut stone hauled from his premises which was not used in the
construction of the Gilmer bridge? It is to be borne in mind that the state
road commission had the right to quarry and remove 1000 cubic yards of stone in
consideration of the premises mentioned in the contract, while it only quarried
about 500 cubic yards. Out of that amount it placed on top of the fill of
surplus waste material from 175 to 225 cubic yards of man stone which was sold
as such by the claimant. The cut stone was quarried at considerable expense by
w. i?. A. labor and claimant received the benefit of surplus waste material and
man stone, both of which were of a special and peculiar benefit to him. It
would be unfair to the Federal Government furnishing the W. P. A. labor
to quarry and cut this stone at great expense, for the state to abandon or give
away same. It cannot be seen how such stone could be considered surplus waste
material, and since claimant sold man stone from the fill made, it would appear
that the ff1 was made sufficiently high for his purpose.
W. VA.i REPORTS STATE COURT OF CLAIMS 225
Furthermore, the contract provided for ?the removal of stone to point or points
of application where needed.? The special and peculiar benefits which the
claimant received far exceeded. any damages which he may have sustained.
From the evidence we fail to find any basis of claim for damages pertaining to
the fill being made insufficient for the purposes contemplated.
The evidence fails to establish any claim for damages under
? mant?s fourth assertion nertaining to waste material
being
sd away and used on state road route No. 35. From the c ence it would appear
hat if the state had quarried its full q ?1a of 1000 cubic yar4 of stone, there
would have been so much surplus waste material that, if anything, claimant
would have en justified in objecting to the surplus quantity placed unor hs
land at the place designated in the contract. From the quenti of stone soi from
the fill it would appear that the fill had been made suffiiently high to meet
his purpose.
Claimant failed to establish any claim for damages for failure of the road
comn-sion to reset fence along quarry site. From the evidence it appears that
the fence was reset where removed. It wa not contemplated that the agreement to
reset the fence along quarry site would require the commission to build a fence
where it had not been torn down, nor at other points not contemplated by the contract
in the changes made.
The claimant failed to establish any damage by reason of the failure of the
road commission to build a sufficient wall around the spring specified in the
contract, or to establish the fact that its usefulness had been lessened or
destroyed. From all the evidence and circumstances in the case it would seem
that the well drilled at the barn site was the most feasible solution of the
lack of water facilities on the premises, and were contemplated when the barn
site was planned. There was considerable evidence introduced relative to a
verbal agreement that the road commission agreed to remove a large rock near
the
226 REPORTS
STATE COURT OF CLAIMS rw. VA.
spring. However, if this rock had been
hiasted and moved, it would have by all probability diverted the course of the
spring.
The claimant failed to establish by the evidence any claim for damages under
his seventh and eighth assertions since it appears from the contract and the
circumstances surrounding the making of the ff1 and the construction of the
barn that it was not contemplated between the parties that the fence around the
barn lot was to be rebuilt. It further appears from the evidence that claimant
consented to the road change made along the quarry. The road was placed on a
better grade than the old road running by the quarry (record p. 145).
From all the evidence in the case we conclude that the special and peculiar
benefits to the claimant?s farm and quarry, as well as revenues which he
derived from the sale of stone from the fill made by the road commission,
exceeded all claims for damages that could have been sustained upon any
assertion made pertaining thereto, and are therefore of the opinion to deny an
award, and an order will be entered accordingly.
(No. 113?4. R. Gibson awarded $100.00; No. 114?Roma Gibson awarded
$1000.00.)
J. R. GIBSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
ROMA GIBSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed August 21, 1942.
Where a liability is admitted on the
part of the state department concerned and the amounts of the awards for
damages for personal injuries on the two claims filed are left for
determination the court from all the evidence on the claims
heard together finds for each claimant such
W. VA.] REPORTS
STATE COURT OF CLAIMS 227
damages as is deemed just and proper, commensurate with each 4aimint? injuries,
that is, damages proportionate or equal in measure or extent c their injuries
sustained.
Appearances:
G. C.
B?1kiup, Esq. and E. C. Pierson, Esq., for the claimants;
Eston B. Stephenson. Esq., special assistant to the Attorney General, for the state.
WLTER M. ELSWICK, Judge.
These two claimants, J. R. Gibson and Roma
Gibson, were injured while walking across a suspended bridge spanning Elk river, at
Glendon, in Braxton county, West Virginia, known as Glendon bridge. It was stipulated
and agreed by and between claimants, by counsel, and the state road commission, by Eaton
B. Stephenson, a pecial assistant to the attorney general for the state, that the
evidence on the two claims should be heard together; that the bridge known as Glendon bridge
which col lapsed and
fell injuring claimants is, and was,
maintained by the state road commission at the time claimants were injured, to-
wit, on the 2nd day of May 1941; that the state road commission was negligent
in not keeping said bridge in a safe
condition; that the said injuries were
sustained by the falling of said bridge; that said bridge was maintained for
use by the public and that claimants
had a right to assume said
bridge was safe for travel; and
it was further admitted by counsel
for the state that claimants were not negligent by traveling thereon to cross Elk river in
the ordinary course of their business; and it was further so
stipulated and agreed that claimants were told by employees of the
state road commission, who were then working on and repairing
said bridge, that it was safe, before claimants entered thereon. Mr. George I.
Simons, a special investigator for the state road commission, from his
investigation of the facts pertaining to the cause of the injuries, concurred
in said stipulations.
REPORTS
STATE COURT OF CLAIMS EW.VA.
Chiimnts then upon the date fixed for
hearing of the two claims produced evidence by witnesses to
show the extent of injuries sustained by each claimant and
other evidence to assist the court in arriving at the amount of
damages recoverable in each case, and the state road commiion produced evidence
by witnesses to likewise assist the court in arriving at the amount
of damages recoverable in each case. Evidence adduced on the part
of the cbi1mnts
further corroborated the facts
set forth in the stipulations.
From the evidence adduced it appears that J. R. Gibson is now seventy-six
years of age; that he and Roma Gibson fell with the bridge
a distance of from 17? feet to 25 feet landing on the river bank
(record pp.9, 53, 91); that by said fall he sustained a sprained ankle
by reason of which he lost, at the most, about two
months work on the farm; that the injury was painful and had
to be treated by rest and hot foments, and elevation of the injured
member; that he also suffered some discomfort in his back by reason of
his falL It further appears that he resumed his usual work on his
farm, as a man of his age would customarily do, after said
two month period; that he did not sustain any permanent
injury; that he incurred a bill for medical and x-ray treatment amounting
to $10.00. We are of the opinion and do award to J. R.
Gibson the sum of one hundred dollars ($100.00), as a fair and just
compensation for his injuries from all the circumstances in the case.
From the evidence it appears that Roma Gibson is a married man forty-one
years of age, and is the father of three children, the eldest child
being eleven years of age; that he sustained a puncture wound
of the right thigh on the posterior aspect of the thigh and on
the upper one-third of the thigh; that it was a wound about six to
eight inches in length and about two to three inches in diameter,
more oblong in appearance externally, but ragged, and extended
upward under the skin penetrating the subcutaneous tissue, the
fat, and the edge of the gluteus maximus muscle (record p. 42);
that his wound was caused by fl1ing on a small stump or
snag where a bush about two inches in diameter had been cut
(record p. 84); that he was pinned to
W.VAJ REPORTS
STATE COURT OF CLAIMS 229
this snag and had to be pushed up off of
the same (record pp. 53 to 55); that he was confined in a hospital at Sutton,
West Virginia, from May 2, 1941 until May 13, 1941 and incurred medical and
hospital bills aggregating $59.50; that antiseptic solutions were applied,
drain tubes inserted and tetanus antitoxin given, as well as sedative drugs
administered for pain while he was confined in the hospital; that he was
treated at intervals of about ten days after leaving the hospital until the
15th of June 1941, and had to travel a distance of about thirty- two miles each
way to go to the hospital; that he was not able to do work until August 8, 1941
and did begin work on that day at Akron, Ohio, but quit work on September 15,
1941 for the reason that his leg tired from standing at his work, his statement
being corroborated by a state?s witness that he was complaining of pain after
he returned home (record pp. 61, 78 and 103); that he still complains of his
leg becoming tired during work hours which is caused as stated by Dr. Eckle,
his attending physician: ?Probably some scar tissue formation as a result of
the injury and the contracture of the scar pulling against some other
neighboring structure? (record p. 48), the permanent effect, as further stated
by Dr. Eckle would be some atrophy in the particular location of the injury;
that while the defense undertook to base the earning power of Roma Gibson
solely on that of a farm laborer, by reason of the fact he had resided and
worked on his farm during the two years next preceding the injury, it appeared
from the evidence that he had earned as much as ninety cents per hour at the
Goodrich Rubber Company, at Akron, Ohio, in 1939.
It further appears from the evidence that Roma Gibson sustained a painful
injury and that the same has caused him a loss of time of from four to eight
months and that the effects of said injury such as atrophy of the affected
parts will by all probability tend to reduce his earning power in the future.
From all the evidence in the case we are of the opinion that a fair and just
compensation to him for his injuries would be the sum of one thousand dollars
($1000.00) and an order will be entered making an award accordingly.
230 REPORTS STATE
COURT OF CLAIMS 1W. VA.
(No. 117?Claim deaied.)
L. C. CLARK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed August 21, 1942.
The fact that a stone or rock
falls from the mountainside adjacent to a public road or highway, striking and
wrecking a passing automobile, does not of itself constitute negligence on the
part of the state road commission. The state or its agency, the state road
commission, not being a guarantor of the safety of travelers on its roads and
highways, must either have notice of the dangerous condition and position of
such stone or rock on the banks along the highway or have known of it by the
proper examination of the highway at the place where the accident happened and
have faiied to take the necessary steps to remove the rock and thus prevent any
accident, before the state or its agency, the state road commission, becomes
liable.
Appearances:
D. Grove Moler, Esq.,
for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
This claim is prosecuted for injuries to claimant?s automobile, occasioned
while he was traveling on a certain state highway between Pineville and Welch,
on December 14, 1936, and caused by a rock or stone sliding off the
mountainside and into the path of his automobile, causing it to be wrecked and
entailing a loss to the claimant in the amount of four hundred or five hundred
dollars. The road was in good condition (record p. 5) but claimant maintained
that the banks along the road were thawing and that the stone or rock broke
loose from the mountain side, rolled down the bank at swift speed,, and before
he could stop his automobile, the stone or rock
W. VA.]
REPORTS STATE COURT OF CLAIMS 231
struck the machine, causing it to swerve
from the road and turn over down an embankment (record p. 7).
The evidence fails to show in any manner how the state road commission was
negligent or that the stone in question that caused the accident was known to
be or had been dangerous to travel on the highway in question, or that the
state road commission or its agents or employees could have known of the
condition and situation with reference to the sliding of the stone. Not a word
is shown in the record that the state road commission or its employees ever
knew of the position of the stone in question or that it might become dangerous
to travel on the said highway; nor is there any evidence to show that the state
road commission or any of its employees or agents had ever been informed of the
possibility or probability of the stone in question falling to the highway, and
thus becoming dangerous to travel and traffic. Considering the topography of
the place where the accident happened, that it is hilly and mountainous, it is
apparent that stones or rocks on the sides of the embankments are liable to
fall or slip on to the highway, and that, therefore, the state road commission
must take the necessary precaution, so far as humanly possible, to prevent
injuries to traffic or to travel. So far as the evidence reveals such
precautions were taken. The state is not a guarantor of safety to the traveling
public, since if it had such burden placed upon it the state as a whole might
soon be bankrupt and unable to function as a commonwealth or as a body politic. We
repeat that there is no evidence, as shown by the record, that indicates any
negligence whatever on the part of the state road commission, its agents, or
employees, or that they had notice of the possibility of the stone in question
falling to the highway, or that they could have known of the possibility of the
said stone slipping or falling by an examination of the embankment at the place
of the accident. Under all these conditions and circumstances, we deny an
award.
3 REPORTS STATE
COURT OF CLAIMS LW. VA.
(No. 115?Claim -dlsmisse&)
JAMES CLARK, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opituon
fIled August 21, 1942.
A case in which upon the facts
disclosed by the record the claim will be heard and disposed of upon its
merits.
No appearances by claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
respondent.
ROBERT L. BLAND, Judge.
Contending that his six year old bay mare, well broken to work, perfectly sound
and weighing about 1350 pounds, broke through the state owned bridge which
spans the middle fork of Lee creek, on the public road leading to Beliville, in
Wood county, West Virginia, on the 18th day of March 1942, and injured her
stomach and left front leg so badly that she never recovered, and died nine
days later, claimant seeks an award of $200.00 which sum he alleges to have
been the value of said animal. He says that the state road commission had twice
been notified within the last six months that the bridge was dangerous, but
that no repairs had been made prior to the accident.
The petition setting forth the claim is duly verified, and a copy of an
affidavit made by claimant and filed with the state road commission is filed
with said petition and made a part thereof. It is alleged in the petition that
after the accident claimant had two veterinarians to attend said horse.
The claim was placed on the docket of the regular July 1942 term of the court
of claims for investigation and hearing on July
W. VA.]
REPORTS STATE COUIT OF CLAIMS 233
14, 1942, and due notice of such action
was given to the claimant by the clerk on the 17th day of June 1942. Claimant
did not appear in person or by attorney or other representative to prosecute
his claim on the date on which it appeared on the trial calendar of the court.
The state, which had incurred expense in its investigation of the claim, had
witnesses subpoenaed and present for the purpose of resisting claimant?s demand
on said trial date. The state?s proof was permitted to be offered, and at the
conclusion of the introduction of this evidence the clerk was directed to
notify the claimant of the defense interposed by the state to his claim, and
that the state had offered its evidence in support of such defense, and that
the case would be considered by the court upon such evidence unless he should appear
within ten days from said 14th day of July 1942, to offer evidence in support
of his claim or show cause why he should be allowed to have the case reopened
for further hearing. Such notice was accordingly given to claimant by letter
bearing date on the 14th day of July 1942. There was no further appearance on
the part of claimant, and the case was heard upon claimant?s verified petition
and affidavit exhibited therewith and the evidence introduced by the
state in opposition to the claim.
All claims asserted against the state or any of its agencies must be
established by satisfactory proof before awards may properly be made for the
payment of them. A claim asserted but not proved can have no meritorious status
in the court of claims. All claims filed in the court may be contested by the
attorney general. The statute provides that the attorney general shall
represent the interests of the state in all claims coming before the court.
When the Legislature created the court of claims it provided a forum to which
persons may come who have what they conceive to be meritorious claims against
the state, and have such claims promptly and carefully investigated and acted
upon. For such purpose four regular terms of the court are held annually.
Diligence on the part of claimants against the state thus favored by the
Legislature should be observed. We do not believe that it was the intention or
policy of the Legislature to subject the state to useless
REPORTS STATE
COURT OF CLAIMS LW.
VA.
or unnecessary costs incident to delay in
prosecuting claims filed in the court of claims. When the state investigates a
claim and concludes upon such investigation it is without merit it is the duty
of the attorney general to resist an award therefor. To do this it frequently
becomes necessary to subpoena and have witnesses from remote sections to come
to the state capital where the regular terms of the court are held.
Continuances without cause are not regarded with favor by the court.
We have carefully considered the record of this claim as presented by the
claimant?s verified petition and affidavit and the evidence offered on behalf
of the state. From this evidence we cannot see that the death of claimant?s
horse was in any manner attributable to the negligence of the state road
commission.
David Harrison Woodyard, a veterinarian of forty years experience, testified
that he was called on behalf of claimant to attend.the horse on the day of its
death. It does not appear from the record that the horse had the attention of
any veterinarian at the time of the alleged bridge accident. Dr. Woodyard was
called by Ira Bennett who was in charge of the horse. Nothing was said about
the horse having been injured on the bridge. Mr. Bennett told him that the
horse had been sick the preceding day and had been left in the stable at night
and ?gast itself and got bound up and couldn?t get up, and the next morning
they brought the horse up and got it to the stable door and as it went out it
fell and it hadn?t been up since.? The veterinarian testified: ?After I had
made my examination of the horse I decided it was suffering from infiamation of
the bowels.? He called it ?Fuller?s colic.? He stated that the inflammation of
the bowels showed indigestion and unpaction. He observed no sign of injury to
the stomach or the leg and stated that the only outward sign that he observed
was where the horse had beaten its head on the ground or on the stall in the
barn. He expressed the opinion that the horse could not have died from injuries
alleged to have been sustained on the bridge. When claimant talked with the
veterinarian he did not inform him that the horse had been injured
W. VA.] REPORTS STATE COURT OF CLAIMS 235
on the bridge. The veterinarian was
positive in his conviction that the condition of the horse could not have been
caused by a fall through a bridge.
It is revealed by the record that after the horse had been extricated from its
cramped position in the barn it was hitched to an automobile and pulled out of
the barn and around in front of the barn door. Pulley blocks were used in
raising the animal to its feet.
It was shown that a day or two before the animal became ill, and several days
subsequent to the alleged bridge accident, Ira Bennett used it in moving
claimant and his family to the place where claimant lived at the time of the
horse?s death.
Photographs of the bridge were used for illustration, and it was shown that in
the condition of the bridge it would have been impossible for a horse to fall
through it.
Under the facts disclosed by the record the claim will be disposed of upon its
merits. Under such facts the claimant would be entitled to no relief against
the state.
The claim is dismissed.
?236 REPORTS
STATE cOURT OF CLA!MS 1W. VA.
(No 95?Wayne Damron and Calvert Fire Insurance Company awarded $343.82; No.
120?Zillie Damron awarded $100.00; No. 121?Rebecca Dam-
ron awarded $50.00.)
WAYNE DAMRON, and CALVERT FIRE INSURANCE
COMPANY, a Corporation, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
ZILLIE DAMRON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
REBECCA DAMRON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed August 21, 1942.
When, pending the hearing and investigation of claims against the state,
duly filed in the court of claims and placed upon its trial calendar, all
growing out of the same facts, such claimants and the state agency concerned
effect a compromise adjustment and settlement of such claims, subject to the
approval and ratification of the court of claims, and evidence offered in
support of such claims and compromise settlement thereof shows the advisability
and propriety of such compromise settlement, awards will be made for the
payment of such claims in accordance with and pursuant to such agreed terms of
settlement.
J. Waiter Copley, for claimants;
Eston B. Stephenson, special assistant to the Attorney General, for
respondent.
ROBERT L. BLAND, Judge.
After attending the funeral of his mother at ten o?clock on the morning of
October 2, 1941, claimant Wayne Damron, of McVeigh, Kentucky, was driving his
Chrysler automobile east between Huntington and Williamson, West Virginia, on
U. S. route No. 52. Other occupants of the automobile were claimant Ziffie
Damron, wife, and Rebecca Damron, sister, of said
W. VA.] REPORTS
STATE COURT OF CLAIMS 237
Wayne Damron. At a point known as ?Sam
Adam?s Curve? on said highway, about twenty miles east of Wayne Court House and
a mile above Genoe, in Wayne county, state road truck No. 238-27, driven by
Earl Tabor, of East Lynn, ran into and collided with the Wayne Damron
automobile. As a result of the accident the Wayne Damron vehicle was badly
damaged and claimants Zillie Damron and Rebecca Damron suffered personal
injuries. Wayne Darnron filed his claim in the court of claims for an award on
the 22nd of May 1942, and Zillie Damron and Rebecca Damron filed their claims,
respectively, in said court on July 18, 1942. Claimant Wayne Damron seeks an
award of $383.48; claimant Zillie Damron asks damages in the sum of $500.00,
and claimant Rebecca Damron asks for reimbursement for money expended by her in
the amount of $13.25, and $200.00 to compensate her for pain and suffering,
making a total of $213.25.
Since all three of the claims grow out of the same accident and involve the
same facts with respect to the question of liability for damages they were
placed upon the trial calendar of the court for investigation and hearing on
the 22nd of July 1942, a day of the regular July term of said court. After the
three claims had been duly docketed as aforesaid the state road commission
caused a careful and thorough examination to be made of the facts attending the
accident and determined that the responsibility for said accident was due to
the negligence of the driver of the state road truck. Thereupon, and prior to
the date appointed for the hearing of said claims, said three claimants and the
state road commission entered into an agreement whereby a compromise adjustment
and settlement was made of said claims subject to the approval and ratification
of the court of claims.
On the day appointed for the investigation and hearing of said claims, by leave
of the court, the petition of claimant Wayne Damron was amended by making
Calvert Fire Insurance Company, a corporation, a co-claimant thereto.
When said three claims were called for hearing on said 22nd day of July 1942,
counsel for said claimants and the assistant
238 REPORTh STATE
COURT OF CLAIMS LW.
VA.
to the attorney general made the following stipulations a part of the record of
said claims, respectively:
?It is stipulated and agreed by and between J. W. Copley, counsel for each of
the claimants, and the state road commission by E. B. Stephenson, assistant to
the attorney general, that the evidence to be submitted in case of Nos. 95, 120
and 121 may be submitted on all three claims at the same time and by the same
witness and upon the same examination.
?Furthermore, that a compromise of these claims has been agreed upon, subject
to the approval and ratification of the court of claims, whereby Wayne Damron,
case No. 95, is to receive $343.82 for the damages to his automobile; that
Zillie Damron, case No. 120, is to receive $100 for her personal injuries; and
that Rebecca Damron, case No. 121, is to receive $50 for her personal injuries.
?It is further stipulated and agreed that since the filing of this petition the
Calvert Fire Insurance Company, a corporation, has paid to Wayne Damron $253.82
and that they are subrogated to that extent upon this claim, and that when
claim No. 95 is paid that the draft claim should be drawn jointly to Wayne
Damron and the Calvert Fire Insurance Company. It is further understood and
agreed that J. W. Copley, who appears today for the claimants in the three
claims, is also counsel for the Fire Insurance Company and that the claim when
paid should be mailed to him.
?It is further stipulated, understood and agreed that the settlement of these
claims as hereinbefore set forth will be in full and complete settlement for
any and all damages claimed or sustained by the three claimants as well as the
claim by the Fire Insurance Company against the state road commission, its
agents and employees.?
The evidence adduced before the court in support of the claims and the
compromise adjustment and settlement thereof show that the accident was caused
by the negligence of the driver of the state road commission truck. As claimant
Wayne Damron approached the Adams Curve he was successfully
W.VA.] REPORTS STATE COURT OF CLAIMS 239
passed by four or five trucks, but the
state road commission truck driven by Earl Tabor was approaching him on his
side of the road. When he saw it coming toward him and that it was likely to
hit his car he cut his vehicle to the curb and stopped it. When he stopped his
vehicle it was struck by the approaching truck. Damron was driving on the
extreme right of his side of the highway?as he expressed it, ?hugging the
extreme right.? The driver of the road truck admitted to claimant Zillie Damron
that he was responsible for the accident. He said, ?I couldn?t help it. I seen
I was going to hit you and reached for my emergency brake and stopped.? The
only reason assigned by him was that there was something wrong with the
steering wheel of his truck. In a very few minutes after the accident it was
investigated by Oscar Allen, an employee of the road commission. A member of
the state police force also arrived at the scene of the accident. Mr. Allen
made measurements on the highway. The state policeman also made measurements
and an investigation of the accident. It was found that the left hind wheel of
the Damron automobile was four feet on the extreme right of the double line,
there being a double line going around the curve on the highway. The state road
truck was at least four or five feet over on the wrong side of the road. Mr.
Allen had the Damron car conveyed to the State Garage at Wayne. Mr. Allen
testified that as a result of his investigation he found that Earl Tabor, the
driver of the state truck, was at fault and that his negligence was responsible
for the accident. It is also shown that Tabor was charged and convicted of
reckless driving and relieved from further employment with the state road
commission on account of the accident.
The Wayne Damron automobile was badly damaged. To repair it would require the
expenditure of $303.82. Other costs shown by the evidence to have been incurred
by claimant Wayne Damron would amount to $40.00. These two sums would aggregate
the amount proposed to be paid to him in settlement of his damages by the
compromise adjustment.
240 REPORTS STATE
COURT OF CLAIMS [W. VA.
Claimant Zillie Damron had been undergoing medical treatment at Dr. Hatfield?s
hospital in Huntington for gall bladder trouble. At the time of the accident
she was in her menstrual period and the shock of the accident seriously
impaired her nervous system. She sustained bruises and injuries. The proposed
compromise settlement with her is a very reasonable one.
Claimant Rebecca Damron is shown to have sustained shock and slight personal
injuries. She was practically unable to do any housework for some time and had
to employ a maid to assist about the housework and the award of $50.00 proposed
to be made to her in the compromise adjustment appeals to the court as a very
reasonable sum.
Upon consideration of all of the evidence offered in support of the claims and
the proposed compromise settlement and adjustment thereof, we are of opinion
that the settlement proposed to be made and agreed upon by and between
claimants and the state road commission is fair, reasonable and just
We therefore make the following awards in favor of the claimants, that is to
say:
1. To Wayne Damron and Calvert Fire Insurance Company, a corporation, jointly,
three hundred forty-three dollars and eighty-two cents ($343.82), ninety
dollars ($90.00) thereof to claimant Wayne Damron, and the residue of two
hundred fifty-three dollars and eighty-two cents ($253.82) to Calvert Fire
Insurance Company, a corporation; but we do not see that,we have jurisdiction
to provide for the manner of the delivry to said claimants or their attorney
and submit all matters relating to the appropriation and delivery of said
awards to said Damron and the Insurance Company to the Legislature.
2. To Zillie Damron, one hundred dollars ($100.00).
3. To Rebecca Damron, fifty dollars ($50.00).
W.VA.1 REPORTS
STATE COURT OF CLAIMS 241
(No. 133?Claim denied.)
ADA HARLESS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed August 21, 1942.
Where the evidence seems to indicate
and tends to show that the state road commission was not negligent in
maintaining a certain bridge and wire guardrails attached thereto, and that the
said state road commission exercised reasonable care in maintaining and
controlling said bridge, then, in that case, an award will be refused
accordingly to one who alleges that she fell from the said bridge by reason of
improper or defective guard- rails or protection thereon.
Appearances:
Messrs. Watts & Poffenbarger (L.
F. Poffenharger, Esq., and Martin
C. Bowles, Esq.), for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
The claimant, Ada Harless, alleges that on or about Sunday, the 9th day of
November 1941, she fell from a certain suspension bridge spanning the Coal
river at and near Racine, in Boone county, West Virginia. She further alleges
that her fall from the said bridge was caused by insufficient and improperly
constructed wiring running lengthwise with the bridge, and which was supposed
to be a protection to pedestrians or persons being obliged to cross the said
bridge. She testified (record p. 29) that it was about eleven o?clock on
Saturday night, the night before her accident, that she crossed the bridge from
the town of Racine, going in the direction of her daughter?s home; that her
daughter and the daughter?s two children (record p. 29) were with her at the
time; that she was on her way to her
242 REPORTS STATE COURT OF CLAIMS EW. VA.
daughter?s home, where she had been living since some time in October previous,
and that the next day at about eight o?clock in the moning she suffered the
fall from the bridge as hereinbefore stated. Evidence offered by the tate
distinctly contradicts her as to the time she crossed the bridge the night
before the accident, and also the persons with whom she was accompanied at the
time. One of the state?s witnesses, Belcher by name, testifies positively that
he accompanied the claimant over the said bridge some time about midnight, and
that he sat with her on the railroad tracks, after passing over the bridge, for
some fifteen or twenty minutes before she started from that point to her
daughter?s home. There is also evidence of another witness that he saw her
cross the bridge unaccompanied at midnight, and the evidence of the witness,
Ramsey, who says that he took her home from the Glenview end of the bridge
about one-thirty o?clock on Sunday morning, November 9, and that the claimant,
at the time that the witness was accompanying her to her home, made the
statement (record p. 127) ?I been drunker than hell all night.? It is
surprisingly strange that neither the daughter of the claimant nor her
son-in-law were brought before the court as witnesses to corroborate her
statements with reference to her movements on the night previous to the
accident; and as no reasons or excuses were given for the absence of these
persons, it may well be assumed that their testimony would likewise have been
contradictory to the sworn statement of the claimant herself; at least not
favorable to her. Testimony was also introduced that claimant had been
intoxicated at previous times while living near Racine, and that on one
occasion she was ejected from a beer establishment at Racine by reason of her
condition.
We are convinced, from all the evidence, that she was in an intoxicated
condition at least five or six hours before she was found sitting in the Coal
river, as testified to by the witness Rowland, who also testified (record p.
90) that while he paid no attention to her breath at the time he attempted to
remove her from the river, yet it was foul. The claimant is not corroborated by
any direct testimony as to falling from the bridge, as
W. VA.]
REPORTS STATE COURT OF CLAIMS 243
no witness was presented to give any such
testimony; and while several witnesses were offered by the claimant who
testified as to the unsafe condition of the bridge, we are of the opinion that
the reliability of the witnesses presented by the state far outweighs that of
those presented by the claimant, and that the bridge at the time of the alleged
accident was in reasonably safe condition for pedestrians to cross and travel
over. We repeat what we have heretofore held, that the state cannot absolutely
guarantee the safety of travelers and pedestrians on highways and bridges under
its control and can only be held liable when it or the state road commission,
its agency, fails to use reasonable care in maintaining roads and bridges used
by the general traveling public.
As already indicated, we are not inclined to accept claimant?s story of the
accident, and without taking into consideration her condition, which at least
was known a few hours before the accident, we feel that the evidence fully
sustains our view that the bridge was in reasonably good condition and repair,
and that any adult in his or her normal senses could have crossed the bridge
without any difficulty whatever. The witness Rowland, who was the first to
learn of claimant?s position in the river below the bridge on the morning of
the alleged accident, and who assisted her back to the bank of the river,
testified that he crossed the bridge many times?four times on the day of the
accident?and that it was in good condition. In this respect he was supported by
several other witnesses. An attempt was made to show that just a short time ago
a child?s leg had gone through some break in the bridge, but no attempt is
shown to have been made to locate the child or its parents, who were supposed
to have been with the child at the time. Under all the circumstances and
conditions, as presented by the record in this case, we are of the opinion that
no negligence was shown on the part of the state road commission with reference
to maintaining and keeping the bridge in repair, and we are therefore
constrained to refuse an award.
244 REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 75?Clainiants awarded 6OO.OO.)
W. W. CHAPMAN and MAE CHAPMAN, Claimants,
V.
STATE BOARD OF CONTROL, Respondent.
Opinion filed August 21, 1942.
Where it appears from the evidence that claimants have suffered loss and
damages to their property by the same being actually invaded by the creation of
a dam on the state?s property by a state department caused by abandonment of
the project or undertaking in changing the channel of a stream, which dam
permanently floods a part of claimant?s land, and causes intermittent but
inevitably recurring overflows and seepage of water on other lands of
claimants, when the abandonment of the project or undertaking is done without
any intention of completing same in such manner that claimants are not afforded
a remedy in the courts of the state, the court of claims will recommend an
award to such claimants for what is considered a fair and just compensation for
the loss and damages sustained.
Appearances:
Lynn Mapel Branncm, Esq., for the claimants;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
WALTER M. ELSWICK, Judge.
The claimants, W. W. Chapman and Mae Chapman, are, and have been since the year
1928 the owners in fee simple of a tract of land containing approximately
twenty-two acres, situate in Freeman?s creek district Lewis county, West
Virginia, lying on the west side of West Fork river. The West Virginia board of
control is the owner of certain real estate situate in said district of said
county, about one-fourth mile to the north of the Chapman property on the West
Fork river, which is known as
W.VA.1
REPORTS STATE COuRT OF CLAIMS 245
the state 4-n camp, at Jackson?s Mill in said county. A portion of the 4-n camp
property lying on West Fork river on the then east side thereof about one-half
mile from the Chapman property was converted into an air field. This airport
lay within a bend of West Fork river. It was to be used by the West Virginia
university extension as a training field for students. Sometime prior to the
year 1934 said board of control in an effort to straighten the channel of West
Fork river and to improve its said property for an airfield and airport, by
extending its runways, undertook and did change the course of said river by
cutting a new channel over a different course and abandoning and filling in the
original course and channel of said river. The work was done by the federal
emergency relief administration, which work was authorized and sponsored by
said West Virginia board of control.
The work on the cut for the new channel was begun on the upper end of the bend
in the river and the cutting and dredging continued down from the upper end of
said bend to a distance of about 2000 feet from the lower end of the bend of
the river. At this point in the construction of the new channel for the river
they encountered a hard ledge of rock or limestone at about seven feet above
what was originally intended to be the bottom of the cut where the channel
enters the cut, the top of said limestone ledge being about seven feet above
what had been the level of the river bottom. Due to the heavy cost of removing
the limestone ledge and continuing the cut to the level of the river bottom at
the intake of the cut, the board of control on December 5, 1934 determined to
abandon further excavation in said channel and to allow the river to pass over
the new channel as then constructed down to the limestone ledge, which work was
then accordingly discontinued by the federal emergency relief administration.
(Claimant?s exhibit board of control certificate).
During the course of this work the original course of the river had been filled
in around the bend or curve in the river, and the water of West Fork river
dammed against said ledge of
246 REPORTS STATE COURT OF CLAIMS 1W. VA.
stone at the end of the construction, and has since backed up on the Chapman
property. The water level of the river for a distance of about 1627 feet along
the Chapman property has been raised about eight feet or more higher than the
water level of the river along these lands prior to the filling of the old
channel bed of the river.
From the evidence it appears that as a consequence of this filling in of the
old channel of the river and the abandonment of the excavation of the new
channel contemplated at the beginning of the work, approximately .82 of an acre
of the Chapman property has been inundated by the raising of the water level of
the stream; that .5 or one-half acre of said land is now a ravel, wasting area
that is being undermined by the water, and that other portions of said property
are becoming swampy and water sogged areas due to the seepage and inflow of the
river?s waters. It appears that the Chapman property is mostly all level river
bottom land, and, due to its location, and adaptability to agricultural
purposes was valuable agricultural land. The soil along the river was about
fifteen feet deep. (Record p. 13). Due to its location in the vicinity it could
also have been partitioned and sold into lots at an advantage. (Record p.78).
