STATE OF WEST VIRGINIA
Report of the Court of Claims 1969-1971
Volume 8
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the period from May 1, 1969,
to July 1, 1971
By
CHERYLE M. HALL
Clerk
VOLUME VIII
(Published by authority. Code 14-2-25).
JARRETT
PRINTING COMPANY. COANLESTON, W. VA.
0?
CONTENTS UI
TABLE OF CONTENTS
Claims reported, table oL_ ? __XLIII
Claims classified according to statute, list of __
CourtofClaimsLaw ? ____vII
LetteroftransmittaL_ ____V
OpinionsoftheCourt -
-XLI
Personnel of the Court ?
IV
References ?
________267
Rules of practice and procedure ? ? _XIX
TermsofCourt_ ?
?--? VI
IV PERSONNEL OF
THE STATE COURT OF CLAIMS
PERSONNEL
OF THE
STATE
COURT OF CLAIMS
HONORABLE HENRY LAKIN DUCKER
Presiding Judge
HONORABLE W. LYLE JONES Judge
HONORABLE A. W. PETROPLUS Judge
CHERYLE M. HALL Court Clerk
CHAUNCEY BROWNING, JR Attorney General
LETTER OF
TRANSMITTAL V
Letter
of Transmittal
To His Excellency
The Honorable Arch Alfred Moore, Jr.
Governor of West Virginia
Sir:
In conformity with the requirements of section twenty- five of the Court of
Claims law, approved March eleventh, one thousand nine hundred sixty-seven, I
have the honor to transmit herewith the report of the State Court of Claims for
the period from May first, one thousand nine hundred sixty-nine to July first,
one thousand nine hundred seventy-one.
Respectfully submitted,
CHERYLE M. HALL,
Clerk
VI STATE COURT
OF CLAIMS LAW
TERMS
OF COURT
Two reguThr terms of court are provided for annually the second
Monday of April and September.
STATE COURT OF
CLAIMS LAW VIE
STATE
COURT OF CLAIMS LAW
CHAPTER
14 CODE
Article 2. Claims Against the State.
?14-2-1. Purpose.
? 14-2-3. Definitions.
? 14-2-4. Creation of court of claims; appointment and terms of judges;
vacancies.
? 14-2-5. Court clerk and other personnel.
?14-2-6. Terms of court.
? 14-2-7. Meeting place of the court.
?14-2-8. Compensation of judges; expenses.
?14-2-9. Oath of office.
?14-2-10. Qualifications of judges.
?14-2-11. Attorney general to represent State.
?14-2-12. General powers of the court.
?14-2-13. Jurisdiction of the court.
?14-2-14. Claims excluded.
?14-2-15. Rules of practice and procedure.
?14-2-16. Regular procedure.
?14-2-17. Shortened procedure.
? 14- 2-18. Advisory determination procedure.
?14-2-19. Claims under existing appropriations.
? 14-2-20. Claims under special appropriations.
?14-2-21. Periods of limitation made applicable.
? 14-2-22. Compulsory process.
?14-2-23. Inclusion of awards in budget.
? 14-2-24. Records to be preserved.
? 14-2-25. Reports of the court.
? 14-2-26. Fraudulent claims.
? 14-2-27. Conclusiveness of determination.
? 14-2-28. Award as condition precedent to appropriation.
? 14-2-29. Severability.
?14-2-1. Purpose.
The purpose of this article is to
provide a simple and expeditious method for the consideration of claims against
the State that because of the provisions of section 35, article Vt of the
Constitution of the State, and of statutory restrictions, inhibitions or
limitations, cannot be determined in the regular courts of the State; and to
provide for proceedings in which the State has a special interest.
?14-2-3. Definitions.
For the purpose of this article:
VIII STATE COURT
OF CLAIMS LAW
?Court? means the State court of claims established by section four [ 14-2-4] of this article.
?Claim? means a claim authorized to be heard by the court in accordance with
this article.
?Approved claim? means a claim found by the court to be one that should be paid
under the provisions of this article.
?Award? means the amount recommended by the court to be paid in satisfaction of
an approved claim.
?Clerk? means the clerk of the court of claims.
?State agency? means a State department, board, commission, institution, or
other administrative agency of State government: Provided, that a ?State
agency? shall not be considered to include county courts, county boards of
education, municipalities, or any other political or local subdivision of the
State regardless of any State aid that might be provided.
?14-2-4. Creation of court of claims;
appointment and terms of judges; vacancies.
The ?court of claims? is hereby
created. It shall consist of three judges, to be appointed by the president of
the senate and the speaker of the house of delegates, by and with the advice
and consent of the senate, one of whom shall be appointed presiding judge. Each
appointment to the court shall be made from a list of three qualified nominees
furnished by the board of governors of the West Virginia State bar.
The terms of the judges of this court shall be six years, except that the first
members of the court shall be appointed as follows: One judge for two years,
one judge for four years and one judge for six years. As these appointments
expire, all appointments shall be for six year terms. Not more than two of the
judges shall be of the same political party. An appointment to fill a vacancy
shall be for the unexpired term.
?14-2-5. Court clerk and other
personnel.
The court shall have the authority to
appoint a clerk. The clerk?s salary shall be fixed by the joint committee on
government and finance, and shall be paid out of the regular
STATE COURT OF
CLAIMS LAW IX
appropriation for the court. The clerk shall have custody of all records and
proceedings of the court, shall attend meetings and hearings of the court,
shall administer oaths and affirmations, and shall issue all official
summonses, subpoenas, orders, statements and awards.
The joint committee on government and finance may employ other persons whose
services shall be necessary to the orderly transaction of the business of the
court, and fix their compensation.
?14-2-6.
Terms of court.
The court shall hold at least two regular
terms each year, on the second Monday in April and September. So far as
possible, the court shall not adjourn a regular term until all claims then upon
its docket and ready for hearing or other consideration have been disposed of.
Special terms or meetings may be called by the clerk at the request of the
court whenever the number of claims awaiting consideration, or any other
pressing matter of official business, make such a term advisable.
?i4-27. Meeting place of the court.
The regular meeting place of the court
shall be at the State capitol, and the joint committee on government and
finance shall provide adequate quarters therefor. When deemed adrisable, in
order to facilitate the full hearing of claims arising elsewhere in the State,
the court may convene at any county seat.
?142-S. Compensation of judges; expenses.
Each judge of the court shall receive one hundred dollars for each day actually
served, and actual expenses incurred in the performance of his duties. The
number of days served by each judge shall not exceed one hundred in any fiscal
year, except by authority of the joint committee on government and finance.
Requisitions for compensation and expenses shall be accompanied by sworn and
itemized statements, which shril be flied with the auditor and preserved as
public
X STATE COURT OF
CLAIMS LAW
records. For the purpose of this section, time served shall include time spent
in the hearing of claims, in the consideration of the record, in the
preparation of opinions, and in necessary travel.
?14-2-9. Oath of office.
Each judge shall before entering upon the duties of his office, take and
subscribe to the oath prescribed by section 5, article IV of the Constitution
of the State. The oath shall be filed with the clerk.
?14-2-10. Qualifications of judges.
Each judge appointed to the court of claims shall be an attorney at law,
licensed to practice in this State, and shall have been so licensed to practice
law for a period of not less than ten years prior to his appointment as judge.
A juc?ge shall not be an officer or an employee of any branch of State government,
except in his capacity as a member of the court and shall receive no other
compensation from the State or any of its political subdivisions. A judge shall
not hear or participate in the consideration of any claim in which he is
interested personally, either directly or indirectly.
?14-2-11. Attorney general to represent State.
The attorney general shall represent the interests of the State in all claims
coming before the court.
?14-2-12. General powers of the court.
The court shall, in accordance with this article, consider claims which, but
for the constitutional immunity of the State from suit, or for some statutory
restrictions, inhibitions or limitations, could be maintained in the regular
courts of the State. No liability shall be imposed upon the State or any State
agency by a determination of the court of claims approving a claim and
recommending an award, unless the claim is (1) made under an existing
appropriation, in accordance with section nineteen [l4-2-19] of this article,
or (2) a claim under a special appropriation, as provided in section twenty
[14-2-2O] of this article. The court shall consider claims in accordance with
the provisions of this article.
STATE COURT OF
CLAIMS LAW XI
Except as is otherwise provided in this article, a claim shall be instituted by
the filing of notice with the clerk. Each claim shall be considered by the
court and if, after consideration, the court finds that a claim is just and
proper, it shall so determine and shall file with the clerk a brief statement
of its reasons. A claim so filed shall be an approved claim. The court shall
also determine the amount that should be paid to the claimant, and shall
itemize this amount as an award, with the reasons therefor, in its statement
filed with the clerk. In determining the amount of a claim, interest shall not
be allowed unless the claim is based upon a contract which specifically
provides for the payment of interest.
?14-2-13. Jurisdiction of the court.
The jurisdiction of the court, except
for the claims excluded by section fourteen [14-2-l4], shall extend to the
following matters:
1. Claims and demands, liquidated and unliquidated, ex contractu and ex
delicto, against the State or any of its agencies, which the State as a
sovereign commonwealth should in equity and good conscience discharge and pay.
2. Claims and demands, liquidated and unliquidated, ex contractu and ex
delicto, which may be asserted in the nature of set-off or counterclaim on the
part of the State or any State agency.
3. The legal or equitable status, or both, of any claim referred to the court
by the head of a State agency for an advisory determination.
?14-2-14. Claims excluded.
The jurisdiction of the court shall
not extend to any claim:
1. For loss, damage, or destruction of property or for injury or death incurred
by a member of the militia or national guard when in the service of the State.
2. For a disability or death benefit under chapter twentythree [23-1-1 et seq.]
of this Code.
XII STATE COURT
OF CLAIMS LAW
3. For unemployment compensation under chapter twenty- one-A [21A-1-1 et seq.]
of this Code.
4. For relief or public assistance under chapter nine [94-1 et seq.] of this
Code.
5. With respect to which a proceeding may be maintained against the State, by
or on behalf of the claimant in the courts of the State.
?14-2-15. Rules of practice and
procedure.
The court shall adopt and may from
time to time amend rules of procedure, in accordance with the provisions of
this article, governing proceedings before the court. Rules shall be designed
to assure a simple, expeditious and inexpensive consideration of claims. Rules
shall permit a claimant to appear in his own behalf or be represented by
counsel.
Under its rules, the court shall not be bound by the usual common law or
statutory rules of evidence. The court may accept and weigh, in accordance with
its evidential value, any information, that will assist the court in
determining the factual basis of a claim.
?14-2-16. Regular procedure.
The regular procedure for the consideration
of claims shall be substantially as follows:
1. The claimant shall give notice to the clerk that he desires to maintain a
claim. Notice shall be in writing and shall be in sufficient detail to identify
the claimant, the circumstances giving rise to the claim, and the State agency
concerned, if any. The claimant shall not otherwise be held to any formal
requirement of notice.
2. The clerk shall transmit a copy of the notice to the State agency concerned.
The State agency may deny the claim, or may request a postponement of
proceedings to permit negotiations with the claimant. If the court finds that a
claim is prima facie within its jurisdiction, it shall order the claim to be
placed upon its regular docket for hearing.
STATE COURT OF
CLAIMS LAW XIII
3. During the period of negotiations and pending hearing, the State agency,
represented by the attorney general, shall, if possible, reach an agreement
with the claimant regarding the facts upon which the claim is based so as to
avoid the necessity for the introduction of evidence at the hearing. If the
parties are unable to agree upon the facts an attempt shall be made to
stipulate the questions of fact in issue.
4. The court shall so conduct the hearing as to disclose all material facts and
issues of liability and may examine or cross-examine witnesses. The. court may
call witnesses or require evidence not produced by the parties; may stipulate
the questions to be argued by the parties; and may continue the hearing until
some subsequent time to permit a more complete presentation of the claim.
5. After the close of the hearing the court shall consider the claim and shall
conclude its determination, if possible, within thirty days.
?14-2-17. Shortened procedure.
The shortened procedure authorized by
this section shall apply only to a claim possessing all of the following
characteristics:
1. The claim does not arise under an appropriation for the current fiscal year.
2. The State agency concerned concurs in the claim.
3. The amount claimed does not exceed one thousand dollars.
4. The claim has been approved by the attorney general as one that, in view of
the purposes of this article, should be paid.
The State agency concerned shall prepare the record of the claim consisting of
all papers, stipulations and evidential documents required by the rules of the
court and file the same with the clerk. The court shall consider the claim
informally upon the record submitted. If the court determines that the claim
should be entered as an approved claim and an award made, it shall so order and
shall file its statement
XIV STATE COURT
OF CLAIMS LAW
with the clerk. If the court finds that the record is inadequate, or that the
claim should not be paid, it shall reject the claim. The rejection of a claim
under this section shall not bar its resubmission under the regular procedure.
?14-2-18. Advisory determination procedure.
The governor or the head of a State agency may refer to the court
for an advisory determination the question of the legal or equitable status, or
both, of a claim against the State or a State agency. This procedure shall
apply only to such claims as are within the jurisdiction of the court. The
procedure shall be substantially as follows:
1. There shall be filed with the clerk, the record of the claim including a
full statement of the facts, the contentions of the claimant, and such other
materials as the rules of the court may require. The record shall submit
specific questions for the court?s consideration.
2. The clerk shall examine the record submitted and if he finds that it is
adequate under the rules, he shall place the claim on a special docket. If he
finds the record inadequate, he shall refer it back to the officer submitting
it with the request that the necessary additions or changes be made.
3. When a claim is reached on the special docket, the court shall prepare a
brief opinion for the information and guidance of the officer. The claim shall
be considered informally and without hearing. A claimant shall not be entitled
to appear in connection with the consideration of the claim.
4. The opinion shall be filed with the clerk. A copy shall be transmitted to
the officer who referred the claim.
An advisory determination shall not bar the subsequent consideration of the
same claim if properly submitted by, or on behalf of, the claimant. Such
subsequent consideration, if undertaken, shall be de novo.
?14-2-19. Claims under existing appropriations.
A claim arising under an appropriation made by the legislature during the
fiscal year to which the appropriation
STATE COURT OF
CLAIMS LAW XV
applies, and falling within the jurisdiction of the court, may be submitted by:
1. A claimant whose claim has been rejected by the State agency concerned or by
the State auditor.
2. The head of the State agency concerned in order to obtain a determination of
the matters in issue.
3. The State auditor in order to obtain a full hearing and consideration of the
merits.
The regular procedure, so far as applicable, shall govern the consideration of
the claim by the court. If the court finds that the claimant should be paid, it
shall certify the approved claim and award to the head of the appropriate State
agency, the State auditor, and to the governor. The governor may thereupon
instruct the auditor to issue his warrant in payment of the award and to charge
the amount thereof to the proper appropriation. The auditor shall forthwith
notify the State agency that the claim has been paid. Such an expenditure shall
not be subject to further review by the auditor upon any matter determined and
certified by the court.
?14-2-20. Claims under special appropriations.
Whenever the legislature makes an appropriation for the payment of claims
against the State, then accrued or arising during the ensuing fiscal year, the
determination of claims and the payment thereof may be made in accordance with
this section. However, this section shall apply only if the legislature in
making its appropriation specifically so provides.
The claim shall be considered and determined by the regular or shortened
procedure, as the case may be, and the amount of the award shall be fixed by
the court. The clerk shall certify each approved claim and award, and
requisition relating thereto, to the auditor. The auditor thereupon shall issue
his warrant to the treasurer in favor of the claimant. The auditor shall issue
his warrant without further examination or review of the claim except for the
question of a sufficient unexpended balance in the appropriation.
XVI STATE COURT
OF CLAIMS LAW
?14-2-21. Periods of limitation made
applicable.
The court shall not take jurisdiction
of any claim, whether accruing before or after the effective date of this
article (July one, one thousand nine hundred sixty-seven), unless notice of
such claim be filed with the clerk within such period of limitation as would be
applicable under the pertinent provisions of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, if the claim were against a
private person, firm or corporation and the constitutional immunity of the
state from suit were not involved and such period of limitation may not be
waived or extended. The foregoing provision shall not be held to limit or
restrict the right of any person, firm or corporation who or which had a claim
against the state or any state agency, pending before the attorney general on
the effective date of this article (July one, one thousand nine hundred
sixty-seven), from presenting such claim to the court of claims, nor shall it
limit or restrict the right to file such a claim which was, on the effective
date of this article (July one, one thousand nine hundred sixty-seven), pending
in any court of record as a legal claim and which, after such date was or may
be adjudicated in such court to be invalid as a claim against the state because
of the constitutional immunity of the state from suit.
?14-2-22. Compulsory process.
In all hearings and proceedings before
the court, the evidence and testimony of witnesses and the production of
documentary evidence may be required. Subpoenas may be issued by the court for
appearance at any designated place of hearing. In case of disobedience to a
subpoena or other process, the court may invoke the aid of any circuit court in
requiring the evidence and testimony of witnesses, and the production of books,
papers and documents. Upon proper showing, the circuit court shall issue an
order requiring witnesses to appear before the court of claims; produce books,
papers and other evidence; and give testimony touching the matter in question.
A person failing to obey the order may be punished by the circuit court as for
contempt.
STATE COURT OF
CLAIMS LAW XVII
?14-2-23. Inclusion of awards in
budget.
The clerk shall certify to the
department of finance and admthistration, on or before the twentieth day of
November of each year, a list of all awards recommended by the court to the
Legislature for appropriation. The clerk may certify supplementary lists to the
governor to include subsequent awards made by the court. The governor shall
include all awards so certified in his proposed budget bill transmitted to the
Legislature.
?14-2-24. Records to be preserved.
The record of each claim considered by
the court, including all documents, papers, briefs, transcripts of testimony
and other materials, shall be preserved by the clerk and shall be made
available to the legislature or any committee thereof for the reexamination of
the claim.
?14-2-25. Reports of the court.
The clerk shall be the official
reporter of the court. He shall collect and edit the approved claims, awards
and statements, shall prepare them for submission to the Legislature in the
form of an annual report and shall prepare them for publication.
Claims and awards shall be separately classified as follows:
1. Approved claims and awards not satisfied but referred to the Legislature for
final consideration and appropriation.
2. Approved claims and awards satisfied by payments out of regular
appropriations.
3. Approved claims and awards satisfied by payment out of a special
appropriation made by the Legislature to pay claims arising during the fiscal
year.
4. Claims rejected by the court with the reasons therefor.
5. Advisory determinations made at the request of the governor or the head of a
state agency.
The court may include any other information or recommendations pertaining to
the performance of its duties.
XVIII STATE
COURT OF CLAIMS LAW
The court shall transmit its annual report to the presiding officer of each
house of the Legislature, and a copy shall be made available to any member of
the Legislature upon request therefor. The reports of the court shall be
published biennially by the clerk as a public document. The biennial report
shall be filed with the clerk of each house of the Legislature, the governor
and the attorney general.
?14-2-26. Fraudulent claims.
A person who knowingly and wilfully presents or attempts to present a false
or fraudulent claim, or a State officer or employee who knowingly and wilfully
participates or assists in the preparation or presentation of a false or
fraudulent claim, shall be guilty of a misdemeanor. A person convicted, in a
court of competent jurisdiction, of violation of this section shall be fined
not more than one thousand dollars or imprisoned for not more than one year, or
both, in the discretion of such court. If the convicted person is a State
officer or employee, he shall, in addition, forfeit his office or position of
employment, as the case may be.
?14-2-27. Conclusiveness of determination.
Any final determination against the claimant on any claim presented as provided
in this article shall forever bar any further claim in the court arising out of
the rejected claim.
?14-2-28. Award as condition precedent to appropriation.
It is the policy of the legislature to make no appropriation to pay any
claims against the State, cognizable by the court, unless the claim has first
been passed upon by the court.
?14-2-29. Severability.
If any provision of this article or the application thereof to any person or
circumstance be held invalid, such invalidity shall not affect other provisions
or applications of the article which can be given effect without the invalid
provision or application, and to this end the provisions of this article are
declared to be severable.
RULES OF
PRACTICE AND PROCEDURE XIX
Rules
of Practice and
Procedu re
OF THE
STATE
COURT OF CLAIMS
(Adopted by the Court
September 11, 1967.
Amended February 18, 1970.)
XX RULES OF
PRACTICE AND PROCEDURE
TABLE
OF RULES
Rules of Practice and Procedure
RULE
1. Clerk, Custodian of Papers, etc.
2. Filing Papers.
3. Records.
4. Form of Claims.
5. Copy of Notice of Claims to Attorney General and State Agency.
6. Preparation of Hearing Docket.
7. Proof and Rules Governing Procedure.
8. Appearances.
9. Briefs.
10. Continuances: Dismissal For Failure To Prosecute.
11. Original Papers Not To Be Withdrawn: Exceptions.
12. Withdrawal of Claim.
13. Witnesses.
14. Depositions.
15. Re-Hearings.
16. Records of Shortened Procedure Claims Submitted by State Agencies.
17. Application of Rules of Civil Procedure.
RULES OF
PRACTICE AND PROCEDURE XXI
Rules of Practice and Procedure
OF THE
Court
of Claims
State of West Virginia
RULE 1. CLERK, CUSTODIAN OF
PAPERS, ETC.
The Clerk shall be responsible for
all papers and claims filed in his office; and will be required to properly
file, in an index for that purpose, any paper, pleading, document, or other
writing filed in connection with any claim. The Clerk shall also properly
endorse all such papers and claims, showing the title of the claim, the number
of the same, and such other data as may be necessary to properly connect and
identify the document, writing, or claim.
RULE 2. FILING PAPERS.
(a) Communications addressed to the Court or Clerk and all notices,
petitions, answers and other pleadings, all reports, 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.
(b) The Clerk, upon receipt of a notice of a claim, shall enter of record in
the docket book indexed and kept for that purpose, the name of the claimant,
whose name shall be used as the title of the case, and a case number shall be
assigned accordingly.