Prior to the change of the river?s original channel trees and other vegetation
grew along the river bank on the Chapman property which protected the bank from
erosion. (Record p. 44). Since the water was dammed and a portion of the bank
inundated the trees and vegetation have died and left the Chapman lands exposed
to erosion of water. The water from. the dam seps through the deep soil causing
the river?s bank t& fall in, and the seepage of the water makes the
adjoining lands ?water sogged? or ?swampy? (record p. 105). Due to the raise of
the water level along these lands it would be impractical to drain them, since
ditches or drains would necessarily be down to the water level of the river as
raised. (Record pp. 6,. 8, 9 and 43). From the evidence it appears that this
land along the river will by all probability continue to erode and waste
W.VA.1 REPORTS STATE COURT OF CLAIMS 247
away (record p. 46). As this is done more
land will by all probability become water sogged and swampy.
The West Virginia board of control, by the attorney general, filed a special
plea to claimant?s petition alleging that a mandamus proceeding in the proper
circuit court of this state would lie against the state board of control, and
that for that reason this claim is excluded from the jurisdiction of the court
of claims by virtue of subsection 7, section 14, chapter 20, acts of the Legislature 1941.
The question therefore is, does this court have jurisdiction? If a remedy is
afforded in the circuit courts this court would not have jurisdiction. But if
the claimants? property has been taken or damaged without just compensation and
no remedy is afforded in any of the courts of this state, this court has
jurisdiction to entertain the claim against the state board of control.
The agencies of the state are clothed with wide discretion in determining
purposes for which condemnation proceedings may be invoked, and the amount of
property needful and reasonably necessary for a particular project. State v. Homer, 1 S. E. 2nd 486, 121 W. Va. 75. Even where condemnation
proceedings have been instituted and the proposed project determined as to its
particular location, it has been held by our Supreme Court that a county court
proceeding under chapter 43, section 138 of the 1923 code may in its discretion
abandon the undertaking proposed in the condemnation proceedings. It had the
right to consider the state of the funds at its disposal and the probable cost
of the land and construction of the project. County Court
v. Hall, 41 S. E. 119, 51 W. Va.
269. Chapter 54, article 2, section 14 of the code of West Virginia, Michie?s
code section 5385 supersedes the portion of chapter 43, section 138 which gave
to the county court the option to pay the award of such proceeding or to
abandon the proposed undertaking. The said provision no longer appears under
the narrow and limited title of ?public highways? to be acquired by county
courts as found in the 1923 code, but appears under the broad title of Eminent Domain applicable
to the state or any subdivision thereof.
248 REPORTS STATE
COURT OF CLAIMS [W. VA.
Said chapter 54, article 2, section 14 of the code provides that the court or
judge, at the request of the applicant, may make an order permitting the
applicant at once to enter upon, take possession, appropriate and use the land
sought to be condemned for the purpose stated in the petition. This section of
the code before the amendment of acts of 1937 further provided that:
?If the applicant shall enter upon or take possession of property under the
authority of this section, and shall do any work thereon and injure such land
or property, it shall not be entitled, without the consent of the defendant, to
abandon the proceeding for the condemnation thereof, but the same shall proceed
with reasonable dispatch to a finality, and the applicant shall pay to the
owner of the land the amount of compensation and damages as finally determined
in such proceeding.?
The amendment by acts of 1937 substituted for the words ?the same shall proceed
with reasonable dispatch to a finality? formerly appearing, and used the words
?such proceedings shall proceed to final award or judgment after a reasonable
time has elapsed for completion of the work upon the particular property so
entered upon and taken possession of, . .
In the instant case the state board of
control did not enter upon or take possession -of any lands owned by claimants.
At the time of the undertaking we can justly conclude that the board did not
deem it necessary or proper to negotiate with the claimants for a release of
the damages later inflicted upon their property or to ifie a petition for an
entry upon their lands, for the reasoon that the work being done was upon the
lands owned by the state, and if it had been feasible to have completed thwork
undertaken, the claimants? property would not have been damaged. It was such an
undertaking that all parties in interest had the right to assume that the work
would be completed.
The cases of Hardy v. Simpson, 118 W. Va. 440, 190 S. E. 680, 191 S. E. 47 and Riggs v. State Road Commissio?n.,
120 W. Va.
298, 197 S. E. 813, had to deal with the rights of landowners
W. VA.] REPORTS
STATE COURT OF CLAIMS 249
whose properties had been damaged after
completion of the work being done by the state road co mission. The court in
the majority opinion in the Hardy case, supra, referring to the act of the Legislature (code 54-2-14)
said:
this provision contemplates a proceeding to condemn, because it provides that
such proceeding may not be dismissed without the consent of the landowner. A
recent act of the Legislature, Senate Bill 188, 1937 session, and now
effective, provides for the ascertainment of damages for property actually
taken ?after a reasonable time has elapsed for the completion of the work upon
the particular property so entered upon and taken possession of.? This act is
mentioned as showing the legislative policy . . . probably
a more equitable ascertainment can be made after the completion of the project
for which the property is taken, and the legislative policy seems to be to
delay compensation until there is a final and complete picture of the damage
done, both in the actual taking and otherwise; or on the other hand, the damage
done to property, where there is no actual taking, arises solely from the
maintenance and use of the project (in this case a highway) after its
completion.?
In the Hardy case, supra, a writ of mandamus was refused for the reason that the
project involved therein had not been completed at the time the writ was sought
and the court held that the road commissioner had a reasonable discretion,
after completion of the work to take the necessary steps to ascertain of the
damages, if any, to which petitioners were entitled. Likewise the record in the
Riggs case, supra, shows that the work had been completed sometime prior
to the time the petition for mandamus was filed.
Since it appears from the decisions of the courts of our state that the only
remedy which has been afforded landowners by way of mandamus has been in cases
where the work has been completed and after the commission or board has had a
reasanable time to exercise its discretion in taking steps to ascertain the
damages, if any, it appears that the Chapmans, the claimants in this case, have
never been, and are not now, afforded a remedy in the courts of this state for
the damages sustained by
250 REPORTS STATE COURT OF CLAIMS [W. VA.
them. Furthermore, since the board of control in its discretion had not seen
cause to file its petition for right of entry or assessment of damages to
claimants? property, the board could abandon the undertaking without the
statute (code 54-2-14) affording the claimants a remedy in the courts of this
state.
When the board of control found it impractical to continue with the cutting of
the 2000 foot ledge of rock, it had the work of cutting the new channel of the
river discontinued. It was not the cutting of the channel or the completion or
use of the work which caused claimants? dar ages, but the failure of the board
of control to complete the cutting of the channel which caused the damage to
claimants? property. By leaving the ledge or rock in the new channel, the water
dammed against it, and a part of claimant?s property has been inundated by the
water backing up on same. This constituted a taking as well as damages to
claimants? property.
?When a public agency acting under authority of statutes uses land which it has
lawfully acquired for public purposes in such a way that neighboring real
estate, belonging to a private owner, is actually invaded by superinduced
additions of water, earth, sand, or other material so as effectually to destroy
or impair its usefulness, there is a taking within the meaning of the
constitution. Applying this rule it is universally the law that the permanent
flooding of private land by the erection of a dam constitutes a taking of the
land so flooded. Similarly, a permanent liability to intermittent, but
inevitably recurring, overflows constitutes a taking.? 18 Am. Jur. 759, see
also cases therein cited.
Having concluded that the claimants have not been afforded a remedy in the
courts of the state, and that this court has jurisdiction to hear and determine
the merits of said claim of claimants, from all the evidence in the case, we
are of the opinion that claimants are entitled to an award for the tortious and
permanent injuries sustained to their property, and that the sum of six hundred
dollars ($600.00) is a fair and just compensation to them, and an order will be
entered recomemnding an award accordingly.
W. VA.] REPORTS
STATE COURT OF CLAIMS 251
(No. 103?Claim
dismissed.)
HERBERT DODRILL, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed September 19, 1942.
Where a claimant alleges that state
prisoners who have escaped from a state road camp stole and carried away his
automobile, and there is no evidence of any kind to sustain the said claim
against the state or the state agency involved, as in the instant case, an
award will be refused and the claim dismissed.
Appearances:
No appearance for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
This claim was presented to recover the value of a 1929 Model A Ford coach
alleged to have been stolen from the claimant while parked on the road near his
home in Webster county, West Virginia, by state prisoners who had escaped from
a road camp located some seven miles from claimant?s home.
The hearing to determine the merits of the claim was set for July 14 of the
present year, and claimant duly notified in ample time to appear and present
his case. However, at the appointed time, the claimant failed to appear before
the court, and the state insisting that the case should be heard, the court
pro-. ceeded to hear and examine the state?s witnesses; and after such
examination and hearing held the whole matter in abeyance until the claimant
could have further notice of the proceedings that had taken place, and
accordingly claimant was given a ten day notice to appear and offer evidence in
support
RRTS STATE COURT O CLAIMS tW. VA.
of his claim, or to show cause why he
would be entitled to have the
case reopened for a rehearing. Notice was duly and accordingly
sent to the claimant, who, at the end
of the period of time allowed,
failed to appear. The court therefore
makes its finding and bases its opinion
upon the evidence as submitted by the state.
The automobile in question, as already stated, was evidently stolen while parked near claimant?s premises on or
about the 26th day of February of the present year.
On the same day several prisoners
escaped from a state road camp located approximately
seven miles from claimant?s residence and
home, and some time
later the escaped prisoners were apprehended in Clay county in possession
of an automobile which, however, was not the one in question in this case, nor did the
automobile so apprehended belong to the claimant. There is not a scintilla of
evidence presented anywhere in the record to show that the claimant?s
automobile was stolen by the escaped prisoners, or any one of
them; and in conversation with claimant (record p. 16) the witness Robinette, a state
guard, testifies that claimant admitted that he could not testify or swear that the
prisoners in question had stolen his
car, and that because of the fact that the prisoners in
question had escaped at and about the time his car was stolen, he simply assumed
that they were the culprits who had
committed the theft (record p. 17).
Under these circumstances no liability is shown on the part of the state or the
agency involved and we therefore refuse an award and dismiss the
claim.
W.VA.1 REPORTh STATE COURT OF CLAIMS 253
(No. 137?Claim denied.)
THOMAS L. JOHNSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed September
19, 1942.
The state or its agency, the state
road commission,
is not an absolute guarantor of the safety
of its employees, nor was it such guarantor at the time of the accident from
which the instant case arose; and when claimant with full knowledge of the
danger incident to the work that he was about to perform had at his command and
disposal the means of protecting himself by the use of available equipment, and
the use of which would in all probability have prevented the accident to him,
and failed to do so, then he was guilty of such negligence as must necessarily
preclude him from an award.
Appearances:
Henry S. Cato, Esq., for the claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
Thomas L. Johnson, at present fifty-three years of age, brings this claim against
the state road commission for injuries suffered by him on or about March 11,
1937, while engaged in spreading cinders mixed with calcium chloride on the
Kanawha City bridge at about one o?clock A.
M. on the day in question.
The facts, as adduced by the evidence, show that claimant had been employed
since 1934 by the state road commission, and at the time of the accident in
which he was injured, was known as a maintenance foreman. On March 10, 1937,
claimant was called by one Joe L. Stern, the assistant superintendent of county
roads for Kanawha county, to take charge of a crew to spread cinders on the
various bridges located at and near
254 REPORTS STATE COURT OF CLAIMS LW. VA.
Charleston, on which bridges there was a collection of frost, thereby making
them dangerous to traffic, and requiring the spreading of cinders as a matter
of safety. It seems that but three men, including the claimant, could be
obtained for the work, it being midnight on the day in question, and claimant
was placed in charge and was assisting a fellow workman in spreading the
cinders, while a third, who was a son-in-law of claimant, drove the truck which
was carrying the material to be used on the bridges. The evidence shows that
claimant had done work of this nature before, and, consequently, knew of any
hazard that might be connected with its operation. Two of the three bridges had
already been given attention, and about midnight or shortly thereafter,
claimant and the other two men of the crew repaired to the garage of the state
road commission located on Wilson street, in the city of Charleston, for more
material, and then started for what is known as the Kanawha City bridge, where
the work was seemingly to be completed. While the operation of spreading the
cinders was being carried on on the last mentioned bridge; and while claimant
and his fellow workmen were walking behind the truck carrying the material,
shoveling it from the truck, to be spread on the bridge; and while the truck
was moving at a speed about as fast as a man could walk; and when the crew in
question had reached a slight incline in the bridge toward the Kanawha City
side of the bridge, an automobile speeding in the direction of said Kanawha
City, and driven by one Brierly, ran into the claimant, throwing him violently
to the bridge, passing over part of his body. Before he could be extricated
from his perilous situation another automobile being driven in the same
direction as the Brierly car ran into the Brierly car and into and upon and
over the claimant, causing very serious injuries and placing the claimant in
such a critical condition that for a long time his life was despaired of. He
sustained compound fractures of both legs and of the left arm. His nose was
broken and he suffered skull injuries, and was unable, by reason of said
injuries, to return to his work for nearly a year thereafter. He had been
earning approximately from $120.00 to $130.00 per month at the time of his
injuries. While he was confined in the hospital he was paid approximate-
W.VA.1
REPORTS STATE COURT OF CLAIMS 255
ly for two months salary by the road commission. He returned to his work in the
month of February 1938, receiving approximately $110.00 to $120.00 per month
for some time, but was gradually given increases of pay; and since October
1941, he has been paid at the rate of $200.00 per month and given work that
requires his attention at the shop or building where the equipment of the state
road commission is kept and maintained. He is known now as a shop foreman.
After he had been dismissed from the hospital, suits were commenced in the
circuit court of Kanawha county in his behalf against the owners of the
automobiles that had run into and injured him; and after the payment of his
attorney fees he received approximately $8,-
250.00. His hospital and doctors? bills amounted to approximately $2,500.00,
which bills were paid out of the amount that he had received by reason of the
actions at law that had been commenced by him. In 1939 the Legislature of the
state of West Virginia made an appropriation to him to cover the said hospital
and doctor bills amounting to $2,459.05, which amount was ultimately paid to
the claimant?s attorney, but from which amount it seems that claimant?s
attorney deducted the sum of $250.00 for services rendered in having the said
appropriation made by the Legislature aforesaid. Claimant also maintains that
he has been obliged to pay approximately $1,000.00, since returning to his
work, for doctor and medicine bills, although no evidence is introduced in the
slightest degree to sustain this item. Claimant now asks that the state make
him a further payment in compensation for the injuries received.
That the work in question involved danger and risk on the part of claimant on
the night in question is a settled fact. This, claimant well knew. In fact he
had done similar work under similar circumstances and could readily realize
that it was fraught with a certain degree of danger to those who were called
upon to carry on the operation of spreading the cinders on the bridge in
question. After completing the work on the second bridge the three men carrying
on the work, of whom the claimant was one, and who was in charge, repaired to
the state garage to load material on the truck for the purpose of using it on the
third or Kanawha City bridge. In this garage
256
REPORTS STATE COURT OF CLAIMS 1W. VA.
were flares, lights, lanterns, signs and other equipment that would be
necessary to warn not only the traveling public, but to protect the crew that
was working on the bridge as well; and all this equipment was at the disposal
of the claimant without let or hindrance so far as its use for the work in
question was concerned. He could have taken flares, lights, lanterns, signs,
and placed them in the truck previous to going to the Kanawha City bridge, and
would have been entirely within his rights, not only in protecting himself and
the other members of his crew, but the traveling public as well, by the use of
these lights and flares.
However, it is maintained by the claimant that under the circumstances it would
not have been expedient to use any signs, lanterns or flares, since it required
one man to drive the truck, two others to unload and spread the cinders, and
for the use of the signs, lanterns, flares or lights another man or employee
would have been needed. We do not agree with this proposition. We feel that in
view of the dangerous and hazardous work that the crew was called upon to
perform, that it was midnight or thereafter, and necessarily quite dark at that
season of the year, and that claimant knew or should have known that
automobiles would be passing over the said bridge while the work was being
carried on, that flares or lanterns could have been used under the
circumstances, even although the work of spreading the cinders would have been
from time to time halted till the flares or lanterns could have been moved in
closer proximity to the truck that was hauling the material. What was there to
prevent the claimant or crew, as the spreading progressed, from placing the
flares or lanterns every fifty or seventy-five feet back of the truck, which
was only moving, as shown by the evidence, as fast as a man could walk, and
then moving the flares or lanterns up closer to the work that was being carried
on after the distance of fifty or seventy-five feet had been covered by the
spreading of the cinders? Surely this would have been a precaution that would
perhaps have entirely avoided the accident in question, and, consequently, the
Injuries to the claimant; and we fail to understand why such measures were not
employed under the existing circumstances.
W, VA.]
REPORTS STATE COURT OF CLAIMS 257
The claimant was even charged with a
higher degree of care, perhaps, than the other two men of the crew, since he
was in charge of the work. The witness Bratton, the man who was working with
claimant in unloading the cinders, says that several days after the accident
thoy were instructed by their superiors, employed by the road commission, to
use flags, lights and flares in the future on all curves and bridges when work
of this kind was carried on. Did the lack of these instructions make the state
road commission liable to the claimant? We think not. His experience in similar
work under similar circumstances had undoubtedly taught him that necessary
precautions must be taken when such work is carried on; and his failure to do
so under all the circumstances was, in our judgment, a very grave degree of
negligence. The witness Cavendish, the district engineer of the road commission
at that time, testified (record p. 124) that crews were instructed to use
lights whenever necessary. This instruction would seem to be reasonable, and we
have no doubt that in the course of his several years of employment previous to
the time of the accident, claimant knew the importance of such instructions and
their beneficial effect when followed by those carrying on work such as
claimant did at the time of his injuries.
The state or its agency, the state road commission, is not an absolute guarantor
of the safety of its employees, nor was it such guarantor at the time of the
accident; and when claimant, with full knowledge of the danger incident to the
work that he was about to perform, had at his command and disposal the means of
protecting himself by the use of available equipment, and the use of which
would in all probability have prevented the accident to him, and failed to do
so, then he was guilty of such negligence as must necessarily preclude him from
an award on any legal basis.
We feel further that in view of the fact that he received approximately
$8,000.00 after the payment of his doctors? and hospital bills, from those
immediately responsible for his injuries, and that he has been given steady
employment since 1938 by the road commission, and since October 1941 has been
258 REPORTS STATE COURT OF CLAIMS [W.VA.
receiving a salary at an incr-ease of fifty per cent over and above the highest
he had received previous to the time of his injury, that the state of West
Virginia and the state road commission have fully discharged their obligations,
which in good conscience they may have owed to the claimant as an employee.
In view of all of these facts, taken into consideration with what we believe to
have been an extreme degree of negligence on the part of the claimant himself,
we are unable to sustain the claimant?s theory for compensation advanced by
him, and, therefore, refuse an award.
(Nos. 118-119?Claims denied.)
MARGUERITE M. SMITH, Claimant,
V.
STATE ROAD COMMISSION, Respondent,
and
HERMAN SMITH, Claimant,
V.
STATE ROAD COMMISSION, Respondent,
Opinion fiLed September 19, 1942.
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 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.
W. VA.]
REPORTh STATE COURT OF CLAIMS 259
2. Where upon the hearing of a claim filed
by a husband for an award for property damages under the above facts it is
shown by the evidence that his automobile was maintained for convenience and
family purposes and that the loss occasioned to his car was the result of the
contributory negligence of his wife in the use of the same, his claim for
damages will be denied.
Appearances:
Hedges & Hedges, for claimants,
Esto?n B. Stephenson, special assistant to the Attorney General, for
respondent.
ROBERT L. BLAND, Judge.
These two claims grow out of the same automobile accident. By agreement of
counsel they were heard and considered together. One seeks an award for
personal injuries, the other for property damage.
Driving the 1935 Plymouth automobile owned by her husband, claimant Herman
Smith, claimant Marguerite M. Smith left her home at Kester, in Roane county,
West Virginia, on the morning of May 6, 1941, for Charleston, in Kanawha
county. The purpose of her trip was to take treatment from a Charleston
physician for sinus trouble from which she had been suffering for more than a
year. On the occasion under consideration she was accompanied by her neighbor
and friend, Mis. Eva Parker.
The route traveled by Mrs. Smith was over the Little Lefthand road leading from
Vineyard Gap to Amma, in Roane county, known as state route 58. This road had
been rockbased for four or five years, witnesses not being in agreement as to
the actual length of time. It is fourteen feet in width. At a point on the
right hand side of the road as Mrs. Smith traveled toward Charleston, and
probably about two hundred yards from the residence of George Pettit, it had
broken away
260 REPORTS STATE
COURT OF CLAIMS 1W. VA.
leaving a large depression or hole. When this break occurred is not made clear
by the evidence, but seemingly it had existed something like a year without
being repaired. This break or depression was of circular shape or form and the
hole was approximately two and a half feet deep at the point where the break
occurred. It was considerably deeper at the lower edge of the road, probably as
deep as four feet. After allowing for this break about six feet of the stone
base remained for one- way travel.
It appears from the evidence that warnings of this dangerous condition of the
road had been placed from time to time at nearby points. Press Snodgrass, a
former assistant county maintenance supervisor, testified that he had placed
?bats? around the break or depression several times. It is shown that ?paddles?
had been placed in the vicinity of the depression in the road. A ?paddle? is an
iron post placed in the ground on which a board eight or ten inches wide, with
alternate black and yellow stripes, is fastened. This seems to be, under the
evidence, a standard warning of danger adopted by the state.
J. H. Smith, father of claimant Herman Smith, testffied that he had seen
warning signs in this slip. Doubtless some of these warnings had been removed
from time to time and replaced from time to time, but it is made clear by the
evidence that signs indicating the dangerous condition of the road at the point
of the break therein had been displayed by road authorities. No one traveling
on the road could fail to see the dangerous condition of the road at the point
of the break or slip.
On her way to Charleston on the morning of May 6th, Mrs. Smith was obliged to
pass this dangerous point in the road. She had an unobstructed view of the
point of danger as she approached the place of the break or depression in the
road. She passed this dangerous point successfully by driving the car on the
rock base portion of the road which was used for oneway travel.
W. VA. I REPOHTS
STATE COU ItT OF CLAIMS 261
Oii her viv lvcl lioiiie fI)I!i (?Ii 11(?St(,iI l\?liX. 5101111
I he iiiItOlI1OIJII(? iIit() this I)Ieiilc
or (1(?1)leSSIOIi ill tIle 111(1. IIW iUlofllOI)J1(? l1.IIi1(?(l 0V(?J I Iiiee I fli(?S (IOWII II( (nhhatlknient. Mrs. Smith sust iIifl(?(l a seV(?i?e shock to her nervous system. She was taken 1(1 a h051)iIal at SJ)t?nCeI for i I(?i1t1fl(?1it
. As a resu of the
accIdent she was incapacitated for some time for he J)erfOrUim(e of her c
tist onhiiry I iotisehiold
ditties. It is siiowti that she iIleII.rre(I
expense iii receiving medical treatment. She seeks
an award for personal injuries,
and rests
her claim upon the failure (If the slate road commission to keep I lie road
where the accident occurred in jroei COTIdIt
ion for
public travel. She maintains that the road was out of
repair and I hat the accident vhich she sustained Vi1S
due to
the negligence of the stale iii failing to
keep the road in I)IoPd?r
repair. She testified that she had never been over
the road since it had been
rock?based an(l was not aware of the
hole or depression in the road. She claims that as she
ascended the embankment or small hill approaching the break in the road she had no
view of it, and could not and did not see the dangerous condition of the road. In this view she
is supported by the testimony of a number
of witnesses. A mass of testimony was
taken in the case. The transcript of evidence covers 242 pages.
For purposes of illustration two photographs were offered in evidence by
respondent. One showed a view of the break in the toad as Mrs. Smith approached
the point on her way to Charleston. The other showed the point in the road as
Mrs. Smith was on her way home from Charleston. Claimants maintain that these
pictures did not describe or delineate the true condition of the road. As a
result of the introduction and use of these photographs
considerable confusion was created. Several days after the taking of the
testimony at the bar of the court all three members of the court visited the
scene of the accident and inspected the road. They did this for the purpose of
satisfying themselves as to the true and actual condition of the road. The road
had been repaired after the accident.
262 REPORTS STATE
COURT OF CLAIMS [W.VA.
When the automobile owned by claimant Herman Smith ran into the depression or
hole in the road it was precipitated over the embankment on the left side of
the road and was practically demolished. As shown by the evidence it was not
fit for more than junk and a value of $50.00 was placed upon the vehicle as
such junk.
Mrs. Parker, the companion of Mrs. Smith in the automobile, testified that as
the automobile ascended the rather abrupt bank or small hill before reaching
the break in the road, that she for some inexplicable reason raised up suddenly
in the vehicle and exclaimed that there was a broken place in the road. Almost
immediately the car fell into the slip or break in the road and turned over
three times down the embankment. She further testified that about the time that
the automobile landed on the ground Mrs. Smith ejaculated: ?Oh! I have fainted
and torn this car all to pieces.?
There can be no question as to the fact that the road at the point of the
accident was out of repair, nor is there any doubt as to the further fact that
warning signs of the danger caused by the slip had been placed around the hole
as above stated. Mrs. Smith had ample opportunity when she passed this break in
the road in the morning on her way to Charleston to see the dangerous condition
of the road. If she did not see it she should have done so. The danger was too
apparent to pass unnoticed. She was charged by law with the exercise of
ordinary care to avoid driving the car into the slip. She could not have helped
knowing that on her return home from Charleston she would be obliged to again
pass this dangerous place in the road. She had ample notice and warning of its
existence. If she failed to exercise such prudence and ordinary care and drove
into the slip or break in the road without going around it as she should have
done she is chargeable with and guilty of contributory negligence. The law
required her to exercise care. Her failure to do so will bar her right to an
award. It appears from the evidence that she is a woman of mature years and
good inteffigence. Her action in driving the automobile
W.VA.1 REPORTS
STATE COURT OF CLAIMS 263
into the slip was in our opinion the
proximate cause of the accirlent. Since she passed the dangerous point in the
morning she was charged with notice of the danger that existed. Her failure to
remember the point in the road where the break occurred will not make the state
liable for damages to her.
In Berry on Automobiles, second edition, section 653, the rule is stated that
one who keeps an automobile for the pleasure and convenience of himself and his
family, is liable for injuries caused by the negligent operation of the machine
while it is being used for the pleasure or convenience of a member of his
family. Since it appears from the evidence that claimant Herman Smith permitted
his wife to use his automobile on the day of the accident and that her
negligence in driving the vehicle into the slip in the road was the direct and
proximate cause of the accident that resulted in loss sustained by the
destruction of said car, an award will not be made in his favor for such damage.
We are of opinion, from all the facts disclosed by the evidence and after
personal inspection of the road at the scene of the accident by all of the
members of this court, that neither claimant Marguerite M. Smith nor claimant
Herman Smith is entitled to an award as claimed by them respectively.
The claims of both of said claimants are therefore denied.
264 REPORTS STAlE
COURT OF CLAIMS [W. VA.
(No. 141?Claimant awarded $180.00.)
ELKINS BUILDERS SUPPLY COMPANY, a corporation,
Claimant,
V.
BOARD OF CONTROL, Respondent.
Opinion filed September 19, 1942.
Where the state department of
purchases requests bids for furnishing to a state institution 2,000 feet of
black walnut lumber, without specification as to quality, and a dealer agrees
to furnish same at the price of $90.00 per thousand feet, and thereafter said
department of purchases makes its requisition for such lumber, in pursuance of
such bid, and said lumber is furnished and delivered to the state institution
for whose benefit it was purchased, in accordance with such bid and
requisition, and it is shown to be fifty per cent clear black walnut lumber and
the balance of lower grade, but suitable for use in making furniture and for
other wood-working purposes, such order cannot be cancelled for the reason that
said lumber was of inferior quality, and the lumber so furnished and delivered
will be required to be paid for at the contract price.
B. M. Hoover, for claimant,
ston B. Stephenson, special assistant to the Attorney General, for respondent.
ROBERT L. BLAND, Judge.
Claimant is engaged in the sale of lumber and builders? supplies, at wholesale
and retail, in the city of Elkins, Randolph county, West Virginia. By
requisition in writing bearing date on the 16th day of September 1941, after
quotation as to price and bid duly submitted, Honorable J. Buhl Shahan, state
director of purchases, authorized and directed said Elkins Builders Supply
Company to deliver to the West Virginia schools for the deaf and the blind, at
Romney, West Virginia, 2,000 feet of black walnut lumber, without mention of
grade or specification, at the price of $90.00 per thousand feet, the total
purchase price being $180.00. In pursuance of said requisition claimant
delivered said lumber, by truck, to said West Virginia schools for the deaf and
the blind, at Romney, West Virginia, a distance of one hundred miles from
Elkins, on the 23rd day of September 1941. The delivery was made by H. T. Beal,
W. VA.] REPORTS
STATE COURT OF CLAIMS 265
an employee of and truck driver for claimant, who had with him at the time of
delivery the original purchase order for said lumber. The delivery and receipt
of said lumber was evidenced by this endorsement made on said order: ?W. Va.
School for the Deaf, by Evan Ellis,?
The superintendent of the West Virginia schools for the deaf and the blind was
not at the institution at the time of the delivery of the lumber, but it was
unloaded by Evan Ellis and James R. Thompson, both employees of the
institution, and H. T. Beal, the truck driver, and placed in the basement of
the Mechanical Arts building. Mr. Ellis is a deaf teacher and cabinet maker,
who has been with the institution for twenty-three years. Mr. Thompson became
connected with the schools in July, 1941, and is employed as a carpenter and
teacher in the wood shop. Both men work with lumber there. After the
superintendent?s return to the institution he was informed by either Mr. Ellis
or Mr. Thompson that the lumber was of inferior quality. He thereupon directed
said Ellis and Thompson to measure the lumber to determine what part of it
could be used. The lumber was graded by Ellis and Thompson, who reported that
385 feet of the 2,000 feet was unusable. Mr. Harris, the superintendent,
inspected the lumber and determined that in its entirety it was not suitable
for the use to which it was intended to be devoted, and that certain portions
of it were crooked, split and rotten. He thereupon notified the department of
purchases of the condition of the lumber and the disposition he would like to
have made of it. He wanted a ?stop order? and was informed that such order had
been issued. His first communication with the department of purchases was by
telephone, and later by letter.
On October 3, 1941, the department of purchases addressed a letter to claimant
whereby it attempted to rescind and cancel the purchase which it had made of
the lumber in question and requested that the said lumber be removed from the
institution. Claimant, taking the position that it did not know when or where a
re-sale of said lumber could be made if compelled to comply with the request of
the department of purchases and remove the same, declined to reclaim said
lumber
266 REPORTS
STATE COURT OF CLAIMS 1W. VA.
from said West Virginia schools for the deaf and the blind and filed its claim
in this court for the purpose of obtaining an award for the contract purchase
price of said 2,000 feet of black walnut lumber.
Upon the investigation and hearing of said claim it was shown that the lumber
delivered was of standard lengths and widths. Standard lengths in hardwood run
from eight to sixteen feet. It was, we think, satisfactorily shown by the
evidence that at least fifty per cent of the lumber in question was clear black
walnut. The balance of the shipment was of a lower grade, but suitable for use
in general furniture making. The lumber was what is generally known or termed
?log run.? This lower grade could be cut into small pieces and used by gluing
them together, as is customary in the making of tables, chairs and other
furniture.
It appears from the record that prior to the appointment in July 1941, of
Stanley R. Harris as superintendent of the West Virginia schools for the deaf
and the blind, and under the former administration of former superintendent,
Dr. Krause, a man named Ed Doman, who conducted a sawmill and dealt in lumber
at Romney, proposed to sell to the institution 2000 feet of black walnut
lumber, and guarantee the grade thereof, at $30.00 per thousand feet. Dr.
Krause caused requisition to be made for this Doman lumber and forwarded to the
department of purchases. On this requisition a notation was endorsed as
follows: ?It may be secured from Ed Doman, of Romney, West Virginia, for use in
the cabinet making shop.? The department of purchases sent to Mr. Doman a
request to bid on this lumber, but received no reply from him. The department
then ?went shopping around? and finally got a bid from the Elkins Builders
Supply Company, which bid was accepted and a requisition made for the lumber as
above stated. The purchase order given to claimant did not contain the notation
?for use in the cabinet making shop.?
When claimant delivered 2000 feet of black walnut lumber to the schools for the
deaf and the blind, Evan Ellis evidently thought it was what he supposed had
been purchased from Ed Doman. Superintendent Harris labored under the
impression
W. VA.] REPORTS
STA COURT OF CLAIMS 267
that the Doman lumber had been purchased
as requisitioned for by his predecessor, former President Krause. He did not
understand that the purchase made for the institution by the department of
purchases was an entirely different transaction. In the one instance the use
for which the lumber was intended was indicated, in the other it was not. Out
of these different transactions misapprehension and confusion resulted. In the
former case the quality of the lumber was to be guaranteed. In the latter there
was no mention of quality or grade.
But in view of all the evidence, the probative value of which we have carefully
considered, we are of opinion that claimant furnished 2000 feet of black walnut
lumber suitable for use in furniture making and for general hard wood-working
purposes. Our conviction in this respect is confirmed by a conversation between
claimant?s truck driver and the institution?s cabinet maker, Evan Ellis, at the
time of the delivery of the lumber. Ellis asked the truck driver if claimant
had ?the order for a thousand feet of choice walnut.? The truck driver replied
that his company had been requested to bid on it, but did not think its walnut
was good enough. Ellis then said, referring to the 2000 feet of black walnut
delivered to the institution by Claimant, ?You could have picked that, graded
that out of this that you got.? That statement was made at the time that Mr.
Ellis was assisting in unloading the lumber and had opportunity to see and
discern its quality.
We appreciate the circumstances under which superintendent Harris called the
state department of purchases and re- quested a cancellation of the order made
for the purchase of the lumber. He was a new man at the institution and
conscious of the responsibilities of his position. He believed that lumber had
been delivered to the institution that was not the lumber that had been ordered
and intended to be purchased by his predecessor in office. He acted as a
careful, prudent and conscientious official would be supposed to act under the
circumstances, but it is manifest that he labored under a misapprehension as to
the actual facts in the premises.
The evidence shows that the claimant made a bid of $90.00 per thousand feet as
the price for which it would sell 2000
268
REPORTS STATE COURT OF CLAIMS 1W. VA.
feet of black walnut lumber to the state for the West Virginia schools for the
deaf and the blind, and that the state department of purchases accepted said
bid and issued its purchase order for said 2000 feet of black walnut lumber at
the price of $90.00 per thousand feet. A binding contract was created between
the claimant and the state. Claimant complied with its contract, and has not
been paid the contract price for the lumber so furnished and delivered by it.
Where the state department of purchases requests bids for furnishing to a state
institution 2000 feet of black walnut lumber, without specification as to
quality, and a dealer agrees to furnish same at the price of $90.00 per
thousand feet, and thereafter said department of purchases makes its
requisition for such lumber, in pursuance of such bid, and said lumber is
furnished and delivered to the state institution for whose betiefit it was
purchased, in accordance with such bid and requisition, and it is shown to he
fifty per cent clear black walnut lumber arid the balance
of lower grade l)Ilt suitable for use ri making furniture
and for other
wood?working purposes, such order cannot he canceled for the reason that said
lumber was of in ferior quality, and the lumber So furnished and
(IC? Ii ye red will hr req
iiired to be paid for at I he contract price.
It appears from the record that the West.
Virginia schools for I he deaf a 0(1 1 1)( blind had at the t inic I hat the state (IC?
p rI rrwnt of pu rehasis issued its order for
the purchase from
i rrcrn t of said
2000 feet rif black walnut I umber for he lsne lit, of said intit itiun,
and 1mw has, funds In
its credit. 0111 01 tie appropriation
rrIa(ie for said
institution for the current biennium, uu1Tienu to the contract price, tn?wit. $180.00 for sa?? I 2001) feet of 1ui?ek vaJn it luitiher, arid I hat ? re has 1)410 or) lape (if sal?t
appropriation. thu
hii in (Ilirstion a ries uiruiier si
irh appropriation, and
we iscrrtairi and find that. the award
iwude b)y
tin? court f? the paynwnt thereof
SIlO) ild ill? paid on!. of 5flii al)1JrOpriiti011.
An award is now mmle
in favor of claimant, Elkins Builders Supply Company, for the sum of one hundred and eighty do!? mrs ($180.00) payable out of the appropriation made for the West. Virgin a schools
for the deaf and
tlw blind for I he current hieri mu rn perh id -
W. VA.] REPORTS
STATE COURT OF CLAIMS 269
(No. 131?Claimant awarded $318.00.)
FLORENCE DOYLE, Claimant,
V.
STAT EAUDITOR and STATE CONSERVATION
COMMISSION, Respondents.
Opinion filed September
19, 1942.
Where it appears that the director of
the state conservation commission has established and is operating a restaurant
for the convenience of the public at one of the state park areas as provided by
the acts of 1939, and it appears that claimant has furnished meals at said
restaurant to a convention group of persons under a special arrangement made by
the officials of the commission in charge of the park and restaurant whereby
they on behalf of the commission contracted with claimant to collect for meals
served, and to pay her for same, an award will be made directing payment for
such services rendered from funds available for the purpose.
Appearances:
Richard Currence, Esq., for claimant;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
WALTER M. ELSWICK, Judge.
During the summer of 1941, the claimant, Mrs. Florence Doyle, was awarded the
concession of the dining room at Watoga state park in Pocahontas county, West
Virginia, by the director of the state conservation commission pursuant to the
authority vested in him by chapter 20, article 8a, section 9 of the West
Virginia revised code, as enacted by chapter 64 of the 1939 acts of the
Legislature. By this statute, authority is granted the director of the state
conservation commission in connection with the state parks and state forests to
operate commissaries, restaurants and other establishments for the convenience
of the public, and for these purposes the director
270 REPORTh STATE
COURT OF CLAIMS
[W.VA.
may purchase equipment, foodstuffs,
supplies and commodities as provided and contemplated therein.
On August 11, 1941, the then chief of the division of state parks received a
letter from a representative of a convention group making inquiry as to whether
or not accommodations could be provided for a group of about 55 persons from
Sep.. tember 7, 1941 to September 13, 1941, in one of the state parks. Inquiry
was also made as to rates for rooms, meals, etc. On August 13, 1941 a letter
was written by the division of state parks in reply to the letter received
which advised that they could accommodate the group of people at Watoga state
park for the period at a cost of approximately $5.00 per person for cabin
rental for the week, and that meals would be breakfast 40c, lunch 60c and
dinner 75c. Copies of this letter were sent to Mrs. Doyle, the claimant, and to
the then custodian of Watoga state park. But on August 14, 1941, the then chief
of the division of state parks by letter advised the then custodian of Watoga
state park that the representative of the group had just called at his office
making reservations and arrangements for the conference to be held at the
Watoga state park. He further advised that the conference would consist of 55
people, both ladies and gentlemen, and that they were holding cabins numbers 1,
2, 3, 12, 13, 16, 4 and 5 for this group. He further advised that this group
was to pay the custodian at the rate of $1.50 per day. Out of this sum the
custodian was instructed that $1.00 per day was to be paid to Mrs. Doyle in
payment of three daily meals. The letter goes on to state that for the six days
55 persons at $1.50 per day should pay the custodian $495.00, and that out of
this sum $330.00 would be paid by the custodian to Mrs. Doyle, the claimant, and
that the balance of $165.00 should be submitted with the custodian?s weekly
report to the division of state parks. Mrs. Doyle, the claimant, was notified
of the contents of this letter by the said park custodian. The then custodian
of the park also advised her at the time that he would collect for the meals
along with the cabin rental charge pursuant to the arrangements made by the
chief of the division of state parks. There is nothing appearang from this
W. VA.] REPORTS
STATE COURT OF CLAIMS 271
letter from the chief of the division of
parks addressed to the park custodian, or from the record, that it was in any
way to be implied that either the park custodian or Mrs. Doyle was to look to
the treasury of the United States Government for pay for either meals or cabin
rental.
It appears that the claimant relying upon these representa... tions made to her
by these park officials furnished the meals to the group as contracted. The
meals furnished by her to this group of persons in accordance with the contract
made by the park officials amounted to the sum of $333.00. It appears that she
relied upon the representations made at the time by the then officials of said
park that the then custodian of said park would collect for the meals from each
individual of the group and by reason of said representations so made to her,
she made no effort to collect from the group of persons served, or from
individuals of said group. It further appears that said representations were
made by said park officials while in the scope of their employment. The park
custodian was instructed by the chief of the division of parks to collect $1.50
per person per day making a total of $495.00 to be collected from the group for
the week. Of this sum he was directed to pay $330.00 to Mrs. Doyle ?and the
balance of $165.00 will be submitted with your weekly report to this office.?
After the group arrived, for some reason unknown, it appears that the then
custodian of the park, without the knowledge of claimant, failed to collect the
said sum of money for claimant. It also appears that the then custodian failed
to collect the rental for cabins from this group of persons.
It further appears that the group of persons being served by claimant happened
to be a conference of supervisors of the division of education of the works
projects administration. After the group had received the accommodations
contracted for at the park, and for which the then custodian had failed to
collect for either cabin rental or meals, it appears that the conservation
commission filed a claim with the treasury department of the United States
Government for cabin rental in
272 REPORTS STATE
COURT OF CLAIMS [W.VA.
which claim
it included the account of claimant
for meals served by her to these persons. The claim was denied by the treasury
department, and claimant has not been paid for her services. It does appear
that one Arel B. Cook, the representative of the conference group gave a check
for $15.00 payable to the then park custodian who endorsed saint? over to claimant,
but that said check was worthless and has not been paid. It doesn?t appear from
the evidence that (he daimant had any negotiations with any official of the
Federal Government. All of her negotiations prior to and at the time she
rendered the service were with state officials whose duty it. was to provide
for these accommodations. All arrangements for the care of the convention group
while at the park were made by the officials in charge of the park, namely,
that the services were to be paid for at the rate of $1.50 per day per
person to the park custodian who was to pay over to Mrs. Doyle the suni of
$1.00 per day per person, and that the custodian Wi1S to
account for the proceeds collected in his weekly report. Hence, the claimant
did not render credit to the Federal Government or to any employee or official
thereof and would not have any claim against its treasury department. She had a
right to rely upon the representations made by the officials of the park while
in the scope of their duty and employment. From the letter written by the chief
of the division of state parks to the park custodian one could not imply that
the state was lending its credit to the group or to the treasury department,
since it instructs the park custodian that this group was to pay him at the
rate of $1.50 per day each. The letter of August 13, 1941, copies of which were
sent to the park custodian and to Mrs. Doyle, the claimant, specified that
there was to be a $5.00 deposit for each cabin, which was to be credited when
the balance was paid to the park custodian. Hence, it cannot be said that the
claimant was chargeabLe with notice that the credit of the state was being
given to anyone under the arrangements made by the state officials in charge of
this park.
It appears from the evidence that the state conservation commission approved
the claim of Mrs. Doyle in the sum of
?V. VA.] REPORTS
STATE COURT OF CLAIMS 273
$318.00 and submitted same to the auditor
for payment on or about February 13, 1942 as a claim which should be paid by
the state conservation commission, and the claimant was then advised by the
chief of the division of state parks that check should be received by her on
the then following Monday or Tuesday. The requisition as submitted by the
commission to the auditor did not give a detailed explanation as to the nature
of the claim, neither did it set forth the nature of the contract made by the
state officials in charge of the park with Mrs. Doyle at the time the services
were rendered by her for the state in furnishing accommodations at the park to
the public as it had undertaken to do. The requisition just stated ?pay to Mrs.
Florence Doyle $318.00? without any detailed information (record p. 22). The
state auditor, therefore, returned the requisition and refused payment. In
returning same the auditor requested a correct explanation and it appears that
a sufficient and satisfactory explanation was not furnished him to justify
payment on the statement made to him.
When the claim came on for hearing herein the state auditor was made a party to
the proceeding. The claim was heard as an appeal from rejection by the state
auditor under an existing appropriation, the auditor, and Mr. Mills, his
assistant being present at the hearing on the claim.
The points of defense to the claim raised at the hearing and in the attorney
general?s brief were as follows:
1. That the claim is one against the Federal Government rather than the state
of West Virginia.
The facts in the case do not show that the claimant had any dealings or
negotiations with the Federal Government or any of its employees, but that her
contract was made direct with state officials in charge of the park whose
duties were to furnish accommodations to the public, and to collect payment for
services rendered under the arrangements which they themselves negotiated and
agreed to carry out so far as claimant was concerned.
274
REPORTS STATE COURT OF CLAIMS [W.
VA.
2. That no benefit or value adhered to the state since all parties serve?l
were federal employees, their wives, husbands and children, in attendance at a
federal W. P. A. educational convention held at Watoga state park.
So far as the claimant?s services were concerned her services were rendered to
the public, that being the intent and purpose of the state in establishing a
public park. A distinction cannot be seen under the arrangements made by the
park officials for claimant?s pay, as to whether or not it was a ministerial
association convention, a state bar association meeting, a state educational meeting,
a federal w. P. A. educational convention, or a horse traders? association
convention. All would have to eat and would require accommodations when
reservations were secured, but the state conservation commission would not be
authorized to furnish either of them meals free of charge under the statute. It
did have authority to collect for rental and for other accommodations such as
meals served which its officials agreed with claimant to do at the rate of
$1.50 per day under the arrangements which they made as stipulated in the said
letter addressed to the custodian under date of August 14, 1941.
3. That the state conservation commission had no statutory authority to pay out
of the general maintenance or other funds of the conservation commission for
the services rendered by Mrs. Doyle on credit to the w. p A. convention
group.
The facts in the case do not show that Mrs. Doyle rendered her services on
credit to the convention group, but on the contrary, that she relied upon the
representations made by the officials in charge of the park while acting in the
scope of their employment as officials that the custodian as such official
would collect and pay to her for the services rendered. It is, no doubt, true
that the state conservation commission had no statutory authority to pay the
claimant out of general maintenance funds of the commission, but if it had no
?other funds? such as restaurant or commissaries fund provided for under
chapter 64, acts of the Legislature 1939, Michie?s code section 2290 (9), or
gen
W. VA.]
REPORTS STATE COURT OF CLAIMS 275
eral maintenance funds for such purposes in its appropriation, it should not
take an inconsistent position to mislead the claimant in the procedure taken
herein. In such case claimant should have been properly advised, and a hearing
had as to the validity of the claim justifying an award to be included in
future appropriations. Said chapter 64, acts of 1939, Michie?s code section
2290 (9) provides:
?Restaurants and Other Facilities at Recreational Areas.?The director may, in
connection with recreational areas in state parks and state forests, operate
commissaries, restaurants and other establishments for the convenience of the
public. For these purposes the director may purchase equipment, foodstuffs, supplies
and commodities, according to law.?
Under this act the officials in charge of the park where a restaurant had been
established and was being operated in connection with the recreational areas
provided for the coi?.venience of the p?ublic by the director,
had the authority to negotiate with the claimant for the services rendered. If
the commission should not have the money available for the purpose of paying
for such services rendered under contracts nade by authority given it by said
statute, this fact should be disclosed so that proper. appropriations may be
made for the purpose of paying such commitments. By necessity commitments and
special arrangements would have to be made from time to time to enable it to
operate a restaurant or dining room for the convenience of the public as
contemplated by the statute.
4. That the conservation commission could not guarantee to the claimant the
meals served gratuitously or on credit to the said convention.
It does not appear from the evidence and record in this case that Mrs. Doyle
ever contemplated, or had any reason to.do so, to serve meals gratuitously or
on credit to the said convention group. On the contrary, she was advised of the
special arrangements made by the park officials, that while she was serving
meals to the group at a reduced rate, the said official in charge
276 REPOR STATE
COURT OF CLAIMS [W. VA.
would collect for the meals. By this arrangement made by the said officials she
was not given an opportunity to collect for the meals served. No member of the
convention group contacted her with reference to charges, but the park
officials reduced her rates for meals by their negotiations with
representatives of the convention group from $1.45 per day for each person,
which she would have been entitled to collect without the special negotiations
made, to the sum of $1.00 per day for each person, which the custodian was to
collect under the said special negotiations. The claimant was rendering a daily
service while the convention group attended the park and had no information
that payment was not being collected in accordance with the arrangements made
by the park officials with the said convention group, and as represented to her
by the park custodian, whose duty it was to provide such accommodations and
collect and pay for same pursuant to instructions received by him from the
chief of the division of state parks. Otherwise, the claimant was entitled to
notice of any change of arrangements made from those represented to her to have
been made by such official before she rendered such services.
We are of the opinion that an award should be made to claimant for the sum of
three hundred and eighteen dollars ($318.00) and that the auditor would be
authorized to pay the same under all the circumstances of the case from
existing appropriations available for the purpose, and an order will be entered
by a majority of the court accordingly.
Judge Bland dissents.
ROBERT L. BLAND, Judge, dissenting
An award in this case was made by majority members of the court. The court act
provides: ?If the determination of the court is not unanimous, the reasons of
the dissenting judge shall be separately stated.? In obedience to this mandate
I respectfully submit the following reasons for not concurring in said award.
W.VA.] REPORTS
STATE COURT OF CLAIMS 277
I see no justifiable ground for
recommending to the Legislature an appropriation for the payment by the state
of West Virginia of the claim in question. No liability to pay, on the part of
the state, is disclosed by the record. It is a claim against the Federal
Government rather than one aganst the state of West Virginia.
I grant that the claim makes a strong appeal to the sympathy of the members of
the court, but an award may not properly be made on the ground of sympathy.
There should be some legal or equitable basis to support an award in favor of
the claimant against the state of West Virginia, and no such basis exists.
A careful reading of the record discloses the following state of facts out of
which the claim arises:
One Arel B. Cook, a federal employee and at the time state supervisor of
education for the works progress administration, was desirous of arranging for
holding a meeting or convention of the state educational supervisors of the
works progress administration at one of the state parks in West Virginia. He
went to the office of Linn Wilson, then chief of the division of parks of the
state of West Virginia, and arranged with him for carrying out his plans for
the holding of such meeting. Thereafter said Wilson corresponded with one S. E.
Nease, at that time park custodian of the Watoga state park, in Pocahontas
county, West Virginia, who arranged on behalf of said Arel B. Cook, state
supervisor of education for the works progress administration, to have a group
of works progress administration officials entertained at said Watoga park for
one week, beginning on Sunday, September 7, 1941, and ending on Saturday,
September 13, 1941. Said Nease concluded arrangements with Florence Doyle, the
claimant, to furnish these meals for a group of fifty-five of these works
progress administration officials, including their wives and children, during
that week.
As I interpret the record, Nease, in making this arrangement, was acting at the
behest and for and on behalf of Cook. The
278
REPORTS STATE COURT OF CLAIMS [W.
VA.
meeting or convention was not a state affair. It was distinctly a federal
project of the works progress administration. Under the terms of the
arrangement made by Nease one dollar a day was to be paid to claimant for
furnishing meals and fifty cents per day was to be transmitted by Nease, with
his weekly report, to the office of Wilson. It nowhere appears in the record
that this balance of fifty cents per day for each member of the group was not
to be accounted for to the federal works progress administration, or that it
was paid to the state conservation commission. Claimant furnished these meals
to fifty-five persons for six days. She was not paid by any person for such
meals. It is true that Cook, state educational supervisor for the works
progress administration, who made the arrangement for the holding of the
convention in question did deliver to her a check for fifteen dollars on
account of the meals furnished by her, but said check was never paid.
Mrs. Doyle?s claim of $318.00 was presented to the state fiscal officers of the
works progress administration for payment, but payment was refused on the
ground that there had been no prior authorization for the educational meeting
held at Watoga park, and advice was given that her claim would have to be submitted
to the general accounting office in Washington.
Thereafter the claim was presented to the state conservation commission for
payment. This commissiOn made requisition upon the auditor for the sum of
$318.00 in settlement of said claim, after the same had been approved by the
state department of purchases. The auditor, however, with characteristic
alertness in safeguarding the public funds of the state, declined to pay the
claim on the ground that it did not constitute a proper or lawful claim against
the state of West Virginia.
The chief clerk of the auditor?s office discussed the claim with the secretary
of the state conservation commission. The latter agreed that the claim was not
a proper claim against the state. In a letter written by the chief clerk of the
auditor?s office to the clerk of the state conservation commission, under
W. VA.] REPORTS
STATE COURT OF CLAIMS 279
date of February 24, 1942, this statement
was made: ?It appears from the explanation you have made that this is a charge
against the United States Treasury and the State of West Virginia is advancing
the money.? The secretary of the state conservation commission thereupon
informed the chief clerk of the auditor?s office that it was a claim against
the United States treasury, but that claimant needed her money and that the
state was going to advance the amount of her claim to her and then seek
reimbursement from the Federal Government.
The payment of the claim was rejected by the auditor and not again heard from
by him until it was filed in the court of claims, where the state continued to
resist its payment as a proper demand against the state.
I have the profoundest sympathy for Mrs. Doyle, a worthy and deserving lady,
who has been made the unfortunate victim of circumstances that should be
further investigated, but I am unable to see how, under the showing made by the
record, that she would be entitled to an award against the state of West
Virginia. I do not think that the court of claims has power to make such award.
I would sustain the motion of the assisatnt to the attorney general, and
dismiss the claim.
As a concluding observation I make this inquiry: Who got the money that should
have been paid to Mrs. Doyle?
280 REPORTS STATE
COURT OF CLAIMS [W. VA.
(No. 107?Dewey Adkins awarded $411.95; No. 108?Joel H. Adkins awarded $798.56;
No. 109?G. B. Adkins awarded $681.35; No. 11O?W?Iter
Adkins and D. B. Wilson awarded $756.89.)
DEWEY ADKINS, Claimant,
V.
STATE ROAD COM1VflSSION, Respondent.
JOEL H. ADKINS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
G. B. ADKINS, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
WALTER ADKINS AND D. B. WILSON, Partners, Trading
as ADKINS AND WILSON, Claimants,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed September 19, 1942.
Where it appears from the evidence
that the state road commission has made a commitment of sponsorship with the
works progress administration agreeing to contribute a certain percentage of
the total costs of construction of a road project, and fails to contribute the
agreed percentage of the total costs of construction, and it appears that
claimants? services by use of their trucks and operators have supplied the
deficiency of the state road commission?s commitment to furnish trucks and
operators and the state road commission has received and applied said services
of claimants as credits upon its contribution under its commitment as sponsor
of the project, without withdrawing its sponsorship by continuing to retain its
equipment and supplies on the project and accepts the road after completion,
when such services of claimants as appears from the evidence were not donated
and claimants have not been paid for same, awards will be made for the
reasonable value of such services commensurate with the value of credits for
such services received by the state road commission on its commitment to pay
the costs of such services under its said sponsorship.
W. VAJ REPORTS
STATE COURT OF CLAIMS 281
Appearances:
A. A. Lilly, Esq., (Lilly
and Lilly), for the claimants;
Eston B. Stephenson, Esq., special assistant to the Attorney General, for
the state.
WALTER M. ELSWICK, Judge.
These four claims, heard together by agreement, are made upon a quantum meruit basis
for work and services performed by the claimants, and for use of their four
trucks in and about the construction of about five miles of road extending from
the main state highway between Hamlin and West Hamlin in Lincoln county up Mud
river toward the Logan county line. The work consisted of hauling stone from
two to three miles for laying a rock base on this stretch of road. The work was
being carried on under a commitment by the state road commission to sponsor for
the works progress administration of the Federal Government a project commonly
known in that vicinity as project No. 76 upper Mud river road, Lincoln county,
West Virginia.
It appears from the evidence that each federal project must have a sponsor,
which in all cases was the state, or a political subdivision such as a city,
county or another federal agency. The state road commission on all state road
projects was obligated to contribute from 20% to 25% of the total costs of the
construction. The sponsor?s contribution in such instances was made by the use
of equipment furnished by the state road commission, with operators, such as
trucks, road graders, rollers, power shovels, etc. All labor on the project
except the operators of the state road commission?s equipment, was furnished by
the Federal Government. So long as the state road commission furnished
sufficient equipment to equal the 20% to 25% as the case may be, of the total
costs of the project for which it was obligated under its commitment, the
Federal Government could then issue purchase orders for use of other or
additional equipment such as trucks and operators from its
282 REPORTS STATE
COURT OF CLAIMS [W.VA.
fund known as ?other funds.? But whenever the sponsor failed to keep a
sufficient amount of equipment in use on the project to equal the proportion it
was to supply it appears that the Federal Government could not issue purchase
orders out of its 4?other funds? to supply the deficiency on the part of the sponsor.
(Record pp. 45, 135, 164, 170, 175; Lunsford?s depositions pp. 18, 19).
It further appears from the evidence that the Federal Government regularly
furnished the labor of about seventy-five men on this particular project
(record pp. 168, 169). The costs of labor and equipment supplied by the Federal
Government was compared with the sponsor?s contribution under its commitment
from forms made out and signed by the sponsor?s agent, the project
superintendent, the area engineer, and the timekeeper, the first mentioned
being an employee of the state road commission, and the last three being
employees of the Federal Government. These report forms were known as form 710,
one copy of which was furnished to the sponsor, the state road commission, and
another copy to the Federal Government. (Record p. 171).
It further appears from the evidence that the road being constructed was an
important one running through the center of Lincoln county, from near its
county seat to the Logan county line; that this part of the road was accepted
when the rock base was laid and that the state road commission continued to
sponsor other projects on the same road further on up the river and into Logan
county, and surface treated all of the same. However, on or about the 27th day
of August 1937, while the construction of the first five miles was in progress,
certain officials of the works progress administration discovered that there
was a marked shortage of equipment contributed by the road commission on the
project, and an investigation was ordered. It was found that the Federal
Government was spending more money for equipment than required, and that while
the state road commission still operated certain equipment on the project, it
was not sufficient to match the amount of contribution under its commitment as
sponsor of the road
W. VA.] REPORTS
STATE COURT OF CLAIMS 283
work. The state road commission had taken
the state trucks off the project in an emergency to take care of their regular
maintenance of other roads (record p. 174) and the particular equipment needed
at the time to make up the deficiency in its contribution was found to be
trucks for hauling the base stone. The state road commission had only one truck
on the project at the time of the investigation. The acting branch engineer of
the works progress administration had received instructions that if it were
impossible for the state road commission to furnish the additional trucks
required, the work on this road should be discontinued until such time as
proper equipment could be furnished. Under the commitment of the state road
commission, if the work was closed down as much as three days, for lack of
sufficient equipment, the project would be closed, and it would then be
necessary to go through a lengthy procedure of making a new commitment as
sponsor, which procedure usually required from three to four months to get such
renewed sponsorship in operation. (Record p. 175).
The acting district engineer for the works progress administration, on August
29, 1937 went to the project in Lincoln county and advised the superintendent
of the project, and other officials in Lincoln county of the necessity of
closing down the project unless additional trucks were supplied to comply with
the sponsor?s commitment. The claimants, prior to this, had received purchase
orders for the use of their trucks, from time to time, from the Federal
Government. On certain occasions they had been instructed to proceed with their
work prior to the time that they had received purchase orders, although it
appears that the Federal Government had a rule not to pay for work on which a
purchase order had not been issued prior to the time that it was performed
(record pp. 28, 44, 66 and 147). While said engineer was in Lincoln county on
this visit, it appears that Caudle Adkins, the county supervisor for the works
progress administration, and Elza B. Adkins, its superintendent, contacted the
claimants and secured their promises to use their trucks on the project a few
days in order to hold the project intact, which they did, some beginning work
during the last days in August 1937 and others beginning work in
284 REPORTS STATE COURT OF CLAIMS [W. VA.
September 1937. It appears that claimants received assurances from time to time
by the works progress administration engineer and other members of its
officials connected with the work that they would receive pay for their
services. They continued on with their work with the use of their trucks until
the 8th day of March 1938.
The road work progressed satisfactorily to all concerned, except the claimants,
on the project until it was completed. It is not denied that each of the
claimants performed the work for which they have filed claims, and that they
have not been paid. In addition thereto these facts were fully established by
the evidence. It also appears that the state road commission received credit on
its commitment as sponsor of the project for the greater portion of these
services performed by claimants. It also accepted the road and all benefits
derived from the completion of the project. It appears from the reports made on
form 710 showing contributions made by the sponsor as its proportionate part of
its commitment that the claimants were contributing the work. It further
appears from the evidence that they did not sign these reports or authorize
them to be signed on their behalf, and that they were not aware of the fact
that the state road commission was receiving credit for their services on its
sponsorship of the project. Since the works progress administration allowed the
state road commission credit for the use of claimants? trucks and operators as
having been donated by them to the state road commission from the reports
submitted by its agent as a part of its commitment as sponsor of the project, the
Federal Government could not pay claimants for their services without in effect
twice paying for the same.
It further appears from the evidence that the then maintenance superintendent
of the state road commission in Lincoln county, who had charge of the works
progress administration?s projects for the state in Lincoln county, knew of
this shortage of trucks and knew that these claimants were performing the
services for which they claim pay, without being paid by the Federal
Government. (Record pp. 173, 174). He delegated the charge and supervision of
the work on this project for the
W.VA.] REPORTS STATE COURT OF CLAIMS 285
state to one J. A. Coffman, who was the assistant county engineer for the
state, and who acted as inspector and as sponsor?s agent. (Record p. 173,
state?s exhibits 1 to 12, Lunsford?s depositions p. 27). Furthermore the state
road commission furnished the right of way for the road, surveyed it, and
operated other trucks, a grader, tractor, scarifier and air compressor on the
project during the time claimants performed the services now considered. The
said J. A. Coffman, as agent of the sponsor, the state road commission,
certified the reports on said form 710 to the state road commission and works
progress administration as having been contributed by claimants. He was not
produced as a witness.
There is not any evidence emanating from claimants to support the contention of
the state that these claimants authorized these reports to be signed by Coffman
or by anyone for them, or that they otherwise donated their services. Such
contention is emphatically denied by each of the claimants that they agreed to
donate their services. It would seem, however, that claimants did contemplate a
risk or gamble on the first few days work performed by assuming that they would
soon thereafter receive purchase orders from the works progress administration.
But there is no evidence in the record to show that they knew the state was
receiving credit for their work, by the reports made on contributions by the
state road commission?s agent, thus preventing the possibility of claimants
receiving purchase orders from the Federal Government.
From all the evidence in the case it seems only just, fair and proper that the
state, under all the circumstances in the case, should pay to the claimants a
just portion of the sums of money as credit which it received under its
commitment as sponsor of the road project. It appears from the evidence that
all of the claiments are men of little or no financial worth, and that only one
of them, namely, Dewey Adkins, actually resided on the road being constructed.
The record further shows that Dewey Adkins, the only claimant who resided on
this road at the said time, did not perform any services with his truck from
December 16, 1937 to March 8, 1938, while Joel H. Adkins, who did not own any
property in
286 REPORTS STATE
COURT OF CLAIMS [W. VA.
Lincoln county and resided at the time in Logan county, performed the largest
amount of services with his truck and operator during said time. It further
appears that the work performed by all of claimants as claimed aggregated
approximately the sum of $4,284.00. Fair minded men could not conclude from the
evidence presented that they intended to donate to the state the full value of
all of these services. Some of the claimants, at the time, were even hard
pressed financially. We think it only proper that claimants be reimbursed by a
reasonable sum for the amounts for which the state received credit from the
works progress administration for their services.
From the evidence it appears that prior to this particular time during which
claimants were not paid, that they received $1.75 per hour, or more, for the
use of their trucks when they furnished the gas, oil and grease. It appears, however,
that either the state (state?s exhibits 1 to 12) or the works progress
administration furnished the gas, oil and grease to the claimants during the
time claimants rendered the services for which they have not been paid. Neither
they, nor anyone else apparently kept an account of how much gas, oil or grease
was used by them and, hence, the court is not placed in position to calculate
the same. However, it appears that the state received credit on its commitment
by the use of these trucks on some reports made on form 710 for as much as
$1.75 per hour, while on others it received credit for only $1.25 per hour. It
appears that when the rate of $1.75 per hour was allowed as credit, that the
state was also receiving credit for use of rather large quantities of gas, oil,
and grease while only small quantities, if any, of the same were taken credit
for when it received credit for only $1.25 per hour on the same trucks. This
would certainly indicate that during the first months when the state received
the credit for $1.75 per hour for each truck and operator that the state then
furnished the gas, oil and grease and when the unit price per hour credited was
reduced to $1.25 per hour on each truck and operator the Federal Government
furnished gas, oil and grease. Therefore under all the circumstances, in
justice and fairness, we are of the opinion that the claimants should be paid
only on the services for which the state received credit under its sponsorship
of the
W. VA.] REPORTS STATE COURT OF CLAIMS 287
project. After making a deduction for gas,
oil and grease furnished them we are of the opinion from all the evidence and
circumstances in the case that the sum of $1.25 per hour for truck and operator
should be paid for said services for which the state received credit in its
accounting with the Federal Government. All time for services performed by
claimants for which the state did not obtain credit as shown by the record,
should not be paid, and claims for such services are denied.
From the first report filed September 23, 1937 on said form 710 it appears that
the state received credit by the use of claimants? trucks for a total of 166
hours without segregating the hours performed by each claimant, and that from
the record it appears that all the claimants? trucks up to and including
September 23, 1937, had been worked a total of 455 hours, distributed as
follows: Adkins and Wilson 122 hours, Dewey Adkins 92 hours, G. B. Adkins 140
hours and Joel H. Adkins 101 hours. The credit received for which the state should
be chargeable at the rate of $1.25 per hour for truck and operator for 166
hours amounted to $207.50 which should be distributed to each claimant on the
proportion that the hours performed by each compared with the total of 455
hours performed by all during said time. Such percentage would amount to
approximately .365 ,
which percentage calculated as aforesaid
upon the number of hours allowed to each as aforesaid to September 23, 1937,
based upon the number of hours performed by each would entitle each of the
claimants to receive the following sums on said amount of $207.50, to-wit: To
Adkins and Wilson, $55.64; to Dewey Adkins, $41.95; to G. B. Adkins, $63.85 and
to Joel H. Adkins $46.06.
The total credit of hours for services performed by claimants received by the
state road commission on its sponsorship for the period from September 24, 1937
to and including October 23, 1937, as shown by two reports filed on form 710
October 23, 1937, was practically the same as the total number of
hours worked, a credit being taken for a total of 423 hours while claimants?
trucks were used a total of 416 hours. During this period of time each of the
claimants should receive pay on credit received by the state based upon the
hours worked by each
288 REPORTS STATE COURT OF CLAIMS [W. VA.
truck at the rate of $1.25 per hour for truck and operator, as follows: To
Adkins and Wilson 155 hours, or $193.75; to Dewey Adkins, 39 hours or $48.75;
to G. B. Adkins, 91 hours or $113.75, and to Joel H. Adkins, 131 hours or $163.75.