RULE 3. RECORDS.
The Clerk shall keep the following record books, suitably indexed in the
names of claimants and other subject matter:
(a) Order Book, in which shall be recorded at large, on the day of their
filing, all orders made by the Court in each case or proceeding.
(b) Docket Book, in which shall be entered each case or claim made and filed,
with a file or case number corresponding to the number of the case, together
with brief chronological notations of the proceedings had in each case.
XXII RULES OF
PRACTICE AND PROCEDU1E
(c) Financial Ledger, in which shall be entered chronologically, all
administrative expenditures of the Court under suitable classifications.
RULE 4. FORM OF CLAIMS.
Notice in writing of each claim must
be filed with the Clerk of the Court. The notice shall be in sufficient detail
to identify the claimant, the circumstances giving rise to the claim, and the
state agency concerned, if any. The Court reserves the right to require further
information before hearing, when, in its judgment, justice and equity may
require. It is recommended that notice of claims be furnished in triplicate. A
suggested form of notice of a claim may be obtained from the Clerk.
RULE 5. COPY OF NOTICE OF CLAIMS TO
ATTORNEY GENERAL AND STATE AGENCY.
Upon receipt of a notice of claim to
be considered by the Court, the Clerk shall forthwith transmit a copy of the
notice to the State Agency concerned, if any, and a copy thereof to the office
of the Attorney General of the State, and the Clerk shall make a note of the
time of such delivery.
RULE 6. PREPARATION OF HEARING DOCKET.
On and after the date of adoption of
these rules by the Court, the Clerk shall prepare fifteen days previous to the
regular terms of Court a docket listing all claims that are ready for hearings
by the Court, and showing the respective dates, as fixed by the Court for the
hearings thereof. The Court reserves the right to add to, rearrange or change
said docket when in its judgment such addition, rearrangement or change would
expedite the work of the term. Each claimant or his counsel of record and the
Attorney General shall be notified as to the date, time, and place of the
hearing.
RULE 7. PROOF AND
RULES GOVERNING PROCEDURE.
(a) Claims asserted against the State,
including all the allegations in a notice of claim, are treated as denied, and
must be established by the claimant with satisfactory proof,
RULES OF PRACTICE
AND PROCEDURE XXIII
or proper stipulation as hereinafter provided before an award can be made.
(b) The Court shall not be bound by the usual common law or statutory rules of
evidence. The Court may accept and weigh, in accordance with its evidential
value, any information that will assist the Court in determining the factual
basis of the claim.
(c) The Attorney General shall within twenty days after a copy of the notice
has been furnished his office file with the Clerk a 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, and furnish the claimant or his counsel of record a
copy thereof. Otherwise, after said twenty-day period, the Court may order the
claim placed upon its regular docket for hearing.
(d) It shall be the duty of the claimant or his counsel in claims under the
regular procedure to negotiate with the Office of the Attorney General so that
the claimant and the State Agency and the Attorney General may be ready at the
beginning of the hearing of a claim to read, if reduced to writing, or to
dictate orally, if not reduced to writing, into the record such stipulations,
if any, as the parties may have been able to agree upon.
(e) Where there is a controversy between a claimant and any State Agency, the
Court may require each party to reduce the facts, to writing, and if the
parties are not in agreement as to the facts, the Court may stipulate the
questions of fact in issue and require written answers to the said stipulated
questions.
RULE 8. APPEARANCES.
Any claimant may appear in his own
behalf or have his claim presented by counsel, duly admitted as such to
practice law in the State of West Virginia.
RULE 9. BRIEFS.
(a) Claimants or their counsel, and
the Attorney General, may file with the Court for its consideration a brief on
XXIV RULES OF
PRACTICE AND PROCEDURE
any question involved, provided a copy of said brief is also presented to and
furnished the opposing party or counsel. Reply briefs shall be filed within
fifteen days.
(b) All briefs filed with, and for the use of, the Court shall be in
quadruplicate?original and three copies. As soon as any brief is received by
the Clerk he shall file the original in the Court ifie and deliver the three
copies, one each, to the Judges of the Court.
RULE 10. CONTINUANCES: DISMISSAL FOR FAILURE TO PROSECUTE.
(a) After claims have been set for hearing, continuances are looked upon by
the Court with disfavor, but may be allowed when good cause is shown.
(b) A party desiring a continuance should file a motion showing good cause
therefor at the earliest possible date.
(c) Whenever any claim has been docketed for hearing for three regular terms of
Court at which the claim might have been prosecuted, and the State shall have
been ready to proceed with the trial thereof, the Court may, upon its own
motion or that of the State, dismiss the claim unless good cause appear or be
shown by the claimant why such claim has not been prosecuted.
(d) Whenever a claimant shall fail to appear and prosecute his claim on the day
set for hearing and shall not have communicated with the Clerk prior thereto,
advising of his inability to attend and the reason therefor, and if it further
appear that the claimant or his counsel had sufficient notice of the docketing
of the claim for hearing, the Court may, upon its own motion or that of the
State, dismiss the claim.
(e) Within the discretion of the Court, no order dismissing a claim under
either of the two preceding sections of this rule shall be vacated nor the
hearing of such claim be reopened except by a notice in writing filed not later
than the end of the next regular term of Court, supported by affidavits showing
sufficient reason why the order dismissing such claim should be vacated, the
claim reinstated and the trial thereof permitted.
RULES OF PRACTICE
AND PROCEDURE XXV
RULE 11. ORIGINAL PAPERS NOT TO BE
WITHDRAWN:
EXCEPTIONS.
No original paper in any case shall be
withdrawn from the Court files except upon special order of the Court or one of
the Judges thereof in vacation. 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.
RULE 12. WITHDRAWAL OF CLAIM.
(a) Any claimant may withdraw his
claim. Should the claimant later refile the claim, the Court shall consider its
former status, such as previous continuances and any other matter affecting its
standing, and may re-docket or refuse to re-docket the claim as in its
judgment, justice and equity may require under the circumstances.
(b) Any department or state agency, having filed a claim for the Court?s
consideration, under either the advisory determination procedure or the
shortened procedure provision of the Court Act, may withdraw the claim without
prejudice to the right of the claimant involved to file the claim under the
regular procedure.
RULE 13. WITNESSES.
(a) For the purpose of convenience and in order that proper records may be
preserved, claimants and State Departments desiring to have subpoenas for
witnesses shall file with the Clerk a memorandum in writing giving the style
and number of the claim and setting forth the names of such witnesses, and
thereupon such subpoenas shall be issued and delivered to the person calling
therefor or mailed to the person designated.
(b) Request for subpoenas for witnesses should be furnished to the Clerk well
in advance of the hearing date so that such subpoenas may be issued in ample
time before the hearing.
(c) The payment of witness fees, and mileage where transportation is not
furnished to any witness subpoenaed by or at the instance of either the
claimant or the respondent state
XXVI RULES OF
PRACTICE AND PROCEDURE
agency, shall be the responsibility of the party by whom or at whose instance
such witness is subpoenaed.
RULE 14. DEPOSITIONS.
(a) Depositions may be taken when a party desires the testimony of any
person, including a claimant. The deposition shall be upon oral examination or
upon written interrogatory. Depositions may be taken without leave of the
Court. The attendance of witnesses may be compelled by the use of subpoenas as
provided in Rule 13.
(b) To take the deposition of any designated witness, reasonable notice of time
and place shall be given the opposite party or counsel, and the party taking
such deposition shall pay the costs thereof and file an original and three
copies of such deposition with the Court. Extra copies of exhibits will not be
required; however, it is suggested that where exhibits are not too lengthy and
are of such a nature as to permit it, they should be read into the deposition.
(c) Depositions shall be taken in accordance with the provision of Rule 17 of
this Court.
RULE 15. RE-HEARINGS.
A re-hearing shall not be allowed except where good cause is shown. A
motion for re-hearing may be entertained and considered ex parte, unless the
Court otherwise directs, upon the petition and brief filed by the party seeking
the re-hearing. Such petition and brief shall be filed within thirty days after
notice of the Court?s determination of the claim unless good cause be shown why
the time should be extended.
RULE 16. RECORDS OF SHORTENED PROCEDURE CLAIMS SUBMITTED BY STATE AGENCIES.
When a claim is submitted under the provisions of Chapter 14, Article 2,
Paragraph 17 of the Code of West Virginia, concurred in by the head of the
department and approved for payment by the Attorney General, the record
thereof, in addition to copies of correspondence, bills, invoices, photographs,
sketches or other exhibits, should contain a full, clear
RULES OF PRACTICE
AND PROCEDURE XX VII
and accurate statement, in narrative form, of the facts upon which the claim is
based. The facts in such record among other things which may be peculiar to the
particular claim, should show as definitely as possible that:
(a) The claimant did not through neglect, default or lack of reasonable care,
cause the damage of which he complains. It should appear he was innocent and
without fault in the matter.
(b) The department, by or through neglect, default or the failure to use
reasonable care under the circumstances caused the damage to claimant, so that
the State in justice and equity should be held liable.
(c) The amount of the claim should be itemized and supported by a paid invoice,
or other report itemizing the damages, and vouched for by the head of the
department as to correctness and reasonableness.
RULE 17. APPLICATION OF RULES OF CIVIL
PROCEDURE.
The Rules of Civil Procedure will
apply in the Court of Claims unless the Rules of Practice and Procedure of the
Court of Claims are to the contrary.
Adopted by Order of the Court of Claims, September 11 1967. Amended February
18, 1970.
CHERYLE M. HALL,
Clerk.
REPORT OF THE COURT OF CLAIMS
For the Period
January 1, 1971, to June 30, 1971
(1) Approved claims and awards not
satisfied but to be referred to the Legislature, 1972, for final consideration
arid appropriation, for the period January 1, 1971, to June 30, 1971:
Amount Amount Date of
No. Name of Claimant Name of Respondent Claimed Awarded Determination
C)
Li
Cl)
C)
0
0
C)
Li
(12
Cl)
For the
Period May
1, 1969, to June 30, 1971
(2) Approved claims and awards
satisfied by payments out of appropriations made by the Legislature for the
period May 1, 1969, to June 30, 1971:
Amount Amount Date of
No. Name of Claimant Name of Respondent Claimed Awarded Determination
|
D-324 |
C & D Equipment Co. |
State Building Commission |
$ 48,340.36 |
$ 29,907.68 |
April |
5, |
1971 |
|
D-453 |
Gates, L. M., Estate of, by Florence C. Gates, Executrix |
Department of Highways |
89.25 |
89.25 |
June |
15, |
1971 |
|
D-330 |
Keeley Brothers, Inc. |
State Tax Department |
420.00 |
420.00 |
June |
15, |
1971 |
|
D-356 |
Retreading Research Asso- ciates, Inc. |
Department of Finance and Administration |
5,400.00 |
5,400.00 |
June |
15, |
1971 |
|
D-441 |
Saf?ico Insurance Co. |
Department of Highways |
166.86 |
166.86 |
June |
30, |
1971 |
|
D-440 |
Shanabarger, Andy and Lora |
Adjutant General |
193.50 |
89.00 |
June |
30, |
1971 |
|
D-414 |
State Farm Mutual Auto- mobile Insurance Co., as subrogee for Damaris 0. Wilson |
Board of Regents |
97.56 |
97.56 |
June |
15, |
1971 |
|
D-318 |
Whitehair, Frank and Arnold |
Department of Highways |
40.00 |
107.08 |
June |
30, |
1971 |
|
D-275 |
Allergy Rehabilitation Foundation, Inc. |
Dept. |
of M |
ental Health |
$ 1,703.87 |
$ 1,703.87 |
January |
14, |
1970 |
|
|
D-209 |
Allstate Plumbing |
Service |
State |
Road |
Commission |
1,236.00 |
1,200.00 |
January |
20, |
1970 |
|
D-101 |
Arbogast, 1-loward |
State |
Road |
Commission |
1,513.80 |
300.00 |
July 21, |
1969 |
||
No.
D-288
D-126
D-248
D-404
D-214
D-196
D-173
D-289
D-130
D-238
D-106
Name of
Claimant
Ayers, Joyce J. Droddy Bates &
Rogers Construction Company
Beranak, R. L.
Betsy Ross Bakeries, Inc.
Bice, Ray
Caldwell, J. N. and A. M. Caidwell, d/b/a Caldwell?s Hardware
Caidwell, Jerry K. and Anne 13.
Catsos, Michael and Evangeline Charleston Concrete Floor
Co., Inc.
Chesapeake & Ohio Railway City of Morgaritown
Connon, Warren N.
Davidson, S. P., H. H. Davidson and A. L. Davidson, d/b/a Davidson Brothers
Equitable Gas Company
Fedorka, Frank
Frederick Engineering Company
Grubbs, Carl W. and Ellen Hall, Harlan
Name of
Respondent
Department of Highways State Road
Commission
State Road Commission
Dept. of Mental Health
State Road Commission
State Road Commission
Department of Highways
State Road Commission Department of Highways
Department of Highways Board of Governors of
W. Va. University State Road Commission State Road Commission
Department of Highways
Department of Highways
State Road Commission
State Road Commission Department of Welfare
Date of
Determination
February 15, 1971 June 23, 1969
January 28, 1970
February 15, 1971
December 8, 1969
January 14, 1970
April 6, 1970
November 19, 1970
June 23, 1969
December 8, 1969 April 15. 1969
REPORT OF THE COURT OF CLAIMS (Continued)
(2) Apprbved claims and awards
satisfied by payments out of appropriations made by the period May 1, 1969, to
June 30, 1971:
Legislature for the
Amount Claimed
Amount Awarded
D-194
D-223
D-322
D-150
D-46
D-207 D-204
50,000.00
7,770.35
149.51
841.10
958.61
581.24
2,000.00
101.41
299.93
1,297.20
40,886.22
8.24
567.56
254.90
76.00
21,720.00
159.59
228.00
Ii
tI2
Ci)
0
0
0
I,j
0
Ci)
Ci)
10,000.00
2,500.00
149.51
841.10
760.29
581.24
1,497.00
101.41
299.93
1,297.20
40,886.22
8.24
567.88
254.90
76.00
21,720.00
159.59
226.00
December 29, 1970
January 14, 1970
February 15, 1971
September 15, 1970
October 23, 1969 January 14, 1970 January 20, 1970
REPORT OF THE COURT OF CLAIMS (Continued)
(2) Approved claims and awards satisfied by payments out of appropriations made by the Legislature for the period May 1, 1969, to June 30, 1971:
0
I-I
I-I
0
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of Determination |
|
D-175 |
Harmarville Rehabilitation Center |
Vocational Rehabilitation Division |
411.00 |
411.00 |
December 8, 1969 |
|
D-260 |
Heilman, Anderson and |
Vocational Rehabilitation |
116.50 |
116.50 |
January 14, 1970 |
|
D-l11 D-235 |
Abplanalp, Drs.
|
Division |
498.00 |
498.00 |
January 26, 1970 January 14, 1970 |
|
D-144 |
Hicks, M. C., Committee for |
Dept. of Mental Health |
203.00 |
201.00 |
January 14, 1970 |
|
D-351 |
Lucy K. Hicks |
Department of
Highways |
56.14 |
56.14 |
February 15,
1971 |
|
D-120 D-256 |
C. J. Langenfelder & Son, Inc. Lewis, Mr. & Mrs. H. B. |
Department of Highways Department of Highways |
528,729.69 |
191,701.42 |
June 3, 1970 April 6, 1970 |
|
D-353 |
McClintic, W.
M. |
Dept. of
Natural Resources |
46.77 |
46.77 |
February 15,
1971 |
D-28
B-382
ID- 180
D-290
D-255
D-243
D-92
D-151
D-237
D-187
D-188
D-189
D-191
D-190
D-102
D-254
D-301
Mountaineer
Highway Abrasives, Inc.
Ralph Myers Construction Corporation
S. J. Neathawk Lumber, Inc.
Olive, Dale B.
Pitney-Bowes, Inc.
Price, Harold E.
Price, Paul and R. C. Wetherall, Jr.
Randall, Mrs. Jessie P. Rolfe, John L., a subrogation assigned to Harleysville
Ins. Co.
Samples, Creed, Administrator of the Estate of Fonda Ann Samples, Deceased
Samples, Creed L.
Samples, Jo Anna
Samples, Leta, a minor who sues by Creed Samples, her father and next friend
Samples, Penny, a minor who sues by Creed Samples, her father and next friend
Shepherdstown Register, Inc.
Shinn, Lowell C.
Smith, Cecil, Jr.
State Road
Commission State Road Commission
State Road Commission
Department of Highways
Office of the Governor
Department of Highways
State Road Commission
Department of Highways Adjutant General
State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Road Commission
State Board of Education
Department of Highways
Dept. of Public Institutions
January 14, 1970
January 13, 1970
January 14, 1970
September 23, 1970
September 14, 1970
July 20, 1970
March 28, 1969
September 23, 1970
January 19, 1970
January 22, 1970
January 22, 1970
January 22, 1970
January 22, 1970
January 22, 1970
July 21, 1969
November 30, 1970
February 15, 1971
REPORT OF THE COURT OF CLAIMS (Continued)
(2) Approved claims and awards
satisfied by payments out of appropriations made by the Legislature for the
period May 1, 1969, to June 30, 1971:
16,976.28
113,840.28
315.94
1,071.27
90.05
81.24
20,847.75
139.88
275.67
11,065.49
10,000.00
20,000.00
2,500.00
10,000.00
922.50
409.87
10,500.00
16,976.28
33.979.32
315.94
1,071.27
90.05
81.24
20,847.75
139.88
275.67
11,065.49
699.84
3,861.43
1,250.00
5,434.00
922.50
409.87
3,000.00
C)
rJ)
I-?
C)
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
|
Amount |
Date of Determination |
(2) Approved claims and awards satisfied by payments out of appropriations made by the Legislature for the period May 1, 1969, to June 30, 1971:
REPORT OF THE COURT OF CLAIMS (Continued)
1-4
C)
C12
J2
C)
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of Determination |
|
D-125 |
Smith, Joe L., d/b/a Biggs- Johnston-Withrow |
State Board of Education |
727.30 |
727.30 |
July 21, 1969 |
|
D-218 |
Smith, Joe L., d/b/a Biggs- Johnston-Withrow |
Alcohol Beverage Control Commission |
4,907.70 |
4,907.70 |
January 28, 1970 |
|
D-148 |
Squire, Francke and Goodwin, Drs. |
Vocational Rehabilitation Division |
134.50 |
134.50 |
November 14, 1969 |
|
D-285 |
State Farm Mutual Automo- bile Ins. Co., assignee to Sarah G. Romans |
Department of Highways |
168.83 |
168.83 |
November 19, 1970 |
|
D-327 |
State Farm Mutual Automo- bile Insurance Co. |
Department of Highways |
105.46 |
105.46 |
February 15, 1971 |
|
D-303 |
Swiger, Gerald
S. |
Department of
Highways |
423.49 |
423.49 |
December 7,
1970 |
|
D-246 |
Twigger, William J., d/b/a |
Office of Federal-State |
1,128.89 |
1,128.89 |
January 23, 1970 |
|
D-185 |
R. L. Swearer
Company Varner, John C., Administrator |
Relations State Road Commission |
104,551.30 |
8,201.30 |
January 16, 1970 |
|
D-195 D-382 |
Warden, Lernuel L. and Estelle West Virginia Business Forms, Inc. |
Department of Highways Dept. of Motor Vehicles |
11,500.00 |
3,000.00 |
December 29,
1970 |
|
D-92 |
Wetherall, R. C., Jr. and Paul Price |
State Road Commission |
20,847.75 |
20,847.75 |
March 28, 1969 |
|
D-294 |
Wotkiewicz,
Helen I. |
Board of
Regents |
1,258.00 |
1,258.00 |
October 14,
1970 |
REPORT OF THE COURT OF CLAIMS (Continued)
D-221
D-321
D-297
D-296
D-108
D-170
D-166
D-40
D-137
D-308
D-129
D-320
C-32
D-329
D-310
D-298
D-224
D-152
D-197
D-169
D-140
D-186
D-154
D-123
Affolter, Herman
D.
Aguilar, E. Belden and Nationwide Insurance Company
Boothe, Carl P.
Bradley, John Stanford
Cassel, Peter P.
Christner, Alfred H.
Cooper, Velma
Creamer, John L., Adm. of the Estate of Muriel Creamer
Criss, Paul and Pearl
Dolin, Larry and Emma Lou
Dubisse, Herbert J.
Ellison, Douglas T.
Elswick, Dorothy
Esposito, James A.
Evans, Charles E. and Lillie F.
Freeman, Edward C.
William Garlick & Sons, Inc.
Gilliam, H. L.
Green, Archie and Fosie
Hall, Layman M.
Halstead, Luther
Hanson, Earl T.
Highway Engineers, Inc.
C. J. Hughes Construction Company
Department of
Highways Department of Highways
Department of Highways
Department of Highways
Department of Highways
Department of Mines
Department of Highways
Dept. of Mental Health
Department of Highways
Department of Highways
Dept. of Natural Resources
Department of Highways
State Road Commission
Board of Regents
Department of Highways
Dept. of Natural Resources
State Auditor
Department of Highways
Dept. of Public Institutions
Department of Mines
State Road Commission
State Road Commission
State Road Commission
State Tax Commission
$ 103.02
1,360.66
400.00
350.00
500,000.00
99.00
494.77
111,500.00
150,000.00
10,000.00
9,000.00
100,000.00
50,000.00
1,950.00
1,201.54
500.00
1,690.00
144.66
60,000.00
134.17
472.46
363.38
11,774.81
8,688.80
(3) Approved
claims and awards satisfied by payment out of a special appropriation made by
the Legislature to pay claims arising during the fiscal year: (None.)