The total credit of hours for services performed by claimants received by the
state road commission on its said sponsorship for the period from October 24,
1937 to and including November 23, 1937, as shown by two reports filed on form
710 on November 8, 1937 and on November 23, 1937 respectively, for which
claimants should receive pay at the rate of $1.25 per hour for truck and
operator, is, as follows: To Adkins and Wilson, 143 hours or $178.75; to Dewey
Adkins, 153 hours or $191.25; to G. B. Adkins, 175 hours or $218.75; to Joel H.
Adkins, 150 hours or $187.50.
The total credit of hours for services performed by claimants received by the
state road commission on its said sponsorship for the period from November 24,
1937 to and including December 8, 1937, as shown by accounting report filed on
form 710 December 8, 1937, aggregated 333 hour. The report does not segregate
the number of hours of services performed by each claimant, but from the record
it appears that each of the claimants rendered services aggregating said number
of hours for which the state received credit and are entitled to be paid, at
the rate of $1.25 per hour, as follows: Adkins and Wilson, 91 hours or $113.75;
Dewey Adkins, 76 hours or $95.00; G. B. Adkins, 87 hours or $108.75; Joel H.
Adkins, 79 hours or $98.75.
It appears from a report filed December 23, 1937 that the state received credit
on its sponsorship for 56 hours of services performed by Joel H. Adkins and
that he is entitled to be paid for same at the rate of $1.25 per hour for truck
and operator which amounts to $70.00. Said report, without segregating the
number of hours of services performed by each shows that the state received
credit for 43 hours of services performed by Dewey and G. B. Adkins and from
the record it appears that from December 9, 1937 to and including December 23,
1937 said Dewey Adkins and G. B. Adkins performed said services and are
entitled to pay for same at the rate of $1.25 per hour
W.VA.] REPORTS STATE
COURT OF CLAIMS 289
for truck and operator, as follows: To
Dewey Adkins, 28 hours or $35.00; to G. B. Adkins, 15 hours or $18.75.
It appears from a report filed January 8, 1938 that the state received credit
on its sponsorship for 51 hours of services performed by Joel H. Adkins and
that he is entitled to be paid for same at the rate of $1.25 per hour for truck
and operator or the sum of $63.75. Said report without segregating the number
of hours of services performed by each claimant shows that the state received
credit for 64 hours of services performed by ?G. B. and Adkins and from the
record it appears that from December 23, 1937 to and including January 8, 1938,
Dewey Adkins did not perform any services, but that Adkins and Wilson and G. B.
Adkins did perform such services and are entitled to pay for same at the rate
of $1.25 per hour for truck and operator, as follows: Adkins and Wilson, 61
hours or $76.25; G. B. Adkins, 3 hours or $3.75.
It appears from four reports filed on January 23, 1938, February 8, 1938,
February 23, 1938 and March 8, 1938, respectively, that the state received
credits on its contributions as sponsor of the project for a total of 369 hours
of services performed by Adkins and Wilson, G. B. Adkins and Joel H. Adkins
from January 9, 1938 to and including March 8, 1938, and it appears from the
record that they performed said services and are entitled to receive pay for
same at the rate of $1.25 per hour for truck and operator for said services, as
follows:
Adkins and Wilson, a total of 111 hours or $138.75; G. B. Adkins, a total of
123 hours or $153.75, and Joel H. Adkins, 135 hours or $168.75.
A majority of the court are therefore of the opinion to make awards to said
claimants, as follows: To Adkins and Wilson, an award of seven hundred
fifty-six dollars eighty-nine cents ($756.89); to Dewey Adkins, an award of
four hundred eleven dollars ninety-five cents ($411.95); to G. B. Adkins, an
award of six hundred eighty-one dollars thirty-five cents ($681.35); to Joel H.
Adkins, an award of seven hundred ninety-eight dollars fifty-six cents
($798.56), and orders are entered thereon accordingly.
Judge Bland dissents.
290 REPORTS STATE
COURT OF CLAIMS LW. VA.
ROBERT L. BLAND,
Judge, dissenting.
I cannot agree with the determination made of these claims. The claims are not,
as I view them, claims for which awards may properly be made under the
provisions of the act creating the court of claims. They are not, according to
my interpretation, claims which the state of West Virginia as a sovereign
commonwealth should, in equity and good conscience, discharge and pay.
Since the court of claims is in its formative period it is especially important
to guard carefully against the creation of dangerous precedents in the matter
of making awards. We have no power or authority to make an award that is not
authorized by the court act.
It is impossible, I think, to reconcile the awards made in these cases with the
cause of action set forth in the petitions filed by claimants. These petitions
do not state facts sufficient to show that the state of West Virginia is liable
to pay the claims. Each petition on its face fails to disclose a cause of
action against the state. The petitions are identical in form in the four cases
except as to hours of labor performed and amounts of claims. I quote from the
petition of claimant Dewey Adkins:
?Your petitioner, Dewey Adkins, of Sias, West Virginia, respectfully represents
that he was duly and legally employed by the works progress administration to
furnish and operate a truck in connection with and in furtherance of certain
road work on Upper Mud River Road known and designated as W. P. A. Project No.
76, in Lincoln County, West Virginia, which said road work primarily consisted
of laying a rock base road about five (5) miles in length; that in line with
and in furtherance of said employment your petitioner between August 24, 1937,
to September 8, 1937, furnished and operated a truck for 26 hours at $1.75 per
hour, making a total of Fortyfive Dollars and Fifty cents ($45.50); that your
petitioner between September 9, 1937 to September 23, 1937, furnished and
operated a truck for 66 hours at
W.VA.] REPORTS
STATE COURT OF CLAIMS 291
$1.75 per hour, making a total of One Hundred and Fifteen Dollars and Fifty
Cents ($115.50); that your petitioner between September 24, 1937 to October 8,
1937, furnished and operated a truck for 39 hours at $1.75 per hour, making a
total of Sixty-Eight Dollars and Twenty-five Cents ($68.25); that your
petitioner between October 24, 1937 to November 8, 1937, furnished and operated
a truck for 66 hours at
$1.75 per hour, making a total of One Hundred and Fifteen Dollars and Fifty
Cents ($115.50); that your petitioner between No?rnber 9, 1937 to November 23,
1937, furnished and operated a truck for 87 hours at
$175 per hour, making a total of One Hundred Fifty- Two Dollars and Twenty-five
Cents ($152.25); that your petitioner between November 24, 1937 to December 8,
1937, furnished and operated a truck for 77 hours at $1.75 per hour, making a
total of One Hundred and Thirty-four Dollars and Seventy-five Cents ($134.75);
that your petitioner between December 9, 1937 to December 23, 1937, furnished
and operated a truck for 28 hours at $1.75 per hour, making a total of
Forty-Nine Dollars ($49.00); that the total amount due your petitioner for
labor and services as above detailed is Six Hundred Eighty Dollars and Seventy-
five Cents ($680.75).
?Your petitioner further represents that he was not paid for said work, or any
part thereof, and that the same is due and unpaid and has been due your
petitioner from the respective dates above set forth, and your petitioner is
entitled to the respective amounts above set forth, with legal interest thereon
from the respective dates aforesaid.
?Your petitioner further represents that at the time he was doing said work he
was informed and believed that there was available money to pay for the same,
but after said work was done he was informed by the W. P. A. authorities that
there were not sufficient funds and in fact no fund to pay the amount due your
petitioner and that all the available money had been expended in the meantime.
?Your petitioner further represents that the detailed account of your
petitioner was duly, legally and accurately kept on forms furnished by the
State Road Commission of West Virginia; that said accounts were duly approved
on said blanks by Elza B. Adkins,
292
REPORTS STATE COURT OF CLAIMS [W. VA.
Superintendent of W. P. A. Project No.
76, and by Wilburn Mullins, Timekeeper, and that said accounts were duly sworn
to by your petitioner; and your petitioner therefore prays that his petition
may be duly filed, that the proper State Department concerned in this petition
be duly notified, and that the claim of your petitioner may be properly
docketed for a hearing and that final hearing thereon may be had, and that the
claim of your petitioner may be duly and legally adjudged him, together with a
legal rate of interest thereon, and that your petitioner be granted full and
adequate relief in the premises, and thus in duty bound he will ever pray,
etc.?
It is obvious that the petition on its face fails to disclose a cause of action
against the state. On the contrary it specifically alleges a cause of action
against the Federal Government. Under the averments of the petition the claim
presented thereby is not prima facia within the jurisdiction of the
court of claims. The court?s power to make an award is limited to the
jurisdiction conferred upon it by the Legislature. An award, in the absence of
jurisdiction to make it, is, I think, abortive and of no legal effect.
But notwithstanding the failure of the petitions to state causes of action
against the state the claims were investigated and heard on their merits under
the regular procedure of the court act. I do not think that the evidence
offered upon the investigation and hearing of the claims warrants the findings
of fact set forth in the majority opinion or establishes the right of the
claimants to the awards which have been made in their favor. It is quite as
essential to do justice to the state as it is to do justice to claimants. As
pointed out in the opinion the claims are for work and services performed by
the claimants and for use of their four trucks on works progress administration
project No. 76, upper Mud river road, in Lincoln county, West Virginia. This
project is shown to have been sponsored by the state road commission of West
Virginia. Under the terms of the sponsorship the road commissioner was
obligated to furnish from twenty per cent to twenty-five per cent of the total
cost of the project. This contribution on the part of the
W. VA.] REPORTS
STATE COURT OF CLAIMS 293
road commission was
not to be paid in cash, but by the use of
state road equipment with operators, such as trucks, road graders, rollers,
power shovels, etc. In order for persons to qualify for employment on the
project it was necessary for them to first obtain ?purchase orders.? Truck hire
was in all cases paid for from the works progress administration fund known as
?othcr funds.? Purchase orders were not granted by the state. The issuance of
purchase orders was a Federal Government commitment, not a state commitment.
It appears from the evidence that in the vicinity of the Mud river road project
there is a settlement of Adkins. They do not live far apart but reside along
the road. The Mud river road is the road that is traveled by them in order to
go from the creek to any other part of the country. Seemingly this family is of
importance and influence in that section of Lincoln county. It is shown that
Caudle Adkins was the works progress administration supervisor for Lincoln
county. He had general supervision of works progress administration projects
throughout the county. Elza B. Adkins was the works progress administration
project superintendent. He had the closest contact with the project because his
work was confined entirely to that project. Elza B. Adkins is a brother of the
Adkins claimants. It is not strange, therefore, that after the beginning of
work on the project Dewey Adkins, Joel H. Adkins, G. B. Adkins, and Walter
Adkins and D. B. Wilson, partners, obtained ?purchase orders? for the use of
their trucks on the Mud river road project. The evidence would indicate that
they had regular and lucrative employment. There came a time, however, in the
fall of 1937 when equipment on this project became ?top heavy.? At that time
there were perhaps seventy-five persons employed as laborers on the project. At
times the number employed would reach one hundred and twenty-five. The project
was in good shape and running along satisfactorily except that it was ?top
heavy? with works progress administration equipment. Works progress
administration truck rental expired August 16, 1937. Roller rental expired July
20, 1937. There was, therefore, no money available for the hire of this
character of equipment. F. A. Wyant,
294 REPORTS STATE COURT OF CLAIMS 1W. VA.
W. P. A. director of division of operations, addressed a letter
from Charleston under date of August 27, 1937. to Abe Forsythe, works progress
administration branch manager, at Huntington, advising him that labor would
soon be at a standstill until additional equipment should be provided. Forsythe
addressed a communication under date of August 28, 1937, to W. Frank Harrison,
acting works progress engineer, at Huntington, directing him to investigate the
equipment shortage on the Mud river road project, and instructed him that if
his findings should indicate that more equipment was needed and it would be
impossible for the state road commission to supply it, that work on this
project should be discontinued until such time as proper equipment should be
furnished.
It may be observed at this point that the works progress administration was
responsible for the top heavy condition of equipment on the project, not the
failure of the state road commission to furnish equipment for which it was
obligated. The Federal Government was paying more money for equipment than it
should expend for that purpose. So long as the re- sources known as ?other
funds? were exhausted no purchase orders could be issued for truck hire. Unless
the state road commission should come to the relief of the works progress
administration and supply other and additional trucks, than those for which it
was obligated, to take the place of the trucks that the works progress
administration could not employ because it was without funds to pay for them,
the work on the project would have to be suspended.
W. Frank Harrison, district engineer in charge of five counties for the works
progress administration, testified that after the receipt of the Wyant letter
he, in company with one John McGee, who was connected with the program in
Lincoln county, went to the project site and discussed the situation with Elza
Adkins, w. P. A. superintendent of the project. It was at this time that
Adkins informed Harrison that claimants would use their trucks which they had
been using under their employment by the works progress administration and for
which use up to that time they had received purchase orders. There was
W. VAJ RZRTS STATE COURT
OF CLAIMS 296
an agreement between Harrison
and Adkins, both w. P. A. employees, that under
this arrangement the works
progress administration would furnish claImants with oil and gas. Neither the state nor the state road
commission was a party to this
arrangement between Harrison and
Adkins, nor shown by the evidence to
have had any knowledge of it, and would not be bound
by it.
it is disclosed by the evidence that after the arrangement concluded between
W. Frank Harrison, District
Engineer, and E]za B. Adkins,
w. P. A, County Supervisor, claimants did work on the project with their trks and that
oil and gas were furnished to them by the works
progress administration. Reports of their trucks and labor were regularly made
to the works progress administration on form No. 710, This is a form used for the purpose of
showing contributions to the project
by the sponsor of the project or other persons. it is
a form used by the accounting
division of the works progress
administration in order to keep its records straight, On these reports the time of claimants was shown as ?Contributions by other than sponsor.?
After this form 710
showing contributions by claimants
bad been received at
the Huntington office of the works
progress administration Anquiry was made of J. Scott Lunsford, area engineer, for an
explanation of the reason for claimants? time being reported as a
contribution to the project. Under date of October 11. 1937, Mr.
Lunsford addressed a letter to W. T Farrell, supervisory clerk of the works progress adininistration, at Hintington, saying:
?These are ?Other than Sponsor?
contributions. It happens in this case that a
number of truck owners not only are unselfishly public spirited but wish to show their
appreciation for past favors extended
to the degree where
they will contribute their personal
time and the use of their equipment
toward the success of our program. In this
instance SRC, having failed to provide
equipment on the project, and ?Other Cost? funds having been exhausted, these
private truck owners volunteered their services
gratis to bring the job to completion.?
296 EXPORTS
STATE COURT OF CLAJIbS 1W. VA.
On the hearing Mr. Lunsford testified that he visited the project and
asked Caudle Adkins, w. P. A. county superintendent, what interest claimants had in
the project that would induce them to offer the services of their trucks to the
project or just what their motive in doing so was; and that Mr. Adkins replied
that claimants lived up the rver from or on the project site and were therefore
interested in the continuation or construction of the road for several reasons;
that they wanted an outlet and the paving finished from their homes; that they
were public spirited and wanted to see the work continued to prevent
unemployment, and realized that by their demonstration of their willingness to
furnish their trucks gratis they would be probably more readily favored by
future purchase orders. Mr. Lunsford further testified: ?t do recall that due
to the unusual nature of their offer I explained to these men at some length
that there could be no misunderstanding about the matter of pay for the trucks
as there was no money on the project to pay for the truck use. In other words,
I wanted to avoid any possible misunderstanding and these men acknowledged or
rather expressed their understanding of the conditions on which their trucks
would work and they said that they were so anxious to see the project work
continued without shutdown or delay they would volunteer the use of their
trucks, hoping that some day some arrangement would be made whereby funds could
be procured for truck purposes.?
The work on the project for which the claims are made ended in March 1938. The
evidence does not show that from that time until April 2, 1942, when they were
filed in the court of claims, that these claims were regarded as claims against
the state of West Virginia.
I do not see wherein the evidence shows that the state or the state road
commis.cion failed to furnish the full complement of equipment for which it was
obligated under the terms of its sponsorship of the project. It is not shown
what the total cost of the project was, and there is nothing in the record to
show that the state did not furnish from twenty to twenty-five per cent of the
equipment used. The testimony of W. Frank
W.VA.1 REPORTS
STATE COURT OF CLAIMS 297
Harrison, works progress administration district engineer, very definitely
shows that the project was ?top heavy? on account of works progress
administration equipment. The actual reason for the failure of claimants to
receive further purchase orders for the use of their trucks on the project was
that the money applicable to the payment of truck hire was exhausted.
It does appear from the evidence that after the completion of the project
claimants obtained purchase orders for employment on other projects in Lincoln
county. This is what they bargained for and gambled upon obtaining.
Elza B. Adkins, the project superintendent, who seems from the evidence to have
been the spokesman for the claimants in the matter of furnishing their trucks,
and who evidently made arrangements with them to do so, was not produced by
claimants to testify on their behalf and in support of their claims.
If the state road commission furnished from twenty to twenty-five per cent of
the equipment used on the project, and the evidence does not show that it
failed to do so, there would be no reason why the state should pay the awards
made in favor of these claimants in addition to its agreed contribution to the
project.
The claims are distinctly claims against the Federal Government and not against
the state of West Virginia.
298 REPORTS
STATE COURT OF CLAIMS 1W. VA.
(No. 46-S?Claimant awarded $31.20.)
LOUIS TOMICH, Claimant,
V.
STATE CONSERVATION COMMISSION,
Respondent.
Opinion flied October 13, 1942.
CHARLES J. SCHUCK, Judge.
Claimant, Louis Tomich, of Slovan, Pennsylvania, asks that he be paid damages
for injuries to a certain neon sign belonging to the claimant and attached to a
certain lunch stand located near Burgettstown, Pennsylvania. The accident
happened on August 21, 1940. It seems, from the record as submitted, that
Raymond Brown, in charge of a truck belonging to the state conservation
commission, a state agency, and while hauling a concreate mixer, struck and
demolished the sign in question, causing damages in the amount of $31.20. No
negligence is imputed to the owner of the sign as to its place or location, and
it seems to have been purely a case of lack of attention in driving away from
the property to which the sign aforesaid was attached, on the part of the
operator of the state truck.
The state conservation commission does not contest the claimant?s right to an
award for the said amount, but concurs in the claim for that amount; and the
claim is approved by the special assistant to the attorney general as one that
should be paid. We have carefully considered the case upon the record
submitted, and are of the opinion that it should be entered as an approved claim,
and an award is made accordingly in the sum of thirty-one dollars and twenty
cents (31.20).
W.VA.] REPORTS
STATE COURT OF CLAIMS ?
299
(No. 47-S?Claimant awarded $85.00)
N. H. SOVINE, Claimant,
V.
STATE CONSERVATION COMMISSION, Respondent.
Opin5ion filed October 13, 1942.
WALTER M. ELSWICK, Judge.
On July 29, 1940, a truck owned by the state conservation commission was being
operated by one of its employees in the course of his employment on the road
leading to Malden, West Virginia, where the railroad crosses route 60. On
approaching the railroad crossing, the driver came over a slight hill at
approximately twenty miles per hour. It was raining at the time. On topping the
hill, he observed several cars parked in line waiting fOr a train to clear the
crossing. He immediately applied his brakes and skidded into the rear end of a
Buick four- door sedan being operated by Rufus Carter and owned by the
claimant, N. H. Sovine.
It appears that this collision caused damage to the trunk compartment and fender
of claimant?s car. An itemized statement furnished by Hugh Stewart Motors, Inc.
of Charleston, West Virginia was filed with the claim showing that the costs of
parts and labor in repairing claimant?s automobile as a result of this
collision amounted to the sum of $89.44.
It appears that claimant?s car was not in motion and that the collision could
have been avoided by respondent?s driver.
The conservation commission made investigation of the collision and finds that
the claim is one which should be paid. The claim was submitted by the state
conservation commission with its papers and files on September 10, 1942,
recommending that the sum of $85.00 should be paid. The attorney general
approves the claim in this amount as one which should be paid and concurs in
the recommendation.
From the record submitted we are of the opinion that an award should be made to
claimant in the sum of eighty-five dollars ($85.00) and will enter an order
recommending an award for said amount to be paid to claimant in full settlement
ef his claim.
300 REPORTS STATE
COURT OF CLAIMS EW.VA.
(No. 142-S?Claimant awarded $15.91.)
ORA SMITH, Claimant,
V.
STATE ROAD COMMISSION, Respondent,
Opinion fi?ed October 13, 1942.
ROBERT L. BLAND, Judge.
On the evening of March 5, 1942, claimant, Ora Smith, of East Liverpool, Ohio,
was driving his Ford automobile on state route No. 23, in Tyler county, West
Virginia. There was a heavy snowfall on the highway. Roy L. Ullom, an employee
of the state road commission, was engaged ii removing this snow from the road.
For the purpose of doing this work he was operating state road commission
grader No. 634-20. Claimant?s automobile was following this grader. From time
to time it was necessary for the grader to back a few feet to get a better start
in order to remove the snow. On one of these occasions the rear wheel of the
grader hit the front end of claimant?s car. It appears from the record,
however, that claimant?s car had stopped and was in a stationary position at
the time it was hit by the grader. As a result of the accident claimant?s
vehicle was damaged to such extent that he was obliged to expend the sum of
$15.91 for new parts and expense of repairs. He made claim upon the state road
commission for this amount. The state road commission prepared a record of his
claim and the same was referred to and filed in the court of claims on June 17,
1942. The payment of this amount is recommended by the state agency concerned
and approved by the attorney general. Since it appears from this record that
the driver of the grader was responsible for the accident, the claim is a
proper one for an award.
An award is, therefore, made in favor of claimant Ora Smith for the sum of
fifteen dollars and ninety-one cents (15.91).
W.VA.1 REPORTS STA COURT OF CLAIMS 301
(No. 143-S?Claimant awarded $50.00.)
ARZANA M. WARD, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opimon filed October 13, 1942.
CHARLES J. SCHUCK, Judge.
Claimant Arzana M, Ward asks reimbursement for damages occasioned to a water well
located on her premises near Reedsvile, West Virginia, and caused by a certain
state road commission maintenance crew turning or diverting surface water from
a roadside ditch on to the property of claimant, which water so turned or
diverted, polluted the water well of claimant, located on her property as
aforesaid, and she was unable to use the said well for a period of six months.
The record seems to clearly indicate that it was the negligence of the said
maintenance crew in turning the surface water from the road in and onto the
property and well of the claimant that caused the said well to become polluted
and the water unfit for use.
The state road commission does not contest the claimant?s right to an award in
the sum of $50.00, in full for the damages aforesaid, and concurs in the claim
for that amount; the claim is approved in the amount of $50.00 by the special
assistant to the attorney general as one that should be paid. We have carefully
considered the case upon the record submitted and are of the opinion that it
should be entered as an approved claim; and an award is hereby made in the sum
of fifty dollars
($50.00).
302 REPORTS STATE COURT OF CLAIMS LW. VA.
(No. 144-S?Claimant awarded $8.16.)
KETTERING BAKING COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opiniion flied October 13, 1942.
WALTER M. ELSWICK, Judge.
On or about September 8, 1941, a state road commission truck operated by one of
its employees in the city of Fairmont, West Virginia, skidded into a parked truck
owned by claimant, Kettering Baking Company. The left fender and left quarter
panel of claimant?s truck were damaged by reason thereof and it appears from a
statement filed that it cost the claimant $8.16 to have its truck repaired.
From the investigation made by the state road commission it was found that the
claim was one which should be paid, and payment is recommended by the
commission, which recommendation is approved by the attorney general. The claim
was filed and submitted by the state road commission with the clerk, on June
29, 1942.
From the record submitted we are of the opinion that an award should be made to
claimant and an order will be entered recommending an award of eight dollars
and sixteen cents ($8.16.)
W.VA.J REPORTS STATE COURT OF CLAIMS 303
(No. 145-S?Claimant awarded $9.18.)
SYLVIA B. FRANKEL, Claimant,
STATE ROAD COMMISSION, Respondent.
Opiiion filed October 13, 1942.
ROBERT L. BLAND, Judge.
The record of this claim, with the concurrence therein of the state agency
concerned and the approval of the payment thereof by the attorney general,
having been prepared by the state road commission, was filed with the clerk on
the 29th day of June 1942.
It appears from this record that on
the 17th day of February 1942, about 8:00 o?clock in the evening, state road
truck No. 430-122 with snowplow attached, operated by A. J. Richardson, an
employee of the state road commission, while being used on a state highway in
the city of Morgantown, in Monongalia county, West Virginia, was negligently
run into the Chevrolet automobile owned and operated by claimant. The road
truck was being driven at twice the rate of speed of claimant?s vehicle on a
wet road. In consequence of the accident the fender of claimant?s car was
damaged to the extent of $9.18, which amount she was obliged to and did pay for
having it repaired. After full investigation of the circumstances attending the
accident the district engineer of Monongalia county reached the conclusion that
responsibility for the occurrence rested upon the driver of the state road
truck.
An award is made in favor of claimant, Sylvia B. Frankel, for the sum of nine
dollars and eighteen cents ($9.18).
304
REPORTS STATE COURT OF CLAIMS EW.VA.
(No. 151-S??Claimant awarded $45.14.)
AUBREY HART, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opin*an flied October 13, 1942.
CHARLES J. SCHUCK, Judge.
The claimant, Aubrey Hart, asks reimbursement for damages occasioned by state
road commission truck No. 430-24 backing into the parked, privately owned
automobile of the claimant on the second day of July 1942. From the record as
submitted, it would appear that the driver of the state road truck was
negligent while in the act of turning his truck, for it was at this time that
said truck collided with the parked car of the claimant. It further appears
that there was no negligence on the part of the claimant in having his
automobile parked at the place it was at the time of the accident in question.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for the amount of $45.14; and the
claim is approved by the special assistant to the attorney general as one that
should be paid. We have carefully considered the case upon the record submitted,
and are of the opinion that it should be entered as an approved claim, and an
award is made accordingly in the sum of forty-five dollars fourteen cents
($45.14.)
W. VA.] REPORTS STATE COURT OF CLAIMS 305
(No. 160-S?Claimant awarded $32.75.)
VALVOLINE OIL COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opiivon
filed October 13, 1942.
WALTER M. ELSWICK, Judge.
On June 3, 1942, the state road commission, by its employees, was operating a
road plow on a road leading through the F. M. Britton farm in Central district
of Doddridge county, West Virginia. The road plow struck the oil pipe line
owned by claimant and broke its line out of collar. As a result, the claimant
lost 5 barrels of crude oil valued at $14.70, and was required to expend $18.05
on labor and materials in repairing its oil pipe line.
From the investigation made by the state road commission it appears that the
claim is one which should be paid. The state road commission submitted the
claim to the clerk on July 15, 1942 with its recommendation that the claim be
paid. Said recommendation is approved by the attorney general.
We are of the opinion after reviewing the record, that an award should be made
and an order will be entered recommending an award of thirty-two dollars and
seventy-five cents ($32.75) to be paid to the claimant, Valvoline Oil Company.
306
REPORTS STATE COURT OF CLAIMS [W. VA.
(Claim No. 161?S?Claimant awarded $1.53.)
D. C. IRWIN Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opfrion filed October 13, 1942.
ROBERT L. BLAND, Judge.
Claimant?s 1941 model Plymouth sedan automobile broke through a defective
wooden floor of a state bridge, located on secondary road No. 42 at junction
with secondary road No. 33, in Cabell county, West Virginia, on June 18, 1942.
He paid to Zora Perry?s Garage, of Huntington, the sum of $1.53, as shown by
statement filed, for the repair of damages sustained by said accident. The
state road commission concurs in the payment of said claim in the said sum of
$1.53. The special assistant to the attorney general approves this payment.
We are of opinion that said claim should be entered as an approved claim; and,
therefore make an award in favor of claimant, D. C. Irwin, for one dollar and
fifty-three cents
($1.53.)
W. VA.] REPORTS STATE COURT OF CLAIMS 307
(No. 162-S?-Claimant awarded $127.23.)
GULF OIL CORPORATION, Claimant,
STATE ROAD COMMISSION, Respondent.
Opinion
flied
October 13, 1942.
CHARLES J. SCHUCK, Judge.
Claimant, the Gulf Oil Corporation, asks
reimbursement in the sum of $127.23. which amount is claimed as damages to a
certain gasoline pump owned by the said claimant and leased to Pethtel Brothers
at Hundred, West Virginia. It is alleged that the damages were caused by the
negligence of the driver of state road truck No. 630-38 in not having his
emergency brake properly set and locked, and said brake released, backing into
the pump in question, causing the damages in the amount set forth in the
petition of claimant. The accident seems to be attributed wholly to the
negligence of this driver of the state road truck.
The state road commission does not contest claimant?s right to an award for the
above amount, but concurs in the claim for the said damages; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum
of one hundred twenty-seven dollars and
twenty-three cents
($127.23.)
308
REPORTS STATE COURT OF CLAIMS [W.VA.
(No. 169-S??Claimant awarded $13.52.)
SARVER GARAGE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied October 13, 1942.
WALTER M. ELSWICK, Judge.
It appears from the record in this case that on April 7, 1942, one Ray Umburger
was employed by the state road commission of West Virginia in moving a
bulldozer loaded on a state road commission trailer from a quarry site near Pettry
to East river project near Ada, West Virginia. Another truck was used to pull
trailer. However, when he reached Laurel hill, the one truck would not pull the
load up the grade and another state road truck was hooked in front. Due to the
load, the two trucks could only make about two miles per hour. The road was
narrow. A flagman was sent to top of grade to control traffic. Near the top a
private car driven by Mrs. Charles McGuire and owned by her husband pulled to
the right side of the road and stopped. The employee of the road commission in
charge directed the drivers of the trucks to proceed. Before doing so, he
realized that the clearance was very close, but undertook to pass the car
without requiring its removal. The bulldozer blade struck the left rear fender
on the private car and cut the fender in two pieces. It could not be repaired.
The claimant, Sarver Garage, at Bluefleld, West Virginia, repaired the private
car by installing a new fender and painting the scratched portions which, of
course, was done by authority of the state road district engineer at Princeton,
West Virginia. The costs of making these repairs amounted to the sum of $13.52.
From the investigation made by the state road commission it appears that the
claim is one which should be paid. The claim was submitted by the state road
commission with its recommendation for payment on August 25, 1942. This
recommendation is approved by the attorney general. We are of the
W. VA.] REPORTS STATE COURT OF CLAIMS 309
opinion that an award should be made and an order will be entered recommending
an award of thirteen dollars and fifty- two cents ($13.52) payable to Sarver
Garage for making these repairs.
(No, 170-S-?Claimant awarded $53.53.)
W. L. STROTHER, M. D., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opion. ftlecL October 13, 1942.
ROBERT L. BLAND. Judge.
The claim in this case grows out of an accident between state road commission
truck No. 430-13 and a Plymouth coupe automobile owned by W. L. Strother, M. D.
On August 10th, 1942, Dr. Strother?s car was parked at curb on a state highway
in the city of Salem,
Harrison county, West Virginia. The state
road commission truck, operated by Jasper Lough, was backing up in order to
pull around the Strother automobile, and in doing so it back into claimant?s
car, breaking the left headlight lens and the left front parking light, and
denting its left front fender. To repair the damaged condition of the car
claimant paid to the Ciarksburg Automobile Company, as shown by itemized receipted
bill therefor, the sum of $53.53. Dr. Strother filed his claim with the state
road commission for this amount. The state road commission prepared the record
of the claim and referred it to and filed it in this court on the 26th day of
August 1942. Respondent concurs in the payment of said sum of $53.53. The
attorney general approves such payment. In view of this concurrence and
recommendation and the facts disclosed by the record we are of opinion that the
claim in question should be entered as an approved claim.
An award is accordingly made in favor of W. L. Strother, M. D., for the sum of
fifty-three dollars and fifty-three cents
($53.53.)
310 REPORTS STATE
COURT OF CLAIMS LW. VA.
(No. 171-S?Claimant awarded $18.00.)
GAIL NICHOLSON, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed October 13, 1942.
CHARLES J. SCHUCK, Judge.
Claimant, Gail Nicholson, claims damages for injuries to his wagon, occasioned
by the said wagon falling through defective flooring on a bridge located on a secondary
road in Doddridge county, West Virginia, and damaging the vehicle to the extent
of $18.00.
The state road commission does not contest the claimant?s right to an award for
the said amount, but concurs in the claim for that amount; and the claim is
approved by the special assistant to the attorney general as one that should be
paid. We have carefully considered the case upon the record submitted, and are
of the opinion that it should be entered as an approved claim, and an award is
made accordingly in the sum of eighteen dollars ($18.00.)
W. VA.]
REPORTS STATE COURT OF CLAIMS 311
(No,
176-S?Claimant awarded $19.28.)
MARGARET B. POWELL, Claimant,
STATE ROAD COMMISSION, Respondent.
Op4non
fi!d October 13, 1942.
WALTER M. ELSWICK, Judge.
It appears from the r.. cord in this case which was submitted to the court by
the state road commission with its recommendation that the claim be paid and
the approval of the attorney general, that on Apri 3, 1942, a state road
commission truck with trailer was trielbig west on Pike street in the city of
Clarksburg, West Virginia in heavy traffic when the trailer struck an
automobile owned by claimant, Margaret B. PowelL The left rear fender of
claimant?s car was dented and rubber protector torn from fender. The truck also
struck the rear left door of claimant?s car,
It was necessary for the claimant to have the following repairs made by reason
of this collision: Straightening and repair of left door $4.00; straightening
and repair of fender $12.00 and material and repairs $3.28, making a total cost
of $19.28.
From the record submitted by the commission with the approval of the attorney
general, we are of the opinion that the claim should he paid and therefore,
will enter an order recommending an award of nineteen dollars and twenty-eight
cents ($19.28) payable to claimant, Margaret B. Powell.
312 REPORTS STATE COURT OF CLAIMS [W. VA.
(No. 190-S?Claimant awarded $20.00.)
J. H. SPENCER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion
filed October 13, 1942.
ROBERT L. BLAND, Judge.