(4) Claims rejected by the Court with reasons therefor:
Disallowed September 23,1970 Disallowed June 30, 1971
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
12 (62
November 16, 1970
November 16, 1970
June 15, 1971
December 8, 1969
December 7, 1970
June 23, 1969
December 1, 1970
June 15, 1971
June 23, 1969
June 30, 1971
March 29, 1971
March 29, 1971
March 29, 1971
November 16, 1970
July 20, 1970
February 10, 1970
February 9, 1970
December 8, 1969
June 23, 1969
February 9, 1970
January 14, 1970
September 8, 1969
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of Determination |
0-159
0-181
0-198
C-19
0-281
0-142
D-274
0-149
D-225
0-168
0-107
0-112
0-226
C-6
0-202
0-300
0-206
0-165
0-251
D-354B
0-164
0-274
Huntington Steel
and Supply Company
Johnson Welders Supply, Inc.
Jones Esso Service Station
Lowe, Harold D. and Daisy
McCoy, Rhea Rae
Massey, Florence, Widow of William Clifton Massey
Matz Department Store, Inc. Miller, Sylvia, Adm. of the Estate of Helen Louise
Miller
Monongahela Power Company
Mullenax, Hershel H.
Mullins, Richard, d/b!a Morgantown Ambulance Services
Parsons, Etta A.
Peters Fuel Corporation
Pettinger, Nancy Ann
Securro, Joseph P.
Smith, Cecil, Jr.
Southern Hardware Company
Spencer, Kenneth
State Farm Mutual Automobile Insurance Company
Stonewall Casualty Company
Thomas, Dan, Sr.
Travelers Insurance Company
State Tax
Commissioner
Dept. of Mental Health
Department of Highways
Department of Highways
Dept. of Public Institutions
Department of Welfare
Department of Highways Dept. of Public Institutions
Adjutant General Department of Mines Board of Governors,
W. Va. University
State Road Commission
State Tax Commissioner
Board of Education
Department of Mines
Dept. of Mental Health
Department of Highways
Adjutant General
Department of Highways and Howard R. White
Department of Highways
Department of Mines
State Road Commission
195.70 Disallowed
April 6, 1970
110,000.00 Disallowed January 15, 1970
C)
12
I2
C)
1-4
0
z
0
C)
1-4
V2
REPORT OF THE COURT OF CLAIMS (Continued)
(4) Claims rejected by the Court with
reasons therefor:
12,215.65 Disallowed March 16, 1970
157.39
370.35
10,000.00
165.00
695.71
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
February 4, 1970
February 10, 1970
February 15, 1971
February 15, 1971
January 14, 1970
89.87
120.20
399.13
5,000.00
8,297.52
500,000.00
108.00
10,500.00
1,500.00
592.79
840.00
1,909.00
119.22
195.70
Disallowed
Disallowed
Disallowed
Dismissed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
Disallowed
November 14, 1969
December 8, 1969
September 8, 1969
September 8, 1969
November 16, 1970
April 24, 1970
February 9, 1970
February 15, 1971
November 30, 1970
January 14, 1970
September 23, 1970
June 15, 1971
December 8, 1969
November 19, 1970
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of Determination |
REPORT OF THE COURT OF CLAIMS (Continued)
(4) Claims rejected by the Court with reasons therefor:
(5) Advisory
determinations made at the request of the Governor or the head of a state
agency: (None.)
(6) Claims rejected by the Court but payments made by special appropriation by
the Legislature in the 1971 legislative session:
(12
(12
0
*The Opinion
issued in the claim of Airkem Sales and Service, et al vs. the Department of
Mental Health was
applied through per curiae to all of the claims listed in Section (6).
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of Determination |
|
D-354A |
Vandergrift,
Roy |
Department of
Highways |
4,178.45 |
Disallowed |
June 15,
1971 |
|
D-177 |
Whiting, Clay |
Board of
Education |
Disallowed |
November 14,
1969 |
|
|
No. |
Name of Claimant Name of Respondent |
Amount |
Amount |
Date of Determination |
||
|
D-397 |
A. B. Dick Products Co. |
Dept. |
of Mental Health |
$ 332.15 |
$ 332.15 |
January 19, 1971 |
|
D-406 |
A. B. Dick Products Co. |
Dept. |
of Mental Health |
211.60 |
211.60 |
January 29, 1971 |
|
D-367j |
Acct. Supplies & Systems, Inc. |
Dept. |
of Mental Health of Mental Health of Mental Health of Mental Health |
25.95 |
25.95 |
January 19,
1971 |
|
D-369 D-367c |
Appalachian Power Company Appalantic Corporation |
Board |
of Regents of Mental Health |
34,979.13 |
34,979.13
January 19, 1971 |
|
|
D-379 |
Armour and Company |
Dept. |
of Mental Health |
865.54 |
865.54 January 19, 1971 |
|
|
D-367k D-415 |
Bell Lines,
Inc. |
Dept. |
of Mental Health of Mental Health |
64.75 |
64.75 January
19, 1971 |
|
REPORT OF THE COURT OF CLAIMS (Continued)
(6) Claims rejected by the Court but payments made by special appropriation by the Legislature in the 1971 legislative session:
Li
1-4
1-4
C)
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of Determination |
|
D-341 |
Copco Papers, Inc. |
Dept. of Mental
Health |
299.52 |
299.52 |
January 19,
1971 |
|
D-422 |
Company |
Dept. of Mental
Health |
33.80 |
33.80 |
January 28,
1971 |
|
D-359 |
West Virginia |
Dept. of Mental
Health |
269.04 |
269.04 |
January 19,
1971 |
|
D-367b |
Industrious
Blind Enterprise |
Dept. of Mental
Health |
269.40 |
269.40 |
January 19,
1971 |
REPORT OF THE COURT OF CLAIMS (Continued)
(6) Claims rejected by the Court but payments made by special appropriation by the Legislature in the 1971 legislative session:
C)
:rJ
1-4
IrJ
4-4
C)
I-I
0
z
0
0
z
4-I
4-4
|
No. |
Name of Claimant |
Name of Respondent |
Amount - Claimed |
Amount |
Date of Determination |
|
D-337 |
Laird Office Equipment Company |
Dept. of Mental Health |
98.83 |
98.83 |
January 19, 1971 |
|
D-419 |
Lance, Granville H. Lederle Laboratories McCormick Office Supplies, Inc. |
Dept. of Mental
Health |
500.00 |
500.00 |
January 28,
1971 |
|
D-358 |
McCormick Office Supplies, Inc. |
Dept. of Mental Health |
183.52 |
183.52 |
January 19, 1971 |
|
D-449 |
McGlothlin
Printing Company |
Dept. of Mental
Health |
546.76 |
546.76 |
February 26,
1971 |
|
D-367n |
Merck Sharp
& Dohme |
Dept. of Mental
Health |
26.46 |
26.46 |
January 19,
1971 |
|
D-367d |
Ohio Valley
Office Equipment |
Dept. of Mental
Health |
500.55 |
500.55 |
January 19,
1971 |
REPORT OF THE COURT OF CLAIMS (Continued)
(6) Claims rejected by the Court but
payments made by special appropriation by the Legislature in the 1971
legislative session:
I-?
0
?-4
?-4
0
?-4
0
0
0
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of Determination |
||
|
D-367i |
Raybestos-Manhattan, Inc.- Revolite Div. |
Dept. |
of Mental Health |
390.00 |
390.00 |
January 19, |
1971 |
|
D-430 |
Red Head Oil
Company, The |
Dept. |
of Mental Health of Mental Health of Mental Health of Mental Health of Mental Health of Mental Health |
52.75 |
52.75 |
January 28, |
1971 |
|
D-374 |
Scientific Products |
Dept. |
of Mental Health |
345.89 |
345.89 |
January 19, |
1971 |
|
D-4l8 |
Selby, Charles V., Jr. |
Dept. |
of Mental Health |
200.00 |
200.00 |
January 28, |
1971 |
|
D-367o D-394 |
Shouldis
Department Store Smith, Kline & French |
Dept. |
of Mental
Health of Mental Health |
472.86 |
472.86 |
January 19, |
1971 |
|
D-423 D-424 |
St. Joseph?s Hospital St. Joseph?s Hospital |
Dept. |
of Mental Health of Mental Health |
13.50 |
13.50 |
January 28, |
1971 |
|
D-425 |
St. Joseph?s
Hospital |
Dept. |
of Mental Health of Mental Health of Mental Health of Mental Health of Mental Health of Mental Health |
527.64 |
527.64 |
January 28, |
1971 |
|
D-383 |
Company |
Dept. |
of Mental Health of Mental Health of Mental Health |
70.20 |
70.20 |
January 19, |
1971 |
REPORT OF THE COURT OF CLAIMS (Continued)
(6) Claims rejected by the Court but
payments made by special appropriation by the Legislature in the 1971
legislative session:
Li
i2
ITJ
|
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of Determination |
|
D-340 |
Tn-State Drug Company |
Dept. of Mental Health |
166.36 |
166.36 |
January 19, 1971 |
|
D-345 |
Union 76-Pure Oil Division |
Dept. of Mental Health |
824.94 |
824.94 |
January 19, 1971 |
|
D-391c |
Union Oil Company of California |
Dept. of Mental Health |
302.24 |
302.24 |
January 29, 1971 |
|
D-447 |
Universal
Supply |
Dept. of Mental
Health |
172.14 |
172.14 |
February 25,
1971 |
|
D-347 |
S. B. Wallace and Company |
Dept. of Mental Health |
120.00 |
120.00 |
January 19, 1971 |
OPINIONS
TABLE OF CASES
REPORTED XLIII
TABLE
OF CASES REPORTED
Affolter, Herman D. v. Department of
Highways ?_
? 150
Aguilar, E. Belden and Nationwide Insurance Company v. Depart men of Highways
264
Airkem Sales and Service, et al v. Department of Mental Health 180
Allergy Rehabilitation Foundation, Inc. v. Department of Mental
Health 87
Allstate Plumbing Service v. State Road Commission ? 78
Arbogast, Howard v. State Road Commission 28
Ayers, Joyce J. Droddy v. Department of Highways 217
Bates & Rogers Construction Company v. State Road Commission 17
Beranak, R. L. v. State Road Commission 108
Betsy Ross Bakeries, Inc. v. Department of Mental Health 260
Bice, Ray v. State Road Commission 51
Boothe, Carl P. v. Department of Highways 163
Bradley, John Stanford v. Department of Highways_ 163
C & D Equipment Company v. State Building Commission 237
Caldwell, J. N. and A. M. Caidwell, d/b/a Caldwell?s Hardware
v. State Road Commission 90
Caidwell, Jerry K. and Anne B. v. Department of Highways 216
Cassel, Peter P. v. State Road Commission ? ? 254
Catsos, Michael and Evangeline v. State Road Commission 107
Charleston Concrete Floor Company, Inc. v. Department of
Highways 221
Chesapeake & Ohio Railway v. Department of Highways 140
Christner, Alfred H. v. Department of Mines ? 54
City of Morgantown v. Board of Governors of West Virginia
University 41
Connon, Warren N. v. State Road Commission 105
Cooper, Velma v. Department of Highways ? 178
Creamer, John L., Administrator of the Estate of Muriel Creamer
v. Department of Mental Health ? 13
Criss, Paul and Pearl v. Department of Highways 175
Davidson, S. P., H. H. Davidson and A. L. Davidson d/b/a Davidson
Brothers v. State Road Commission ? ? 76
Dolin, Larry and Emma Lou v. Department of Highways - 252
Dubisse, Herbert J. v. Department of Natural Resources 21
XLIV TABLE OF
CASES REPORTED
Ellison, Douglas T. v. Department of Highways 264
Elswick, Dorothy v. State Road Commission 229
Equitable Gas Company v. Department of Highways 131
Esposito, James A. v. Board of Regents 223
Evans, Charles E. and Lillie F. v. Department of Highways 227
Fedorka, Frank v. Department of Highways 171
Frederick Engineering Company v. State Road Commission 26
Freeman, Edward C. v. Department of Natural Resources 165
William Garlick & Sons, Inc. v. State Auditor 137
Gates, L. M., Estate of, by Florence C. Gates, Executrix v. Depart men of
Highways 243
Gilliam, H. L. v. Department of Highways 115
Green, Archie and Fosie v. Department of Public Institutions 101
Grubbs, Carl W. and Ellen v. State Road Commission 50
Hall, Harlan v. Department of Welfare 10
Hall, Layman M. v. Department of Mines 54
Halstead, Luther v. State Road Commission 24
Hanson, Earl T. v. State Road Commission 100
Harmarville Rehabilitation Center v.
Vocational Rehabilitation
Division 53
Heilman, Anderson and Abplanalp, Drs. v. Vocational Rehabili tatio Division 88
Hendricks, Fred and Ruth v. State Road Commission 85
Hibbard, O?Connor & Weeks, Inc. v. Board of Education 109
Hicks, M. C., Committee for Lucy K. Hicks v. Department of
Mental Health ?
98
Highway Engineers, Inc. v. State Road Commission 68
Holley, Robert Lee v. Department of Highways 242
C. J. Hughes Construction Company v. State Tax Commission 38
Huntington Steel and Supply Company v. State Tax Commissioner 123
Humphrey, Olaf v. Department of Highways 142
Interstate Lumber Company v. Adjutant General 12
Johnson Welders Supply, Inc. v. Department of Mental Health
(D-181) 95
Johnson Welders Supply, Inc. v. State Road Commission (D-182)_ 96
Jones Esso Service Station v. Department of Highways 117
TABLE OF CASES
REPORTED XLV
Keeley Brothers, Inc. v. State Tax Department 250
King?s Jewelry v. State Road Commission ? 92
Kroger Company, The v. State Road Commission 94
C. J. Langenfelder & Son, Inc. v. Department of Highways 193
Lewis, Mr. and Mrs. H. B. v. Department of Highways 132
Lowe, Harold D. and Daisy v. Department of Highways 210
McClintic, W. M. v. Department of Natural Resources 218
McCoy, Rhea Rae v. Department of Public Institutions 209
M & M Construction Company v. Department of Highways 145
Massey, Florence, Widow of William Clifton Massey v. Depart men of Welfare ? 59
Mathison, Raymond v. Department of Mental Health 9
Matz Department Store, Inc. v. Department of Highways 129
Melvin, Sam v. Department of Highways 133
Miller, Everett and Betty v. Department of Highways 191
Miller, Sylvia, Adm. of the Estate of Helen Louise Miller, De cease v.
Department of Public Institutions 62
Monk, Gene R. v. State Road Commission 32
Monongahela Power Company v. Adjutant General (D-225) 49
Monongahela Power Company v. Department of Highways
(D-252) ?
143
Mountain State Construction Company v. State Road Commission 89
Mountaineer Highway Abrasives, Inc. v. State Road Commission 91
Mullenax, Hershel H. v. Department of Mines ? 54
Mullins, Richard, d/b/a Morgantown Ambulance Services v.
Board of Governors, West Virginia University ? 33
Ralph Myers Construction Corporation v. State Road Connriission 56
S. J. Neathawk Lumber, Inc. v. State Road Commission 99
Olive, Dale E. v. Department of Highways ? 148
Parsons, Etta A. v. State Road Commission ? 35
Peters Fuel Corporation v. State Tax Commissioner 158
Pettinger, Nancy Ann v. Board of Education _ 134
Pitney-Bowes, Inc. v. Office of the Governor_ 144
Price, Harold E. v. Department of Highways_ ? ? 139
Price, Paul and R. C. Wetherall, Jr. v. State Road Commission 1
XLVI TABLE OF
CASES REPORTED
Randall, Mrs. Jessie P. v. Department of Highways 147
Retreading Research Associates, Inc. v. Department of Finance
and Administration 245
Rolfe, John L., a subrogation assigned to Harleysville Insurance
Company v. Adjutant General 75
Safeco Insurance Company v. Department of Highways ? 262 Samples, Creed, Administrator of the Estate of
Fonda Ann
Samples, Deceased v. State Road Commission 80
Samples, Creed L. v. State Road Commission 80
Samples, Jo Anna v. State Road Commission 80
Samples, Leta, a minor who sues by Creed Samples, her father
and next friend v. State Road Commission 80
Samples, Penny, a minor who sues by Creed Samples, her father
and next friend v. State Road Commission 80
Securro, Joseph P. v. Department of Mines 103
Shanabarger, Andy and Lora v. Adjutant General 261
Shepherdstown Register, Inc. v. State Board of Education_ 30
Shinn, Lowell C. v. Department of Highways 174
Smith, Cecil, Jr. v. Department of Mental Health (D-300) 202
Smith, Cecil, Jr. v. Department of Public Institutions (D-30l)_ 202
Smith, Joe L., d/b/a Biggs-Johnston-Withrow v. State Board of
Education (D-125) ?
31
Smith, Joe L., d/b/a Biggs-Johnston-Withrow v. Alcohol Beverage
Control Commission (D-218) 127
Southern Hardware Company v. Department of Highways 172
Spencer, Kenneth v. Adjutant General 74
Squire, Francke and Goodwin, Drs. v. Vocational Rehabilitation
Division 44
State Farm Mutual Automobile Insurance Company v. Department
of Highways and Howard R. White (D-251) 151
State Farm Mutual Automobile Insurance Company, assignee to
Sarah G. Romans v. Department of Highways (D-285) 169
State Farm Mutual Automobile Insurance Company v. Depart men of Highways
(D-327) 219
State Farm Mutual Automobile Insurance Company, as subrogee
for Damaris 0. Wilson v. Board of Regents (D-414) 244
Stonewall Casualty Company v. Department of Highways ?- 248
Swiger, Gerald S. v. Department of Highways 192
Talbert, Charles E. v. Department of Highways 241
Thomas Company v. State Road Commission 112
Thomas, Dan, Sr. v. Department of Mines 54
TABLE OF CASES
REPORTED XL VII
Travelers Insurance Company v. State Road Commission 168
Twigger, William J., d/b/a R. L. Swearer Company v. Office of
Federal-State Relations 84
Vandergrift, Roy v. Department of Highways 248
Varner, John C., Administrator of the Estate of Julia M. Varner,
Deceased v. State Road Commission ? 119
Vogt-Ivers & Associates v. Department of Natural Resources
(D-192) 214
Vogt-Ivers & Associates v. State Tax Commissioner (D-193) 233
Warden, Lemuel L. and Estelle v.
Department of Highways 190
West Virginia Business Forms, Inc. v. Department of Motor
Vehicles 208
Wetherall, R. C., Jr. and Paul Price v. State Road Commission 1
Whitehair, Frank and Arnold v. Department of Highways 263
Whiting, Clay v. Board of Education 45
Whittington, Martha V. v. Department of Highways (D-311) 231
Whittington, Charles G. v. Department of Highways (D-312) 231
Wotkiewicz, Helen I. v. Board of Regents 155
Yost, Esdel B. and Sylvia J. v. Department of Highways 220
Young, Lawrence H., Jr. v. State Road Commission 106
Cases
Submitted and Determined
in the Court of Claims in the
State of West Virginia
Opinion issued March 28, 1969
R. C. WETHERALL, JR. and PAUL PRICE,
Claimants,
vs.
THE STATE ROAD COMMISSION OF WEST VIRGINIA,
and the STATE OF WEST VIRGINIA, Respondents.
(No. D-92)
Carney M. Layne, Esq., and Charles W. Yea ger, for the
Claimant, R. C. Wetherall, Jr.
James W. St. Clair, Esq., for the Claimant, Paul Price.
Thomas P. O?Brien, Jr., Assistant Attorney General and Theodore L.
Shreve, Esq., for the Respondents.
PETROPLUS, JUDGE:
Claimants, R. C. Wetherall, Jr., and Paul Price, of Huntington, West Virginia,
filed a claim in the amount of $20,847.75 on July 16, 1968, representing a
balance alleged to be due on a dam and highway construction contract with The
State Road Commission of West Virginia dated October 28, 1960, covering a project
designated as Castleman Run Road in the Counties of Brooke and Ohio, being
Project No. 5824 and 7645. The contract was awarded to Paul Price on the basis
of unit bid prices for quantities estimated by The State Road Commission and
the Conservation Commission of West Virginia, respectively, for each phase of
the project (1) highway construction and (2) dam construction, which quantities
are subject to be increased or decreased according to the requirements of the
Project. Earth material for the dam was to come from suitable material
excavated from the roadway on the Road Commis
2 REPORTS
STATE COURT OF CLAIMS [W. VA.
sion?s right-of-way and was to be hauled to the dam site on a recreational area
furnished by the Conservation Commission. The work in controversy is listed on
the Bid Proposal under the title ?DAM AND CAUSEWAY? as Item 3, Borrow Pit
Excavation, for an estimated quantity of 42,700 cubic yards at a unit bid price
of 5O? per CY. The estimate for this item was made by the Conservation Commission,
which by agreement with State Road Commission undertook the work through the
facilities of the Road Commission, as provided by Chapter 20, Article 5, Part
II, of the West Virginia Code, relating to the construction of slack-water dams
in connection with the construction of public highways so as to create
reservoirs, ponds, lakes or other incidental works to conserve the water supply
of the State. The Director of the Conservation Commission, in cooperation with
the State Road Commissioner, was charged by Statute with the preparation of
plans, specifications and estimates for the construction of such dams. Although
the State Road Commissioner was to award the contract for the combined project,
the Statute contemplated that the cost of the dam would be apportioned and paid
from available funds of the Conservation Commission. It is undisputed that the
Conservation Commission, now the Department of Natural Resources, paid an
?allocated share for the dam project to the State Road Commission in the amount
of $52,200.00. The Court considers this quite significant in deciding the
controversy giving rise to this claim.
The contract between the contractor, Paul Price, and the State Road Commission
consisted of the proposal upon the Commission?s form, the contract instrumen?t,
the Special Provisions to said contract designated as ?Technical
Specifications?, the plans and drawings, consisting of two separate sets
prepared by th?e Engineers of the respective Departments, and the ?Standard
Specifications, Roads and Bridges, of the State Road Commission of West
Virginia, Adopted 1952?. The latter is a bound volume which has no
specifications for the construction of dams. The two projects, although
combined in one contract awarded by competitive bid, are designated separately
in the contract and the estimated quantities of work, services, labor and
material at agreed unit prices appear in separate classifications for each
project. The total esti
W. VA.]
REPORTS STATE COURT OF CLAIMS 3
mated contract price was in the amount of $134,895.50, and Item 3, Borrow Pit
Excavation, under the Dam and Causeway title was $21,350.00 for an estimated
quantity of 42,700 cubic yards at the unit bid price of 50 per cubic yard.
Contractor Price on November 29, 1960, entered into a written Agreement with R.
C. Wetherall, Jr., employing the latter to supervise, direct and oversee the
performance of the requirements of the principal contract, for a formalized
compensation for each of them after payment for labor, material, equipment and
other expenses.
A note appears in the Contractor?s Proposal under the dam project stating that
the dam and causeway are to be constructed of selected borrow material obtained
from the roadway excavation, core trench excavation, and spiliway
excavation (emphasis supplied). The material, according to this note, was to
meet the specifications of the Conservation Commission of West Virginia, Item 3
(designated Borrow Pit Excavation in the Technical Specifications of the
Conservation Commission), and the cost of selecting and segregating the
material, hauling, placing, compacting, and all work necessary in completing
the dam and causeway fill was to be included in the unit cost bid for Item 3
(Borrow Pit Excavation) and Item 6 (Causeway Embankment Fill).
The item of ?Unclassified Excavation? appears only under the roadway portion of
the proposal and is estimated at 56,600 cubic yards at a bid price of 60 per
cubic yard.
The contract covered (1) highway construction for the Road Commission on its
right-of-way, and (2) the slack-water dam and causeway on the recreational area
property of the Conservation Commission adjoining the Road Commission?s
right-of-way.
During the progress of the construction work, monthly estimates were prepared
and furnished by the Respondent, and payment was made progressively for the dam
embankment work under the item designated ?Borrow Pit Excavation? and for the
highway construction under the item designated ?Unclassified Excavation?. In
the Sixteenth and Final Estimate (revised) 41,695.50 cubic yards carried to dam
construction at 50 per cubic yard was deleted and added to ?Unclassified
4 REPORTS
STATE COURT OF CLAIMS [W. VA.
Excavation?, Item 2 of the Road project, increasing that item from a planned
quantity of 56,600 cubic yards to 115,373.2 cubic yards or an overrun of
58,773.2 cubic yards, at 60 per cubic yard. This back-charge of amounts
previously paid on monthly estimates for the construction of the dam embankment
to amounts acknowledgedly due on highway construction gives rise to this claim,
it being contended that by deleting the item of Borrow Pit Excavation the Road
Commission abolished the contractor?s payment for all his work in building the
dam, and paid for yardage under Unclassified Excavation which the Contractor
was entitled to receive under that item even though no dam had been built. It
is the contention of the claimants that if they are to be paid for the building
of the dam they must be paid under some item other than Unclassified
Excavation, and that item is Borrow Pit Excavation.
The Respondent Road Commission answers: First: Claimant Wetherall has no
contract with the Road Commission, and admittedly was an employee of Claimant
Price by virtue of a private agreement between them, and therefore is not a
proper party to this proceeding. Second: The Claimant Contractor has been paid
for the 41,695.5 cubic yards of borrow pit excavation under the bid item of
Unclassified Excavation at 6O? per cubic yard, rather than SO? per cubic yard
under the item of Borrow Pit Excavation. Further that at the time the contract
was awarded, it was indicated that the Contractor would take his borrow
excavation from a borrow pit area above the anticipated dam, but instead
secured all of his material which he placed on the dam embankment from the
roadway excavation and from a slide which had occurred on the highway
right-of-way. A letter of Claimant Price to the Road Commission (Respondent?s
Exhibit 2) dated July 5, 1961, is assigned as the reason for revising the
Sixteenth and Final Estimate in August, 1963, deleting the item of Borrow Pit
Excavation. The letter stated:
?I feel that the dirt that is taken out of the roadway slide should be paid for
by unclassified excavation at .60 per C.Y. instead of Borrow Pit Excavation at
.50 per C.Y. It was my understanding that anything that was taken
out of the slide on the roadway was to be paid for by unclassified excavation
at .60 per C.Y.?
W.VA.] REPORTS
STATE COURT OF CLAIMS 5
This Court was created by the Legislature to consider claims which, but for the
constitutional immunity of the State from suit, could be maintained in the
regular Courts of the State. Jurisdiction is extended to claims which the State
as a soverign commonwealth should in equity and good conscience discharge and
pay. The Court is not bound by the usual common law or statutory rules of
evidence. Inasmuch as the contractor Price is a proper party claimant, it is
difficult for us to see how the Respondent may be prejudiced by permitting the
Claimant Wetherall to be joined as a party in the Notice of Claim filed herein,
even though he is not a recognized subcontractor by the State Road
Commissioner. He has a substantial beneficial interest in this claim by virtue
of his contract of employment with Price, and justice would not be accomplished
by dismissing him on technical grounds. He is the person who performed the work
that benefitted the State, and to whom the State is ?morally? obligated. All of
the work covered by the contract has been accepted and approved by the Road
Commission, and the dam has been accepted and approved by the Conservation
Commission.
After a careful consideration of the contract documents, the pleadings,
exhibits and evidence adduced, we are of the opinion to award the Claimants the
sum of $20,847.75 for the measured quantity of 41,695.5 cubic yards of Borrow
Pit Excavation at 50? per cubic yard for the construction of the dam embankment
and the services, operations and work involved in selecting, segregating,
hauling, placing and compacting the material which went into the building of
the dam in accordance with the technical specifications of the Conservation
Commission. In our opinion, the excavation of material from the highway
construction is an additional pay item under the item of Unclassified Excavation,
and would have been a compensable item even though no dam had been built as a
part of the project. The Road Commission?s own witness, John W. Chamberlain,
Supervisor of the Project, testified that the Contractor would have been paid
for the same amount of Unclassified Excavation (115, 373.2 CY at the bid price
of 60 per cubic yard) if the project had been limited to the roadway
construction.
6 REPORTS
STATE COURT OF CLAIMS [W. VA.
It persuasively appears from the evidence and the technical specifications, as
well as the Bid Proposal, that it was contemplated by the parties that the
material from the roadway excavation would be available and used for the dam
construction. Insofar as the specifications and plans of the Conservation
Commission were concerned, borrow pit excavation was all material borrowed from
the site of the road project or from borrow pits in adjacent areas. The Plans
of the Conservation Commission (Claimants? Exhibit No. 6) clearly set forth by
note:
?Dam and causeway are to be constructed of selected borrow material from the
roadway excavation, core trench excavation, and spiliway excavation. This
material shall meet the specifications of the Conservation Commission of West
Virginia Item 3 and shall be placed in accordance to their specifications. The
cost of selecting, and segregating the material, hauling, placing, compacting,
and all work necessary in completing the dam and causeway fill shall be
included in the unit cost bid for Item 3 and Item 6.?
The same language appears in the Bid Proposal of the Contractor. Plans govern
over specifications where there may be discrepancies, and special provisions
have precedence over both plans and specifications.
We construe the contract to cover separate projects combined in one contract by
virtue of the statutory law of the State (Chapter 20, Article 5, Part II,
Official Code of West Virginia) relating to the construction of slack-water
dams together with public highways as a conservation measure. The economies of
a unified and integrated project are apparent, and are taken into consideration
by the competitive bidders, but basically they are severable projects,
separately engineered and separate specifications apply to each. The earth
moving features of each project differ, and the work, operations and services
performed for each project in placing or removing material from place to place
certainly differ.
The rule on severable contracts is stated in Vol. 17, Am. Jur.2d, Sec. 325, as:
?No formula has been devised which furnishes a test for determining in all
cases what contracts are severable and what are entire. The primary criterion
for determining
W. VA.]
REPORTS STATE COURT OF CLAIMS 7
the question is the intention of the parties as determined by a fair
construction of the terms and provisions of the contract itself, by the subject
matter to which it has reference, and by the circumstances of the particular
transaction giving rise to the question.?
In this same connection, Michie?s
Jurisprudence, Vol. 4, Sec. 4, states
the rule:
?A contract is entire and not severable when, by its terms, nature and
purposes, it contemplates and intends that each and all of its parts, material
provisions and the consideration are common each to the other and
interdependent.?
The West Virginia Supreme Court of Appeals in Parkers- burg and Marietta Sand Co., v. Smith, 76 W. Va. 246, 85 S.E. 516, (1915) held that a contract
was severable in a case involving a project to drive certain piling at a
stipulated price per pile, to make an excavation for a cofferdam, and
afterwards to remove an embankment at a stipulated price per cubic yard, and to
provide a pump at a stipulated price per day.
We conclude that the contract in this case is severable and encompassed two
divisible projects, payment for which was to be received on the basis of unit
prices assigned to each project.
Under 1.7.13 of the Standard Specifications for Roads and Bridges, the Road
Commission concededly is not precluded or estopped by any measurement, estimate
or certificate made before or after the completion and acceptance of the work
from showing the true amount and character of the work. But Specification
1.4.2. of the same Standard does not permit the complete deletion of a major
item, defining a major item as one whose total cost is equal to or greater than
10% of the total original contract. This item of Borrow Pit Excavation was much
more than 10% of the total contract price.
It appears unconscionable for the State Road Commission to collect from the
Conservation Commission the sum of $52,200.00, as its apportioned cost of the
combined project, and pay to the contractor a sum substantially less as the
apportioned cost of the dam and causeway, by deleting a major item of the
contract. This case illustrates the inherent risks in combining projects to
effect economies when the projects are separately
8 REPORTS
STATE COURT OF CLAIMS [W.VA.
treated in the specifications, and costs are calculated for different work and
services under unit bid items that may overlap in whole or in part. Borrow
material is ordinarily material brought on to the project site for the
completion of the project, when material excavated from the project is
insufficient to accomplish the purpose. If we treat this contract as severable,
and the specifications certainly constrain us to do so, the material that went
into the dam was borrowed from the roadway excavation and slide, which were
beyond the project site of the dam construction.
The letter of Price, on which the Road Commission placed great reliance for its
position, is subject to variable interpretations, and did not activate the Road
Commission to make a change in its monthly estimates until two years later. The
letter did not say that the material excavated from the roadway and processed
for use in the darn construction should not be compensable as Borrow Pit
Excavation.
Harlan Dahmer, Engineer for the Department of Natural Resources, whose duty it
was to see that Conservation Commission?s plans and specifications were
followed, testified that the darn was constructed entirely out of unclassified
excavation material derived from the right-of-way, and that the material had to
be graded, cleared of rock, moisture controlled, compacted and otherwise
handled to meet specifications. We cannot ignore his uncontradicted statement
that the pay item for this work was Item 3, Borrow Pit Excavation.
Accordingly, for the foregoing reasons, we are of opinion to allow this claim,
and accordingly make an award of $20,847.75.
Award of $20,847.75.
W. VA.] REPORTS
STATE COURT OF CLAIMS 9
Opinion issued April 15, 1969
RAYMOND MATHISON
vs.
DEPARTMENT OF MENTAL HEALTH
(No. D-116)
Claimant appearing in person.
Thomas P. O?Brien, Jr., Assistant Attorney General, for the State.
DUCKER, JUDGE:
Claimant is an employee of the Department of Mental Health of the State of West
Virginia, in the Division of Alcoholism of said Department, with his
headquarters in Huntington until early in December 1966 when the Department of
Mental Health assigned him to permanent duty in Charleston. In complying with
the assignment the claimant incurred expenses in moving his household furniture
and effects from Huntington to Charleston in the sum of $247.50 to the Myers
Transfer and Storage Company of Huntington.
When claimant presented his claim to Department of Finance and Administration
payment thereof was denied because said Department concluded that any payment
thereof would constitute a gratuity and therefore not legal.
The facts are not disputed, and the only question for this Court to determine
is whether the facts justify a finding that there is a moral obligation in this
instance on the State to pay.
The claimant?s work with the Department was sufficiently stationary for him to
maintain his residence in Huntington and while doing so, he was required by his
assignment to move to Charleston on a permanent assignment. The Supervisor of
the Division of Purchases of the Department of Finance and Administration and
the Director of such Division signed the requisition to the Myers Transfer and
Storage Company to render such services in an amount not to exceed $300.00.
There was ?an apparent lack of knowledge on the part of such
10 REPORTS
STATE COURT OF CLAIMS [W.VA.
official that such a service would be considered a gratuity. Naturally, the
claimant had no knowledge of any lack of authority on the part of those who
ordered the move. Had he known that, he could very well have declined the
assignment, probably even at the cost of his job, and the necessity to obtain
other employment. These thoughts may be conjectural, but at least they should
be given consideration when the claimant was given no choice in the matter.
Under all the circumstances, we think that the claimant should not be penalized
by a mistake which was more of his superiors? making than his own. If the State
were an individual or a corporation, we think it could legally be held liable
for this claim. So in equity and good conscience we conclude that it should be
paid, and we therefore award the claimant the sum of $247.50.
Award of $247.50.
Opinion issued April 15, 1969
HARLAN HALL
vs.
DEPARTMENT OF WELFARE
(No. D-106)
Claimant appearing in person.
Thomas P. O?Brien, Jr., Assistant Attorney General, for the State.
DUCKER, JUDGE:
The claimant, Harlan Hall, a resident of Mount Gay, Logan County, West
Virginia, alleges that the Department of Welfare owes him $228.00 for services
rendered in connection with the care and maintenance of one Jackie Jeffrey, a
sixteen year old boy, from May 7, 1968 until August 13, 1968, in accordance
with an order from the Circuit Court of Logan County, West Virginia.
W. VA.]
REPORTS STATE COURT OF CLAIMS 11
The evidence consists only of the
testimony of the claimant and his wife, who referred to a court order or
directive of the Circuit Judge through one Clyde White, an employee of the
Welfare Department in Logan, but which order could not be found either by the
claimant or the Attorney General, there being some confusion as to who signed
such an ?order, whether the regular Circuit Judge, C. C. Chambers, or Special
Judge Naaman Aldredge. The employee Clyde White is no longer employed by the
Welfare Department and was not available to testify. As documentary evidence is
not submitted, the case turns entirely upon the credibility of the evidence of
the claimant and his wife.
Claimant and his wife testified as follows:
That the Jeffrey boy, after the death of his grandmother, had been living with
his aunt until for some unclear reason he was placed in the custody of the
County Welfare authorities; that the said Clyde White brought the boy to the
claimant?s home, knowing that the boy knew the claimant?s family only as a long
time former neighbor and that said White told claimant the Court had placed the
boy in the custody of claimant and his wife, and that claimant and his wife
would be paid $58.00 for their services for the month of May and $68.00 a month
for June and July of 1968; that claimant and his wife were required to take
medical examinations in order to qualify as guardians and that the expense for
that was $25 for each of them, and that claimant gave him $22 for clothing and
$10 traveling expense money when Jeffrey left for the Job Corps. These expense
items total up to $276.00, but inasmuch as claimant?s evidence as to the
medical examination expense is hardly satisfactory and the claimant has not
included such expense within the total amount of his claim, we cannot allow
that item.
The State has not denied the claim and has admitted the lack of a proper
handling of the matter by the Welfare Department. As the honesty of the
claimant and his wife is apparent and the services unquestionably rendered for
the good of the infant and the State, we are of the opinion to, and do hereby
?award the claimant the sum of $226.00.
Award of $226.00.
12 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued June 23, 1969
INTERSTATE LUMBER COMPANY
vs.
ADJUTANT GENERAL
(No. D-23)
Charles V. Wehner, for the claimant.
Thomas P. O?Brien, Jr., and George H.
Samuels, Assistant Attorneys General,
for the respondent.
JONES, JUDGE:
This claim was originally filed before this Court on October 10, 1967. The
claimant, Interstate Lumber Company, alleged that on July 6, 1967, at Camp
Dawson, West Virginia, a parachutist member of the West Virginia National Guard
made a regularly scheduled jump and during the course of the drop, he struck
and broke a power line of the Monongahela Power Company providing electrical
service to the claimant?s sawmill, and caused a power failure which ?burned out?
twelve motors then being owned and operated by the claimant. The unquestioned
cost of repairing the damaged motors was $2,011.00. No claim was made for loss
of use of the motors and the resulting shutdown.
On April 8, 1968, this claim came on for hearing and was dismissed for
non-appearance of the claimant, counsel advising the Court that the claimant
had been informed by the Assistant Adjutant General of West Virginia that the
claim was cognizable by the United States Army Claims Service and would be paid
from federal funds. Thereupon, the claim was duly filed with the United States
Army Claims Service and upon consideration was denied on the ground that
military and civilian personnel of the National Guard are to be treated for
purposes of the Federal Tort Claims Act as employees of the State and not of
the federal government (citing Maryland v. United States, 85 5. Ct. 1293 [1965]
and 86 5. Ct. 305 [1965]).
On October 8, 1968, the claimant moved this Court that the order dismissing the
claim be vacated and that the claim be
W.VA.] REPORTS
STATE COURT OF CLAIMS 13
reinstated. Whereupon, the Court reinstated the claim and a hearing thereon was
held on April 15,- 1969.
Upon consideration of the evidence adduced at the hearing and certain
admissions made on behalf of the Adjutant General, the Court finds that the
proximate cause of the damage to the claimant?s property was the power failure
precipitated by the negligence of the National Guard parachutist, that the
guardsman was in the employ of the State of West Virginia and acting within the
scope of his employment, that the amount of the claim is fair and reasonable,
and that in equity and good conscience, the claimant should recover.
Therefore, the Court is of opinion to and does hereby award the claimant,
Interstate Lumber Company, the sum of $2,011.00.
Opinion issued June 23, 1969
JOHN L. CREAMER, ADMINISTRATOR
of the Estate of Muriel Creamer
vs.
DEPARTMENT OF MENTAL HEALTH
(No. D-40)
William C. Weaver, Esq. for the Claimant.
George E. Lantz, Assistant Attorney General for the State. DUCKER,
JUDGE:
Claimant, John L. Creamer, Administrator of the Estate of Muriel Creamer,
deceased, claims damages for death by wrongful act occasioned by the negligence
of the staff and employees of the Weston State Hospital in placing, on May 25,
1963, one Wanda Maxine Janes, a mentally ill person, in the same room with said
Muriel Creamer, resulting in the homicide of the latter by the said Wanda
Maxine Janes. The claim is alleged to be in such amount al]owable under the
statute not to exceed $111,500.00, but which on hearing was stipulated to be
limited
14 REPORTS
STATE COURT OF CLAIMS [W. VA.
in the statute then in force to $10,000.00 for wrongful death and $15,000.00
for pecuniary loss. There was no proof of pecuniary loss.
The claimant rests his case entirely upon the reports of the physicians as to
the mental and physical condition of Wanda Maxine Janes just previous to and
upon her admission to the hospital, and the testimony and cross examination of
Respondent?s witnesses, Dr. Neil M. McFadyen, Superintendent of the hospital,
and of Wanda Jacqueline Reed, a psychiatric aide who was ?on duty at the
hospital at the time ?of the death of Muriel Creamer.
There is no conflict in the evidence relating to the place, time or cause of
the death of Muriel Creamer. She died about nine o?clock on the evening of May
25, 1963 in a room in the Weston St?ate Hospital in which Wanda Maxine Janes
was also confined, the cause of death being the result of anoxia of the brain
caused by strangulation. Muriel Creamer had been strapped in her bed by the
hospital attendants, bound at her waist and feet to prevent her from leaving
her bed, and when found dead she had a piece of muslin cloth about her neck.
The ?evidence shows that Wanda Maxine Janes was admitted to the hospital at
10:00 A.M. on that same day and had been in seclusion in a room adjoining that
in which Muriel Creamer was confined. At 8:30 P.M. of that day Wanda Janes was
moved to the room occupied by Muriel Creamer, and about a half hour later, at
9:00 P.M., the latter was found dead with Wanda Janes standing near or ?over
her. A regular ?bed check? was made prior thereto at 8:00 P.M. and apparently
all was well. There was never any sound of violence or other ?evidence of a
struggle in the room of the homicide, but it was apparent that Wanda Maxine
Janes had committed the act causing the death.
The question presented in this case is whether or not the Department of Mental
Health has been negligent in its handling of the confinement ?of Wanda Maxine
Janes, a decision of which rests either on specific alleged negligence on the
part of the hospital staff or on a failure of the State to provide adequate
quarters and care for a mentally ill person such as Wanda Janes.
W. VA.]
REPORTS STATE COURT OF CLAIMS 15
From the exhibits introduced in evidence by the claimant, it appears that Wanda
Janes was committed as a mentally ill person to Weston State Hospital by the
Mental Hygiene Commission of Marion County upon the examination of said person
by Drs. H. L. Criss and J. R. Tuckwiller, who, from affidavits of witnesses
that although she was friendly she was irrational, considered herself as
mistreated by everybody, suffering from a depression complex and ideas of
persecution, recommended that she be admitted to a state hospital for
treatment. Upon admission to the hospital, Dr. H. S. Chu said that on the
admission interview Wanda Janes was extremely hostile and argumentative, that
she tried to run out of doors, that her behavior became wild as she was quite
irritable and resistive, irrational in her speech, her ideas were manifested
with persecution and delusion that someone was trying to kill her, but as the
interview proceeded she seemed to become relaxed; and that upon physical
examination she strongly refused to go to the admission ward, behaved wildly
and was given medication. The impression diagnosis was ?Schizophrenic Reaction,
Paranoid Type.? The report of Dr. Neil M. McFadyen, Superintendent of the
Hospital, to Prosecuting Attorney of Lewis County is substantially similiar to
that of Dr. Chu that Wanda Janes was suffering from a severe mental illness
manifested by delusional ideas to such a degree that she was unable to know the
difference between right and wrong in relation to her alleged acts, and that
she would be considered insane.