On the 10th day of June, 1942, Stanley Spencer was driving claimant?s 1936
Buick sedan automobile, bearing West Virginia license number 172-648, on a
state highway, in McDowell county, West Virginia. At the same time George
Dickens, an employee of the state road commission, was driving in the opposite
direction on said highway stte road commission truck No. 1030-5, handling the
road commission?s trailer No. 1032-4 which was loaded with a roller. At a point
on said highway, near Havaco, as the road truck moved down grade Dickens
applied the brakes about the time that he was meeting claimant?s approaching
automobile, which was on the right side of the road. The brakes on the state
road truck stuck, causing the trailer attached to the truck to skid to the left
across the center of the highway and collide with claimant?s vehicle, damaging
its left rear fender and left rear wheel. It is shown that the defective
condition of the brakes on state road commission truck 1030-5 was responsible
for the damages sustained by claimant?s car. The state road commission
recommends the payment of twenty dollars in settlement of said claim. The
special assistant to the attorney general approves the claim in said amount.
And, having duly considered the record of said claim as prepared by the state
road commission and filed with the Clerk on the 16th day of September 1942, we
are of opinion that it should be entered as an approved claim and an award made
therefor in said sum of $20.00.
It is therefore considered and ordered by the court of claims that an award be
and is now made in favor of claimant, J. H. Spencer, in the sum of twenty
dollars ($20.00.)
W. VA.] REPORTS
STATE COURT OF CLAIMS 313
(No. 134?Claimant awarded $2750.00.)
CURTIS
COTTLE, Claimant,
V.
STATE
ROAD COMMISSION, Respondent.
Opinion filed October 23, 1942
To allow road equipmenr being used in
connection with highway miprovernents and repairs, to occupy any part of a used
or traveled road or highway in the nighttime, wjthout giving the traveling
public proper, adequate and sufficient warning and notice of the presence of
such equipment so placed or situate, is nergence on the part of the agents and
employees of the road commission, for which the commission is liable.
Appearances:
Messrs. Richardson & Kemper (George Richctrdson, Jr.), for the claimant;
Eston B. Stephenson, Esq.. special assistant to the Attorney General, for
the state.
CHARLES J. SCHUCK, Judge.
Curtis Cottie, the claimant, and a miner employed in the mines at Havaco,
McDowell county, while returning from his work late on the night of November
30, or early on-the morning of December 1, 1941, and while proceeding by
automobile along route 10 toward his home at Spanishburg, Mercer county,
collided with certain road machinery and equipment theretofore placed on said
route by the state road commission or its agents and employees, and by reason
of said collision was seriously and severely injured.
314 REPORTS STATE COURT OF CLAIMS {W.VA.
The record reveals that on the night
in question, the claimant left his work about midnight to proceed to his home
in Spanishburg, Mercer county, by automobile. He had reached and passed the
town of Matoaka and was traveling along route 10 when the accident in question
occurred. Claimant maintains that the equipment in question occupied a great
portion of the traveled road on the said route 10; that the equipment so placed
was not properly lighted so as to inform an oncoming driver of its presence;
and that the state road commission was negligent in carrying on the work
without proper protection and signals or lights to the traveling public. The
evidence also reveals that previous to the time of the accident in question,
several other collisions had taken place at the same point and seemingly under
the same circumstances and facts as presented in the instant case.
Claimant was very severely injured by the collision, sustaining a crushed
pelvis, dislocated hip, fractured right knee, a broken nose, and his left wrist
hurt, and other injuries. He maintains that he still suffers by reason of these
injuries. He was confined in the hospital for nearly five weeks and to his bed
at home about two weeks after his release from the hospital, and was disabled
from doing any work for a period of some four or five months.
Claimant admits in his own testimony that he was driving approximately forty
miles an hour at the time of the accident and that he experienced fog along the
route after leaving the mine crossing the mountains into Matoaka and that there
was some fog at the place of the collision as well as along route 10 between
Matoaka and the place where the accident happened. Claimant maintains that
there was but one red light displayed on the equipment placed on the said
route, which equipment comprised a truck, shovel, several tractors, and other
machinery, and this contention seems to be borne out by a preponderance of the
evidence in the case. He maintains further that he concluded the red light in
question appeared ti be a tail light of an automobile ahead and that
there was no other signal or warning of any kind that could inform him of the
presence of
W. VA.] REPORTS
STATE COURT OF CLAIMS 315
the equipment in question on the said route No. 10. The evidence further
shows that no watchman was maintained at the place of the accident until after
it had happened and that the usual warning signals, such as fiaies properly
placed, had not been used. On the other hand, the evidence shows that on the
afternoon of the day of the accident (Saturday) two lanterns were placed on the
equipment, by two boys, one of whom was the son of the workman charged with
placing the signals, but who had gone to Virginia on that afternoon and left
the placing of the signals to the two boys in question; that the conditions,
namely, the placing of the heavy equipment across or at nearly right angles on
th :?oad, allowing room or space for but one car or automobile going in either
direction to pass, and the fact that the location in question was near a curve,
made the situation dangerous and hazardous and required proper warning signals
at least in the nighttime to be given or placed for the benefit of pedestrians
and automobilists traveling on the highway in questton at the time.
We are of the opinion that the proper precautions were not taken by the state
road commission or those in charge of the work to give proper warning of the
presence of the equipment and that the laoterns that were placed, one of which
seems to have been knocked off the equipment previous to the time of the
accident, were wholly inadequate to give the proper warning to anyone using the
highway at the time. We are also of the opinion that this was negligence on the
part of the state road commission and that such negligence was the proximate cause
of the accident in question, although it may be well said that the claimant
himself may have contributed to the severity of his injuries by reason of the
speed at which he was traveling at the time of the accident, which would have
been a legal speed under ordinary circumstances, but which speed was perhaps
excessive in view of the weather conditions presented at the time. Claimant had
experienced pockets of fog from the time he left his work until the accident
happened and admits, as shown by the record, that there was fog at the very
place of the collision and that there was visibility but for fifty or
316 REPORTS STATE COURT OF CLAIMS
LW. VA.
sixty feet ahead. This element, of course, must be taken into consideration
in fixing an award.
The testimony shows that the car driven by the claimant at the time of the
accident was worth approximately six to six hundred and fifty dollars and that
he was offered $125.00 for the automobile shortly after the wreck, which would
make his loss approximately $500.00. Claimant was making approximately $240.00
a month at the time of the accident and since his recovery has been making from
one hundred and fifty to one hundred and sixty dollars per month. His doctor
and hospital bills amounted to $265.00.
We are of the opinion, considering all the circumstances in the case and the
fact that claimant may have contributed to the severity of his injuries by his
failure to use the proper degree of care under the then existing circumstances,
that the sum of twenty-seven hundred and fifty dollars ($2750.00) would be a
fair award for the injuries sustained, loss of time, and the injuries to his
automobile, and an award is made accordingly.
W. VA.] REPORTS
STATE COURT OF CLAIMS 317
(No. 24?Claimant awarded $257.00; No. 30?claim denied)
ROY C. BABB, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
J. J. RADER, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flIed October 26, 1942.
1. Where it appears from the evidence
that there is a sharp curve on a state secondary dirt road, which is overgrown
with brush obscuring the vision of persons traveling thereon, and which road is
narrow and otherwise defective and out of repair, and that a girl, thirteen
years of age while riding as a passenger in a mail truck on said road, sustains
personal injuries and the loss of four upper front teeth as the result of the
mail truck collision with a one and one-half ton truck loaded with shale or
gravel while passing through said curve, an award will be recommended for
hospitalization and dental bills.
2. An award will not be made in favor of an adult claimant traveling said road
six days a week in carrying mail, whose negligence contributed to a motor
vehicle collision which resulted in the demolishnient of his truck.
K. C. Van Meter, Jr., Esq., and Isaac D.
Smith, Esq., for claimants;
Eston B. Stephenson,
assistant Attorney General, for
respondent.
ROBERT L. BLAND, Judge.
By agreement of counsel these two cases were heard to? gether on the 31st of
July 1942. The claim of Roy C. Babb was originally filed September 13, 1941.
The claim of J. J. Rader was originally filed September 22, 1941. Both claims
were dismissed from the docket of this court, for failure of prosecution, on
the 26th of February 1942, at a special term of the court held in the city of
Wheeling, but with the right on
318 REPORTS STATE COURT OF CLAIMS [W. VA.
the part of claimants to have them reinstated on the docket of the court
upon showing satisfactory cause for such reinstatement. An opinion has
heretofore been filed in each case.
Both claims were subsequently reinstated On
the court docket after the claimants,
respectively, had shown satisfactory reasons for their failure to appear and
prosecute their said claims.
Both claims grow out of a collision which occurred about noon, on the 27th day
of July 1938, in a sharp curve or bend, approximately three hundred feet east
of Greenland Gap store, on a state secondary road in Grant county, West
Virginia, between a 1934 model Chevrolet one and one-half ton truck driven by
Ernest Rotruck, and a light pickup Chevrolet truck owned and driven by claimant
J. J. Rader.
D. A. Burt of Wheeling, West Virginia, owns a large estate and maintains a
summer home in that section of Grant county, which section is noted for its
scenic beauty and attractiveness.
Rotruck was hauling shale or gravel in his truck from Horace Cassel?s place to
the Burt estate to be used in road work there. As he drove his truck toward a
sharp curve or bend in the road claimant J. J. Rader, driving his mail truck,
was approaching the curve or bend from the opposite direction. Barbara Babb,
thirteen year old daughter of claimant Roy C. Babb, was a passenger in the
Rader mail truck.
At the place of the curve or bend the road was narrow, not more than twelve
feet in width. Inside of the curve or bend on the lower or creek side of the
road, a stone wall had been constructed from six to twelve feet in height. From
this wall there was a gradual slope down to the creek for a distance, according
to the evidence, of from forty to seventy-five feet. On the other side of the
curve the road abutted on a mountain bank. A culvert used for draining the
water from the mountainside had become clogged or stopped up, causing a ditch
of from one to two feet deep alongside of the road on the upper
W. VA.] REPORTS STATE COURT OF CLAIMS 319
or mountain side. Small trees were
growing on either side of the road and the branches of these trees extended
over the road obscuring vision in the curve, Most of the overhanging brush was
on the lower side next to the steep embankment. Some of it was growing in the
right of way.
When Rotruck observed the approach of the car driven by the claimant Rader, the
distance between the two cars was not more than eighteen to twenty feet,
Rotruck stopped his car. Claimant Rader?s car ran into and collided with the
Rotruck vehicle. As a result of the collision the Rader truck was practically
demolished. Barbara Babb, daughter of claimant Roy C. Babb, was thrown forward
and her face struck the front of the cab, Four of her upper front teeth were
knocked out, her mouth badly lacerated and her knee slightly cut. She was
removed to the Potomac Valley hospital at Keyser where she was given tetanus
serum and her lip was sewed while she was under the influence of ether.
On account cf the injuries sustained by the Babb child by reason of the ccident
it is shown by the evidence that her father, Roy C, Babb, has paid and incurred
the following sums of money:
Expenses paid:
Hospital $49.00
Nurse at hospital -
-- 10.00
Dentist, for services and temporary plate 103.00
Expenses to be paid:
Dentist, for permanent plate -- 95.00
Total $257.00
Said claimant Roy C. Babb seeks an award of $257.00. No other or further claim
is made on behalf of his daughter.
The mail pickup truck of claimant J. J. Rader was practically demolished. He
seeks an award in the sum of $118.91, which sum is shown by the evidence to
have been paid by him to Ludrick?s garage, at Keyser, West Virginia.
320 REPORTS STATE COURT OF CLAIMS [W. VA.
Trooper E. R. Turner made an investigation
of the circumstances attending the accident and submitted his report to the
department of public safety, which report was introduced as a part of the
evidence upon the hearing of the claims. He also testified before the court. He
described very clearly the defective condition of the road at the place of the
accident. He said that vision was obscured in the curve by trees overhanging
the road. According to measurement made by him the road in the curve was only
twelve feet in width. He emphasized the fact that on the embankment side of the
curve the branches from small growing trees overhung the road about three or
four feet and obscured vision, so that cars approaching would not have a view
of each other until they were within approximately eight or ten feet. Other
testimony showed that brush was actually growing on the right-of-way of the
road. The evidence makes it very clear that the road was undoubtedly out of
repair at the point of the curve and dangerous to the safety of persons using
it.
Adult persons familiar with the road at the point of the curve would be charged
with the exercise of precaution and care for personal safety in traveling
thereon. According to her own admission the Babb child had traveled
occasionally with claimant Rader in his mail truck to Keyser, passed the curve
in the road and knew of the overhanging brush at that point. She cannot,
however, be chargeable with contributory negligence. She is shown to have been
thirteen years of age at the time of the accident. 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 Compa.ny, 66
W. Va. 324. The rule is otherwise where the infant is under fourteen years of
age. Ewing v. Lanark Fuel
Company, 65 W. Va. 726.
It is obvious to the court from the evidence in these two cases that the road
was out of repair at the sharp curve or bend where the accident occurred. It
was clearly the duty of the road commission to have made the road safe for
travel around this dangerous curve, and its failure to do so was an omission
W. VA.i REPORTS
STATE COURT OF CLAIMS 321
of that duty, Under the particular
facts disclosed by the record in these cases it was negligence on the part of
the road commission not to have caused the overhanging brush over the road in
the curve to be removed. The existence of growing trees with their branches
extending four or five feet on either side of the road at this particularly
dangerous point was a menace to the safety of persons traveling on the road.
The explanation for the failure of the road commission to rempve this menace to
the safety of travel on the road may perhaps be found in the evidence given
upon the investigation of the claim by A. N. Clower, supervisor of roads for
Grant county at the time of the accident. When asked if complaint had been made
to him about the condition of the road at the point of the curve he said he
might have told claimant Roy C. Babb that Mr. Burt objected to anything being
done that would mar the scenery.
We think that upon the showing made by the record claimant Roy C. Babb is
entitled to the award which he seeks.
In the case of claimant J. J. Rader, however, a different situation is
presented. It is shown by the evidence that for six days a week he traveled
through the curve in the road in carrying United States mail in his pickup
truck. He was bound under the circumstances to have known of the danger
incident to travel through the curve on account of the narrow width of the road
and the overhanging brush which obstructed vision at that point. He was
chargeable with the exercise of ordi?nary care and prudence for his own safety.
The evidence shows that he was traveling down grade as he approached the curve.
The Babb child says he was traveling at from ten to fifteen miles an hour.
Ernest Ratruck states that Mr. Rader?s speed was from fifteen to eighteen miles
per hour. He must have known that two vehicles could not pass each other in the
curve, yet the evidence does not show that he sounded his horn or gave any
other indication that he was approaching a place of danger. Mr. Rader is
chargeable with contributory negligence that will preclude an award in his
favor.
It may be observed at this point that claimant Rader did not appear in person
to testify in support of his claim. He did not
322 REPORTS STATE
COURT OF CLAIMS 1W. VA.
appear in response to a summons served upon him to testify on behalf of
claimant Roy C. Babb.
An order will be entered making an award in favor of claimant Roy C. Babb in
the sum of two hundred and fifty- seven dollars ($257.00).
An order will be entered denying an award to claimant J. J. Rader and
dismissing his claim.
(No. 45-S?Claim denied.)
JENNINGS C. BOLEY, Claimant,
V.
STATE CONSERVATION COMMISSION,
Respondent.
Opinion filed October 28, 1942.
Where it appears from the record
submitted that the negligence of claimant in the operation of a truck
owned by the state agency concerned was the approximate cause of a collision by
the truck with a privately owned car, inflicting damage to same, an award will
be denied to claimant for contribution of the amount of damages paid by
claimant to the owner of the damaged car.
WALTER M. ELSWICK, Judge.
On February 10, 1940, the claimant, Jennings C. Boley, was driving an
International 2-ton truck owned by the state conservation commission on the
highway from Petersburg to Franklin, West Virginia, when the said truck
collided with an automobile driven by one Charles H. Pike of Martinsburg, West
Virginia, causing damages to the automobile driven by Pike for which the
claimant paid $200.00 as settlement in full for all claims for damages against
him.
From the record submitted it appears that he was driving at a speed of from 20
to 25 miles per hour. As he entered a left hand curve in the highway, it
appears that he was driving
W. VA. I
HEPORTS STATE COURT OF CLAIMS 323
on his left side of the highway across the
point where white hnes would have been if the center line of the road had been
so marked, and saw coming from the opposite direction on the highway the said
automobile driven by Pike. It was raining and the road was wet. The Pike car was
driven to the operator?s extreme right side of the roadside and brakes applied.
Upon seeing the approach of the Pike ear, the claimant cut the truck sharply to
the right, when the rear end of the truck slid over past the center of the road
until the truck body apparently passed over the left front fender of the Pike
car, breaking off the parking light and continuing along the car body, striking
the hinges of the left front door and removing the handle of the car door. The
truck continued up the road for some distance before the body broke loose from
the chassis and turned on its side, dumping a part of its load into the road.
During this time the drive-shaft of the truck had broken and the right rear
outside dual wheel had been thrown off.
After the said collision, state trooper Smith, of Franklin, was summoned to the
scene and took the statements of the parties. His report was not filed with the
record, but after the trooper made his investigation the claimant was charged
with reckless driving, that is to say, driving on his left side of the highway
in the face of oncoming traffic, before a justice of the peace at Franklin. The
claimant plead guilty to the charge and was fined $14.60 including costs. He
later made a settlement with the owner of the Pike automobile for the sum of
$200.00 in full satisfaction of his claim, and asks the state to reimburse him
for this sum.
There is a copy of a letter, dated June 15. 1940. from the then director of
conservation, addressed to the attorney for Mr. Pike, stating that: ?It is
apparent to me from evidence submitted by Mr. Boley that the collision was
caused by the breakage of a drive-shaft on a truck belonging to the
conservation commission, thereby taking control of the truck from Mr. Boley.?
But it appears from Mr. Boley?s statement that the road was
wet, that he was rounding a left hand curve on his left side of the road when
he cut the truck sharply to his right
324 REPORTS STATE COURT OF CLAIMS LW. VA.
and the rear end slid over past the
center of the road and struck the Pike car. We think it was negligence on his
part to be driving a loaded truck on a wet road around a curve on his left side
of the road, and that such negligence was the cause of the accident.
The case was submitted for determination by the Conservation Commission under
the shortened procedure, with its recommendation for payment, which
recommendation is concurred in by the attorney general. We cannot approve the
claim for the reasons herein set forth, and therefore an award is denied upon
the record submitted.
(No. 182-S??Claimant awarded $565.64.)
C. W. LEGGETT COMPANY, Claimant,
V.
STATE
TAX COMMISSIONER, Respondent.
Opinion filed October 29, 1942
CHARLES J. SCHUCK, Judge.
The claimant, the C. W. Leggett Company, located at Clarksburg, West Virginia,
seeks reimbursement in the sum of $565.64, which amount had heretofore been
paid in various sums, beginning with the year 1924 and including the year 1936,
in excess of its legal business and occupation tax, known as the gross sales
tax, due and payable to the state for the period designated. A demand for
refund of such excessive payments has heretofore been duly and legally made to
the tax commissioner of the state of West Virginia, and this official, upon
being petitioned to requisition the auditor of the state for a warrant
refunding the said amounts, refused the said petition on the grounds that there
were no available funds out of which the said excessive payments could be paid.
W. VA.1 REPORTS
STATE COURT OF CLAIMS 325
The state tax commissioner recommends the refund of the excessive payments in
the amount aforesaid and does not contest claimant?s right to the said refund,
but concurs in the claim for the aforesaid amount; and the claim is likewise
approved for payment by the attorney general?s office as one that should be
submitted to the Legislature for proper appropriation and future payment. We
have carefully considered the case upon the record submitted and are of the
opinion that it should be entered as an approved claim and an award is made
accordingly in the sum of five
hundred sixty-five dollars and sixty-four
cents ($565.64).
ROBERT L. BLAND, Judge, dissenting.
The above case came to the court of claims from the state tax commissioner
under the ?shortened procedure? provision of the court act. The record was
prepared by the tax commissioner and filed with the clerk September 15, 1942.
It was placed upon the special docket of the court for its regular October 1942
term and is considered informally upon the record submitted. It appears from
this record that pursuant to article 13, chapter 11, of the official code of
West Virginia, relating to business and occupation, formerly known as the gross
sales tax law, claimant C. W. Leggett Company paid taxes to the state of West
Virginia as follows:
1924 $
12.50
1925 17.91
1926 22.79
1927 18.64
1928 22.82
1929 23.40
1930 31.00
1931 31.69
1932 5.51
1933 2.79
1933 54.04
194 96.18
1935 103.36
1936 122.01
TotaL 565.64
326 REPORTS STATE
COURT OF CLAIMS [W. VA.
It is also shown by the record that a demand for a refund of said payments has
heretofore been made to the tax commissioner and that he has been petitioned to
requisition the auditor of West Virginia for a state warrant refunding said
aggregate amount so paid, and that such demand and petition have been refused
upon the ground that there exists no funds out of which such refund might be
made, the funds out of which refunds might be made for said years having
reverted to and become a part of the general revenue and reappropriated for
succeeding years.
During the period that Honorable Fred L. Fox and Honorable Ernest K. James,
respectively, served as state tax commissioner one of the rules and regulations
of the tax commissioner?s office provided that persons maintaining a place of
business in West Virginia for the purpose of representing out- of-state
suppliers of merchandise on a commission basis and obtaining orders for the
shipment from such out-of-state suppliers to customers in West Virginia were
not liable for payment of the West Virginia business and occupation (formerly
gross sales) tax on their gross commissions because such transactions were
considered exempt from the payment of state taxes under the interstate commerce
clause of the Federal Constitution.
By reason, however, of a decision of the Supreme Court of Alabama, in the case
of State
v. Stein, reported in 199 Southern, page 13, the above mentioned
rule and regulation was abrogated and annulled for the reason that said case
held that commissions earned by reason of transactions above mentioned were not
exempt under the commerce clause of the Federal Constitution.
In advising all such commission merchants in West Virginia of this fact it was
ascertained by the tax commissioner that those claiming refund, including the
above claimant and others, did pay business and occupation tax on commissions
received from interstate shipments when at the time said tax payment was made
said taxpayers were exempt from the payment of
W. VA.] REPORTS
STATE COURT OF CLAIMS 327
the tax. In view of the fact that all other commission merchants did not pay taxes
on commissions earned from interstate transactions, the tax commissioner was of
the opinion that claimant and other taxpayers claiming refund have paid more
taxes than were required by them under the law, and that the taxes so paid by
them were in excess of the amounts due from said taxpayers, and it is the viev:
of the tax commissioner that such taxpayers are entitled to a refund for what
he regards as overpayments made by them.
For the reason that what the tax commissioner conceives to have been an
erroneous tax payment made by claimant more than two years prior to the
application for refund he is barred from making said refund by reason of section
655 (1) (2a) of article 1 chapter 11 of the 1941 supplement to the West
Virginia code, which reads as follows:
?On and after the effective date of this section, any taxpayer claiming to be
aggrieved through being required to pay any tax into the treasury of this
state, may, within two years from the date of such payment, and not after, file
with the official or department through which the tax was paid, a petition in
writing to have refunded to him any such tax, or any part thereof, the payment
whereof is claimed by him to have been required unlawfully; and if, on such
petition, and the proofs filed in support thereof, the official collecting the
same shall be of the opinion that the payment of the tax collected, or any part
thereof was improperly required, he shall refund the same to the
taxpayer by the issuance of his or its requisition on the treasurer; and the
auditor shall issue his warrant on the treasurer therefor, payable to the
taxpayer entitled to the refund, and the treasurer shall pay such warrant out
of the fund into which the amount so refunded was originally paid: Provided,
however, That no refund shall be made, at amy time, on any claim involving the
assessed valuation or appraisement of property which was fixed at the time the
tax was originally paid.?
However, beginning with the year 1942 and for all subsequent years the tax
commissioner will collect business and
328 REPORTS STATE
COURT OF CLAflVIS [W.VA.
oDeupation tax on the gross commissions of merchant brokers who represent out-of-state
ruDpliers nd obtain orders or the shipment of such out-of-state supplies to
customers in West Virginia. It appears that all such commission brokers have
been notified to this effect and are reporting their gross income received from
this source of business on their regular tax returns. But in view of the fact
that tax commissioners Fox and James had both ruled otherwise prior to the
Alabama decision of State v. Stein,
supra, the tax commissioner has taken
the position that it would not be fair to backtax any of such taxpayers for
years prior to 1942 for such taxes, and it is his opinion that the taxpayers
who did make such payments when not required to do so by reason of the above
mentioned rule and regulation are entitled to refund in order to place them on
an equal basis with the taxpayers who did not pay on the commissions earned
from interstate transactions carried on by them. The tax commissioner?s
department, however, is prohibited from making the refund sought by claimant by
reason of the prohibition contained in section 655 (1) (2a) of Michie?s
supplement of 1941 to the code of West Virginia. The tax commissioner is of
opinion that the matter may be presented to the court of claims for its
consideration, and if an award shall be made by this court the Legislature
might make the necessary appropriation sought by claimant, The tax
commissioner, therefore, concurs in the payment to claimant of the suni of
$565.64. The assistant to the attorney general approved the claim as one that
should be paid. An award for the said sum of $565.64 has been made in favor of
claimant C. W. Liggett Company in the said sum of $565.64 by majority members
of the court. However fair and just such award may appear to be under the facts
disclosed by the record, I cannot concur therein.
I do not think that the case as presented by the record authorizes an award for
reimbursement of the taxes paid by claimant. It is, I think, the law that where
a tax is illegal the aid of a court of equity may be invoked to prevent the
collection of said tax. The taxes which claimant seeks to have reimbursed were
voluntarily paid. Such payments were not
W. VA.1
REPORTS STATE COURT OF CLAIMS 321)
(oinpu1sorv. They were not made under
duress. It is fonda? lfleHtil Jaw that a lax paid voliintarilv cannot be recovered back There i, no
stat ut aol horiz ing a rcfund of the taxes paid by claimant under the hovii
made by the record.
If claimant felt aggrieved on iocoi ni of paving the taxes in quest ion it had
11w i?ii1 it tinder the statute above set forth, within two years
from the date of such payiiwnts, and not after that time, to
apply to the olhcial or department through which such taxes were paid for redress and relief authorized by such statute. It did not see lit to pursue such remedy It is now
barred by the statute of limitation
from doing so. For such reason the lax commissioner could make no refund.
For the same reason the eourt of claims is without jurisdiction to make? an award in its favor.
(N4). 1S3?S (?t.iinia,it ;)Wa!?(b?d $14.29.?i
t Tj?IJ.1) COIVIP/NY, C[ainiant
V.
STATE ?L?A X (OMM15S1ON1H. l.sdet
)i, ((14)1 Oclober
29. If) 12
.?1
IA IU J:S .1 Sc? 1 ItJCIK . d.
?l?lo?
(lai ii;iti I.
I Iii I I il t?ij I ri Lt?i?;i1t? (?uiiiI;nv. hLIIt?&1 a
(
Iarkslu iri., \?Vt-.t V ri a .ste Ls iii ii hu
rseIOt?n I in tin? 51101
I ?l.2, vhi Fell iii on lit llu I lin?tofrl?e? l?en :iid in various
-cilins,
?imlnlii itli I l year 1!t2 and
nieliidiii the veijr iii ix&iss iii its Ii ii hiistiies. 111(1 Oe(?Li1mt Ill-li t.i, lsiioii
as tin i.ross
.iI-
lix, tim cool tm:myalie to I lit? iii? ito? Ito?
period (eSit?liit(?(I, A ilotimammil ho? i?t?fmimid- of such excessive paynient?. lois liei?eto1oi? I)e(?ll (filly iiid lmiilV iiiil)It? 10
llIt tzmx coiimilmis? I4)lI(?r (If the state ii
\?Vest Vi i?tiima, aiim1 this
mdlieiat, iipmi l5?iiii
330 REPORTS STATE COURT OF CLAIMS [W. VA.
petitioned to requisition the auditor of the state for a warrant refunding
the said amounts, refused the said petition on the grounds that there were no
available funds out of which the said excessive payments could be paid.
The state tax commissioner recommends the refund of the excessive payments in
the amount aforesaid and does not contest claimant?s right to the said refund,
but concurs in the claim for the aforesaid amount; and the claim is likewise
approved for payment by the attorney general?s office as one that should be
submitted to the Legislature for proper appropriation and future payment. We
have carefully considered the case upon the record submitted and are of the
opinion that it should be entered as an approved claim and an award is made accordingly
in the sum of fourteen dollars twenty-nine cents ($14.29).
ROBERT L. BLAND, Judge, dissenting.
I respectfully dissent to the award made by majority members of the court in
the above case for the reasons and upon the grounds set forth in my dissenting
opinion filed in re claim No. 182-S, C.
W. Leggett Company v. State Tax Commissioner.
(No. 184-S?Claimant awarded $570.91;
No. 185-S?Claimant awarded $603.79)
BLAIR WILLISON COMPANY, Inc., Claimant,
V.
STATE TAX COMMISSIONER, Respondent.
Opinion filed October 29, 1942
CHARLES J. SCHUCK, Judge.
The claimant, the Blair Willison Company, Inc., located at Clarksburg, West
Virginia, seeks reimbursement in the amounts of $570.91 and $603.79, which
amounts had heretofore
W.YA] REPORTS
STATE COURT OF CLAIMS 331
been paid in various sums, beginning with the year 1934 and including the year
1936 for the first amount, and beginning with the year 1937 and including the
year 1940 for the second amount, in excess of its legal business and occupation
tax, known as the gross sales tax, due and payable to the state for the periods
designated. A demand for refund of such excessive payments has heretofore been
duly and legally made to the tax commissioner of the state of West Virginia,
and this official, upon being petitioned to requisition the auditor of the
state for a warrant refunding the said amounts, refused the said petition on
the grounds that there were no available funds out of which the said excessive
payments could be paid.
The state tax commissioner recommends the refund of the excessive payments in
the amounts aforesaid and does not contest claimant?s right to the said refund,
but concurs in the claim for the aforesaid amounts; and the claim is likewise
approved for payment by the attorney general?s office as one that should be
submitted to the Legislature for proper appropriation and future payment. We
have carefully considered the case upon the record submitted and are of the
opinion that it should be entered as an approved claim and an. award is made
accordingly in the amounts of five hundred and seventy dollars ninety-one cents
($570.91) and six hundred and three dollars seventy-nine cents ($603.79).
ROBERT L. BLAND. Judge, dissenting.
I respectfully dissent to the award made by majority members of the court in
the above cases for the reasons and upon the grounds set forth in my dissenting
opinion filed in re claim No.
182-S, C. W. Leggett Company v. State Tax
Commissioner.
332 REPORTS STATE COURT OF CLAIMS LW. VA.
(No. 186-S?Claimant awarded $243.28.)
B. D. BAILEY & SONS, Claimant,
V.
STATE TAX COMMISSIONER, Respondent.
Opinion filed October 29, 1942.
CHARLES J. SCHUCK, Judge.
The claimant, B. D. Bailey & Sons, located at Clarksburg, West Virginia,
seeks reimbursement in the sum of $243.28, which amount had heretofore been
paid in various sums, beginning with the year 1926 and including the year 1936,
in excess of its legal business and occupation tax, known as the gross sales
tax, due and payable to the state for the period designated. A demand for
refund of such excessive payments has heretofore been duly and legally made to
the tax commissioner of the state of West Virginia, and this official, upon
being petitioned to requisition the auditor of the state for a warrant
refunding the said amounts, refused the said petition on the grounds that there
were no available funds out of which the said excessive payments could be paid.
The state tax commissioner recommends the refund of the excessive payments in
the amount aforesaid and does not contest claimant?s right to the said refund,
but concurs in the claim for the aforesaid amount; and the claim is likewise
approved for payment by the attorney general?s office as one that should be
submitted to the Legislature for proper appropriation and future payment. We
have carefully considered the case upon the record submitted and are of the
opinion that it should be entered as an approved claim and an award is made
accordingly in the sum of two hundred and forty-three dollars twenty-eight
cents ($243.28).
ROBERT L. BLAND, Judge, dissenting.
I respectfully dissent to the award made by majority members of the court in
the above case for the reasons and upon the grounds set forth in my dissenting
opinion ified in re claim No. 182-S, C. W. Leggett Company v. State Tax CommLssic.,ne.r.
W. VA.i REPORTS
STATE COURT OF CLAIMS 333
(No. 187-S?Claimant awarded $692.32.)
ELLIOT BROKERAGE COMPANY. Claimant,
V.
STATE TAX COMMISSIONER, Respondent.
Opieior filed Oriober 29. 1942.
CHARLES J. SCHUCK, Judge.
The claimant, the Elliot Brokerage Company, located at Bluefield, West
Virginia, seeks reimbursement in the sum of $692.32, which amount had
heretofore been paid in various sums, beginning with th year 1937 and including
the year 1940, in excess of its legal business and occupation tax, known as the
gross sales tax, due and payable to the state for the period designated. A
demand for refund of such excessive payments has heretofore been duly and
legally made to the tax commissioner of the state of West Virginia, and this
official, upon being petitioned to requisition the auditor of the state for a
warrant refunding the said amounts, refused the said petition on the grounds
that there were no available funds out of which the said excessive payments
could be paid.
The state tax commissioner recommends the refund of the excessive payments in
the amount aforesaid and does not contest claimant?s right to the said refund,
but concurs in the claim for the aforesaid amount; and the claim is likewise
approved for payment by the attorney generals office as one that should be
submitted to the Legislature for proper appropriation and future payment. We
have carefully considered the case upon the record submitted and are of the
opinion that it should be entered as an approved claim and an award is made
accordingly in the sum of six hundred and ninety-two dollars thirty-two cents
($692.32).