The testimony of Dr. McFadyen is exceptionally clear and uncontradicted, and
was not in denial of the opinions expressed on the admission or commitment reports. He explained
that Wanda Janes came within the usual classification of persons of a
schizophrenic-paranoid and that her diagnosis was ?not any different than
anyone with a similar classification.? He also specifically answered in the
negative the question as to whether from her diagnosis or from other
information available to Dr. Chu, he had any knowledge of any fact that would
have put Dr. Chu on notice that Wanda Janes ?might have had some violent
homicidal tendency.? There is no testimony or other evidence in the case which
shows that the hospital authorities knew or should have known within a
16 REPORTS
STATE COURT OF CLAIMS [W. VA.
period of less than twelve hours confinement that Wanda Janes had any violent
homicidal tendency. We believe that the evidence to such effect must be
positive, which it was not in this case, to charge the hospital authorities
with any duty beyond that which was performed by them in the matter.
Solitary confinement of Wanda Janes did not seem reasonably necessary. The lack
of solitary confinement can hardly be considered a proximate cause ?of homicide
by a friendly inmate, although she may be irrational or even wild at times.
From the evidence it appears that the hospital was built to accommodate six
hundred inmates, that at the time in question there were twenty-two hundred to
twenty-three hundred inmates, and that they handled 1500 admissions per year
with a large number of them being schizophrenic paranoids. Some 40 to 45
patients were in the section in which the parties here were confined and the door
to the room was only 20 feet from the desk of the aide in charge on the floor.
Because of the congestion and inability of the hos2ital to otherwise provide
for her, Wanda Janes was removed from a room in which two others were quartered
into a room in which there was only Muriel Creamer. From the evidence it
appears that there had never before been such a result of such action by the
hospital, and such fact makes it more unreasonable to conclude that a homicide
by such a person could be anticipated under such circumstances.
In a sense it might be thought that ?the State has been negligent in not
providing more hospital facilities for the mentally ill, but we cannot
determine either the moral or financial responsibility or capability of the
government in that phase of welfare. The authorities and the public have to
accept what the State provides, as there is no legal duty in the matter, and in
the absence of a clear legal duty we cannot place liability on the State simply
on an alleged moral obligation without negligence on the part of its agents or
some contractual obligation applicable to the matter.
For this Court to base a claim on a moral obligation we are limited in our
consideration of moral obligations of the State. The statute, in our opinion,
waives the constitutional immunity of the State in cases where the claimant
would otherwise have
W. VA.]
REPORTS STATE COURT OF CLAIMS 17
a legal claim. In view of the facts, we find no negligence which would be the
basis for a judgment.
We are, therefore, of the opinion to and do disallow the claim of the claimant
in this case.
Claim Disallowed.
Opinion issued June 23, 1969
BATES & ROGERS CONSTRUCTION
CORPORATION
vs.
STATE ROAD COMMISSION
(No. D-126)
Frank Taylor, Jr., Esq. Kay,
Casto & Chaney for the Claimant.
George H. Samuels, Assistant Attorney General, and Theodore L. Shreve, Esq. for the State.
DUCKER, JUDGE:
The claimant, Bates & Rogers Construction Corporation, was awarded a
contract on May 26, 1966 designated as Bridge #2070-9, Project No. 1-70-1(13)
2, Contract 3 and F0234(15), amounting to an estimated total of $594,281.50 for
the relocation of the Baltimore & Ohio tracks so as to bring State Route 2
through the City of Wheeling, and involving a temporary trustle and relocating
temporary tracks while the contractor built a new bridge for said purpose. The
claim herein is for damages in the sum of $7,532.35 occasioned by delays of the
State Road Commission in the latter?s direction of the work.
The contract provided for the work to be done within 240 working days and the
contract was completed on March 3, 1967 in 232 working days, 8 days less than
the allowed working days time. The claim is based on three delays which
claimant alleges compelled it to take 47 more working days than was necessary
to complete the project. The amount of such claim is stated in the petition as
$7,770.35, but upon the hearing it was reduced by the sum of $238.00, leaving
the net claim
18 REPORTS
STATE COURT OF CLAIMS [W. VA.
$7,532.35, but according to our calculations from the testimony the total claim
amounts to $7,324.85.
The first delay amounted to a total of 16 days, which the claimant alleges cost
it a total of $2,400 in salary and overhead, and is based upon the failure of
the Baltimore & Ohio Railroad, with whom the Road Commission had a separate
contract, to begin the work necessary for it to do at the expiration of a 15
days? notice by the claimant to the Railroad Company that the work was ready
for the railroad work. It appears that the notice was given as provided in the
specifications or the work schedule on August 14 that claimant would be ready
for the Railroad Company to begin its work on August 28, but the Railroad
Company resident engineer replied that the Railroad Company was experiencing
material and manpower problems and that it could not begin its work until
September 25. The contractor claims that it was the duty of the Railroad
Company to so commence its work and that the claimant suffered such loss on
that account.
The second delay is in connection with a change in the drawings for the crib
wall construction required by the contract, alleging that the crib wall
drawings were submitted for approval to the State Road Commission on September
19, 1966, but were returned by the Road Commission to the contractor on October
3d specifying needed corrections. Corrected drawings were submitted by the
claimant on October 26, 1966, and while numerous inquiries were made by the
claimant to the Road Commission between October 26, 1966 and January 3, 1967,
the corrected drawings were not approved by the Road Commission until March 3,
1967, causing, allegedly, the claimant to suffer both on this account and on
account of the third delay item hereinafter specified, a total delay of 31
working days, or six weeks, in the prosecution of its work under the contract.
The record, however, shows that the claimant was able to proceed with some of
the crib wall work in the meantime, but claimant alleges it could not be done
efficiently and, consequently, suffered a loss of $590 a week for 6 weeks in
wages, plus a 30% fringe benefit cost, which makes a total of $4,602.00 to
which is added $293.50 plus 10%, or $322.85 as the rntal cost of a crane,
making the grand total $4,924.83.
W. VA.]
REPORTS STATE COURT OF CLAIMS 19
The third delay, the claimant alleges, was due to the relocation of a water
hydrant at Eleventh and Baltimore Streets in the City of Wheeling and the work
necessary to take care of an unexpected underdrain just behind the existing
west curb of Baltimore Street and running the full length of the crib wall.
This underdrain was not shown on the plans and specifications of the contract,
and when it was discovered the matter was taken up with the Road Commission and
it was agreed that instead of paying for the work therefor on the bid price of
$1,000, the work should be done on a force account basis, and so the claimant
was paid therefor the sum of $1,733.00. The claimant claims that on account of
the lack of the decision of the Road Commission ?as to where to place the
hydrant and what to do about the drain a delay of 13 days was involved, which
time loss was included in the six weeks specified in the foregoing second delay
period of 31 days.
The Road Commission contends that inasmuch as the work was completed within the
time provision of 240 working days, delays within that period which did not
prevent the claimant from timely completing the work under the contract cannot
be the basis for any claim for damages. While there is some merit to that proposition
as it does show what was contemplated by the parties as the proper time for the
completion of the work, considering reasonable delays which must be expected
from time to time during the work, especially from a governmental ?agency with
all its rules and regulations which cannot be expected to function as a person
or a private corporation, yet it is not the controlling factor if delays have
been caused by neglectful conduct on the part of those in charge. So we are of
the opinion that each delay should be considered also in view of all the
circumstances relating to it.
As to the first item of delay, namely 16 days because of the failure of ?the
Baltimore & Ohio Railroad to commence its work immediately after the 15
days? notice from the claimant, the claimant knew this work was dependent upon
the performance by the Railroad Company under a separate agreement with the
Road Commission, and there was no guaranty on the part of the Road Commission
to the claimant that there would be no breach of that contract. We are of the
opinion that claimant with the large contract which it had should have
20 REPORTS
STATE COURT OF CLAIMS [W. VA.
anticipated the possibility of such delay and managed its work so as to prevent
any loss on that account; so we hold that the delay was not unreasonable and we
deny claimant his claim as to that charge.
As to the second item of delay, namely 31 working days, because of the crib
wall drawings which were at first returned for corrections and finally
approved, it appears that there were delays from September 19 to October 3,
1966 when the Road Commission considered the first plans; from October 26, 1966
to March 3, 1967, when the Road Commission considered and finally approved the
second plans. In this connection it is well to observe that claimant took from
October 3 to October 26 for its correction period. The pattern seemed to be set
for two to three weeks as the periods for correction and approval, although
that cannot be considered a positive basis for such action. The only period
which to this Court seems unreasonable is that which elapsed between October 26
and March 3, a period of approximately four months. The evidence shows that
although claimant could not proceed as efficiently in its work on the crib
wall, it could work in the middle part of that work, and it is not clear what
percentage of that work was done during the period in question. We do think the
delay did have some damaging effect, and if we allow a reasonable time for the
consideration by the Commission of the corrected plans and allow approximately
fifty percent of the delay time claimed in this second item, we believe we will
be doing equity in the matter, and in doing so we will allow claimant the sum
of Two Thousand, Five Hundred Dollars ($2,500.00).
As to the third item of delay, namely the relocation of the water hydrant and
the work on the underdrain, we are of the opinion that the following
specification which was applicable to this situation controls our decision as
to this part of the claim:
?It is the Contractor?s responsibility to verify the location of each facility
when performing work which may affect these utilities including probing,
excavation or any other precaution required to confirm location. The Contractor
will be responsible for any damage or disruption to the utility lines which are
now in operation.?
W. VA.]
REPORTS STATE COURT OF CLAIMS 21
Although the matter of the drain was unknown to both the Road Commission and
the claimant, it was their joint responsibility to determine such a matter. It
was not of such magnitude as to materially change the work of the contract to
such an extent as to exceed the extra compensation which was allowed on account
of such change. A reasonable degree of change in these matters must be
contemplated in a contract of this magnitude and we are of the opinion that
this was within such reasonable degree and has been compensated for by the
State.
We are of the opinion to, and do, hold that the claimant is entitled to an
award of $2,500.00.
Award of $2,500.00.
Opinion issued June 23, 1969
HERBERT J. DUBISSE
vs.
DEPARTMENT OF NATURAL RESOURCES
(No. D-129)
Clark B. Frame and Thomas Patrick Maroney, for Claimant.
Thomas P. O?Brien, Jr. and George H.
Samuels, Assistant Attorneys General,
for the respondent.
JONES, JUDGE:
On July 18, 1967, the claimant, Herbert J. Dubisse, of Philadelphia,
Pennsylvania, along with his family, was a guest at the Lodge at Cacapon State
Park in Morgan County. He had rented the accommodations for one week and this
was the second day of his vacation. He went to the swimming area in the Park?s
6-acre lake, climbed upon one of the three diving boards, and as he walked to
the end of the board he slipped, lost his balance, the board struck the heel of
his left foot, and he fell into the water. The claimant did not immediately
22 REPORTS
STATE COURT OF CLAIMS [W. VA.
realize the extent of his injury, but
the pain was severe and on the following morning he went to Berkeley Springs
where
a physician advised that he had sustained a torn Achilles tendon. The claimant
did not go back to Cacapon but returned to Philadelphia where he later
underwent surgery and as a result of the accident he lost substantial time from
his job as a City Fireman and incurred considerable hospital and medical
expense. The claimant prays damages in the sum of $9,000.00, including
questionable permanent disability.
The substance of the claimant?s case, or lack of it, is shown by excerpts from
his direct testimony, as follows:
?Q Would you please tell us what happened when you arrived
there?
A I went to the lake and I went out on the diving board. I got near the end of
the diving board and took a few steps to bounce before I dove and my foot
slipped. In order to gain my balance. I brought my left foot back and the board
had hit me and I went into the water.
* * *
*
?Q Now, as you walked out onto the board, what appearance,
if any, did you notice about it?
A It was just a diving board.
Q Did you have traction as you walked out?
A Yes, I did.
Q Before you took your spring, had you had any difficulty
walking as far as slipperiness was concerned?
A No, I did not.
Q So at what part of the board did you experience the
slipperiness?
A At the part where I slipped. I don?t know of any slipperiness that I felt
actually. I just took a step and when I took the step, the foot seemed to slip
out from under me so that I lost my balance.
W. VA.]
REPORTS STATE COURT OF CLAIMS 23
Q So as you walked out on the board, did you notice
anything which would cause you to become alarmed or to care for your safety
until you slipped?
A No, the diving board was no different from any other.?
The claimant testified that he never examined the diving board after the
accident, nor did anyone for him. He did not report the accident to anyone at
the Park.
The Superintendent at Cacapon State Park, with ten years? employment at that
location, testified that there were at least two lifeguards on duty at the time
of the accident, that no complaint or report was made to either of them or to
anyone else at the Park, and that his first knowledge of the occurrence was
about a year later. He further testified that the diving boards are taken down
at the end of each season on Labor Day, and, before the beginning of the
following season on Memorial Day, they are refinished ?and resurfaced with a
?battleship safety tread?, consisting of a primer and then a second coat of
paint containing a gritty material, to give the surface of the board a rough
finish. The Superintendent further gave evidence that it is possible for the
boards to become worn and slippery but that with one exception, in 1968, the
reconditioning process was never required before the end of a season. He
testified that the boards are regularly inspected at least once every ten days;
and that there were no complaints of a slick board at any time during the year
1967.
The Court does not question the injury to the claimant but we are of opinion
that he has failed to make a case against the Department of Natural Resources.
The evidence shows only an unfortunate accident, without the proof of any
negligence or fault on the part of the Department. Accordingly, this claim is
disallowed.
24 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued June 23, 1969
LUTHER HALSTEAD
and
CALVERT FIRE INSURANCE COMPANY
vs.
STATE ROAD COMMISSION
(No. D-140)
Pat R. Hamilton, Esq., for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, and Robert R.
Harpold, Jr., Esq. for the State.
DUCKER, JUDGE:
This is a claim of Luther Halstead and the Calvert Fire Insurance Company, a
corporation, the latter being subrogee under its contract with Luther Haistead,
against the State Road Commission for damages in the sum of $472.46 done to
claimant?s automobile in a collision of it on December 24, 1966 with a State
Road Commission truck on that part of State Route No. 21 known as North South
Highway south of Oak Hill, West Virginia.
The State moveI that the claim be dismissed because the State carried liability
insurance to protect the employees of the State Road Commission from liability
against claims of this nature and that consequently the claimant could not
maintain the case in this Court because he had a remedy in other Courts by
reason of such insurance. While the insurance is primarily to protect the
employee personally, the State which waives its immunity in this Court should
be considered as also having the protection of such insurance, but inasmuch as
the factual situation here, on the merits, shows no liability in the matter, we
deem it unnecessary to render herein a decision of the question raised by the
motion.
The witness, Betty Halstead, ex-wife of Luther Halstead, owner of the 1964 Ford
automobile, was driving said automobile south on Route 21, on the afternoon of
December 24, 1966, and when she attempted to pass a State Road Commis
W. VA.]
REPORTS STATE COURT OF CLAIMS 25
sion truck which had a snow plow or
blade on the front end, her car collided with the blade part of the truck
damaging the right front and fender of her car just behind the wheel area. She
testified that the road was covered with snow ?and she was driving in a ?snow
blizzard? and that it was ?snowing very hard,? and that she was traveling ?at
about 20 to 25 miles an hour. She further said the truck was at the extreme
right in the right hand lane of a four lane highway and that the truck turred
to the left into the left lane.
John K. Learmonth, the driver of the State Road Commission truck, testified
that the road was a two lane road with an additional turn lane at the point of
collision, and that he was traveling at a speed of 10 miles an hour as he was
entering the turn lane and that when he saw the Halstead car he quickly turned
back to the right lane in order to avoid striking the car with the snow plow
blade. Although Betty Halstead said there was no signal light on at the rear of
the truck, the driver of the truck said it was on but went off automatically
when he turned back to the right to avoid the collision. There is a direct
conflict in the testimony as to whether it is a four lane road or a two lane
with a turn lane. As the road was covered with snow, no road lane markings were
visible. It appears that the testimony of the truck driver who was accustomed
to work this road, cindering the road and removing the snow, is more credible
on this point.
It ?appears to this Court that while in the evidence there are some points of
direct conflict, the driver of claimant?s car did not use good judgment in
attempting to pass the snow removal truck on a snow covered highway in a snow
blizzard at a speed ranging according to the testimony from 20 to 25 miles per
hour, and while the truck was proceeding at a rate of ten miles an hour. We are
of the opinion that the driver of claimant?s car was guilty of contributory
negligence to such an extent as to deny claimant?s recovery on the claim.
Claim Disallowed.
26 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued June 23, 1969
FREDERICK ENGINEERING COMPANY
vs.
STATE ROAD COMMISSION
(No. D-130)
C. F. Bagley, Esq. and Milton T. Herndon, Esq.
for the Claimant.
Theodore L. Shreve and George H.
Samuels, Assistant Attorney General,
for the State.
DUCKER, JUDGE:
The claimant, Frederick Engineering Company, a corporation, alleges that the
State Road Commission owes it $21,720.00 as money withheld by the Road
Commission as liquidated damages for 181 days at $120 per day for claimant?s
failure to complete within the specified time its work on the contract which
was awarded to claimant on May 8, 1961, for the construction of approximately
7,381 feet of Interstate Highway 77 in Wood County, West Virginia, just south
of Parkersburg, and being known as Project 1-77 (28) Contract No. 1.
The contract specified that it was to be completed in 225 working days, which,
according to the actual number of working days which the Road Commission
calculated, expired May 23, 1963. The period of the liquidated damages
assessment for 181 days was from May 23, 1963 to November 21, 1963.
The claimant says that it completed its work under the contract on November 30,
1962, and with the payment made at that time had received all but five percent
of the total amount due it, and that it requested then and many times
thereafter the Road Commission make its survey to determine whether the work
had been done satisfactorily and according to specifications, but n?othing was
done until it was notified by a so-called ?punch list? in June 1963 that a
number of things needed correction, all of which claimant says were largely if
not almost entirely due to erosion, settling of the fill and washout and
drainage due to a severe winter, and the failure
W. VA.]
REPORTS STATE COURT OF CLAIMS 27
of the Road Commission to accept the work when it was finished rather than
delay for five or six months the Road Commission?s survey of the work done by
claimant.
The testimony in the case showed quite a few causes of delay which were not the
fault of the claimant. Among such causes were the unfinished culvert work of
the contractor on the adjoining section of the road, the delay in acquiring
right of way which involved the removal of gas and utility lines, and a
shutdown for approximately six months of the work pending a decision of the
Road Commission as to fulfilling a specification requiring granular material
for the base of the road, and during which latter delay the claimant could not
do otherwise than to keep at great expense his equipment on the job. Although
the time for the completion of the contract was extended on account of the
delay caused by the granular material indecision, the contract time was not
ext?ended on account of the failure of State Road Commission to act promptly
after the notification to the Road Commission by the claimant on November 30,
1962 that it had completed the job. Then after the claimant was given the
?punch? lists in June 1963, the additional work was completed in November 1963,
the additional time required being the basis of the 181 days liquidated damages
assessment.
The contract in this case amounted to over eight ?hundred thousand dollars on
which a claimant?s witness testified claimant had suffered a loss of
approximately two hundred thousand dollars, which fact while not strictly
relevant as the State does not guarantee against loss, it does to some degree
substantiate the claim that the delays and difficulties suffered by claimant
could have materially contributed to such result.
This court is n?ot unmindful of the propriety of liquidated damage clauses in
these contracts because the Road Commission must require contractors to fulfill
their obligations. Beyond th?at, a liquidated damage clause is considerably a
penalty provision and should not be enforced unless real damage is sustained or
where there are no circumstances which give the contractor equitable reasons
for his failure to complete his work. In this case, it is apparent that the
officials of the Road Commission have attempted to do their conscientious duty
in
28 REPORTS
STATE COURT OF CLAIMS [W. VA.
applying the liquidated damages provision, but this Court feels that the
equities are more in favor of the claimant than in favor of the State,
especially so, where it does not appear that the State has suffered financially
in the matter.
The evidence in this case as testified to by claimant?s witness is more
positive and impressive than that of the State, to the effect that the delays
claimed by the claimant furnished a reasonable basis for claimant?s inability
to complete the contract within the period required. In other words, it appears
to us that the claimant?s evidence preponderates and that in all equity
claimant should not have been assessed under the liquidated damage provision of
the contract.
In accordance with the above, we are of the opinion to, and do hereby award the
claimant the amount of the assessment withheld, namely, the sum of $21,720.00.
Award of $21,720.00.
Opinion issued July 21, 1969
HOWARD ARBOGAST
vs.
STATE ROAD COMMISSION
(No. D-1O1)
William R. Talbott, for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, and Robert R. Harpold, Jr., for
the respondent.
JONES, JUDGE:
Nothing is very certain about this claim, including the date of theoccurrence
giving rise to it. Some time in December 1967 or January 1968, the State Road
Commission caused several railroad cars, perhaps five, loaded with gravel, to
be placed on a sidetrack in front of the claimant?s residence. The dwelling
house was set back about twelve feet from the closest rail of the siding.
Unloading gravel from cars on this siding was a customary procedure, but on
this occasion, the
W. VA.1
REPORTS STATE COURT OF CLAIMS 29
gravel was frozen and in trying to thaw the material, fires were started under
the cars in buckets containing sticks and oil. The claimant contends that the
fires produced a great quantity of heavy black smoke which soiled the outside
of his house, killed a pine tree and three rose bushes, filled the interior of
the house and permeated everything in it, leaving a greasy substance on
clothing, furnishings, appliances and equipment.
According to the testimony of the claimant, he did not point out any specific
damage to any of the State Road Commission personnel on the job, but on the
same day he went to Webster Springs and complained to his attorney. Photographs
showing the exterior of the claimant?s dwelling were introduced in evidence by
the State Road Commission, but apparently no other investigation of the claim
or appraisal of the alleged damages was made. Only one State Road Commission
employee testified and while he confirmed the setting of the fires and the fact
that smoke did enter the house, he was extremely vague as to damages, although
he visited with the claimant inside the house during the time in question. This
witness testified that there was ?some smoke? in the house but he could not
remember any specific evidence of damages.