ROBERT L. BLAND, Judge, dissenting.
I respectfully dissent to the award made by majority members of the court in
the above ease for the reasons and upon the grounds set forth in my dissenting
opinion filed in re claim No. 182-S, C. W. Leg gett Company v. State Tax Commissioner.
334 REPORTS STATE
COURT OF CLAIMS LW. VA.
(No 148?Walter Lee Kincaid, infant, awarded $150.00; No. 149?Betty
Jane Kincaid, infant, awarded $500.00; No. 149-a?E. W. Kincaid
awarded $50.00.)
WALTER LEE KINCAID, Infant, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
BETTY JANE KINCAID, Infant, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
E. W. KINCAID, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 17, 1942
The State Road Commission is charged
with the duty of making all bridges under its control and authority reasonably
safe for travel thereon by day or by night, and when it fails in this respect,
the state will be held liable.
Appearances:
Messrs. Lilly & Lilly, (A. A.
Lilly, Esq.) for the claimants;
Eson B. Stephenson, Esq., assistant Attorney General, for the state.
CHARLES J. SCHUCK, Judge.
The two infant claimants herein maintain that on or about the 25th day of July
1941, while crossing a bridge over Cabin creek, in a Ford roadster, at about
10:00 at night on the day in question, they were injured by reason of the said
bridge being out of repair, the floor boards thereon loose, part of the
railings torn off, and the bridge generally in such a bad condition as to make
it dangerous for travel. The claimants in question had been over the bridge
previously that evening,
W. VA.]
REPORTS STATE COURT OF CLAIMS 335
but the evidence does not reveal as to
whether or not either or both of them had occasion to notice the dilapidated
and dangerous condition of the bridge at the time of the first crossing. The
bridge was part of the main county or state road leading from the town of
Decota to Miami, and from Miami down to Cabin creek junction, and was the only
outlet for persons obliged to travel the highway in question and going to the
places or towns mentioned. That the bridge was in a highly dangerous condition
at the time of the accident is plainly shown and revealed by the exhibits in
question, and those charged with the duty of keeping the bridge in reasonable
condition for use by pedestrians and autoists were negligent in this respect,
and the bridge dangerous for general use. The fact is that there was a hole in
part of the traveled portion of the bridge and travelers in vehicles or
automobiles over and upon the said bridge, if aware of this condition, were
obliged to keep to the left side thereof in order to avoid an accident. Since
the claimants in question had only crossed the bridge once before, and that on
the same day that the accident happened, they cannot, under the evidence, be
charged with negligence in attempting to cross the bridge at the time in
question when the accident to them happened. From the evidence, it seems that
one of the loose boards on the bridge turned up, catching the running board of
the automobile and being lodged against the wheel thereof, by reason of which
the car was stopped suddenly, and the occupants thereof thrown against and
through the windshield, receiving severe cuts to the head of both, and to the
face of the said Betty Kincaid. They were shortly after taken o the hospital,
where their wounds were treated, and then were returned home, and so far as the
evidence reveals, required very little further medical attention. It is true
that the said Bctv Kincaid still bears a scar on her cheek caused by the
iojuries inflicted when she was undoubtedly cut by the rrggrd ends of the
windshield. The claimant, Walter Lee Kincaid, suffered a cut of approximately
one and one-half inches on his head, but the wound was of such a nature that it
required only to he taped, so far as the treatment at the hospital was
concerned. The claim is made that the said claimant, Walter Lee Kincaid,
suffers an eye affliction by
336 REPORTS STATE
COURT OF CLAIMS [W. VA.
reason of the accident, but substantial testimony is not offered to sustain
this contention. We feel that the injuries to the said claimant, Walter Lee
Kincaid, were comparatively minor, and of no lasting effect, and we make an
award of $150.00 to him.
In the case of Betty Jane Kincaid, we feel that an award of $500.00 is proper
for the injuries sustained, and in view of the fact that no permanent injuries
were sustained by her, and that we feel that the scar in question on her cheek
will eventually disappear or become unnoticeable, that the award made to her is
proper and ample. Under the circumstances, the awards in the amounts of one
hundred and fifty dollars ($150.00) for the claimant, Walter Lee Kincaid, and
five hundred dollars ($500.00) for Betty Jane Kincaid, respectively, will be
recommended to the Legislature for payment.
The infants, Walter Lee Kincaid and Betty Jane Kincaid, were driving and riding
in an automobile owned by E. W. Kincaid, and the damage to the said automobile
by reason of the accident in question amounted to $93.50. Of this amount the
said claimant, E. W. Kincaid, has been paid $43.59 by the Insurance Company
that carried the insurance on said automobile, and is entitled to the remainder
of the said estimated damages, for which said amount, to-wit fifty dollars
($50.00), an award is made to him.
W. VA) REPORTS
STATE COURT OF CLAIMS 337
(No. I 99-S? cidimant awarded S3.O(i.)
R. L. HALSEY, Claimant.
V.
STATE ROAD COMMISSION Respondent.
Opoto
filed November 17,
1942
CHARLES J. SCHUCK, Judge.
The claimant, R. L. Halsey, seeks reimbursement in the sum
of S3.0O,
which is claimed as damages for injuries
to his car, caused by state road truck 1030-16, on or about the 24th day of September 1942. It appears that the said
state road truck, while being driven at and near an intersection of certain
streets in Welch. McDowell county, collided with respondent?s car, and causing
the damages in question.
So far as the in?. estigation shows, there was no negligence on the part of the
claimant.
The state road commission does not contest the claimant?s right to an award for the said amount, but concurs in the
claim for that amount; and the clirn is approved by the assistant attorney
general as one that should be paid. We have carefully considered the case upon
the record submitted, and are of the opinion that it should be entered as an
approved claim, and an award is madr accordingly in the sum of three dollars
(S3,00).
338 REPORTS STATE COURT OF CLAIMS [W.VA.
(No. 200-S-?Claimant awarded $90.43.)
EVAN KOLAR, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 17, 1942
CHARLES J. SCHUCK, Judge.
Claimant Evan Kolar seeks reimbursement in the sum of $90.43, which amount he
was obliged to pay for damages to his car, caused by the tail gate of a truck
operated by the state road commission swinging over and against the car of
claimant, and causing considerable damage to the various parts of claimant?s
car. It appears that the said tail gate on the state road truck dropped off or
became loose from the hooks to which it was fastened, and thereby swung into
the path of the claimant?s car, causing the damage in question. No negligence
is found on the part of the claimant.
The state road commission does not contest the claimant?s right to an award in
the said amount, but concurs in the award for that amount; and the claim is
approved by the assistant attorney general as one that should be paid. We have
carefully considered the case upon the record submitted and are of the opinion
that it should be entered as an approved claim, and an award is made
accordingly in the sum of ninety dollars, forty-three cents ($90.43).
W. VA.] REPORTS
STATE COURT OF CLAIMS
339
(No. 202?S?Claimant awarded $25.28.)
MRS. E. C. KLAGES, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 17, 1942
WALTER M. ELSWICK, Judge.
In the summer of 1942 state road commission employees were engaged in blasting
on project 3544-A in Marshall county, West Virginia, near the home of
claimant. As a result of evercharging the loads, the claimant suffered the
following losses to her property; 8 broken windows $16.78; 1 window blind $1.50;
5 broken glasses in chicken house $5.00; 1 door
to coal house $2.00: or a total loss of $25.28 on which claim is based.
The claim was submitted to the court by the state road commission under the
shortened procedure and considered informally by the court. The attorney
general concurs and approves payment of the claim.
We, therefore, recommend payment and make an award to claimant, Mrs. E. C.
Klages, for the sum of twenty-five dollars and twenty-eight cents ($25.28.)
340 REPORTS STATE
COURT OF CLAIMS EW. VA.
(No. 204-S?-Claimant awarded $50.00.)
MINNIE BROYLES, Claimant,
V.
STATE ROAD COMMISSION, Respondent
Opinion filed Novembe-r 17, 1942
WALTER M. ELSWICK, Judge.
A right-of-way for a state road was obtained from claimant by the state road
commission through her lands in Monroe county, West Virginia,, with the
agreement that the state road commission would construct a fence between her
pasture and the new state road commission bridge across Hands creek in Monroe
county. The fence was not constructed in accordance with the agreement and
claimant?s yearling calf ran astray from its pasture to the bridge and ate red
lead paint off the bridge. The yearling was fatally poisoned from the lead
paint and claimant?s loss amounted to the sum of $50.00, for which claim was
submitted.
The state road commission submitted the claim to the court under the shortened
procedure, and the claim was considered informally by the court. The attorney
general concurs in and approves payment of the claim.
We, therefore, recommend that the claimant, Mrs. Minnie Broyles, be paid the
sum of fifty dollars ($50.00), and make an award to her for said sum.
W. VA.] REPORTS
STATE COURT OF CLAIMS 341
(No. 206-S?Claimant awarded $5.00.)
DAVID COX, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 17, 1942
ROBERT L. BLAND, Judge
On the morning of October 1, 1942, a 1934
Dodge motor vehicle, bearing West Virginia license No. 60-050, owned by
claimant David Cox of Anmoore, West Virginia, was parked on the state
controlled road at Anmoore. State road commission truck No. 430-15, operated by
Clarence Edwardsr was driven into a private driveway and then backed across the
road to a spreader and negligently collided with claimant?s car damaging the
left rear corner of its body. The road commission admits that the driver of the
state truck was at fault and recommends an award of $5.00 in settlement of the
damage done to claimant?s vehicle, which amount claimant agrees to accept in
full settlement of his claim, and which amount is approved for payment by the
special assistant to the attorney general.
An award is therefore made in favor of claimant David Cox for the
said sum of five dollars ($5.00).
(No. 207-S -Claimant awarded $449.60.)
A. C. RIGGS. Claimant,
V.
STATE ROAD COMMISSION. Respondent.
Qpriion filed November 17,
1942
ROBERT L. BLAND, Judge.
On the afternoon of July 14, 1942, claimant A. C. Riggs, of Bearsville, Tyler
county, West Virginia, was riding horseback,
342 REPORTS STATE COURT OF CLAIMS EW. VA.
traveling south on the Bearsville secondary road in Tyler county, West
Virginia, accompanied by his son, 0. H. Riggs, who, was walking alongside of
him. While crossing a 10? x 16? by 2? wooden bridge one and one-eighth miles
south of Bearsville which spans a small ravine which empties into Sancho creek,
claimant?s horse broke through the floor, throwing him and breaking his right
leg just above the ankle. Claimant was removed to the Sistersville general
hospital at Sistersville, West Virginia, where he received treatment for
eighty-two days for the injury sustained by him in consequence of the accident.
Upon investigation of the accident made by Joe C. Yoho, safety director for
Tyler county, it was found that the boards of the bridge where the accident
occurred were rotten and unsafe to hold the traffic crossing the bridge. The
floor was covered by three inches of clay, which prevented travelers over the
bridge from discovering the unsafe condition of its floor. As a result of the
accident claimant incurred the following expenses: 82 days in Sistersville
general hospital at $3.00 per day, $246.00; operating room, $10.00; dressing,
$3.00; ultra violet ray treatment, $5.00; x-ray treatments at $7.50 per
treatment, $45.00; plaster cast, $5.00; amount of bill of E. L. Thrasher, M.
D., $135.00, aggregating $449.00, which said several amounts were paid by claimant.
The state road commission recommends an award to claimant for this amount and
assigns as a reason for such recommendation the unsafe condition of the bridge
decking, due to negligence on the part of state road commission employees. The
assistant to the attorney general approves the payment of the claim.
Photographs of the defective bridge made a part of the record fully justify the
concurrence of the road commission in the claim ified and the approval of
payment thereof by the assistant to the attorney general.
An award is made in favor of claimant A. C. Riggs for the sum of four hundred
forty-nine dollars ($449.00).
W.VA.1 REPORTS
STATh COURT OF CLAIMS -
343
(No. 179?Claim denied.)
R. L.
JAMES, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied November-21. 1942.
The court of claims will not make an
award in a case where the evi-. dence shows that the state road commission has
used reasonable care and diligence in the maintenance of a state controlled
highway on which claimant wrecked his motor vehicle by colliding with a large
stone or boulder that had become dislodged from a cliff or hillside and fallen
on said highway the night preceding or early morning of such accident, and in
which it further appears from the evidence that the employees of the state road
commission had no knowledge of the likelihood of such happening.
Claimant, in his own behalf;
Eston B. Stephenson,
Esq.. special assistant to the
Attorney General, for the respondent.
ROBERT L. BLAND, Judge.
In this case claimant, R. L. James, seeks to obtain an award to reimburse
himself for money paid for the repair of a 1941 Ford pickup truck after it had
collided with a large stone or boulder which had fallen from a cliff or
hillside on state route No. 21 in Wirt county, West Virginia, about
seven-tenths of a mile from the Wood - Wirt
county line. The accident occurred on Limestone hill on said road on Monday,
June 21, 1942, at about 5:30 o?clock A.
M. Mr. James, who- is a welder by
occupation and employed by the Carbon Carbide Chemicals Corporation in the city
of Charleston, was returning to work after having spent the weekend at his
home at Slate, a small village in Wood county.
It had rained throughout Sunday night and on Monday morning the road was wet
and it was still drizzling rain and very foggy. He was driving at the rate of
forty miles per hour and just after rounding a curve on Limestone hill and
approximately from one hundred to one hundred and fifty yards from said curve a
large stone or boulder had become dislodged from
344
REPORTS STATE COURT OF CLATh1S 1W. VA.
a ledge of rock on a cliff on one side
of the road. It appears from the evidence that claimant observed this
obstruction in the road but thought that he would be able to go around it
successfully and atten?pted to do so, but collided with the stone or boulder
and wrecked his car, although the evidence shows that there was sufficient
clearance on the right of the obstruction to pass around it in safety and avoid
the collision. He is of opinion that the road commission was negligent in not
removing the obstruction from the road and for that reason that he is entitled
to an award for $120.50, which amount he was obliged to pay in order to have
his vehicle repaired. It appears from the evidence that claimant was quite
familiar with the road having been in the habit of traveling it every weekend
for eighteen months past. It also appears that the state road commission had
used reasonable care and diligence in maintaining the road at the point of the
accident. It is shown that about two weeks previous to the accident a crew of
road commission employees had made a thorough investigation of the conditions
?of the ledge from which the stone had apparently fallen and had removed all
loose rock from the hillside, and that everything had been done at that time,
that it was possible to do, to prevent the falling of rocks from the embankment
side of the road. It further appears from the evidence that on Friday preceding
the occurrence of the accident on Monday, a further investigation of the
condition of the hillside had been made and that there was at that time nothing
to indicate the likelihood of rocks falling onto the roadside. We are impressed
by the fact that the road commission had been diligent in its efforts to make
the road safe for the traveling public and that the accident which occurred to
claimant?s truck was in no respect attributable to any negligence on its part.
We deem it unnecessary to further detail the evidence heard upon the hearing of
the claim, all of which has been carefully examined and considered, and under
all of the circumstances disclosed by the record we are of opinion that there
is no liability on the part of the state to pay the claim contended for by Mr.
James.
The claim is denied and an order will be entered accordingly.
W. VAJ REPORTS STATE
COURT OF CLAIMS 345
(No. 188 and No. 189?Claims denied.)
FRED HARVEY. Claimant,
V.
STATE ROAD COMMISSION, Respondent.
ROSA HARVEY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion flied November 21, 1942.
Where it appears from the evidence
that the employees of the state road commission had no knowledge of a large
stone and slide falling from the mountainside into the highway due to its
recent occurrence and had no previous warning of the likelihood of its faIling
from making their routine examinations of the highway, the state not being a
guarantor of the safety 0f travelers on its roads and highways will not be held
liable for personal injuries or property damages suffered by claimants when
their motor vehicle runs into such stone.
Appearances:
Claimants, Fred Horvev and Rosa Harvey in their own behalf;
Eston B. S?p!v.nsoa.
special assistant to the Attorney
General for the state.
WALTER M. ELSWICK, Judge.
The Claimants, Fred Harvey and Rosa Harvey, were traveling in a truck on rout.e
No. &l leading from their home in Mingo county, West Virginia, in the
direction of Gilbert, West Virginia, on Sunday, December 14. 1941, at about
seven o?ciock P. M., when said truck struck a large stone or boulder lying
on their right side of the said highway. It appears from the evidence that this
boulder had fallen from the mountainside sometime about midnight on the
previous night. No report
346 REPORTS STATE
COURT OF CLAIMS IWVA.
was made to any of the state road
commission authorities by anyone until the day following the mishap. The
boulder was about five feet long and forty inches thick (record p. 78). It had
broken off the mountainside above a twelve inch seam of coal. The rock had laid
above this seam of coal about 15 to 25 feet above the road surface and had
broken out lengthwise with the highway. There had not been any appreciable
falling of rocks in this particular vicinity prior to this time. (record pp. 62
and 77). There was a clearance of about eight feet on claimant?s left side of
the highway including the berm (record f.
71); of such width as to enable vehicles
to pass (record p. 79). The mishap occurred on a misty, foggy night at a point
where claimants were approaching near another vehicle coming from the opposite
direction on the highway. The driver of the other vehicle had come to a stop at
the time of the mishap, waiting, as he stated, for claimants? vehicle to pass.
The driver of the other vehicle testified that he had not seen the rock or
slide until claimants? vehicle had struck same. Fred Harvey, the owner and
operator of the vehicle in which claimants were riding testified that he did
not see the rock until he was ?thirty or forty feet? from the rock, that he was
traveling up grade at from 15 to 20 miles per hour, that he had traveled the
same road almost daily, that ordinarily he would have had a vision on the
highway at the scene of the mishap ?a few hundred feet? back from this rock,
?one hundred feet? on a clear night. From the first curve down the road from
which claimants had traveled to the ?slide? where the rock was lying one
witness stated that it measured a distance of 800 feet. (Record p. 80).
Fred Harvey?s truck was damaged considerably from the collision and Rosa
Harvey, his mother, received painful injuries on the face and head. This injury
to Rosa Harvey has left the nasal bone on the left side distorted and the
Septum seems to be out of line also. She still has tenderness in (the left
nasal bone and over the left frontal sinus, and complains of bad vision in both
eyes since injury. She is now past 72 years of age.
W.VA.J
REPORTS STATE COURT OF CLAIMS 347
From the evidence, it appears that the
state road employees made routine examinations of the highway and had not
received any warning of the likelihood of this rock faIling, from such
examinations or otherwise, and had no knowledge of the rock being in the
highway until the day after the ishap. There was a conflict in the testimony of
witnesses as to whether the slide and stone was removed on Monday or Tuesday after
the mishap but we fail to see that this in anyway pertained to the cause of the
collision. We fail to find any evidence of negligence on the part of the state
road commission employees, in the record, or that they had notice of the
possibility of the stone in question falling to the highway, or that they could
have known of the possibility of the said stone slipping or falling by an
examination of the embankment at the scene of the mishap. The state is not a
guarantor of safety to the traveling public, since, if it had such burden
placed upon it, the state as a whole, might soon be bankrupt and unable to
function as a coin rnonwealth or as a body
politic. (See holding in Claim of L. C. Clark No.
117). Considering all facts and circumstances in the case, we deny an award.
348 REPORTS STATE
COURT OF CLAIMS LW. VA.
iNo. 159?Claim denied.)
FOREST RIDDLE, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 21, 1942.
Where it appears from the evidence
that there was some question as to whether the state road commission was
negligent when a guard on one of its prison camps was struck by a passing
motorist, but the Legislature and the state road commission has resolved all
doubt in favor of the employee injured by reason of the state workmen?s
compensation not being in force at the time and has heretofore made generous
awards to claimant in such manner and under such circumstances at the time as
would appear to have been full and adequate compensation, an award will be
denied.
Appearances:
Bruce Fer-rell, attorney for claimant;
S. B. Chaton, as counsel for the state road commission, and Eston B. Stephenson, special assistant to the Attorney General for the
state.
WALTER M. ELSWICK, Judge.
On April 17, 1936, Forrest Riddle, the claimant was employed by the state road
commission as a guard for prisoners who were working on a state road near
Harmon in Randolph county, West Virginia. About one o?clock in the afternoon of
that day, the claimant and two other guards were marching about 65 prisoners
along the highway back from their camp to their work when he was struck and
knocked down by a pickup truck owned and operated by a Mrs. E. H. Cooper. The
truck struck the claimant from behind and ran over his body across his stomach.
The claimant testified that he and the prisoners were walking on the left side
of the road
W. VA.]
REPORTS STATE COURT OF CLAIMS 349
facing traffic, that the prisoners
were walking two abreast on their left side of the road, that he was at the
head of the line, that he ?must have been ten or twelve feet from the center
line of the road,? that is to say of the left center o fthe road. The witness
Mrs. E. H. Cooper testified that the prisoners were walking on the left
of the hiliway and that claimant and the other guard were on th right. She
testified that when she came to the first line of prisoners that she blew her
horn and that when she came near to Riddle she blew her horn again, and just as
she blew it the last time Mr. Riddle, the claimant, stepped in front of her
truck. Her testimony conflicts with that of the claimaot in that she states
that Riddle was on the right side of the road while he tates that he was on the
left side of the road. The claimant testified that just as the truck hit him,
the horn blew but that he had no warning prior to that time. Mrs. Cooper had
made one trip each day on this road prior to the time of claimant?s injury and
knew of the construction work being done. She had a vision of from 150 to 200
yards ahead before approaching claimant.
The claimant received the following injuries; namely, fracture of the right
tibia, fracture and dislocation of the right ankle, fracture of the left tibia,
fracture of the left fibula and internal injuries. He was taken by an ambulance
to the city hospital at Elkins. West Virginia. and remained at the hospital for
treatment for 42
days and returned home on June 9,
1936. His hospital bill for this period amounted to $395.00. He recovered so
that he was able to drive an automobile sometime after he had returned home
from the hospital and during the fall of that year. Claimant is now unable to
walk and is conflnecl to a wheel chai?. His legs are cramped and cannn be
straightened. He uses morphine daily but there was no medical testimony
nyoduced to show its connection with the injuries sustained when the truck
struck him. Clain?ant employed counsel and instituted a suit for damages
against the said Mrs. E, H. Cooper for the said injuries sustained by reason of
being struck by her truck, which suit was compromised and settled for the sum
of S3,750.00. By chapter one, page 62 of the general appropriations act of the
1937 Legislature the
350 REPORTS STATE
COURT OF CLAIMS LW.
VA.
sum of $899.01
was appropriated by the Legislature
to Forrest Riddle for payment of hospital bills, nursing, etc., which sum was
paid by the state of West Virginia, and by acts of the Legislature, 1939,
chapter 6 of the general appropriations act the sum of $720.00 was appropriated
to pay to him for injujries received while guarding prisoners, which was paid
in 24 monthly installments of $30.00 each. It also appears that the claimant
was carried on the pay roll from the 25th day of April 1936 through the 28th
day of April 1937 and paid wages amounting to the sum of $734.66. All these
payments make a total of $2,353.67 paid to and on his behalf by the state of
West Virginia by reason of said injuries.
The claimant contends that the state road commission was negligent by failing
to have a flagman behind and in front of the column of prisoners and by not
having the roadway properly posted. With the three guards present on the usual
march to and from work we would be constrained to have doubt on this contention
if compensation had not been awarded owing to all the circumstances of the
case. It was apparently a clear day with good vision, on a gravel based,
comparatively level, roadway. It seems clear that the claimant had a clear cut
cause of action against Mrs. E. H. Cooper the operator of the truck which
struck him. The same was compromised by claimant. It seems that the state road
commission, owing to the fact that at the time claimant was injured the state
workmen?s compensation was not in force, endeavored to resolve all doubt in
favor of claimant, and paid him one year?s salary and the Legislature did not
intend these appropriations to be in full settlement of claimant?s claim,
especially in view of his right of action against Mrs. Cooper, since claimant
had recovered sufficiently to drive an automobile in the fall of 1936. We are
of the opinion from all the evidence and circumstances in the record in the
case that the claimant, too, consented to and intended same to be in full
settlement, in any event. We are not in position to say that the state road
commission or prison authorities were negligent, from the evidence. We
therefore deny an award.
W. VA.] REPORTS
STATE COURT OF CLAIMS 351
(No. 177?Alfred D. Roberts, II, awarded $400.00; No. 178?Alfred D.
Roberts, III, infant, awarded $1000.00.)
ALFRED D. ROBERTS, II., Claimant,
V.
STATE ROAD COMMISSION, Respondent.
ALFRED D. ROBERTS, III., Infant, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 23, 1942
Where it appears from the evidence
that a boy 15 years of age while riding a bicycle, is injured in a collision
with a state road commission truck running on his side of the street and blocking
his pathway which was clear when he entered the street while said truck is in
the act of passing another truck and it is found from all the facts and
circumstances in evidence in the case that the truck driver was negligent in
undertaking to pass another vehicle at the scene of the collision, awards will
be made to the boy to compensate him for the injuries sustained, and to the
father for expenses incurred and loss of his son?s services during minority.
Appearances:
A. Garnei Thompson,
Esq., for the claimants;
Eston 13. Stephenso. Esq., special assistant to the Attorney General,
for the state.
WALTER M. ELSWICK, ,Judge.
On ,July 27, 1942, Alfred D. Roberts. III, who was approximately 15
years of age, received the personal injuries hereinafter enumerated while
riding on a bicycle on Virginia street west, in the city of Charleston. West
Virginia, when his bicycle collided with a state road commission truck. It
appears from the evidence that he was returning home from work and had
proceeded west on Virginia street until he came to a children?s
352
REPORTS STATE COURT OF CLAIMS [W. VA.
playground east of Park avenue where
he drove up on to the sidewalk for the purpose, as he testified, of seeing who
was playing. When he did not find anything of interest to him going on at the
playground site, he again started on his journey home in a westwardly
direction. Near the southwest corner of the playground is a 13 foot driveway
entering the north side of Virginia street, and 29 feet west of said driveway
is a 41 foot driveway. A pickup truck was parked facing east along the north
side of Virginia street in between the two driveways with its rear near to the
41 foot driveway. A Packard car was parked, facing west, along the north side
of Virginia street about 20 feet west of the pickup truck with its rear end
extending with a slight angle out into Virginia street. Another car, owned by
Ralph Waybright, was parked facing east on the south side of Virginia street
about opposite the Packard car.
The claimant, Alfred D. Roberts, III., testified that when he left the view of
the said playground he proceeded on his bicycle on the sidewalk until he came
to the said 13 foot driveway and looked back of him to see if any cars were
coming the way he was going, and then looked back in front to make sure that
there wasn?t anything in front of him. (Record p. 32). He did see a truck
coming east on his left of Virginia street (record p. 29). He then turned off
the sidewalk on the 13 foot driveway, as he stated, and proceeded down Virginia
street until he was by the side of the pickup truck, when his memory fails to
recall anything that happened afterward at the scene of the collision. It
appears from the evidence, that he had proceeded on down Virginia street to a
point opposite the rear end of the Packard car when his bicycle collided with
the state road truck at a point on its side near the rear end of its body. The
boy was knocked about 15 to 20 feet and fell with his legs extending under the
rear burn per of the parked pickup truck. His bicycle landed on the sidewalk
east of the Packard car. At the time of the collision, Alfred D. Roberts, III.,
was a boy lacking approximately 12 days of being 15 years of age, he having
been born August 8, 1927.
W.VA.1 REPORTS
STATE COURT OF CLAIMS 353
The witness, Ralph Waybright, testified that he started to get into his car which was parked across the street from
the Packard car; that as he started to open the door to his car he saw two
trucks coming east up Virginia street, one passing the other, thus making four
cars ?side by side? on the street, that is to say, the Packard car on the
opposite side of the street from him, the two trucks, one passing the other,
and his car. The truck on his side was a state road truck on which was loaded
an air compressor, and was coming, within about 12 inches, close to him; so
close that he practically jumped on his running board. As he turned he saw the
boy on the sidewalk on the bicycle, but had to look out for his own safety. This
truck nearest to him was ?driving pretty fast? (record p. 55), and the other
truck ?had picked up pretty good speed to get past? the one nearest to him. He
didn?t see the boy hit, for he had his head turned, but heard the truck hit him
and could see him where the boy fell. The truck which hit the boy was on the
boy?s right side of the street farthest from Waybright, the one which was in
the act of passing the other state truck. Virginia street has an approximate
width of 39 feet at the point where the collision took place. The bicycle had
made a mark on the street about 12 inches out in the street from the rear end
or side of the parked Packard car. Another witness, E. H. Irwin, was standing
in the middle of the street about 150 feet west, watching a driver back a truck
into a driveway and heard a tin can fall off of a truck and turned around and
saw this state truck passing another truck, which truck passing the other ?was
making pretty good speed
wasn?t losing any tir-e? (record p. 71). There was a distan e of about 6 feet
in between the two moving trucks. The two trucks had already passed Park avenue
and when the falling of the
tin can attracted his attention, the
two trucks were then side by side to the other. The eastern
intersection of Park avenue is about 76 feet from the point of collision. The
state contends that the boy drove off of the sidewalk on
the 41 foot driveway behind the Packard
car. One of the witnesses, Mr. E. L. Hart, was sitting in his office facing Virginia
street directly in front of the space on
this driveway left vacant between the
parked pickup truck and the Packard car.
354
REPORTS STATE COURT OF CLAIMS [W.
VA.
The first thing that he heard was the impact of the bicycle and truck. He
could see the boy where he landed after being struck, through his doorway. The
boy would have had to pass his doorway on the sidewalk if he had turned in the
street at this point, and if such had been the case, it is highly probable that
the witness, Hart, would have seen or heard the boy pass his door.
Mr. Moles, the driver of the truck which hit the boy, testified that he did not
see him until he came around the back end of the Packard car, when he, Moles,
turned to the right and the boy struck the truck bed. Moles said he was looking
at the truck he was passing to keep from hitting it. An occupant in the
driver?s seat of the Moles truck did see the boy come off the sidewalk and couldn?t
say positively whether he came off the 13 foot sidewalk or the 41 foot
sidewalk, but that he thought the boy came off of the 13 foot sidewalk (record
p. 150). Moles could not remember sounding his horn when passing the truck and
none of the witnesses heard a horn. Moles had followed the other truck all the way from
their work on the Sissonville road, following the Sissonville road to
Washington street, then up Washington street and turned out to Virginia street.
From the evidence, it appears that this road had been a narrow one until they
got to Virginia street. The employees were always in a hurry to get home
(record p. 126). They had quit work about 5 minutes early on that day (record
p. 121). The driver and the accupant of his truck testified that he was
traveling about 25 miles per hour.
From the evidence, it appears that Alfred D. Roberts, III., received the
following injuries from the collision, namely:
He received a very severe flesh wound over biceps area of the left upper arm
and a rather more severe wound across the left clavicle area, (that is to say
the left collar bone) extending vertically, with the collar bone severed and
either pulled apart or a piece of the bone missing. He also received a
laceration on his forehead, over his left eye, which leaves a scar which
according to medical testimony will remain for
W. VA.]
REPORTS STATE COURT OF CLAIMS 355
the rest of his life. When taken to
the hospital the boy was also suffering from shock. He was in a senli-conscious
condition, quite pale with pulse rapid, and suffering from what is technically
termed traumatic shock, from severe traumatic injuries (record p. 104). He was
admitted to the Staats hospital on July 27, 1942 and discharged on August 7,
1942. Since then, he has regularly visited Dr. Anderson for observation and
treatment. The x-rays showed a fracture of the left clavicle or left collar
bone, and that there was apparently sone part of that clavicle missing, that is
to say, there was a compound fracture of the left clavicle. There was also an
extensive wound of the left arm.
From an x-ray examination made on October 20, 1942, it showed that there is an
excessive scar tissue over the fractured clavicle, which is called keloid type,
that is, a heavy, dense, red war, a scar which is an overgrowth of skin. This
scar is about 3? inches long and went from front to back, right over the middle
of the left collar bone. There is another scare on the left upper arm which is
?L? shaped, one branch of the ?L? is about one-half inch long and the other
running straight down the arm is two inches long. That is also a deep. dense,
red overgrown scar. Examination of the shoulder at the time showed sonic
limitation of what is called abduction, that is, bringing the al-rn up from the
side, and also sore limitation of what is called internal rotation, that is, he
cannot bring the ar n up the hack as far as he can the other one. And there
was, at said last examinatlon, definite tenderness and pain in the place of the
fracture, in the line of the fracture, in the point of the fracture when
pressure was placed on the collar bone. Al that ti-inc the bone had not
entirely grown across the line of the fracture, in other words, the bone union
is not entirely firm, either by x-ray or by rxarnination, as indicated by the
paii when the physici2n pressed on the outer end of the collar hone. While he
is still under the care of his physician, reliancE. is made tpon nature to
perfect a firm union. It is problematical as to whether the growth of the
callus formation will take care of the situation. If it does not proceed
sufficiently to give a strong union at the point of fracture, then the
356 REPORTS STATE
COURT OF CLAIMS [W. VA.
procedure will be to operate on the arm and put in a bone graft across the line
of fracture. Such an operation would have about a seventy-five per cent chance
of being successful. If the bone grows firmly together, his physician is of the
opinion that the boy will have a very good arm. If the operation is not
successful, he would continue to have a definite weakness of that extremity, if
he didn?t have a firm bony union. The boy has about three chances out of five
of escaping an operation today.
From all the facts and circumstances in the record in the case, we are of the
opinion that the truck driver was negligent in undertaking to pass the other
truck at the congested point where the collision took place. It is contended by
the state that the boy was negligent in turning into the street off of the
sidewalk, but from all of the evidence, in the record, as well as a view of the
premises by the court, we are of the opinion that when the boy entered Virginia
street, that his side of the street was clear, that he had the right to assume
that it would remain free and unobstructed, but that when the truck undertook
to, and did pass the other truck at the intersection of Park avenue along these
driveways where cars were parked on either side he, in effect, completely
obstructed the boy?s side of the street and that the boy was not left in
position to avoid the collision. Then, too, the driver knew the street, drove
over it almost daily, and knew that the playground was in front of him.
However, none of the witnesses present or in the vicinity of the collision
could give a clear version of how the collision took place, as to where the boy
was when the one truck passed the other, or as to whether the boy could have
seen this truck coming on his side of the street, which was passing the other
truck, in time to have stopped to avoid the collision. He was not certain that
he could not have seen it when riding into the street before he passed the
parked truck. We therefore feel that he shoild be chargeable with some
negligence such as to induce us to reduce the amount of the award that we might
have otherwise found.
W.VA.1 REPORTS
STATE COURT OF CLAIMS 357
From all the facts and mitigating
circumstances in the record in the case we are of the opinion that awards
should be made to each of the claimants. The father?s claim is based upon loss
of bicycle $20.00; Dr. Anderson?s bill $125.00; Dr. Bailey $10.00; ambulance
$5.00; x-rays $7.50; Staats hospital $138.50, as well as loss of the boy?s
services and medical attention that may be required. We are of an opinion from
the evidence that an award of $400.00 to the father, Alfred D. Roberts II,
would be fair and reasonable, and that an award to the boy, Alfred D. Roberts
III, in the sum of $1000.00 would be fair and reasonable for his injuries,
suffering, and handicaps for the present and future.
We therefore recommend an award to Alfred D. Roberts II, in the sum of four
hundred dollars ($400.00), and to Alfred D. Roberts III, the sum of one
thousand dollars ($1000.00), and an order will be entered accordingly.
358 REPORTS STATE
COURT OF CLAIMS 1W. VA.
(No. 106?Claimant awarded $9,750.00.)
CONSOLIDATED ENGINEERING COMPANY, Claimant,
V.
STATE ROAD COMMISSION, Respondent.
Opinion filed November 23, 1942
Where it appears from the evidence
that by reason of the lack of avail? able data it is impossible to take actual
measurements of excavation of material in its original position under a
contract as is the usual and customary practice when such data is available,
the court will consider evidence of estimates taken from measurements of fills
made from the excavation and allow a percentage for shrinkage based upon the
nature of the material in the fill, the manner of rolling or filling same, the
time elapsed before final survey and all surrounding facts and circumstances in
an effort to obtain the actual measurements of excavations made, and base an
award thereon accordingly.
Appearances:
Austin V. Wood, Esq., T. C.
Townsend, Esq., and Joseph Thomas, Esq.,
for the Claimant;
Eston B. Stephenscm, Esq., special assistant to the Attorney General, and Arden Trickett, Esq., for the state.
WALTER M. ELSWICK, Judge.
On the 23rd day of September 1932, the state road commission entered into a
contract with claimant, Consolidated Engineering Company, a corporation, for
certain excavation, hauling and filling in the construction of what is now
known as route No. 2 immediately south of Moundsville in Marshall county, West
Virginia, and more particularly designated as Round Bottom hill, Moundsville
road, project No. E-l84-c. Claimant started work on the project on October 10,
1932 and completed same on November 28, 1934.
W. VA. I REPORTS
STATE COURT OF CLAIMS 359
The work consisted of excavation, hauling and filling through a rugged,
mountainous locality. The surface of the mountainside was irregular and the
slope varied. This excavation was made of the mountainside above the Baltimore
and Ohio Railroad tracks, which tracks and roadway run parallel with the
mountain.
It appears from the evidence that the right-of-way for this road was surveyed
in April 1928. At this time the engineers for the state roaa commission took
cross-sections or laid down a base line with stakes approximately fifty feet
apart along the ditch line of the railway track. No additional surveys of the
topography of the mountainside or slope were made until after the excavations
were completed.
The terms of payment for excavation and hauling under the contract were:
Unclassified excavation was to be paid for at the rate of 34 cents per cubic
yard dug. Overhaul consisting of a measure for each cubic yard per 100 feet
hauled a greater distance than 1000 feet was to be paid at a price of
one-fourth cent per station yard. Paragraph 12, page 6 of the contract provided
that the certificate of estimates of the engineer shall state, from actual
measurements, the whole amount of work done by the contractor. Section 74
subsection ?a? of the specifications, entitled ?basis to pay? provides that the
work shall be paid for at the contract unit price per cubic yard of excavation
measured in its original position, excavated and deposited in accordance with
the specifications.
After the excavations were made the state road commission by its engineers in
1935 undertook to ascertain the amount of excavation by running cross-sections
in the cut in accordance with the purported original base line run by the
survey in 1928. From the evidence it appears that the usual and customary
method to obtain the amount of excavation made is from measurement in the cut
based upon the preliminary survey, but from good engineering practice in order
to do so in a practical manner in a rugged and irregular country like the one
in question it is necessary to survey the topography of tFl surface within a
reasonable time before the excavation and to survey the cut within a reasonable
time after the excavation is made.
360 REPORTS STATE COURT OF CLAThIS tW. VA.
From all the facts and circumstances in evidence in this case, it appears that
the surveying was not done in that way in this case.
It further appears from the evidence in this case that the original survey made
in 1928, nearly five years before the excavation, was inaccurate and
insufficient to enable the engineers to use same as a basis of obtaining actual
measurements of the whole amount of the work done. For it appears that at the request
of the claimant?s representatives the engineers undertook to take
cross-sections of the cut at intervals of less than 50 feet on the original
base line and it was impossible to make the majority of those taken to close.
Some of these cross-sections failed to close with living monuments (record pp.
45-47). For a distance of approximately 8800 lineal feet along the project
running from the south to the north between station 437 plus 50 to station 525
plus 50, it appears that at least a total of 478 separate cross-sections were
run, and that of this number 312 were so defective in closing with the original
surface as taken from the old survey that they were not used in making
calculations of the measurement of the excavation. Of the remaining 156 cross-sections
used in making calculations 105 or approximately two-thirds of them had errors
or discrepancies shown on them. (Record p. 87). It appears that the engineers
in calculating the measurements from these 156 cross-sections used undertook to
resolve in favor of claimant certain measurements in some of the 105
cross-sections used which had errors and discrepancies. But even then it does
not appear that they could arrive at actual measurements of the excavations
made, for after they went back for re-checks on these cross-sections it was
found that they could not be made to close with the purported survey of 1928
made of the original ground surface. Therefore, not having accurate
measurements of the original ground surface immediately prior to the time of the
excavations they could not arrive at an actual measurement of the excavation
made even though these 156 cross-sections used had been taken at sufficient
intervals to calculate measurement of a slope with a regular surface.
Although the excavation was completed on November 28, 1934, final
cross-sections were not completed until about April
W VA. REPORTS STATE
COUPT OF C[AJMS 361
1935. The engineers in izcnu
said final eIrV(?y alter the work was c4mpleled had to tiS(? the
old iirv?y made in 1928
with s atious 6 ft V feet a part. l?hey he ndeavor to take
cross? sections at closer intervalc at the request of claiman?,
as
as ten feet or less. Forced to use their old survey with stations 50 feet apart they interpolated in between to get the
riinal tround surface to be taken in the calculation from 11w cut surface on
the excavated sect ii. This couki have been done more or
less suceess1ullv if the rninal survey and final sw vey had been accurate. They
were then in position to re?check the final survey of the cut which they did and which was yen? lied. They could not howe er re?check the original survey for the material
had been removed. The interpolated cross- sections were so
inaccurate and out of proportion with the survey of the cut as co?ipared with
the old survey that they could not be used. They were of no benefit in arriving
nt actual measurements of the work done. We
can come to no other conclusion than that either the original survey was inaccurate or that (hen had been a material change in
the contour of the hillside by slipping or slides between the time of the original survey md that of the excavation.
The question confronting us upon this inquiry is whether or not the claimant has been paid for the work done under its contract. The
contract provides that this shall be arrived at by actual measurements. We are of the opinion that the claimant has shown by a preponrieranee
of the evidence thai the amouni ( at uni excavation done, by measurement of the cut, would not be
an actual measurement,
since this cannot be done
with any degree of certainty due to the
failure of cross? sect
ions of the c t taken from the final survey to close viih tlui original
survey within the bounds of tolerance
1w aVerages under all eI1gineeriII
practice. And of course it would seeni that when 47$ cross?sections
are first reduced by 312
cross? cctioiis (lisearde(l, mid, otit of the remaining 156
used. 1(15 cross?sect
ions had errors or discrepancies. leaviiig only ap? proximately 11 of those
taken to be accurate, (he law of averages would bt?cmne niore? and more (lisrtil)ted and out &
proportion as a Riiid(? act ual measuii-eiiieiits It appears that
tl?re must have beeii a fundamental error in th OLigiulal
362
REPORTS STATE COURT OF CLAIMS fW. VA.
survey of 1928 throughout this area
excavated and that same could serve no purpose in the measurements of the cut
While it is customary (and section 74, subsection
?a? of the specifications support the customary practice) to use the actual
measurement of the excavation in its original position, in arriving at
estimates from these surveys, we do not have data available from which to
obtain actual measurements of excavation in its original position. We find from
the evidence that cross-section after cross-section on the 8800 lineal feet of
excavation, where the bulk of the work was performed, failed to close. There
must have been a fundamental error in the original survey or a material change
in the topography or contour of the mountainside. The engineer who made the
survey in 1928 stated that he took cross-sections at practically every fifty
feet and didn?t remember of taking any intermediate sections; that he took such
sections every fifty feet ?irregardless.? Hence, his testimony doesn?t
enlighten us on the question of arriving at actual measurements of excavations
dug. However, it is to be borne in mind this was an immense project, probably
the largest one of its kind that the state ever considered at the time of the
original survey.
Some of the heights of the cut in this excavation ran from a depth of 180 feet.
The survey lines ran back in some instances at angles three or four hundred
feet from the lower base line to the top of the excavation (record p. 206). In
order to make the original survey it was necessary to use rope ladders which
were anchored in some way to the steep hillside. The rodman would climb up on
these ropes and clinging thereto take measurements. This original survey was
completed in thirty days, while it took three months to complete the final
survey, which was made after final excavations were cornplete-d. From the
evidence it appears that this territory involved was steep, rugged with projections,
indentations and ravines. It doesn?t appear from the evidence that the original
survey was made with the view of using the cross-sections at regular fifty foot
intervals as a basis of taking final estimates or measurements on such an
immense undertaking as contemplated at that time. It further appears from the
evidence that
W, VA.]
REPORTS STATE COURT OF CLAIMS -- 363
this mountainside from which
excavations were made consisted chiefly of a formation of shale; that this
formation when exposed to air and weathering conditions is subjejct to
softening, and in due time crumbles and breaks causing slips and slides on the
mountainside. Prior to the time of this excavation the B. & 0 Railway
Company often had to remove large slides from its tracks coming down from this
mountainside. These slides would sometimes overrun its tracks. (Record p. 117).
This mountainside continues to have slides and slough- age falling into this
cut. There being an interval of from four to eight years from the time that the
original survey was made until surveys were made after excavation, we must
necessarily conclude from the evidence, considering the nature of this
mountainside before and after the excavation that there was a considerable
change in the contour or topography of this area excavated so as to affect to a
material extent the area through which claimant excavated.
It therefore appears that since we are not in position to say that actual
measurements could be taken of the excavations of the material in its original
position, it is necessary to look to and consider such other method as may
enable us to ascertain as near as possible an estimate of the excavations from
actual measurements of other data available. As justification for this
procedure we find that the claimant did not know of the inaccuracies of the
original survey, and that intermediate cross- sections had not been taken so as
to enable the engineers to run cross-sections at closer intervals than regular
fifty foot intervals, until after final survey was made and the excavation had
been completed. (Record p. 73). Claimant does contend that after it started to
work on the excavation, due to the regular slips and slides and change of the
contour of the mountainside since the original survey, upon learning that the
state road commission was not taking cross-sections in advance of its
excavations, requested the inspector of the project and the then state road
district engineer to take preliminary cross-sections rior to the excavation. It
contends that these state road officials refused to do this and stated that the
commission had no appropriation allotted for the purpose. The inspector and
district engineer deny that this request was made, but we are of
64 REPORTS STATE COURT OF CLAIMS [W. VA.
the opinion that since the commission was relying upon the original survey
made in 1928 it failed to maintain by a preponderance of the evidence that the
old survey was accurate or otherwise furnished accurate and sufficient data
upon which to base a final survey to enable them to estimate the actual
measurements of excavation removed, and that an accurate survey furnishing data
within the bounds of tolerance in making cross-sections close under engineering
practice, should have been made -available under its contract.
From the evidence it appears that at the request of claimant the engineers of
the state road commission took cross-sections of the fill and disposal dump
where the material -excavated had been hauled and dumped. A survey of all
disposal dumps had been made immediately prior to the filling. The final survey
was taken after the project was completed, which was in some cases a year or
more after the filling had been completed. (Record pp. 49 and 50). The disposal
dumps were large in size, -covered a lot of territory, and had to be kept in
shape for the trucks to haul over them. To do this, a heavy bulldozer was used
to pack the fill as the material was dumped. It further appears that after the
fills were made there had been two floods in the Ohio river which completely
inundated all of the fills. These floods washed out a part of the materials
down the river. They also by the very nature of the shale content of the
materials caused settlement of the fills before the final survey was made. A
shrinkage factor in measuring such fills after a lapse of time and under the
conditions involved must necessarily be considered in arriving at an estimate
by measurements taken from fills. This particular material deposited in the
fills contained what is known as colloids which make for a great deal of
aeration in volume, depending upon the extent of moisture and how it is
deposited. When it dries out it contracts and shrinks like a mud puddle.
Similar material has been known to have had a greater shrinkage than 20 per
cent under pressure. (Record p. 121).
The total quantity of excavation as determined from measurements from fill and
disposal dump sections as found and submitted to claimant by the engineers of
the stale road corn-
W. VA.]
REPORTS STATE COURT OF CLAIMS 365
mission amounted to the sum of 518,890
cubic yards, of which sum 28,285 cubic yards were cast into the Ohio river (and
settlement thereon has been adjusted and paid to claimant) leaving 490,605
cubic yards, From all the evidence in the case considering a general shrinh age
factor of such material after
- ing rolled and exuosed to moisture and air, inundation
by wo floods arid the lapse of time after deposited and before the survey, and
all the facts and circumstances of the case, we are of the opinion that a
shrinkage factor of approximately 10 should be considered and added to these
measurements in order to arrive at a reasonable and just conclusion of what the
actual measurements would have been of the materials measured in their original
position before the excavation.
It appears from the evidence that certain adjustments have heretofore been made
in favor of claimant by the state road commission in a partial effort to
accomplish this purpose. It appears that numerous calculations made on the
cross-sections at the 50 foot intervals which failed to close with the
purported original survey, were resolved in favor of the contractor by the road
commission engineers in attempting to arrive at their measurement in the cut
upon which basis claimant has been paid. Credits for all such adjustments are
considered, but we are ol the opinion that these adjustments were not adequate
or sufficient io compensate claimant for the work done. They no doubt tended to
compensate for yardage at the point of the original 50 foot cross-section when
found in error, but would not reveal the amount of actual excavations between
such cross-sections on the very ruggcd and irregular slope in question, The
state road commission has paid to claimant the unit price on unclassified excavation
and overhaul of 494,999 cubic yards. From the evidence it appears that overhaul
would naturally follow by calculation upon the amount of shrinkage found to
exist by taking measurements from the fills. After considering all adjustments
heretofore made by the commission in making estimates on the basis of
measureinents taken and crediting the conmission with such adjustments made in
favor of the claimant, from all the evidence we are of the opinion that
claimant is entitled to an award of
366
-__REPORTS STATE COURT OF CLAIMS tW.V
nine thousand, seven hundred fifty dollars ($9,750.00) for unclassified excavation and
overhaul for which it [the commission] was not paid under the contract. An
order will be entered accordingly.
(No. 150?Claim dismissed.)
MARY DILLON, an infant, who prosecutes her claim by
MACIE WILEY, her mother and next friend, Claimant,
V.
BOARD OF EDUCATION of Summers County,
West Vir ginia a corporation, Respondent.
Opinion jiled November 23, 1942
1. A county board of education is not
a state agency as contemplated by the act creating the court of claims.
2. Insofar as the opinion in re claim No. 48, J. C. Richards, against
the board of education of Calhoun county, and the opinion in re claim
No. 55, Benjamin Johnson, Jr., against the board of education of Logan county,
recognize the jurisdiction of the court of claims to entertain, investigate and
make determination in claims against a county board of education is concerned,
such holding is now disapproved by a majority of the court.
Lilly & Lilly, for claimant;
Eston B. Stephenson, assistant Attorney General, for respondent.
ROBERT L. BLAND, Judge.
The petition in this case, which was duly filed with the clerk on the 30th of
June 1942, alleges that on the 22nd day of March 1938, Mary Dillon, then
fifteen years of age, was a student in the Hinton high school, one of the
public schools of
W, VA.] REPORTS
STATE COURT OF CLAIMS 367
Summers county, West Virginia; was
transported to and from said school to her home, near Lilly, West Virginia, by
one of the school buses owned and operated by the board of education of Summers
county, West Virginia; that on said 22nd day of March 1938, and for some time
prior thereto said bus was driven and operated by one C. A. Clinebell, who was
employed by said board of education of Summers county, West Virginia, to drive
and operate said bus in the transportation of students to and from said school;
that on the afternoon of March 28, 1938, while transporting the said Mary
Dillon and other students from said school to +heir homes, and while driving
said bus over West Virginia route No. 3, at a point near Jumping Branch, West
Virginia, said driver operated said bus in such a careless, negligent and
improper manner that said bus ran off the road and upsided in a deep drain;
that as a result of said accident the said Mary Dillon was thrown through the
windshield of said bus and was seriously, painfully and permanently injured in
and about her entire body, and was especially injured in and about her head,
neck and right arm, which said injuries to the right arm resulted in almost
total loss of the use of said arm: that by reason of said injuries the said
Mary Dillon was permanently scarred, disfigured and disabled and has been and
will continue through life to be highly nervous; that by reason of said
injuries the said Mary Dillon was confined in a hospital for a long period of time,
for which large expenses were incurred and she suffers great physical pain and
mental anguish, and yet so suffers.
The petition also alleges that no public liability insurance was carried on
said bus by said board of education, and that the driver of said bus is not
financially responsible.
The claimant seeks an award of $15,000.00.
In the opinion of Judge Schuck and myself the claim presented by the petition
is not prima fricie within the jurisdiction of the court of claims and
for that reason it was not placed upon the docket for investigation and
hearing. Judge Elswick takes the opposite view and will file a dissenting
opinion.
368 REPORTS STATE
COURT OF CLAIMS I W.VA.
Chapter 18, article 5, section 5 of the official code provides that a county
board of education shall be a corporation and may sue and be sued, plead and be
impleaded, contract and be contracted with. The local or county administration
of the state system of free schools, authorized by the constitution, has been
delegated by the state to the county boards of education of the state.
Upon the showing made by the petition it is obvious that the claim asserted is
against a subdivision of the state.
In Ralston v. Weston, 46 W. Va. 549, Judge Dent said: ?The word
?State? is generally understood to denote three different things, and often
without discrimination. First, the territory within its jurisdicton; second,
the government or governmental agences appointed to carry out the will of the
people; and third, the people in their sovereign capacity.? The purpose of the
Legislature in creating the court of claims, as expressed in the act, was to
provide a simple and expeditious method for the consideration of claims against
the state. It was not, we think, contemplated by the Legislature that the court
act should be so construed as to extend to the consideration of claims against
the subdivisions of the state.
A claim against a board of education is a claim against a unit or subdivision
of the state. It is not a claim against the state as a sovereign commonwealth.
It is not a claim against the state at large or the general public. It is not a
claim against a state agency as defined by the court of claims act. State
agencies are those whose duties concern the state at large. A state agency as
defined in the court act was not intended to include a political subdivision,
but only to apply to administrative agencies of state government as such. They
are agencies to which are delegated the exercise of a portion of the sovereign
power of the state. A board of education is not a department of the state
government. Such boards are not created for governmental purposes. The duties
of a county board of education do not concern the state at large. Such a board
is not engaged in the exercise of any part of the
W. VA.]
REPORTS STATE COURT OF CLAJMS 369
sovereign power of the state. Its duties
and power are not coextensive with the state.
In the case of claim No. 48, J. C.
Richards v. The Board of Education of Calhoun
County, West Virginia, and claim No.
55, Benjamin Johnson, Jr., v. The Board of
Education of Logan County, West Virginia, both of which were claims for personal injuries sustained by pupiis
attending public schools, this court made awards. The members of the court,
however, were not in agreement upon the question of the court?s jurisdiction to
do so. The opinion in the Richards case was written by Judge Elswick. I wrote
the opinion in the Johnson case, basing the award upon the principles
enunciated in the opinion in the Richards case. Judge Schuck took the position at
that time that a county board of education was not a state agency as defined by
the court act. At the time of the determination of said two claims I reasoned
that if the purpose of chapter 20 of the acts of the legislature of 1941,
creating a court of claims, was to provide for the hearing of claims against
the state which are barred from adjudication in the courts of the state by
reason of section 35, article 6 of the constitution, the claims under
consideration fell within that category. It seemed to me that the profound
reasoning of Judge Elswick?s opinion was unanswerable, and for that reason I
adopted his views and joined with him in making said two awards. From the
beginning of the consideration of the claims, however, Judge Schuck contended
that the jurisdiction of the court of claims could not be extended to embrace
subdivisions or units of government, and filed a dissenting opinion. All three
members of the court were in agreement that if the court of claims did not
have jurisdiction to make awards in cases such as those presented by the
Richards and Johnson claims, supra, that the court act should be so amended as to give the
court power to make such awards, and Judge Schuck, in his dissenting opinion,
made recommendations accordingly.
Since the determination made in said two cases, and as the result of further
earnest study and reflection, I have reached
370 REPORTS STATE COURT OF CLAIMS [W. VA.
the conclusion that the jurisdiction conferred by the Legislature upon the
court of claims to make awards does not include political subdivisions. I want,
so far as it is possible for me to do so, to be right in the determination of
claims in which I concur. If I am persuaded that I have been wrong I shall not
hesitate to endeavor to correct the error. I know that the three members of the
court of claims have been earnest, conscientious and diligent in their
investigation, study and consideration of all claims that have been presented
to the commission, and each one has tried very faithfully to discharge his duty
to the best of his ability and understanding. The state court of claims of West
Virginia is an experiment. There are only four courts of claims in the United
States, namely, New York, Illinois, Michigan, and West Virginia. We have little
precedent for our guidance. We must of necessity blaze our own trail. If,
therefore, under such circumstances, error is made, the most that can
reasonably be hoped is a correction of such error. I am, in view of my further,
more mature, investigation, study and reflection constrained to reach the
conclusion that the dissenting opinion filed by Judge Schuck in the Richards
case, above cited, announces the correct view that should be adopted by the
court in determining the question of its jurisdiction to maintain claims
against subdivisions or units of government.
A county board of education is not a state agency as defined by the act
creating the state court of claims.
Insofar as the opinion in re claim No. 48, J.
C. Richards V.
The Board of Education of Calhoun
County, and the opinion in re claim
No. 55, Benjamin Johnson, Jr. v. The Board of Education
of Logan County, recognize the
jurisdiction of the court of claims to entertain, investigate and make
determinations in claims against a county board of education is concerned, such
holding is now disapproved by a majority of the court.
Until such time as the Legislature shall clarify the question of the
jurisdiction of the court of claims to entertain, investi
REPORTS STATE
COURT OF CLAIMS 371
gate and make determinations in claims ified against a county board of
education, and so amend the statute as to make certain its intention to confer
upon the court such jurisdiction, the court of claims, as now constituted, will
hold that it is without prima facie jurisdiction to entertain such claims.
Judge Elswick dissents.
WALTER M. ELSWICK, Judge, dissenting.
It never occurred to me, when the cases of .1. C. RiclULrCls, Claim No.
48, and Benjamin Johnson, Jr., Claim No. 55, were ified against the state before the
state court of claims for hearing and determination as claims against the state that we
had in mind making awards against county or district boards of education. In
those cases no request was made to render judgment against or to direct
authority to district boards of education to provide for compensation to pupils
injured by negligence of the school authorities. No such action was undertaken
for the reason that no remedy has been prescribed by general laws to enable
county or district boards to raise funds for such compensation for injuries.
See Jarrett v. Goodall, 168 S. E. 763, 113 W. Va. 478 and Krutili v.
Board of Education, 129 S. E.
486,99 W. Va. 466, cited in the majority opinion (when written) in the J. C. Rkhards case
supra. It appears from article XII, section 5 of the
constitution that such authority shall be ?as shall be prescribed by general
laws.?
The claim in question was not filed against a local board of education but
against the state. Under the constitution, article 12, section 1, the
Legislature is made the agency of the state to provide by general law for a
thorough and efficient system of free schools throughout the state. Under
section 5, article 12, ample provision is given to the Legislature to provide for
the support of free schools by general taxation of persons and property or
otherwise in addition to the special funds set aside solely for that purpose.
372 REPORTS STATE COURT OF CLAIMS EW. VA.
Weighed in the light of compensation
being awarded for personal injuries or damages to property on the state
highways through lack of due care on the part of the department, if
compensation be denied and no remedy afforded to a pupil injured through
negligence of school authorities, under the system provided for, in view of the
broad terms of article 12, sections 1 and 5 of the constitution, can it be said
that a thorough and efficient system has been provided for by the Legis-.
lature? A person travels the highways of his own volition but a pupil is
required, by law, to attend school. This is an interest of the state as a
whole.
This claim was ified in the same manner as the claims were filed in the Richards and Johnson claims,
supra, not against the district board of education but against
the state,
for an injury sustained while
attending a school directed by the constitution to be provided for by the
Legislature with power and authority in the Legislature to provide for the
support of such schools.
The question before the court is whether the Legislature has the power and duty
to make an award for compensation to an injured pupil through negligence of
officials of the school system of the state required by the constitution, when
the Legislature has not provided for a remedy against the district boards of education
in the courts of our state. No award is sought .by claimant against the
district board of education. The Legislature is the only agency having the
power and authority to make an award. The courts of our state have held that
there was no remedy agaixast district boards of education for the reason the
boards were performing a governmental function.
The last Legislature made the court of claims a special instrumentality of the
Legislature. I have cited authorities in the then majority opinion in the Richards case
showing that the Legislature has such power. Whatever the Legislature can do in
the way of making just compensaflon to those injured under a system which the
constitution directs to be
W. VA.]
REPORTS STATE COURT OF CLAIMS 373
made thorough and efficient, the court
of claims should perform its duty of making recommendations for just and proper
action by the Legislature when such claims are presented to it.
The case of Berry v. Fox, 172 S. E. 896, 116 W. Va. 503, was cited by the
attorney general as authority to show that there would be a constitutional
inhibition against the validity of an appropriation such as that sought by
claimant, to be made by the Legislature under section 6, article 10 of the
constitution. This case had to deal with the question of whether the state of
West Virginia by act of the Legislature may undertake for a biennium to pay the
sinking fund and interest of debts created by district school boards. These
were debts which had been incurred by district boards of education pursuant to
permissive legislation in the construction of valuable improvements for the
special benefit of the respective communities themselves. At the time the debts
were made the district boards had the right and duty to make levies and raise
revenues in their respective communities to pay off such indebtedness. As
stated in the opinion by the court in that case: ?The schoolhouses, also,
whether paid for from the proceeds of bonds or not, remain permanently for the
use of the communities which brought them into being.? That decision is sound.
The district boards had the authority to contract the indebtedness, and upon
them rested the entire burden of acquisition of school properties. Credit had
been extended to the local district boards not the state, hence by contract,
they were purely local debts.
But in the instant case as well as in the Richa.rcls and Jahnson cases
no risks had been assumed by claimants for the reason they were required to
attend school, and no liability in the first instance ever rested upon the
district boards such as would enable the boards to raise revenues to pay the
claims under the Krutili and Jarrett cases cited herein. I sincerely adhere to the (then
majority) opinion expressed on the claim of J. C. Richards No. 48, and to the
dissent in the case of Jess. E. Miller
No.
138. Fiat justitia ruat coelum.
REFERENCES
ACT OF GOD?See God, Act of
AGENCIES?See State Agencies
BLUE BOOK?See West Virginia Blue Book
BOARDS OF EDUCATION?See Schools
BRIDGES and CULVERTS?See also Negligence
Where it appears from the evidence
that the state road commission kept a warning sign on a suspended bridge for a
long period of time to the e?kct that the bridge was unsafe for over a
three-tori gross load without making inspection of or repairs to the bridge, as
provided by general law, to keep it safe for a three-ton gross load; and it
appears that the persons who are injured or killed by the collapse of the
bridge did not take particular care and caution as to the weight of the load
carried thereon and such weight cannot be arrived at with definite certainty,
such e? idence should be weighed and considered in the light of all the
circumstances to reduce the amount of the
award to be made. Wilctman, Mm. v. State Road 33
When the state road commission by the act of 1933 assumed control and authority
over the primary and secondary roads of the state, the duty was imposed upon it
to guard all dangerous places on the public roads and bridges by suitable
railings or barriers, so as to render the said roads and bridges reasonably
safe for travel thereon by day or by night. Fry v. State Roa&_-_ 48
Where the claimant is charged with contributory negligence which from the
evidence presents a mixed question of law and fact, and on which reasonable
minds may differ, the question of such negligence will be considered in
determining whether or not an award should be made, and, if made, the amount
thereof.
?a.
When the state road commission has charge
of the maintenance of a national highway, as in the instant case, on which
there is a culvert constructed across a stream, the failure of the commission
to remove accumulations of dirt and debris in the stream bed to maintain the
clearance or opening under the culvert as originally constructed and of
sufficient size to permit the stream in times of ordinary flood or freshet,
reasonably expected, to flow through the clearance as fast as the stream does,
an award will be made for damages to property of another approximately caused
by the negligent damming and the consequent overflow of the
stream. Valley Camp Stores v. State RoaL_ 62
376 REPORTS STATE
COURT OF CLAIMS [W. VA
During the course of repairing and reconstructing a bridge, which bridge is
kept open to pedestrians and travelers while said repairs are being made, it is
negligence on the part of state road commission employees to throw a hot rivet
used in connection with the making of said repairs while a pedestrian is
crossing the said bridge and in close proximity to where the said rivet is
being thrown, and which, if improperly thrown, is likely to strike and injure
such pedestrian. If injury results from such negligence, the state road
commission is liable. Ellis v. State Road 88
When the state road commission by the act of 1933 assumed control and authority
over the primary and secondary roads of the state, the duty was imposed upon it
to guard all dangerous places on the public roads and bridges by suitable
railings or barriers, so as to render the said roads and bridges reasonably
safe for
travel thereon by day or by night. Hershberger v. State Road 52
Where the claimant is charged with contributory negligence which from the
evidence presents a mixed question of law and fact, and on which reasonable
minds may differ, the question of such negligence will be considered in
determining whether or not an award should be made, and if made, the amount thereof.
Id.
Where a bridge controlled by the state road commission has been condemned
as unsafe for public use or travel, and the un-. contradicted evidence shows
that the supports and girders on said bridge were very rotten and decayed, the
commission must take all necessary means to effectually close and barricade the
bridge as a protection to the public; and a failure to do so, by reason of
which persons traveling on the bridge under the conditions mentioned are
injured, is negligence on the part of the commission and must be considered as
such in connection with determining the validity of a claim, even though the
injured persons may have had a load slightly in excess of that allowed on the
bridge. Mealey, Admx., et als, v. State Road 214
Where the evidence seems to indicate and tends to show that the state road
commission was not negligent in maintaining a certain bridge and wire
guardrails attached thereto, and that the said state road comthission exercised
reasonable care in maintaining and controlling said bridge, then, in that case,
an award will be refused accordingly to one who alleges that she fell from the
said bridge by reason of improper or defective guardrails or protection
thereon. Harless v. State Road 241
The state road commission is charged with the duty of keeping the bridges on
highways in reasonably good repair, and the failure. to do so, by reason of
which a child of tender years is injured, makes the road commission liable,
even though the injured child may have had occasion to use the bridge in
question a number of times while the bridge was out of repair. Such child of
tender years cannot be charged with contributory negligence. McMilkon
v. State Road 162
Where it appears from the evidence that one using a state owned public bridge
in a careful manner sustains personal property loss by reason of the defective
condition of the bridge, an award will be made to such person and his assignee
for compensation of such
loss. Ashworth, et al v. State Road 172
W.VA.l REPORTS
STATE COURT OF CLAIMS 377
The State Road Commission is charged with the duty of making all bridges under
its control and authority reasonably safe for travel thereon by day or by
night, and when it fails in this respect, the state will be held liable. Kincaici
v. State Road -
334
CAUSE OF ACTION?See also JL!rdiction,
Where the evidence makes it purely
pculative or highly conjectural as to whether or not a state driven truck
operated by and for the state road commission caused the injuries and damages
complained of, an award will not be made. Peterson v.
StateRoad -_
22
Where the evidence in the case shows the highway on which the accident happened
was improved and eighteen feet wide, with no obstruction and no defect in the
highway, and the claimant?s decedent was killed by reason of the car in which
he was riding leaving the said highway and striking a depression or hole in the
berm, then there is no cause of action against the state road commission and
the claim will be denied and dismissed.