The claimant listed items of damages totaling $1,513.80, including fifteen
pairs of pants, valued by him at $60.00, thirty men?s shirts at $119.40,
sheetrock in three rooms at $150.00, two living room suites at $300.00, rugs,
curtains, mattresses, blankets, labor in cleaning the house, two television
sets and other furniture, and other miscellaneous items. More often than not,
the claimant improperly claimed replacement values as the measure of his
damages, and by any measure many of his figures appeared to be exaggerated.
The Court is of opinion that the State Road Commission employees were negligent
in setting these fires so close to the claimant?s residence and that the claimant
is entitled to some compensation. The proof of damages is very unsatisfactory
and ?a precise judgment in that regard is impossible. However, the Court has
endeavored to reach a fair result and accordingly finds that the claimant is
entitled to recover; and the claimant, Howard Arbogast, is hereby awarded the
sum of $300.00.
30 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued July 21, 1969
SHEPHERDSTOWN REGISTER, INC.,
Claimant,
vs.
STATE BOARD OF EDUCATION, Respondent.
(No. D-102)
No one appeared for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, for the Respondent.
PETROPLUS, JUDGE:
The Notice of Claim is in the amount of $922.50, for printing 4500 copies of a
campus newspaper called the ?Picket? published by Shepherd College, which is
under the control, supervision and management of the State Board of Education.
The State admits that a valid contract was entered into by the President of the
College and the Claimant for the printing, and no reason is assigned for the failure
of the State to make payment of the invoices submitted. The attorney general
recommends that the claim should be paid in equity and good conscience, and but
for governmental immunity the Claimant could recover in a court of law on a
meritorious claim.
The Court is of opinion to allow the claim, and an award of $922.50 is made to
the Claimant.
Award of $922.50.
W. VA.]
REPORTS STATE COURT OF CLAIMS 31
Opinion issued July 21, 1969
JOE L. SMITH, d/b/a Biggs-Johnston-Withrow,
vs.
STATE BOARD OF EDUCATION
(No. D-125)
No one appeared for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, for the State.
PETROPLUS, JUDGE:
This claim was submitted on the pleadings and undisputed facts. A decision was
deferred until a ruling of the Supreme Court of Appeals of West Virginia in the
mandamus proceeding instituted against this Court in the case of State of West
Virginia ex rel. The City of Morgantown, a Municipal Corporation, vs. Henry
Lakin Ducker, et al, was received clarifying and defining the jurisdiction of
this Court with reference to corporate state agencies which are empowered by
statute to sue and be sued. On June 17, 1969, the Supreme Court of Appeals
ordered this court to take jurisdiction of a claim against the Board of Governors
of West Virginia University, and the Court?s opinion makes it clear that the
Court of Claims has jurisdiction to hear a claim against the State Board of
Education, a corporate agency of the State of West Virginia.
The claimant at the request of the respondent shipped 590,000 Data Cards to the
respondent on or about December
5, 1966, and although repeatedly invoiced the respondent failed to make payment
in the amount of $727.30. The order was placed by authorized personnel of
Marshall University, and immediate delivery was made under a valid contract.
The cards were used for registration purposes at the school.
The Court is of opinion to and does hereby award the claimant the sum of
$727.30.
Award of $727.30.
32 REPORTS
STATE COURT OF CLAIMS [W.VA.
Opinion issued September 8, 1969
GENE R. MONK, Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. D-139)
No appearance for Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, and Robert R.
Harpold, Jr., Esq., for Respondent.
PETROPLUS, JUDGE:
A Notice of Claim was filed in the amount of $69.79 for damages to Claimant?s
automobile. On the evening of October 14, 1968, at about 6:50 o?clock P.M.,
Claimant was driving his automobile on State Local Service Road 15 in Kanawha
County, and as he crossed a State Road Bridge near Berry Hills Country Club,
his left rear wheel dropped into a hole in the floor of the Bridge. The hole
resulted from two missing boards in the traveled portion of the Bridge and was
two feet wide and four feet long. The State Road personnel were immediately
notified and the hole was promptly repaired. It appears to the Court that a
person exercising ordinary care for his safety would not reasonably have
anticipated that the floor boards on the Bridge would be missing, and that the
Claimant cannot be charged with contributory negligence or assumption of risk.
The damages to the muffler and wheels of the automobile which dropped into the
hole are the basis for the claim.
The case was submitted on a Stipulation of Facts, ?and it appearing that a
hazardous and highly dangerous condition existed on the Bridge which directly
and proximately caused damage to Claimant?s automobile, and that the Claimant
was free from contributory negligence, the Court is of the opinion that the claim
should be allowed.
Award of $69.79.
W. VA.]
REPORTS STATE COURT OF
CLAIMS 33
Opinion issued September 8, 1969
RICHARD MULLINS,
d/b/a MORGANTOWN AMBULANCE SERVICE,
vs.
BOARD OF GOVERNORS OF
WEST VIRGINIA UNIVERSITY
(No. D-107)
The claimant present in person.
Thomas P. O?Brien, Jr., Assistant Attorney General, for the Respondent.
JONES, JUDGE:
This claim was heard by the Court on January 27, 1969, but consideration
thereof was withheld pending the decision of the Suprem2 Court of Appeals of
West Virginia in the mandamus proceeding instituted by the City of Morgantown
against the Judges of this Court. Pursuant to the opinion in that case, which
was filed on June 17, 1969, this Court finds that it does have jurisdiction of
this claim.
On August 21, 1968, the claimant drove his ambulance to the West Virginia
University Medical Center to remove a body from the morgue area. His eighteen
year old son accompanied him and upon arrival, the son entered the University
building through a side door for the purpose of raising an electrically
operated overhead door which is controlled by ?up?, ?down? and ?stop? buttons.
The door raised and the claimant backed his ambulance under it. Then the
door reactivated and came down upon the vehicle, damaging the top, siren and
bullet lights. The amount of the claim is $399.13, and that figure is
uncontested by the respondent.
The claimant was the only witness in support of his claim. His son was not
called as a witness. The claimant testified that the overhead door reactivated
itself after his son had left the door controls, the door crashing onto the
ambulance without any fault on his part; and he contends that the mechanism of
the door must have been defective. On the other
34 REPORTS
STATE COURT OF CLAIMS [W. VA.
hand, witnesses for the respondent testified that the door was regularly
inspected, was in good working order, and that a simulation of the incident
showed that the condition of the door after the accident was entirely the
result of the collision of the door and the ambulance.
There being no factual showing of negligence on the part of the respondent, the
only possible basis for recovery by the claimant would involve the doctrine of res ipsa loquitur. This doctrine has been defined by the Supreme Court of West Virginia in
the case of Wright vs. Valan, 130 W. Va. 466, as follows: ?The doctrine is that
when a person, who is without fault, is injured by an instrumentality at ?the
time within the exclusive control ?of another person and the injury is such as
in the ordinary course of events does not occur if the person who has such
control uses due care, the injury is charged to the failure of such other
person to exercise due care.?
We d?o not believe the doctrine of res
ipsa loquitur is applicable in this
case. At the time of the injury, it cannot be said that the respondent had
exclusive control of the instrumentality as none of its agents was in the area
and the door was being operated by the claimant?s son. There is no evidence of
negligence of the respondent, and there is some evidence of a lack of such
negligence as the Superintendent of Maintenance of the Medi?al Center testified
that the door was regularly inspected, and was in good working order. Res ipsa loquitur will not be invoked when the existence of negligence is wholly a matter
of conjecture. The circumstances surrounding this claim are speculative, and do
not establish any negligent conduct on the part of the respondent. Accordingly,
this claim is disallowed.
W. VA.] . REPORTS STATE COURT OF CLAIMS 35
Opinion issued September 8, 1969
ETTA A. PARSONS, Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. D-112)
T. E. Myles, Esq., for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General and Robert Harpold, Jr., Esq., for the Respondent.
PETROPLUS, JUDGE:
Claimant presented her claim by Petition alleging that on May 5, 1968, at about
4: 00 o?clock P.M., while driving her automobile in a southerly direction along
State Route 39, near the community of Brownsville, Falls District, Fayette
County, West Virginia, at which time and place it was raining, she lost control
of her vehicle causing her to veer across both lanes of the highway and strike
two other automobiles, sustaining damages to her automobile as well as personal
injuries and medical expenses. Statements aggregating $424.25 were submitted as
Exhibits for medical expenses, and an Un- sworn statement of Clarence Kennison,
Mechanic for Hatcher Motor Company, was filed stating the motor vehicle was a
total loss, and had a value of $1875.00 immediately before the accident, and a
value of $675.00 immediately after the accident. As a result of the accident
Claimant stated she had been injured ?about her abdomen and other parts of her
body, suffering extreme pain, suffering, mental anguish and permanent injuries.
The negligence alleged was the dangerous condition of an asphalt highway,
existing for a long period ?of time and known to the State Road Commission, and
particularly that the western edge of the highway had become eroded away so as
to create a hole of approximately 8 inches deep, one inch to 1? feet in width,
and approximately 6 feet in length, as shown by photographs attached to the
Petition. No photographs have been attached to the Petition.
36 REPORTS STATE
COURT OF CLAIMS [W.VA.
The Answer of the Respondent indicates that it is without knowledge or
information sufficient to form a belief as to the truth of the allegations,
and, therefore, the allegations are denied. It does not appear that the circumstances
of the accident were investigated by anyone on behalf of the Respondent. The
case was submitted upon a Stipulation of Facts that follows the general
language of the Petition, describes the road defect in the language of the
Petition, and states that the
?defective condition in the highway was known to the State Road Commissioner
but was permitted to remain defective for a long period of time. Petitioner,
without negligence on her part, drove her automobile in and to said hole,
thereby causing her to lose control of her vehicle and as a result her vehicle
veered abruptly across the highway in an easterly direction and struck two
other automobiles, damaging plaintiff?s automobile to the extent of $1200.00,
and as a result of said accident petitioner sus tamed a broken nose and
injuries to her chest and other parts of her body . .
The West Virginia Court of Claims is a
fact finding body created by the Legislature and is an instrumentality of the
Legislature to determine which claims the State of West Virginia, as a
Sovereign Commonwealth, should pay out of public funds because of equity and
good conscience. Damages may be awarded which result from wrongful conduct of
the State or any of its agencies, which would be judicially recognized as
wrongful conduct.
Negligence of a State Agency or any of its employees must be fully shown to
justify an award, and it must be further shown that the Claimant did not know
the existence of a danger, or as a reasonable person under the conditions then
existing the Claimant could not have discovered the danger. This accident
occurred in the daytime. If she voluntarily and unnecessarily exposed herself
to a risk, she is barred from recovery by the doctrine of assumption of risk.
If she was driving in an imprudent manner considering the road conditions,
visibility, weather, traffic, road surface, and other surrounding
circumstances, she is barred by contributory negligence. A mere recital of a
road defect is not sufficient to sustain a recovery in her favor. We must also know
whether
W. VA.]
REPORTS STATE COURT OF CLAIMS 37
she was operating her car in a careful and prudent manner under
all the circumstances, whether the road defect would have been visible to a
person exercising ordinary care for his own safety, whether it was a latent or
hidden defect which could not reasonabJy have been anticipated. A material fact
bearing on contributory negligence would be her familiarity with the condition
of the road and whether she had traversed it before. Other silent facts in this
record are the length of time the defect existed, whether the Road Commissioner
had received proper notice of it, and whether he had a reasonable opportunity
to remedy the condition, considering the limitations of his budget and the
needs of our reads for maintenance.
This Court has many times held that the State is not a guarantor of the safety
of its travelers on its roads and bridges. The State is not an insurer and its
duty to travelers is a qualified one, namely, reasonable care and diligence in
the maintenance of a highway under all the circumstances. The case of Adkins v. Sims, 130 W. Va. 645, 46 S.E. (2d) 81, decided in 1947, holds that the user of
the highway travels at his own risk, and that the State does not and cannot
assure him a safe journey. The maintenance of highways is a governmental
function and funds available for road improvements are necessarily limited.
On the sparse record before it, a one-page Stipulation of Facts consisting
mainly of conclusions rather than evidentiary facts, this Court cannot make an
award merely on a finding of negligent and wrongful conduct on the part of the
Respondent. We must also find that the Claimant was free from fault, and that
her conduct did not contribute proximately to the accident.
To allow the claim would require this Court to make inferences and implied
findings not warranted by the Stipulation. The missing photograph showing the
condition of the highway and the location of the defect would have been helpful
but not necessarily determinative of the Court?s ruling. In the present state
of the record before us, we are of opinion to deny the claim.
Claim dismissed. No award.
38 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued September 8, 1969
C. J. HUGHES CONSTRUCTION COMPANY,
Claimant,
vs.
STATE TAX COMMISSIONER, Respondent.
(No. D-123)
J. W. St. Clair, Esq., for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General and George H. Samuels, Assistant Attorney General for the Respondent.
PETROPLUS, JUDGE:
The Claimant, C. J. Hughes Construction Company, a corporation, filed a claim
in this Court on October 23, 1968, for the refund of business and occupation
taxes allegedly overpaid for the years 1960 and 1961 under a misconception of
the proper tax classification of business activity in which Claimant was
engaged. A refund of $5,572.68 is claimed for the year 1960, and a refund of
$3,116.12 is claimed for the year 1961, or the aggregate for both years in the
sum of $8,688.80, resulting from the reclassification of a portion of the gross
income for the respective years from a contractor status to service business,
the tax rate for the latter type of business activity being lower than that of
a contractor. A Field Auditor of the State Tax Commissioner?s Office apparently
discovered the error in classification, and called it to the attention of the
taxpayer for the years in question as well as for three subsequent years, 1962,
1963 and 1964. The Claimant ultimately received reimbursement for the
subsequent years and they are not involved in this hearing.
The Audit Report filed as Claimant?s Exhibit No. 1, adjusting and recomputing
the tax is dated January 13, 1966, and states on its face that no adjustment is
made for the years 1960 and 1961 because they are barred by the Statute of
Limitations. On January 22, 1966, Claimant filed Amended Business and
Occupation Tax Returns for all calendar years, 1960 to 1964, inclusive, and was
advised by the State Tax Commissioner
W. VA.]
REPORTS STATE COURT OF CLAIMS 39
that the proper procedure was to file a Petition for Refund, which was
accordingly done. Upon a hearing on the Petition, the State Tax Commissioner by
Ruling dated June 1, 1967, disallowed all claims for refunds, assigning as a
reason for the denial of refunds for the years 1960 and 1961, the bar of the
Statute of Limitations, and for the subsequent years the refund claims were
denied apparently because the Tax Commissioner disagreed with the adjustments
made by his own Auditor.
Thereafter the Claimant instituted a Declaratory Judgment proceeding in the
Circuit Court of Cabell County, where it was sustained in its position for the
years 1962, 1963 and 1964, but again denied recovery for the years 1960 and
1961 on the ground that refunds were barred by the Statute of Limitations.
Claimant?s contention is that inasmuch as a Court of Record has found its
position on reclassification tenable for the subsequent years (1962, 1963,
1964) that the State of West Virginia has a moral obligation to make refund for
the two prior years (1960, 1961) notwithstanding the Statute of Limitations has
barred the refund proceedings, and a Court of Record has denied the refunds.
With this contention we cannot agree.
There being no factual dispute, a decision must be based on the law applicable
to the ease.
The Claimant has overlooked entirely a provision in the law establishing this
Court and defining its jurisdiction, Chapter 14, Article 2, Section 14, ?The
jurisdiction of the court shall not extend to any claim 5. With respect to
which a proceeding may be maintained against the State, by or on behalf of the
claimant in the courts of the State.? A procedure for aggrieved taxpayers
seeking refunds of taxes erroneously collected is set forth in Chapter 11,
Article 1, Section 2a of the Code, and requires the taxpayer to file a written
Petition for Refund within three years from the date of payment with the
official or department through which the tax was paid; 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 was improperly
required, he shall refund the same to the taxpayer by the issuance of a Warrant
on the Treasury through the Auditor. If the collecting official is in
40 REPORTS
STATE COURT OF CLAIMS [W. VA.
doubt as to whether the tax was
unlawfully collected, or if he be of the opinion that the payment of the tax
was lawful, on his own initiative or on demand of the aggrieved taxpayer within
thirty days of written Notice, said official must promptly institute a
Declaratory Judgment proceeding in a Court of competent jurisdiction.
The Claimant had a remedy in the Courts and availed itself of this remedy, and
did recover by Declaratory Judgment the overpayment of taxes for the subsequent
years of 1962 to 1964, inclusive. Having exhausted its legal remedy for the
years of 1960 and 1961, it now invokes the jurisdiction of the Court of Claims
because of a moral obligation and this alone. To assume jurisdiction would
ignore the prohibition placed on this Court and the exclusion imposed by
Chapter 14, Article 2, Section 14 of the Code. The latter Statute excludes
certain classes of claims from consideration. Code, l1-1-2a originally was
purely an administrative remedy for collecting taxes erroneously paid. Later by
Legislative Amendment redress was afforded judicially by rea airing the tax
official to go into a Court of Record promptly on demand of the taxpayer. It
would appear that the Statute now as amended affords a complete remejy in tax
refund cases with appellate review. We are not unmindful of the Ruling in a
Mandamus suit of the West Virginia Supreme Court of Appeals in the case of Raleigh County Bank v. Shis. 137 XV. Va. 599, 73 S.E. (2d) 526, decided in 1952, which held
that the administrative remedy afforded by this Statute was not the exclusive
method of recovery for taxes erroneously ovcrrid. The case was decided before
the Declaratory Judgment feature was added by Amendment to the Statute, and
also in that case the Legislature had enacted an appropriation Statute
declaring the debt to be a moral obligation of the State after a favorable
award by the former Court of Claims.
As we interpret the Statute creating this Court of Claims, it is not all claims
which the State should in equity and good conscience pay th?at we are required
to consider, but only those that come within the purview of our circumscribed
jurisdiction. We are constrained to consider those claims, which but for the
Constitutional immunity, could be maintained in the regular Courts of this
State. This claim obviously cannot
W. VA.]
REPORTS STATE COURT OF CLAIMS 41
be maintained in the regular Courts of
the State, and if civil action were filed there could be no recovery even
though sovereign immunity was not pleaded as a defense.
The Judgment of the Cabell County Circuit Court entered on September 23, 1968,
admittedly disallowed recovery for the taxes in question by stating they were
barred by the Statute of Limitations, although allowing recovery for the
subsequent years. This in our opinion is res adjudicata. We do not feel that
this Court has been empowered to overrule a Final Judgment of a Court of Record
based on findings or defenses other than sovereign immunity.
Accordingly, for the foregoing reasons, we are of opinion to disallow the claim
and make no award.
Claim disallowed.
Opinion issued October 23, 1969
CITY OF MORGANTOWN
vs.
BOARD
OF GOVERNORS OF
WEST VIRGINIA UNIVERSITY
(No. D-46)
Mike Magro, Jr., Esq., City Attorney, for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General and Robert R. Harpold, Jr., Esq., for the State.
DUCKER, JUDGE:
The claimant, The City of Morgantown, a municipal corporation, alleges that
West Virginia University is indebted to it for fire service fees assessed
against the buildings and property of the University within said City in the
amount of $40,886.22 for the fiscal year 1966-67, one-half of which was due
November 1, 1966 and one-half May 1, 1967. The unpaid charges represent amounts
which the Council of said City, as previously constituted as to its membership,
gave the Uni
42 REPORTS
STATE COURT OF CLAIMS [W.VA
versity credit on total charges of $52,945.11 and $52,943.11 respectively, for
the two halves of such charges or assessments. The present or later council
alleges that the former council had no authority to authorize such credits and
herein claims that the amount of such credits is still due. The facts alleged
in the complaint are stipulated by the parties as true; the validity of the
claim is solely one of law.
Under the prior submission of this claim this Court held that West Virginia
University was not such an agency of the State as to give this Court
jurisdiction, and consequently dismissed the case, but notwithstanding the fact
that the statute creating West Virginia University provided that the University
may sue and be sued, the Supreme Court of Appeals of West Virginia held that
the University is such an agency as has constitutional immunity from suit and
that this Court has jurisdiction. Accordingly, this Court has now taken
jurisdiction of the case for a decision on its merits according to the law and
the facts.
We find no specific provision in the Charter of the City of Morgantown
authorizing the enactment by the Council of a fire service charge, but Chapter
8, Article 4, Section 20 of the Code of West Virginia gives the governing authority
of every municipal corporation that furnishes such service to provide for the
same by ordinance, and according to Article 1, Section 2 of said Chapter of the
Code all municipal corporations, except where otherwise provided in the Code or
by special charter, are subject to the provisions of said Chapter. So the
authority to make such charges for fire service is thus given to the Claimant.
There is no question as to legality of the adoption by the City of Morgantown
of the ordinance to such effect. The sole question is whether such ordinance
could be effectually repealed or rescinded by a simple resolution which
attempted to give the University the credit and releasing the liability to such
extent, that is whether in order to do so it was necessary that a repealing
ordinance be adopted, such adoption having been possible only ?after
publication in accordance with the provisions of Section 10, Article 4, Chapter
8, of the Code in effect at that time, which provisions required publication of
notice of such action for at least five days before the meeting at which it was
to be submitted for adoption.
W. VA.)
REPORTS STATE COURT OF CLAIMS 43
The law on this point is stated in the
following authorities:
In Corpus Juris Secundum, page 836, section 435 (3) it is said?
?The act which repeals an ordinance must be of equal
dignity with the act which establishes it, and must be enacted in the manner
required for passing a valid ordinance. Accordingly, an ordinance or by-law can
be repealed only by another ordinance or by-law, and not by a mere resolution,
order, or motion, or by a void ordinance.?