Lambert v. State Road - 186
Where a claimant alleges that state prisoners who have escaped from a state
road camp stole and carried away his automobile, and there is no evidence of
any kind to sustain the said claim against the state or the state agency
involved, as in the instant case, an award will be refused and the claim
dismissed. Dodrill
v.StateRoad 251
A case in which upon the facts
disclosed by the record the claim will be heard and disposed of upon its
merits. Clark v. State
Road 232
Where it appears from the notice or petition of claimant filed that from the
facts stated no liability exists on the part of the state, the court of claims
does not have prima facia jurisdiction and will refuse to docket the
claim for hearing upon such notice
or petition. Chapman v. Board Control 183
CLAiMS, Failure to Prosecute
Where a claim is duly filed in the
court of claims and twice placed upon its trial docket for hearing without
appearance on the part of claimant to prosecute the same or show reason for his
failure so to do, such claim will be dismissed, subject to the right of
claimant to have the same reinstated upon showing to the court
proper reason- for such reinstatement. Racier v. State Road - -- 109
Where a claim is duly filed in the court of claims and twice placed upon its
trial docket for hearing, without appearance on the part of claimant to
prosecute the same or show reason for his failure so to do, such claim will be
dismissed, subject to the right of claimant to have the same reinstated, upon
showing to the
court proper reason for such reinstatement. Babb v. State Road 112
378 REPORTS STATE
COURT OF CLAIMS LW. VA.
CLAIMS, Proof of
?All claims asserted against the state
or any of its agencies must be established by satisfactory proof before awards
may properly
be made for the payment of them.? Clark
v. State Road - 232
COMPROMISES
When, pending the hearing and
investigation of claims against the state, duly filed in the court of claims and
placed upon its trial calendar, all growing out of the same facts, such
claimants and the state agency concerned effect a compromise adjustment and
settlement of such claims, subject to the approval and ratification of the
court of claims, and evidence offered in support of such claims and compromise
settlement thereof shows the advisabffity and propriety of such compromise
settlement, awards will be made for the payment of such claims in accordance
with and pursuant
to such agreed terms of settlement. Dcunron,
et al v. State Road_
236
Where it appears from the hearing that there was not a meeting of the minds
between the claimant and the department concerned upon what appears from the
evidence to have been nominal awards for compensation for personal injuries
sustained by claimant, through negligence of employees of the department in the
course of their employment, and it appears from the evidence that claimant is
entitled to additional compensation for the injuries sustained, an award will
be recommended to the claimant taking into consideration amounts heretofore
paid
as compensation. Cecil v. State Road - 114
CONTINUANCES
?Continuances without cause are not regarded with favor
by the Court.? Clark v. State Road 232
CONTRACTS
Where it appears from the evidence
that the state road commission has made a commitment of sponsorship with the
works progress administration agreeing to contribute a certain percentage of
the total costs of construction of a road project, and fails to contribute the
agreed percentage of the total costs of construction, and it appears that
claimants? services by use of their trucks and operators have supplied the
deficiency of the state road commission?s commitment to furnish trucks and
operators and the state road commission has received and applied said services
of claimants as credits upon its contribution under its commitment as sponsor
of the project, without withdrawing its sponsorship by continuing to retain its
equipment and supplies on the project and accepts the road after completion,
when such services of claimants as appears from the evidence were not donated
and claimants have not been paid for same, awards will be made for the
reasonable value of such services commensurate with the value of credits for
such services received by the state road commission on its commitment to pay
the costs of such services under its said sponsor ship Aclkins, et al v.
State Road - - 280
W.VAI REPORTS
STATE COURT OF CLAIMS 379
Where the state road commission, by its contract may or may not furnish road
metal (stone or other material) to keep lanes of traffic open to the traveling
public, during the construction and improvement of a highway, and the testimony
shows that it has been the custom of the said road commission to furnish such
material or metal at its own cost or expense, on other road projects, then the
contractor is entitled to a reasonable charge or claim for gathering and
furnishing the said road metal or material so used on a highway during the
improvement and construction thereof.
Keeleyv.State Road 165
Where the state road commission contracts for the making and building of a
public road or highway and requires the work to be completed in a certain
number of working days, and the contractor is subsequently prevented from
carrying out his part of the contract through no fault of his, but by reason of
the failure of the state road commission to consummate and complete a contract
with a railroad company for the removal and relocation of the tracks of said
railroad company, and which tracks, as located, prevent the carrying out of the
said highway improvement and the contractor is thereby delayed for a long
period of the best working days, considering the season of the year in which
the said project is being carried on, the contractor is entitled to be
reimbursed for any actual expenses and damages he has suffered by reason of the
said delay. Keeley v. State Road ? 168
Where the state department of purchases requests bids for furnishing to a state
institution 2,000 feet of black walnut lumber, without specification as to
quality, and a dealer agrees to furnish same at the price of $90.00 per
thousand feet, and thereafter said department of purchases makes its
requisition for such lumber, in pursuance of such bid, and said lumber is
furnished and delivered to the state institution for whose benefit it was
purchased, in accordance with such bid and requisition, and it is shown to be
fifty per cent clear black walnut lumber and the balance of lower grade, but
suitable for use in making furniture and for other wood-working purposes, such
order cannot be cancelled for the reason that said lumber was of inferior
quality, and the lumber so furnished and delivered will be required to be paid
for at the
contract price. Elklns Builders v. Board
Control 264
Where it appears that the director of the state conservation commission has
established and is operating a restaurant for the convenience of the public at
one of the state park areas as provided by the acts of 1939, and it appears that
claimant has furni.shed meals at said restaurant to a convention group of
persons under a special arrangement made by the officials of the commission in
charge of the park and restaurant whereby they on behalf of the commission
contracted with claimant to collect for meals served, and to pay her for same,
an award will be made directing payment for such services rendered from funds
available for the
purpose. Doyle v. Auditor, et al_ ?- ? ? ---?? 269
380 REPORTS STATE
COURT OF CLAIMS [W. VA.
Where it appears from the evidence
that by reason of the lack of available data it is impossible to take actual
measurements of excavation of material in its original position under a
contract as is the usual and customary practice when such data is available, the
court will consider evidence of estimates taken from measurements of fills made
from the excavation and allow a percentage for shrinkage based upon the nature
of the material in the fill, the manner of rolling or filling same, the time
elapsed before final survey and all surrounding facts and circumstances in an
effort to obtain the actual measurements of excavations made, and base an award
thereon accordingly. Consolidated Engineeiing v. State
Road 358
CONTRIBUTORY NEGLIGENCE?See also
Negligence.
When an adult woman of good
intelligence, while driving her husband?s automobile on a state highway passes
a hole on one side of said highway caused by a break or slip on the rock base
of said highway, which hole she could or should have seen by the use of ordinary
care, and on the same day, in the daytime thereof, while driving said
automobile in the opposite direction drives it into said hole and the said
automobile is precipitated over an embankment and she sustains personal
injuries in consequence of said accident, she will be held to be guilty of
contributory negligence barring a claim for an award for damages occasioned by
said accident. Smith v. State Road 258
Where upon the hearing of a claim filed by a husband for an award for property
damages under the above facts it is shown by the evidence that his automobile
was maintained for convenience and family purposes and that the loss occasioned
to his car was the result of the contributory negligence of his wife in the use
of the same, his claim for damages will be denied. Id.
The state or its agency, the state road commission, is not an absolute
guarantor of the safety of its employees, nor was it such guarantor at the time
of the accident from which the instant case arose; and when claimant with full
knowledge of the danger incident to the work that he was about to perform had
at his command and disposal the means of protecting himself by the use of
available equipment, and the use of which would in all probability have
prevented the accident to him, and failed to do so, then he was guilty of such
negligence as must necessarily pre? dude him from an award. Johnson v. State
Road -
253
An award will not be recommended in a case where it appears from the evidence
that the claimant has not heeded warnings and circumstances attendant to the
hazards of travel on a highway being repaired by state road employees in the
application of tar and slag, and has failed to exercise ordinary care and
caution for the safety of himself and fellow travelers upon the highway, and
where it is found from the evidence that the state road employees were
exercising due care and caution in the performance of their work as well as to
warn travelers of the hazards of travel attending the work being done. Harper,
et ux v.StateRoad ?
W. VA.] REPORTS
STATE COURT OF CLAIMS 381
Where it appears from the evidence
that there are circumstances bearing upon the reasonableness of an award
presenting a mixed question of law and fact, and on which reasonable minds may
differ, and such circumstances are of a mitigating nature such as would justify
a reasonable reduction of damages recoverable, then such circumstances will be
considered in determining whether or not an award should he made, and if made
the amount
thereof, Valley Camp Stores v. State Road 62
Where it appears from the reord submitted that the negligence of claimant in
the operation of a truck owned by the state agency concerned was the approximate
cause of a collision by the truck with a privately owned car, inflicting damage
to same, an award will be denied to claimant for contribution of the amount of
damages paid by claimant to the owner of the damaged car, Boley v. State
Conservation -
322
Where the claimant is charged with contributory negligence which from the
evidence presents a mixed question of law and fact, and on which reasonable
minds may differ, the question of such negligence will be considered in
determining whether or not an award should be made, and, if made, the amount
thereof,
Fry v. State Road 48
An award will not be made in favor of an adult claimant traveling said road six
days a week in carrying mail, whose negligence contributed to a motor vehicle
collision which resulted in
the demolishment of his truck. Ba.bb, et al, v. State Road 317
In our opinion the evidence fails to reveal any contributory negligence on the
part of the claimant and therefore, this defense
is not sustained, Atkinson v, State Road 26
CONVICTS, Escaped
Miller v. Board Control 97
Dodrill v. State Road 251
DAMAGES
Where a liability is admitted on the
part of the state department concerned and the amounts of the awards for
damages for personal injuries on the two claims filed are left for determination
the court from all the evidence on the claims heard together finds for each
claimant such damages as is deemed just and proper, commensurate with each
claimant?s injuries, that is, damages proportionate or equal in measure or
extent of
their injuries sustained. Gibson v. State Road 226
Where it appears from the evidence that the special and peculiar benefits
accruing to claimant by reason of a construction project performed by the state
road commission on his land exceeds the amount of damages, if any, which
claimant has sustained, an award will be denied, Reed v. State Road - 219
DAMS?See Lands
382 REPORTS STATE
COURT OF CLArMS [W. VA.
FAILURE TO PROSECUTE CLAIMS?See Claims, Failure to Prosecute
FAMILY CAR DOCTRINE
Where upon the hearing of a claim
filed by a husband for an award for property damages under the above facts it
is shown by the evidence that his automobile was maintained for convenience and
family purposes arid that the loss occasioned to his car was the result of the
contributory negligence of his wife In the use of the same, his claim for
damages will be denied. Smith
v. State Road - 258
FELLOW-SERVANT RULE
Where the evidence shows that claimant, who was employed on a road project in
Preston county, was paid for his services by the Federal Government, but was
working under the control, supervision and direction of a foreman or supervisor
of the state road commission, he is not a fellow servant of the said foreman or
supervisor and cannot be treated as such in the instant case.
Atkinson v. State Road - ------
In view of the apparent reasons and
purposes for the creation of this court as manifested by the Legislature in the
act creating it, the court does not concede that the fellow-servant rule as
formerly understood or construed by the courts will govern it in determining
claims submitted to it for decision; and therefore holds that the decision in
the case of Corrigan v. The
Board of Commissinners of Ohfo County, 74
W. Va. 89, and relied upon by the state in its motion to dismiss, cannot
control in deciding the merits of this claim. Id.
GASOLINE 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. Del Balso
v. State Tax 15
GOD, Act of
ACT OF GOD. Testimony shows that the
injuries complained of were caused by negligence and the lack of reasonable
care in carrying on the road operations at the point or place where the
accident occurred, and consequently could not be attributed to
an act of God. Brown y. State Road 2
An act of God is a direct, violent, sudden or irresistible act of nature which
could not by the exercise of reasonable care and diligence have been avoided or
resisted. Id.
See also Knicely v. State Road - 72
W,VA.i REPORTS
STATE COURT OF CLAIMS 383
JURISDICTION?See also Cause of Action
JURISDICTION. The jurisdiction of the state court of claims does not extend to
any claim fot a disability oi death benefit under chapter 23 of the code
of Wert Virginia governed by the workmen?s compensation commis.;ion. Taylor,
et ala v. WorkmCns Compensation
Where upon motion of the a1umney general to dismiss claim for wt of jurisdiction,
no ansner is made by claimant to rule to show ause why hi claim should not be
dismissed, and it appears from a ecord that he is without right to maintain his
claim, such claim will be dismissed. Dragon v. State Road 107
The act creating this couii. section 14, relating to the jurisdiction of the
court, specifically excludes from its jurisdiction any claim which may be
maintained by or on behalf of the claimant
in the courts of the staLe. Scaverielio v. State Road 86
The state court of claims will not entertain jurisdiction of a claim upon which
a proceeding may be maintained by or on behalf of the claimant in the courts of
the state. Cottle v. State
Road -
84
An athletic board or department of a
state controlled college is not a state agency as contemplated by the act
creating the court of claims and a contract entered into with such board or
department is not enforceable in said court, the court being without
jurisdiction to hear and determine a claim based on the provisions or
conditions of the contract in question. Omaha tJni versit v. Board
Control, et at 185
LAND TAXES, Delinquent
Where the evidence establishes that a former commissioner of school lands
obtained funds from the sale of property sold for delinquent taxes, and after
deducting the costs of the sale, remitted the balance of the funds to the state
auditor, and no disbursement or distribution was ever made of the said fund, as
required by law, then an order will be entered by this court, making an award
and ordering distribution accordingly. Brooke
County v. Auditor 179
LANDS, Dams injuring
Where it appears from the evidence that claimants have suffered loss and
damages to their property by the same being actually invaded by the creation of
a dam on the state?s property by a state department caused by abandonment of
the project or undertaking in changing the channel of a stream, which dam
permanently floods a part of claimants? land, and causes intermittent but
inevitably recurring overflows and seepage of water on other lands of
claimants, when the abandonment of the project or undertaking is done without
any intention of completing same in such manner that claimants are not afforded
a remedy in the courts of the state, the court of claims will recommend an
award to such claimants for what is considered a fair and just compensation for
the loss and damages sustained Chapman, et
ux v. Board Control 244
384
REPORTS STATE COURT OF CLAIMS [W. VA.
NEGLIGENCE
When the state road commission by the
act of 1933 assumed control and authority over the primary and secondary roads
of the state, the duty was imposed upon it to guard all dangerous places on the
public roads and bridges by suitable railings or barriers, so as to render the
said roads and bridges reasonably
safe for travel thereon by day or by night. Fry v. State Road - 48
The state road commission is charged with the duty of making all bridges under
its control and authority reasonably safe for travel thereon by day or by
night. and when it fails in
this respect, the state will be held liable, Kincaid v. State road - 334
The fact that a stone or rock falls from the mountainside adjacent to a public
road or highway, striking and wrecking a passing automobile, does not of itself
constitute negligence on the part of the state road commission. The state or
its agency, the state road commission, not being a guarantor of the safety of
travelers on its roads and highways, must either have notice of the dangerous
condition and position of such stone or rock on the banks along the highway or
have known of it by the proper examination of the highway at the place where
the accident happened and have failed to take the necessary steps to remove the
rock and thus prevent any accident, before the state or its agency, the state
road commission, becomes liable. Clark V.
State Road 230
Where no remedy is provided by general statute, against the county boards of
education for failure to provide safe equipment used in the public schools, an
award will be recommended to the Legislature to appropriate funds for the
medical care and treatment and compensation to a pupil permanently injured by
burns received by reason of a defective and unsafe open-flame gas stove used in
a public school where such pupil was attending, as a matter of justice and
right and as contemplated in the thorough and efficient system of free schools
directed to be provided for by the Legislature in article XII of the
constitution.
Richards, at at, v. School
Boards -
- 142
Where it appears from the evidence that one using a state owned public bridge
in a careful manner sustains personal property loss by reason of the defective
condition of the bridge an award will be made to such person and his assignee
for compen satio of such loss. Ash.worth,
et a!, v. State Road 172
To allow road equipment being used in connection with highway improvements and
repairs, to occupy any part of a used or traveled road or highway in the
nighttime, without giving the traveling public proper, adequate and sufficient
warning and notice of the presence of such equipment so placed or situate, is negligence
on the part of the agents and employees of the road commission, for which the
commission is liable. Cottle v. State
Road -
- - 313
W.VAJ REPORTS
STATS COURT OF CLAIMS 385
The state road commission is charged with the duty of keeping the bridges on
highways in reasonably good repair, and the failure to do so. by reason of
which a child of tender years is injuied, makes the road commission liable,
even though the injured child may have had occasion to use the bridge in
question a number of times while the bridge was out of repair. Such child of
tender years cannot be charged with contributory negligence. McMillion v. State Road 162
When the state road comInision by the
act of 1933 assumed control and authority over the primary and secondary roads
of the state, the duty was imposed upon it to guard all dangerous places on the
public roads and bridges by suitable railings or barriers, so as to render the
said roads and bridges reasonably safe for travel thereon by day or by night. Hershberger v.
State
Road 52
Where the claimant is charged with
contributory negligence which from the evidence presents a mixed question of
law and fact, and on which reasonable minds may differ, the question of such
negligence will be considered in determining whether or not an award should be
made, and if made, the amount thereof. Id.
When the stale road commission has
charge of the maintenance of a national highway, as in the instant case, on
which there is a culvert constructed across a stream, the failure of the commission
to remove accumulations of dirt and debris in the stream bed to maintain the
clearance or opening under the culvert as originally constructed and of
sufficient size to permit the stream in times of ordinary flood or freshet,
reasonably expected, to flow through the clearance as fast as the stream does,
an award will be made for damages to property of another approximately caused
by the negligent damming and the consesequent overflow of the stream. Valley Camp Stores v. State
Road -
62
Where it appears from the evidence
that there are circumstances bearing upon the reasonableness of an award
presenting a mixed question of law and fact, and on which reasonable minds may
differ, and such circumstances are of a mitigating nature such as would justify
a reasonable reduction of damages recoverable, then such circumstances will be
considered in determining whether or not an award should be made, and if made
the amount thereof. Id.
Award for the loss of a mule caused by
the said animal falling into an unprotected pit previously used as a toilet,
and under the control of the state road commission at the time of the accident,
and located on a certain right-of-way owned and controlled by the said road
commission at and near Lenore, Mingo county, West Virginia. Fields v.
State Road 11
386
REPORTS STATE COURT OF CLAIMS EW. VA.
When, upon the hearing of a claim for an award for reimbursement for money paid
for repairs to an automobile driven by claimant into a tree blown by storm upon
a public highway, proof offered in support of such claim fails to show
negligence on the part of the state r-oad commission, or establish a right of
action for such damages, a motion of the attorney general to dismiss the claim
will be sustained, an award denied and the
claim dismissecL James v. State Roacl_
-
- 90
During the course of repairing and reconstructing a bridge which bridge is kept
open to pedestrians and travelers while said repairs are being made, it is
negligence on the part of state road commission employees to throw a hot rivet
used in connection with the making of said repairs while a pedestrian is
crossing the said bridge and in close proximity to where the said rivet is
being thrown, and which, if improperly thrown, is likely to strike and injure
such pedestrian. If injury results from such negligence, the state road
commission is liable. Ellis v. State
Road -
S8
Where it appears from the evidence that the employees of the state road
commission had no knowledge of a large stone and slide falling from the mountainside
into the highway due to its recent occurrence and had no previous warning of
the likelihood of its falling from making their routine examinations of the
highway, the state not being a guarantor of the safety of travelers on its
roads and highways will not be held liable for personal injuries or property
damages suffered by claimants when their
motor vehicle runs into such stone. Harvey
v. State Road -
345
Where it appears from the evidence that there was some question as to whether
the state road commission was negligent when a guard on one of its prison camps
was struck by a passing motorist, but the Legislature and the state road
commission has resolved all doubt in favor of the employee injured by reason of
the state workmen?s compensation not being in force at the time and has
heretofore made generous awards to claimant in such manner and under such
circumstances at the time as would appear to have been full and adequate
compensation, an award will be denied. Riddle
v. State Road 348
Where it appears from the evidence that the state road commission kept a
warning sign on a suspended bridge for a long period of time to the effect that
the bridge was unsafe for over a three-ton gross load without making inspection
of or repairs to the bridge, as provided by general law, to keep it safe for a
three-ton gross load; and it appears that the persons who are injured or killed
by the collapse of the bridge did not take particular care and caution as to
the weight of the load carried thereon and such weight cannot be arrived at
with definite certainty, such evidence should be weighed and considered in the
light of all the circumstances to reduce the amount of the award
to be made. Wildman, Adm., v. State Road_ ? 33
W. VA.] REPORTS
STATE COURT OF CLAIMS 387
Whei e a common carrier delivers a car on a sidetrack or switch, in the usual
and customary place for unloading, and has used the proper degree of care in
placing the car for unloading purposes, and the car is equipped with biakes and
appliances that are safe and sound when properly used, the carrier is relieved
of further responsibility, unless there is a contract en? larging its duty in
this respect; the consignee then becomes responsible for the skill and care of
its employee in unloading the car or replacing it for unloading purposes; and
if the car is damaged by reason of the lack of skill or care on the part of
such employee of the consignee when so replacing it or unloading it, the
consignee is liable for the damage caused. Chesapeake and
Ohio v. State Road 55
Where it appears from the evidence that a boy 15 years of age while riding a
bicycle, is injured in a collision with a state road commission track running
on his side of the street and blocking his pathway which was clear when he
entered the street while said truck is in the act of passing another truck and
it is found from all the facts and circumstances in evidence in the case that
the truck driver was negligent in undertaking to pass another vehicle at the sceie
of the collision, awards will be tnade to the boy to compens ite him for the
injuries sustained, and to the father for expenses incurred and loss of his
son?s service
during minority. Roberts v. State Road 351
ACT OF GOD. Testimony shows that the injuries complained of were caused by
negligence and the lack of reasonable care in carrying on the road operations
at the point or place where the accident occurred, and consequently could not
be attributed to an
act of God. Brown
v. State Road 2
An act of Go:1 is a direct, violent, sudden or irresistible act of nature which
could not by the exercise of reasonable care and diligence have been avoided or
resisted. Id,
Where the evidence shows that
claimant, who was employed on a road project in Preston county, was paid for
his services by the Federal Government, but was working under the control,
supervision and direction of a foreman or supervisor of the state road
commission, he is not a fellow servant of the said foreman or supervisor and
cannot be treated as such in the instant case.
Atkinson
v. State Road -
- - - - 26
In view of the apparent reasons and purposes for the creation of this court as
manifested by the Legislature in the act creating it, the court does not
concede that the fellow?servant rule as formerly understood or construed by the
courts will govern it in determining claims submitted to it for decision; and
therefore holds that the decision in the case of Corrigan v. The Board of Comnzsssonerg
of Ohio County, 74 W. Va. 89, and relied upon by the state in its motion
to dismiss, cannot control in deciding the merits of this claim. Id.
In our opinion the evidence fails to
reveal any contributory negligence on the part of the claimant and therefore,
this defense is not sustained. Id.
388 REPORTS
STATE COURT OF CLAIMS LW. VA.
Award for damages for injuries to an automobile driven and occupied by the
claimant while driving on the highway from Lockbridge toward Elton, in Summers
county, West Virginia, and near what is known as Elton Mountain, and caused by
a slide rushing in and upon the said automobile and causing damages
thereto. Mart:nv.StateRoad - 9
Where a bridge controlled by the state
road commission has been condemned as unsafe for public use or travel, and the
us- contradicted evidence shows that the supports and girders on said bridge
were very rotten and decayed, the commission must take all necessary means to
effectually close and barricade the bridge as a protection to the public; and a
failure to do so, by reason of which persons traveling on the bridge under the
con.. ditions mentioned are injured, is negligence on the part of the
commission and must be considered as such in connection with determining the
validity of a claim, even though the injured persons may have had a load
slightly in excess of that allowed
on the bridge. Mealey, Admx., et ala, v. State
Road 214
Where it appears from the evidence that there is a sharp curve on a state
secondary dirt road, which is overgrown with brush obscuring the vision of
persons traveling thereon, and which road is narrow and otherwise defective and
out of repair, and that a girl, thirteen years of age, while riding as a
passenger in a mail truck on said road, sustains personal injuries and the loss
of four upper front teeth as the result of the mail truck collision with a one
and one-half ton truck loaded with shale or gravel while passing through said
curve, an award will be recommended for hospitalization and dental bills. Babb,
et al, v. State Road - 317
An award will not be made in favor of an adult claimant traveling said road six
days a week in carrying mail, whose negligence contributed to a motor vehicle
collision which resulted in the demolishment of his truck. Id.
Where it appears from the hearing that
there was not a meet- sag of the minds between the claimant and the department
concerned upon what appears from the evidence to have been nominal awards for
compensation for personal injuries sustained by claimant, through negligence of
employees of the department in the course of their employment, and it appears
from the evidence that claimant is entitled to additional compensation for the
mjuries sustained, an award will be recommended to the claimant taking into
consideration amounts heretofore paid as compensation. Cecil v. State Road - -. 114
The court of claims will not make an award in a case where the evidence shows
that the state road commission has used reasonable care and diligence in the
maintenance of a state controlled highway on which claimant wrecked his motor
vehicle by colliding with a large stone or boulder that had become dislodged
from a cliff or hillside and fallen on said highway the night preceding or
early morning of such accident, and in which it furtrier appears from the
evidence that the employees of the state road commission had no knowledge of
the likelihood of such
happening. James v. State Road - --- 343
W. VA.] REPORTS
STATE COURT OF CLAIMS 389
The state road commission will be held liable in damages for the negligent and
wrongful acts of its agents and employees toward a W. P. A. employe while doing special
services on a state project which services are distinguished from the services
of other W. P. A. employees, where it appears from the evidence that the W. P. A. employee
was receiving special orders from state road foreman and bosses and was no
longer under the supervision of his w. p A. foremen while engaged in
such work with state road
employees. Canterbury, Adm.r., v. State Road 173
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. Miller v. Board oj Control - 97
Under the act creating the court of claims, negligence on the part of the state
agency involved must be fully shown before an
award will be made. Moore v. State Road 93
PRIMA FACIE JURISDICTION?See Cause of
Action and Jurisdiction
RAILROADS?See also Negligence
Where a common carrier delivers a car on a sidetrack or switch, in the usual
and customary place for unloading, and has used the proper degree of care in
placing the car for unloading purposes, and the car is equipped with brakes and
appliances that are safe and sound when properly used, the carrier is relieved
of further responsibility, unless there is a contract enlarging its duty in
this respect; the consignee then becomes responsible for the skill and care of
its employee in unloading the car or replacing it for unloading purposes; and
if the car is damaged by reason of the lack of skill or care on the part of
such employee of the consignee when so replacing it or unloading it, the
consignee is liable for the damage caused. Chesapeake and Ohio v. State
Road -
___
RIGHTS-OF-WAY
Award for the loss of a mule caused by
the said animal falling into an unprotected pit previously used as a toilet,
and under the control of the state road commission at the time of the accident,
and located on a certain right-of-way owned and controlled by the said road
commission at and near Lenore, lvlingo county,
West Virginia. Fields v. State Road ii
ROADS?See Bridges, Contributory
Negligence and Rock Slides
390 REPORTS STATE
COURT OF CLAIMS EW. VA.
ROCK SLIDES
The fact that a stone or rock falls
from the mountainside adjacent to a public road or highway, striking and
wrecking a passing automobile, does not of itself constitute negligence on the
part of the state road commission. The state or its agency, the state road
commission, not being a guarantor of the safety of travelers on its roads and
highways, must either have notice of the dangerous condition and position of
such stone or rock on the banks along the highway or have known of it by the
proper examination of the highway at the place where the accident happened and
have failed to take the necessary steps to remove the rock and thus prevent any
accident, before the state or its agency, the state road commission, becomes
liable. Clark v. State
Road - - - 230
The court of claims will not make an award in a case where the evidence shows
that the state road commission has used reasonable care and diligence in the
maintenance of a state controlled highway on which claimant wrecked his motor
vehicle by colliding with a large stone or boulder that had become dislodged
from a cliff or hillside and fallen on said highway the night preceding or
early morning of such accident, and in which it further appears from the
evidence that the employees of the state road commission had no knowledge of
the likelihood of
such happening. James v. State Road -- 343
Where it appears from the evidence that the employees of the state road
commission had no knowledge of a large stone and slide falling from the
mountainside into the highway due to its recent occurrence and had no previous
warning of the likelihood of its falling from making their routine examinations
of the highway, the state not being a guarantor of the safety of travelers on
its roads and highways will not be held liable for personal injuries or
property damages suffered by claimants when their
motor vehicle runs into such stone. Harvey
v. State Road -
345
Award for damages for injuries to an automobile driven and occupied by the
claimant while driving on the highway from Lockbridge toward Elton, in Summers
county, West Virginia, and near what is known as Elton Mountain, and caused by
a slide rushing in and upon the said automobile and causing
damages thereto. Martin v. State Road - 9
See also Brown v. State Road - - - - 2
SCHOOLS?Boards of Education
Where no remedy is provided by general
statute, against the county boards of education for failure to provide safe
equipment used in the public schools, an award will be recommended to the
Legislature to appropriate funds for the medical care and treatment and
compensation to a pupil permanently injured by burns received by reason of a
defective and unsafe open-flame gas stove used in a public school where such
pupil was attending, as a matter of justice and right and as contemplated in
the thorough and efficient system of free schools directed to be provided for
by the Legislature in article XII of the constitution.
Richards, et alv. School Board 142
W.VA.1 REPORTS
STATE COURT OF CLAIMS 391
This claim is controlled by the opinion of
a majority of the court of claims filed in the ease of claim No. 48, J. C. Richards V. Board
of Education of Calhoun County and State Board of Edu cation Johnson v. School
Boards 158
A county board of education is not a state agency as contemplated by the act
creating the court of claims. Dillon v. School
Board --- 366
Insofar as the opinion in Se claim No. 48, J.
C. Richard.s, against the board of
education of Calhoun county, and the opinion in re claim No. 55, Ben jam.in Johnson, Jr., against the board of education of Logan county,
recognize the jurisdiction of the court of claims to entertain, investigate and
make determination in claims against a county board of education is concerned,
such holding is now disapproved by a majority of the court. Id.
STATE AGENCY
An athletic board or department of a
state controlled college is not a state agency as contemplated by the act
creating the court of claims and a contract entered into with such board or
department is not enforceable in said court, the court being without
jurisdiction to hear and determine a claim based on the provisions or
conditions of the contract in question. Omaha
University
v.BoardControl,eta-l ?
_185
A county board of education is not a ?state agency? within the meaning of the
act creating the state court of claims. Miller
v.
SchoolBoarcl 2O5
A county board of education is not a state agency as contem plate by the act
creating the court of claims. Dillon v. School
Board -
- - -- 366
STATE EMPLOYEES
The state or its agency, the state
road commission, is not an absolute guarantor of the safety of its employees,
nor was it such guarantor at the time of the accident from which the instant
case arose; and when claimant with full knowledge of the danger incident to the
work that he was about to perform had at his command and disposal the means of
protecting himself by the use of available equipment, and the use of which
would in all probability have prevented the accident to him, and failed to do so,
then he was guilty of such negligence as must necessarily pre? elude him from
an ;Iwar(l. Johnson v. State Road ? 253
392 REPORTS STATE
COURT OF CLAIMS [W. VA.
TAXES?See
Gasoline Taxes and Land Taxes
Delinquent
TREES?See also Negligence
Where it appears from the evidence
that there is a sharp curve on a state secondary dirt road, which is overgrown
with brush obscuring the vision of persons traveling thereon, and which road is
narrow and otherwise defective and out of repair, and that a girl, thirteen
years of age, while riding as a passenger in a mail truck on said road,
sustains personal injuries and the loss of four upper front teeth as the result
of the mail truck collision with a one and one-half ton truck loaded with shale
or gravel while passing through said curve, an award will be recommended for
hospitalization and dental bills. Babb, et al v. State Roa?i -- -- 317
When, upon the hearing of a claim for an award for reimbursement for money paid
for repairs to an automobile driven by claimant into a tree blown by storm upon
a public highway, proof offered in support of such claim fails to show
negligence on the part of the state road commission, or establish a right of
action for such damages, a motion of the attorney general to dismiss the claim
will be sustained, an award denied and the claim
dismissed. James v. State Road -- 90
WEST VIRGINIA BLUE BOOK, Appropriation
for
Where it appears from the record and
evidence applicable to a claim, that the Legis1ature by successive
appropriation acts makes reference in each instance to a former act of the
Legislature which former act also refers to a concurrent resolution
specifically directing that certain items in the costs of printing and binding,
such as maps and half-tone illustrations and circular matter necessarily used
in the completion of the work directed to be done, shall be paid out of the
appropriations for printing, binding and stationery fund, known as the
legislative printing fund appropriation, and said successive acts, by construction
placed thereon by officers charged with their execution have been interpreted
to include such costs, when such interpretation is the plain meaning of such
acts, an award will be made to one who has been refused payment of such costs
out of such appropriations, by the auditor, and has personally paid for same,
when it is found that no part of said claim has been repaid to such
claimant or to anyone for him, Lively v. Audit or 102
WORKMEN?S COMPENSATION
JURISDICTION. The jursidiction of the
state court of claims does not extend to any claim for a disability or death
benefit under chapter 23 of the code of West Virginia governed by the workmen?s
compensation commission. Taylor, et cds, v. Work men? Compensation - ? ? 1
W. VAJ REPORTS STATE
COURT OF CLAIMS 393
Where the evidence shows that one is fatally injured while in the course of his
employment as an employee of a department of the state and such state
department at the time of the injury is a subscriber to the state workmen?s
compensation fund, has paid the premiums and complied with all the provisions
of chapter twenty-three of the code, the court of claims is without
jurisdiction to make an award for the death of such employee although there were
no dependents of the employee within the classification of dependents contained
in the general law under said chapter twenty-three of the code which denies
death benefits to all who are not dependents of the employee within the class
therein
specified. Timrns, Acbn., v. Board Control_______ __________ 41