In Hukie v. City of
Huntington, 134 W. Va. 249, 58 S.E.
2d, 780, the Court said?
?It is a general rule that the ordinance of a municipal
corporation may not be repealed by a mere motion or resolution, nor can the
operation of the ordinance be suspended by a resolution or by the acts of
municipal officers. 2 McQuillin, Municipal Corporations, 2d Ed. page 161,
Section 885.?
So according to this clear principle we are of the opinion to conclude that the
Council of the City of Morgantown could not legally revoke and in such manner
alone repeal the binding effect of the ordinance in question.
Another aspect of the case is also apparent in the equitable situation that exists
in this matter. West Virginia University is not simply property or assets
within or of the City of Morgantown but is and are property and assets of the
State as a whole, and it occurs to us that it is not equitable for the City of
Morgantown to be charged entirely with the cost of fire protection, which would
be the result if the University were held to be exempt or relieved of its share
of the cost of such service. By requiring the State as a whole to bear the fire
service fee, equity will be better served regardless of any strict
interpretation or application of the law. However, be that as it may, the legal
reason hereinbef ore expressed is adequate for our decision in this case.
For the reasons stated, we are of the opinion to and do hold that claimant is
entitled to an award in the total amount of its claim.
Award of $40,886.22.
44 REPORTS
STATE COURT OF CLAIMS [WVA
Opinion issued November 14, 1969
DRS. SQUIRE, FRANCKE AND GOODWIN,
Claimants,
vs.
WEST VIRGINIA VOCATIONAL
REHABILITATION DIVISION, Respondent
(No. D-148)
No appearance for the Claimants.
George E. Lantz, Assistant Attorney General for the Respondent.
PETROPLUS, JUDGE:
This claim was presented under Chapter 14, Article 2, Section 17 of the Code of
West Virginia, authorizing a shortened procedure for claims under $1,000.00
possessing certain characteristics. It appearing to the Court that the State
Agency concerned has concurred in the claim, and that the claim has been
approved by the Attorney General?s office as one that should be paid, and it
further appearing that the claim does not arise under an appropriation for the
current fiscal year, and that the records of the claim consisting of all
papers, stipulations and evidential documents are adequate and reveal that the
Claimants rendered certain medical services for which they have not been paid,
and ?that Claimants? charges were overlooked because of a change in hospital
procedures, the Court is of opinion to approve the claim and make an award in
the amount of $134.50.
Claim allowed in the amount of $134.50.
W. VA.] REPORTS
STATE COURT OF CLAIMS 45
Opinion issued November 14, 1969
CLAY WHITING, Claimant,
vs.
REX SMITH, Superintendent, and STATE BOARD
OF EDUCATION, Charleston, and D. BANKS WILBURN,
President of Glenville State College, Glenville,
West Virginia, Respondents.
(No. D-177)
Louis G. Craig5 Esq., for the Claimant.
George E, Lantz, Assistant Attorney General, for the Respondents.
PETROPLUS, JUDGE:
In this case Petitioner seeks damages in the amount of $7,500.00 for trespass
to his property, charging Respondents with negligence in the construction and
maintenance of a storm sewer or drain on the property of Glenville State
College directly opposite Petitioner?s property. It is alleged that the sewer collected
and diverted a flow of water toward Petitioner?s property with such volume and
intensity as to erode the earth and wash away a portion of a City Street
between the properties and cause movement of soil, land and debris to flow
towards and on to Petitioner?s property, thereby causing it to become
depreciated in value. The Petitioner was the owner of contiguous Lots 19, 20
and 21 in the Linn Addition to the Town of Glenville, Gilmer County, West
Virginia, which were situated on a hillside on a substantially lower elevation
than the College property, which was situated directly across and above the
Petitioner?s property with a 40 foot public street known as Linn Street
separating the respective properties. For many years before Petitioner
purchased. his property the area was beset with drainage problems, and slides
had intermittently occurred. A portion of street between the properties became
undermined, settled and broke away, the slip causing mud, soil and debris to
push against and jeopardize a dwelling house situate on Lot 19, which house was
moved at the expense of the Petitioner to higher and trouble free ground about
100 feet away from the original location.
46 REPORTS
STATE COURT OF CLAIMS [W. VA.
Respondents filed ?a Motion to
Dismiss, assigning as a ground that the applicable Statute of Limitations under
West Virginia law for this type of action was two years, and inasmuch as the
damage occurred in March, 1962, and the claim was not filed until April 3,
1969, more than two years after the alleged cause of action, the claim should
be dismissed. A general denial of the allegations of the Petition was also
filed denying ?any moral or legal responsibility for the damages sustained by
the Petitioner. The hearing revealed that the damages were ?of a continuing and
recurrent nature. The Court is of the opinion that the Statute of Limitations
does not run where there is a continual and intermittent trespass to real
estate, and the Motion ?to Dismiss is accordingly overruled.
According to the testimony presented ?at the hearing, the Court finds that
Petitioner?s property was on a low level with relation to the surrounding land
of the College; that it was located in a natural drainage area, confronted with
slips and drainage problems for many years before he purchased it; that the
steeped-sloped side of the hill was composed of loosely compacted earth and
porous sandstone highly susceptible to erosion by rain and surface waters. The
Court is constrained to find that the natural flow of surface water, resulting
from rainfall, contributed substantially to the breakage of the soil to which
Petitioner?s property was subjected. The damage to Petitioner?s property was
the result of a combination of conditions, ?and to hold that a leaking drain or
inadequate sewer line on the College property was the direct and proximate
cause of the damages sustained by the Petitioner would be an untenable finding
of fact, unwarranted by the evidence in the case. Assuming that a leaking or
defective drain existed on the Respondents? property, it is difficult for us to
conclude that the leakage or diversion of surface waters contributed
significantly and effectively to Petitioner?s damages. Water accumulated in
this area from several directions, forming an impassable pool on Linn Street,
and seeking ?a lower level naturally caused mud and debris to flow upon
Petitioner?s lot below and jeopardized the safety of his home.
The Claimant testified that he purchased his property for $3,500.00 on
September 1, 1960, including the lots and house, and subsequently filed suit
against the Town of Glenville for
W.VA.] REPORTS
STATE COURT OF CLAIMS 47
failure to install a culvert and provide adequate drainage of Linn Street, and
that his claim was settled out of Court by payment of $1,500.00. The issue must
have been the City?s share of responsibility for damage to his property.
Claimant also stated that an eminent domain proceeding was pending against him
by the State Road Commission, and that he had been offered $3,700.00 for his
property in its present condition in said proceeding. It was not clearly
established that he owned the property at the time of this hearing.
The only witness for the State was the Superintendent of the College buildings
and grounds, who testified that the land above had been gradually slipping for
about ten years before Petitioner acquired his property, and that Linn Street,
then maintained by the City, had been gradually sinking at its low point
opposite Lot 19, requiring a gravel fill from time to time. He further stated
the site was a natural drainage area for the steep hillside behind Petitioner?s
property, and that the water was washing out the land. Ditches and drains were
installed to alleviate the condition but apparently were ineffective in
diverting the flow of water. He further stated the land would have slipped
whether there was any pipe or not, and that the difficulty may have been
remedied by an expenditure of $2,000.00 or more by the College. His testimony
stands uncontradicted.
It is well established law that land at lower levels is subject to the
servitude of receiving waters that flow naturally upon it from adjoining higher
land levels, and that unless a property owner diverts the natural flow of
surface water in such a manner as to damage the property of another, there is
no liability on the owner of the higher property. Unless a landowner collects
surface water into an artificial channel, and precipitates it with greatly
increased or unnatural quantities upon his neighbor?s land, causing damage, the
law affords no redress. If no more water is collected on the property than
would naturally have flowed upon it in a diffused manner, the dominant tenement
cannot be held liable for damage to land subject to the servitude of flowing
waters. The evidence in this case does not reveal that the flow was increased
in volume or changed in its character to the substantial damage of the
Petitioner. Nor was it shown by evidence that the flow accelerated or was
artifically channeled so as to increase the servitude
48 REPORTS
STATE COURT OF CLAIMS [W.VA.
upon Petitioner?s lot as was shown in Manley
v. Brown, 90 W. Va. 564, 111 S.E. 505,
cited by Petitioner.
To constitute a moral obligation of the State justifying the appropriation of
public funds, it is necessary that an obligation or duty be imposed on the
State, by Statute or Contract, or that wrongful conduct be shown, which would
be judicially recognized as legal or equitable in cases between private
persons. State ex. rel. Cashman v.
Sims, 130 W. Va. 430, 43 S.E.2d
805. In the recent decision of State
ex. rel. Vincent v. Gainer, 151 W. Va.
1002, (1967), our Supreme Court of Appeals affirmed prior decisions holding
that whether such moral obligation exists is a judicial question, and proof of
negligence by the State Road Commission was required to be shown.
The common law rule that surface water is considered a common enemy, and that
each landowner may fight it off as best he can prevails in Virginia and West
Virginia, with the modification that an owner of higher ground may not inflict
injury on the owner of lower ground beyond what is necessary. Norfolk & W. R. Co. v. Carter, 91 Va. 587, 22 S.E. 517. Jordan v. Benwood, 42 W. Va. 312, 26 SE. 266, and Linclamood
v. Board of Education, 92 W. Va. 387,
114 S. E. 600.
We conclude that because of the many intervening factors and causes of the
Petitioner?s damages, operating independently of any leakage from a defective
sewer or drain tile on the College property, and all contributing to the extensive
slides and soil erosion in the area of Petitionefs land, and the further fact
that Petitioner sought and received damages from the Town of Glenville for its
responsibility in the subsidence and drainage of Linn Street, the Petitioner
has not proved a claim which in equity and good conscience should be paid by
the State of West Virginia. An allowance must be predicated on proof disclosing
more than a mere basis for conjecture or speculation that the leaking sewer
caused the damage of which the Petitioner complains.
For the foregoing reasons, the Court disallows the claim.
Claim disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 49
Opinion issued November 14, 1969
MONONGAHELA POWER COMPANY, a
corporation,
vs.
ADJUTANT GENERAL OF THE STATE OF WEST VIRGINIA
(No. D-225)
Richard H. Talbott, Jr., Esq., for the Claimant.
George E. Lantz, Deputy Attorney General, for the State. DUCKER, JUDGE:
This claim in the amount of $89.87 arose out of parachute exercises at Camp
Dawson in Preston County, West Virginia, by personnel of Company F, 19th
Special Forces Group of the West Virginia National Guard, on July 5, 1967, the
parachute of one of the officers having drifted across open electric wire
causing conductors between poles to burn necessitating immediate repairs,
cos?ting the amount alleged in the claim.
There is no dispute or denial of the alleged facts, but the claim was not filed
in this Court until October 3, 1969, which was more than two years after the
alleged cause of action arose. The cause of the delay in filing the claim in
this court is explained in correspondence between claimant?s attorney and the
Attorney General, which shows what may be considered at least an implied
waiver, if not an express waiver, by the Attorney General of the statute of
limitations.
It is fortunate that the amount of the claim is small, but that is not relevant
to the question of law involved which is whether the statute of limitations can
be waived so far as the jurisdiction of this Court is concerned.
The statute on this point, as set forth in Chapter 14, Article 2, Section 21 of
the Code is in the following language:
?The court shall not take jurisdiction of any claim, whether accruing before or
after the effective date of this article, unless notice of such claim be filed
with the clerk within such period of limitation as would be applicable under
article two, chapter fifty-five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, if the claim were against a private person,
firm or
50 REPORTS
STATE COURT OF CLAIMS [W.VA.
corporation and the constitutional immunity of the state from suit were not
involved.?
From the wording of this statute, this court is of the opinion that it does not
have jurisdiction because of the application of the two year statute of
limitations, and that without any special exception in the statute there is no
express or implied right on the part of any department f the state through its
agents or attorneys to waive this jurisdictional restriction, for otherwise this
Court?s jurisdiction could become unlimited and expanded at the will and
discretion of any state agency. Of course, it is regrettable that there could
have been any understanding between counsel to the effect that the statute was
or could be waived, but this Court cannot change the law to honor anything
contrary to the law. This provision is not unlike many other provisions of law
fixing time limits for various procedures or proceedings. Consequently, this
Court concludes that it must and does hereby dismiss the claim for lack of
jurisdiction.
Case dismissed.
Opinion issued December 8, 1969
CARL W. GRUBBS and ELLEN GRUBBS, Claimants,
vs.
THE STATE ROAD COMMISSION OF WEST VIRGINIA,
a corporation Respondent.
(No. D-238)
No appearance for the Claimants.
Robert R. Harpold, Jr., Esq., for the Respondent. PETROPLUS, JUDGE:
One of the Petitioners, Ellen Grubbs, is an employee of the State Road
Commission of West Virginia, and as such had been given permission to park her
automobile in the State Road Commission Motor Pool parking lot. While reporting
for work on October 17, 1969, she stopped her car at the entrance to the lot,
where the attendant, also an employee of the State Road Commission, entered the
car and
proceeded to park
W. VA.]
REPORTS STATE COURT OF CLAIMS 51
the vehicle. A sign posted at the
entrance stated that all vehicles were to be parked by the attendant. While in
the process of parking the car the attendant struck another motor vehicle,
resulting in damages to Claimants? car in the agreed amount of $159.59. The
attendant was later discharged for being under the influence of alcohol while
performing his duties.
The above facts were submitted to the Court by stipulation of the parties,
including damages, which appear to be reasonable according to the estimate
thereof prepared by a reliable repair shop, which was filed as an exhibit. No
evidence was taken in the case. It also appeared from the exhibits that the
Respondent, through its Safety and Claims Division, made a thorough investigation
of the claim.
It is the finding of the Court that a duly authorized agent of the State Road
Commission, acting within the scope of his employment, failed to exercise the
ordinary care that a reasonably prudent person would exercise under the circumstances
in the performance of his duties, and the Claimants being free from any fault
on their part, the Court finds that the damages complained of were directly
attributable to the negligence of a state employee. An award is made to the
Claimants in the amount of $159.59.
Claim allowed in the amount of $159.59.
Opinion issued December 8, 1969
RAY BICE, Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. D-214)
Claimant appeared in person without counsel.
Robert R. Harpold, Jr., Esq., for the Respondent.
PETROPLUS, JUDGE:
The claimant was retired as an employee of the State Road Commission on
February 4, 1967, when he attained the age of
52 REPORTS
STATE COURT OF CLAIMS [W.VA.
70 years by virtue of the requirements of the Compulsory Retirement Age Act
passed by the Legislature in 1965, (Code, Chapter 5, Article 14). The repeal of
the Act, effective on February 1, 1968, has no relevancy to the issue before
the Court. Section 5 of said Act provided that upon submission of a payroll to
the State Auditor for payment, the individual submitting the payroll should
certify that no person whose name was listed thereon was 70 years of age or
older, and if it was brought to the attention of the State Auditor that a
listed employee had reached retirement age, no warrant could be issued for
payment of said employee?s services.
At the time of the Claimant?s retirement, he had accrued to his credit 289
hours of what is termed as compensatory leave time. In an official memorandum
dated March 18, 1965, the State Road Commissioner defined compensatory time as
time worked by salaried employees after regular working hours to meet emergency
situations or designated work schedules of contractors for the State Road
Commission. The District Engineer of a designated project was required to
approve work hours beyond the regular work schedule, and no employee was
permitted by regulation to accumulate more than 20 hours of compensatory time
in any one week, nor more than 200 hours of compensatory time to his credit at
any one time. Any compensatory time accumulation in excess of the regulation
was declared unauthorized.
The accounting practices of the State Road Commission carried a retired
employee on the payroll until the amount of extra time accumulated and to which
the employee was entitled was paid. When the claimant was retired by compulsion
upon reaching the age of 70 years, the requirement of certification and the
prohibition placed upon the Auditor heretofore mentioned prevented the claimant
from receiving compensation for his extra work.
The Respondent stipulated that on the basis of the maximum credit allowed,
namely 200 hours, the Claimant was entitled to $760.29. The additional 89 hours
claimed, being in excess of the allowable credit, are not compensable.
It appearing to the Court that the Claimant rendered services of value to the
State beyond his regular working hours
W.VA.] REPORTS
STATE COURT OF CLAIMS 53
pursuant to a requirement of the State Road Commission, and that in equity and
good conscience the State should pay him for these services, the Court is of
opinion to allow this claim in the amount of $760.29, notwithstanding that the
payroll procedural problems created by the Compulsory Retirement Act because of
the certification requirement prevented the State Auditor from issuing a
warrant for payment. The services were rendered while the Claimant was an
eligible employee of the State, and were duly authorized by the State. A
contrary holding would work a manifest injustice.
Claim allowed in the amount of $760.29.
Opinion issued December 8, 1969
HARMARVILLE REHABILITATION CENTER
vs.
DIVISION OF VOCATIONAL REHABILITATION
(No. D-175)
No appearance for the Claimant.
George E. Lantz, Assistant Attorney General, for the Respondent.
JONES, JUDGE:
On April 16, 1968, the claimant, Harmarville Rehabilitation Center, mailed an
invoice for $49.00 to the respondent, Division of Vocational Rehabilitation,
for services rendered, which was paid in due course. Thereafter, by letter
dated January 6, 1969, the claimant informed the respondent that a review of
its records revealed that for services rendered for a period of ten days, from
May 1, 1968 to May 11, 1968, the claimant had inadvertently billed for only one
day, leaving a balance owing of $411.00. The respondent readily conceded the
error, but it was unable to pay the invoice for the balance due for the reason
that it was submitted after funds available to pay for services rendered during
the fiscal year ending June 30, 1968, had been exhausted.
54 REPORTS
STATE COURT OF CLAIMS [W. VA.
The respondent?s answer admits the allegations of the claimant?s petition, and
says that the claim should be allowed. The claim was submitted on the petition
and answer.
The Court is of opinion that this is a valid claim which in equity and good
conscience should be paid, and, accordingly, an award is hereby made to
Harmarville Rehabilitation Center in the sum of $411.00.
Opinion issued December 8, 1969
DAN THOMAS, SR.
vs.
DEPARTMENT OF MINES
(No. D-164)
HERSHEL H. MULLENAX
vs.
DEPARTMENT OF MINES
(No. D-168)
LAYMAN M. HALL
vs.
DEPARTMENT OF MINES
(No. D-169)
ALFRED H. CHRISTNER
vs.
DEPARTMENT OF MINES
(No. D-170)
No appearance for the Claimants.
George E. Lantz, Assistant Attorney General, for the Respondent.
JONES, JUDGE:
Each of the claimants appeared at a hearing ?at the Federal Building in
Fairmont on December 5, 6 and 7, 1968, at the
W. VA.]
REPORTS STATE COURT OF CLAIMS 55
request of the respondent, and gave testimony, relating to the Farrnington Mine
Disaster. Their claims are for lost wages, travel and other expenses incurred
by reason of their attendance at the hearings. Their respective claims are in
the following amounts: Dan Thomas, Sr.?$119.22; Hershel H. Mullenax?$120.20;
Layman M. Hall?$137.17; and Alfred H. Christner?$99.OO. The claims were
submitted on the records, and have been consolidated for the purpose of this
opinion.
The respondent admits that it requested the appearance of the claimants as
witnesses at the hearings, but answers that it has no authority to reimburse
these claimants for the loss of earnings and expenses incurred by them. No
legal responsibility upon the respondent is shown by the claimants, and the
Court is unable to find any authority which would support the payment of these
claims.
It goes without saying that the claimants have performed a meritorious service
for their fellow workers, their industry and the State of West Virginia, by
cooperating with the Department of Mines in its endeavor to determine the cause
of a tragic mining accident and to prevent such disasters in the future.
However, the Court of Claims Act does not contemplate the invocation of the
State?s conscience without a showing of legal responsibility. There being no
legal basis for recovery, the Court must, and does hereby, disallow each of
said claims.
56 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 13, 1970
RALPH MYERS CONTRACTING CORPORATION,
a corporation, Claimant,
vs.
THE STATE ROAD COMMISSION
OF? WEST VIRGINIA, Respondent.
(No. B-382)
George P. Sovick, Jr., for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, and Theodore L. Shreve, for the Respondent.
PER CURIAM:
This claim was filed December 21, 1966, with the Attorney General of West
Virginia. No hearings thereon were held by the Attorney General and the claim
was transferred, with others, to this Court upon its creation by the West
Virginia Legislature, effective July 1, 1967. The case was originally set for
hearing on November 2, 1967, but was continued at the request of the claimant
because of the unavailability of certain witnesses who were out of the country,
the respondent not objecting to the motion for continuance. Testimony in this
case was taken, and other evidence submitted on May 24 and May 28, 1968.
Claimant entered into a written contract with the State Road Commission of West
Virginia, dated September 8, 1958, calling for the grading and draining of
33,538 lineal feet of construction on Interstate Route 64, designated as
Project No.
1-64-1 (9)13.
This claim embraces four separate items, described briefly as follows:
(1) $47,532.45 as payment for 32,781 cubic yards of special rock fill at the
contract unit price of $1.45 per cubic yard. It is the respondent?s contention
that this rock fill was not actually put in place, based upon core drilling or
boring conducted by the State;
W. VA.]
REPORTS STATE COURT OF CLAIMS 57
(2) $36,360.96 as payment for 35,648
cubic yards of unclassified excavation, at the contract unit price of $1.02 per
cubic yard. It is the respondent?s contention that this excavation was not in
fact done or this material removed inasmuch as the rock fill referred to above
was not placed;
(3) $22,032.00 as payment for the removal of 21,600 cubic yards of material as
unclassified excavation, at the contract unit price of $1.02 per cubic yard.
Respondent agrees this amount of material was removed but contends the claimant
is not entitled to payment because it accumulated as a result of ?overblasting?
on the part of the claimant and not as a result of sluffing or slides as
alleged by claimant;
(4) $11,947.32 representing the difference claimant was to be paid for
additional work in relation to culvert installation and excavation per a
written contract entered into by claimant, the respondent?s project Engineer
Fryer, and claimant?s subcontractor Turman after the problem arose during
construction. Respondent contends Fryer had no authority to bind the State in
any regard and claimant was paid for the work in accordance with the project
contract rate ($1.02) and that the agreement rate ($3.00) is void.
Claimant and respondent agree this project was governed by the ?Standard
Specifications, Roads and Bridges, Adopted 1952,? commonly called ?Blue Book.?
Respondent further agrees that the sum of $20,213.34 is owed to claimant in
accordance with the final estimate on this project, and that this sum is in
addition to, and not involved in, the claim here considered.
As to items (1) and (2) of this claim, this project required the installation
of an underwater ?keyway? of stone to stabilize the filled roadbed upon which
Interstate 64 was to be constructed. Installation of this special stone fill
keyway required underwater excavation by the claimant. No cross sections
relating to quantities of excavation or fill were made as this work was done.
The claimant?s evidence was that 264,000 cubic yards of stone were delivered by
its hauling contractors to this project, the quantity being based on a ?truck
count? admittedly not generally acceptable for payment purposes. Respondent, to
obtain records to substantiate final estimate payment, conducted core borings
and drillings in the ?keyway? area in question, and paid the claimant where the
drilling
58 REPORTS STATE
COURT OF CLAIMS [W. VA.
indicated ?fill material .
. . boulders or rock.? Transcript, Volume
II, page 105. Respondent offered claimant the opportunity to conduct similar
tests but it declined. Claimant has been paid for 226,990 cubic yards of rock fill
and its attendant excavations based upon the corings and while these tests may
not have been perfect, no evidence of similar nature was offered to refute
these findings. It is our opinion the claimant has failed to establish its
claim for items (1) and (2) by a preponderance of the evidence.
As to item (3), it is agreed this 21,600 cubic yards of material was removed by
claimant. While the respondent offered some evidence that this material
resulted from ?overblasting,? it is our opinion claimant?s evidence
preponderates in this regard in its contention that this was more likely to be
slides and sluffing due to the soil conditions, the winter exposure, poor slope
design, and the fact that ?overblasting? results in rather immediate falls and
there is no considerable delay in effect. We find that $22,032.00 should be
allowed for this item.
As to item (4), it is our opinion the Blue Book specifications governing this
job (Section 1.1.4) authorized the State Project Engineer Fryer to enter into
this agreement for the work, to be performed. Respondent admits it was work
beyond the scope of the contract that was not anticipated, that claimant did
the work, and that in doing it in the manner agreed upon was economically
beneficial to the State. We find that $11,947.32 should be allowed on this
item.
To conclude, the Court hereby awards the claimant the sum of $33,979.32.
Claim allowed in the amount of $33,979.32.
W. VA.]
REPORTS STATE COURT OF CLAIMS 59
Opinion issued January 14, 1970
FLORENCE MASSEY, Widow of
William Clifton Massey, Claimant,
vs.
L. L. VINCENT, West Virginia Department of Welfare,
Kanawha County Department of Welfare,
State of West Virginia, Respondent.
(No. D-142)
Ronald Pearson, Esq., for the Claimant.
George E. Lantz, Assistant Attorney General for the Respondent.
PETROPLUS, JUDGE:
Florence Massey, the Claimant, was a widow receiving benefits from the West
Virginia Department of Welfare since 1950 under the Aid to Families with
Dependent Children Program. Although a mother of 15 children, only 3, who were
attending school, were living with her at the time this claim arose. In
addition to Social Security and her allotment from a son in the Armed Service,
she was receiving approximately $75.00 a month from the State Welfare Department
for her basic needs. In the month of May, 1966, she applied for an additional
claim to meet what is termed ?Special Needs? in order that she would be
provided with funds to meet the installment payments on a loan made from the
Montgomery National Bank in the amount of $842.04, to cover an improvement to
her living quarters. The improvement consisted of the construction of an
additional room and bathroom for her home, which had been suggested by the
Social Worker assigned to her case. There was some discussion about this
special grant between her, the representatives of the Department of Welfare,
the Bank and the Company that supplied the materials for the improvement. On
the basis of the commitment of the Department of Welfare to make a special
grant of approximately $70.00 a month in order to enable the claimant to repay
her loans, credit was extended by both the Bank and the materialman.
60 REPORTS
STATE COURT OF CLAIMS [W. VA.
The Department of Welfare did not directly negotiate these loans and incurred
no legal obligation by way of guarantee to the Bank or the materialman.
Approximately 5 months after the special grant was made, upon a routine
examination that she possessed an automobile and controlled and operated the
same, she was advised by the Respondent that under the Rules and Regulations of
the Department, she would become ineligible for benefits unless she disposed of
the car. The title to the car was in a married daughter.?s name, who had
departed to join her husband in New Mexico and left the car to be used by her
mother. Although warned that her benefits would be terminated if she did not
dispose of the car, the Claimant elected to continue using the car and both her
basic and special benefits were terminated in April, 1967, on the ground that
she became ineligible for benefits under the Rules and Regulations of the
Department of Welfare. The Notice of Claim is in the amount of $987.79,
representing the aggregate amount owing to the Montgomery National Bank an
Lowe?s Building Materials.
After consideration of the evidence submitted on behalf of the Claimant at the
hearing, it is the Opinion of the Court that the Claimant, although warned,
elected .to pursue a course of conduct that disqualified her under the Rules
and Regulations of the Department of Welfare from receiving assistance and by
refusing to give up possession and use of the car, she voluntarily forfeited
her benefits. The fact that the car was titled in the name of her daughter does
not excuse her from making a disposition of the car and, in fact, the record is
silent on any effort on her part to contact her daughter regarding a sale or
disposition of the automobile. Claimant?s counsel contends that she was not
advised of her rights of appeal, but we fail to see where she was prejudiced,
even though she was not so advised. She was clearly in violation of the rules
of eligibility and had she taken an appeal to a Board of Review, the decision
of the Department would undoubtedly have been sustained. A second contention of
the Claimant is that the conduct of the representatives of the Department of
Welfare constitutes an estoppel against terminating her benefits until
sufficient funds were paid to enable her to satisfy the loans which were made
to finance her home improvement. No
W. VA.]
REPORTS STATE COURT OF CLAIMS 61
authority has been cited by counsel for the Claimant that the doctrine of
estoppel applies to a State Agency under the circumstances of this ease. The
Court has grave doubt that estoppel can be applied to a Governmental Agency
that operates under limited statutory authority and Rules and Regulations
proscribed by law. A State or one of its political subdivisions is not bound by
the legally unauthorized acts of its officers; ?and all persons must take note
of the legal limitations upon their power and authority. The West Virginia
Court has stated many times that equitable estoppel cannot be applied against
the State. Cunningham v. County Court,
148 W. Va. 303, 134 S.E. (2d) 725.
The Department of Welfare has no legal authority to underwrite loans or make
guarantees for their repayment on behalf of Welfare recipients. All parties
concerned are charged with notice that benefits which are payable directly to a
recipient may be terminated at any time that the recipient becomes ineligible
for assistance. Notwithstanding that the Claimant placed herself in a position
of jeopardy by getting involved with creditors on the assurance that she would
receive a special grant to pay those creditors, by her own conduct she
voluntarily made herself ineligible for public assistance.
For the foregoing reasons, the Court is of the opinion to and does hereby
disallow the claim.
Claim disallowed.
62 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 15, 1970
SYLVIA MILLER, ADMINISTRATRIX OF THE ESTATE OF
HELEN LOUISE MILLER, DECEASED,
vs.
WEST VIRGINIA DIVISION OF CORRECTION; CREATED
AND EXISTING UNDER THE AUTHORITY OF THE
COMMSSIONER OF PUBLIC INSTITUTIONS
AND THE STATE OF WEST VIRGINIA.
(No. D-149)
Chester Lovett, Esq., for the Claimant.
George E. Lantz, Assistant Attorney General, for the State. DUCKER,
JUDGE:
The claimant, Sylvia Miller, Administratrix of the Estate of Helen Louise
Miller, deceased, seeks damages in the original amount of $110,000.00, later
amended to $10,000.00 limit of the amount allowed by law at the time of act
complained of, against the West Virginia Division of Correction existing under
the authority of the Commissioner of Public Institutions of the State of West
Virginia, on account of the alleged murder of Helen Louise Miller, an infant
nine years of age, on the 27th day of December, 1967, by one Charles Gratton
Plantz, a parolee from the West Virginia Penitentiary.
The more important facts disclosed from the evidence are as hereinafter enumerated.
Charles G. Plantz, according to a report made to the West Virginia Board of
Probation and Parole on December 26, 1963, was born on May 19, 1945 to
Owen Plantz, age 45, and Betty Plantz, age 37, who were separated in 1945, and
from 1955 Plantz was boarded out in private homes with little success in
education. He was a ward of the Welfare Department from 1955-1960, placed in
foster homes in the Charleston area, twice committed to Pruntytown, once to
Forestry Camp, and Spencer State Hospital, and he escaped from all three
institutions and was returned. From 1956 to March 1963, he was repeatedly
guilty of breaking and entering and of larceny in one form or
W. VA.)
REPORTS STATE COURT OF CLAIMS 63
another, which resulted in his conviction and confinement in the several
institutions. From this record the subject was considered the product of a
broken home and a deserting father, and due to his misfortunes he became a
misplaced person. On March 2, 1963, Plantz was sentenced to serve one to ten
years in the State penitentiary for breaking and entering, and he immediately
began serving his term which, with credit for good behaviour, would have
terminated in April, 1968. On January 25, 1967, Plantz was released on parole
from the penitentiary. On April 24, 1967, Bob E. Willis, Probati?on and Parole
Officer, made a Parole Violation Report on Plantz to John W. Mastin, Deputy
Director of the Division of Corrections, in which he listed four violations by
Plantz of his parole and suggested that Plantz?s parole be revoked, saying the
?subject was not considered mentally ill but he doesn?t have the ability to
live under the simplest form of regulations? and that subject ?be returned to
an ?outline? institution as a trusty.? This report had at its bottom a notation,
?No! See about Voc. Rehab. Program and await grand jury action. S?. This
notation was made by Charles Robert Sarver, then Director of the Division of
Corrections. The parole violations cited by Willis were (1) for associating
with persons with criminal record or bad reputation, (2) drinking intoxicating
beverages, beer, (3) driving a car without operator?s license, and (4) being
arrested for auto larceny. The first three of these were considered by the
state as technical violations and the fourth as a felony violation. For the
fourth violation Plantz was arrested on April 11, 1967 and incarcerated in the
Kanawh?a County jail. Two terms of grand jury action passed and on August 31,
1967, Parole Officer Willis reported to John W. Mastin, Deputy Director, that
Plantz had not been indicted and that a motion of Plantz?s attorney for
Plantz?s release had not been opposed by Prosecuting Attorney Spencer and that
the Prosecutthg Attorney did not have any objection to releasing Plantz from
jail, and that he (Willis) considering the time Plantz had already spent in
jail recommended that the Parole Board withdraw their ?hold? on subject until
he was indicted for the alleged offense, to which recommendation Director
Sarver agreed, whereupon Plantz was released from jail.
64 REPORTS
STATE COURT OF CLAIMS [W. VA.
Sarver testified that the first three technical parole violations were not
considered sufficient to revoke Plantz?s parole and that without a conviction
of Plantz on the alleged felony violation, Plantz could not be considered
guilty or subject to revocation on that alleged violation. So while free on his
original parole Plantz committed the alleged murder of Helen Louise Miller, and
this claim is based on the theory that the state has been negligent in not revoking
Plantz?s parole and not returning him to the penitentiary or other custody
which would have confined him and would not have allowed him to have been free
and able to commit the alleged murder in question, and that legally such
negligence was the cause of the death of Helen Louise Miller, to which claim
the state responds by denying there was any negligence and that its action or
inaction in not revoking Plantz parole was not in any legal sense the proximate
or any cause of the alleged murder committed by Plantz. So the issues in this
matter are, first, whether there was actionable negligence on the part of the
state officers, and, secondly, whether if there was negligence it was the
proximate cause of the tragedy.
Considerable evidence was introduced by the claimant showing the history of
Plantz from the time he was eleven years old until he was sent to the
penitentiary in 1963, most of which showed he was an incorrigible youth, the
result of a broken home with no disciplined course of conduct or restraint, and
after many arrests mostly for crimes involving theft in one form or another
resulting eventually in his conviction and incarceration in the penitentiary in
1963 for a one to ten year term. In some reports it was stated he was accused
of being a homosexual, but we find no positive proof of such allegations, and
even if true violence can not be inferred from such a fact. In November, 1963,
Bob E. Willis, Probation and Parole Officer, recommended to the Parole Board
that Plantz serve eighteen months before being considered for parole. Plantz,
who sometime after 1963 served time in the Medium Security Prison at
Huttonsville, was returned to the penitentiary in Moundsville in May, 1966 as
being totally undesirable for the Huttonsville institution. Two exhibits filed
by the respondent show Plantz had excellent general conduct records in the
penitentiary for the two months period covered by such
W. VA.]
REPORTS STATE COURT OF CLAIMS 65
records. Plantz?s application for parole in January, 1967 was approved, Robert
E. Kuhn, Chairman of the Parole Board having participated in the decision
granting the parole. In view of the action of the Board in this matter, it
seems reasonable to conclude that all the history of Plantz prior to his
incarceration in 1963 has been to a large degree overcome by Plantz?s record
being good enough to obtain his release on parole in January, 1967. Of course,
it is argued that all the history of Plantz shows that he should not have been
released on parole and that once released his parole should have been revoked.
If there had beeen proof that Plantz had violent tendencies which in the
foreseeable future could result in murderous conduct on the part of the
parolee, then such argument would be more tenable, but we see nothing in the
evidence in this case which would justify such a conclusion. The Parole Board
exercised its discretion and judgment in granting the parole and we see no
reason in this case to imply that there was any abuse in the exercise of that
discretion.
The foregoing analysis brings us to the question of the parole not being
revoked on the recommendation of parole officer Willis. As has been stated, the
report of Willis specified four parole violations by Plantz, three so-called
technical and one felony. There seems to be no contradiction in the evidence
that the felony violation was the only one in which parole revocation was
always considered mandatory under the Parole Board?s regulations or procedure.
Claimant lays great stress on the procedure followed in case by the Department
of Corrections, particularly its Director Sarver. There is no dispute as to the
fact that ?the matter of Plantz?s parole revocation was never presented to or
heard by the Parole Board. Nor is it disputed that Parole Officer Willis and
Director Sarver handled the practically entire matter instead of there being a
hearing and decision by the Parole Board. This now presents the question of
negligence.
Parole Officer Willis in 1964 recommended that Plantz should serve eighteen
months before being granted a parole and in April, 1967 made a report to Deputy
Director John W. Mastin citing the four violations by Plantz and recommending
that Plantz be returned to an outline (outlying) institution, on which later
report Director Sarver penned the words ?No!
66 REPORTS
STATE COURT OF CLAIMS [W. VA.
See about Voc. Rehab. program and await grand jury action.? The latter notation
was apparently made after Plantz was placed in the Kanawha County jail pending
proceedings on the charge of the auto theft. Willis, in his report of August
31, 1967, stated that Piantz had been in jail since April 11, 1967, without
action on the charge and recommended that the Parole Board withdraw its ?hold?
on ?the subject until he is indicted. S?arver stated that he considered the
period of time Plantz spent in jail as sufficient punishment for the technical
violations suggested by Willis and then ordered the withdrawal of the ?hold?
order and Plantz was released. Apparently no further proceedings were had on
the auto theft charge. On November 22, 1967, Willis gave Plantz permission to
purchase and operate ?a motor vehicle for general purposes. Sarver testified
that as there was no conviction or apparent intention to indict Plantz on the
auto theft, he could not assume Plantz guilty, and all that then remained on
the recommendation to revoke the parole were the three technical charges.
Evidently Willis ?thought the technical charges were not sufficient to revoke
when he several months later gave Plantz the privilege of buying and operating
a motor vehicle. There is no evidence showing ?any parole violations between
the August, 1967 report ?and the January, 1968 alleged murder. Claimant
contends that the failure of Sarver in not having the Parole Board meet and
decide the question of revocation of Plantz?s parole constitutes actionable
negligence.
Sarver testified that his duties involved supervision of approximately twelve
hundred parolees a year, that it was his duty to consider in each instance
whether a recommendation of revocation should be submitted to the Parole Board,
and that in this instance he did not consider the violation charges sufficient
for consideration by the Board. The Director?s position is one of discretionary
powers and we have not been shown and we do not find any requirement that
either his or all recommendations of his subordinate officers have to be
submitted to the Board for hearing and decision. Boards such as the Parole
Board are necessarily dependent upon the officers of the state for their
services both administrative and discretionary. Sarver recommended and directed
the parole officer to see if a vocational rehabilitation program could be
provided
W. VA.]
REPORTS STATE COURT OF CLAIMS 67
for Plantz which, to us, in view of the facts and of Plantz?s history, seems
reasonable, and certainly wise and worth a try. Rehabilitation, if possible, of
a person who does n?ot have violent tendencies is today a most highly
recommended procedure for dealing with persons of Plantz?s type. We are of the
opinion that Sarver acted within his authorized authority and that the evidence
does not warrant a finding that he was either negligent or guilty of abuse in
the exercise of his discretion.
If, however, we should have concluded that Director Sarver was guilty of
negligence, then the question is whether such negligence was the proximate
cause of the death of Helen Louise Miller. The respondent has cited numerous
cases of our Supreme Court holding that our law is abundantly clear to the
effect that negligence, no matter of what it consists, cannot create a cause of
action unless it is the proximate cause of the injury complained of, and that
negligence to be actionable must be such as might have been reasonably expected
to produce an injury, and that the cause of an injury must be the last
negligent act contributing thereto, without which such injury would not have
resulted. McCoy v. Cohen, 149 W.Va. 197, 140 S.E.2d 427, Griffith v.
Wood, 150 W.Va. 678, 149 S.E.2d
205, 13 Michie?s Jurisprudence, Negligence Sec. 22, at page 531, and cases
cited. The recent case of John L.
Creamer, Adm. v. Department of Mental Health, Case No. D-40 in this court, is analogous to this case
and supports this same in principle.
We are of the opinion, considering all the facts, very few of which, if any,
are in dispute, that the failure of the Director of the Division of Corrections
and any failure on the part of the Parole Board to revoke Plantz?s parole and
to allow him to remain free on parole were not the proximate cause of the death
of Helen Louise Miller. To say it must be anticipated by the authorities that a
parolee who has shown no violent tendencies is or will become a potential
murderer and a menace to society is not, in our ?opinion, reasonable. The
matter of reasonableness in such a matter is one of discretion and there must
be a clear case of abuse of discretion to warrant a decision of proximate cause
of subsequent events.
Of course, it is indeed unfortunate when ?anyone is murdered, and sympathy for
those affected is natural, but to say that
68 REPORTS
STATE COURT OF CLAIMS [W.VA.
the action or the inaction of the officers of the state was the cause, much
less the proximate cause, of the murder, is neither reasonable nor factual.
While the public is entitled to the utmost protection from the criminal element
of its society, it cannot restrain the freedom of individuals who are legally
free and whose reputations do not show violent tendencies. Such a claim could
be made when anyone being charged with a crime is free on bail. The state
cannot control or be responsible for the illegal acts of its citizens, and it
can only act according to the reasonable discretion of its officers and it should
not be held liable for injuries or damages which are caused by an act which is
not the foreseeable proximate cause of such injuries or damages. This court is
not established to make awards on any sympathy basis, but only to hear and
determine the question of legal liability as though there was no constitutional
immunity to the state, and unless a claim is such as would be valid against one
other than the state, we must deny relief.
For the reasons herein stated, we are of the opinion to, and do disallow the
claim of the claimant in this case.
Claim Disallowed.
Opinion issued January 14, 1970
HIGHWAY ENGINEERS, INC., Claimant,
vs.
THE STATE ROAD COMMISSION
OF WEST VIRGINIA, Respondent.
(No. D-154)
Richard J. Sch.oenfeld, Esq., for the Claimant.
George E. Lantz, Assistant Attorney General, and Claude H. Vencill, Esq., for the Respondent.
PETROPLUS, JUDGE:
This matter came on for hearing on September 10, 1969, upon a Petition filed by
Highway Engineers, Inc., Claimafit, against
W. VA.]
REPORTS STATE COURT OF CLAIMS 69
the State Road Commission of West Virginia, Respondent, giving notice of a
claim in the amount of $11,774.81. The claim is based on a Contract between the
Claimant and the State Road Commission dated March 2, 1965, wherein the Commission
employed the Claimant as Consulting Engineers to provide certain professional
services and furnish all labor, materials and equipment neccssary to supply
information and data that would be required in the pceparation of a Preliminary
Engineering Report for the consideration of the Respondent in determining the
most feasible and economical location of a roadway between the City of
Williamson in Mingo County to the vicinity of the intersection of U. S. Route
119 with West Virginia Route 3 near Danville, Logan County, a total distance of
approximately 77 miles. The Contract, after the project description, provided
that the service to be rendered by the Claimant was to be divided into two
separate and independent phases. Phase I was designated as ?PRELIMINARY REPORT?, and the Consultant thereunder, upon written Notice to
proceed, was to supply certain exploratory technical information consisting of
Aerial Mosaics for all corridors indicated on the Sketch Map attached to the
Contract and covering an area of 241 square miles. Phase I also included
securing data from Topographical Maps indicating grade lines showing locations
of possible drainage structures, overhead and underpass structures and possible
interchanges. For this work, the Respondent? agreed to and did pay the
Consultant a lump sum fee of $50,400.00.
Phase II of the Contract is entitled ?PRELIMINARY
ENGINEERING REPORT? and stated that upon the completion and approval of all the work under
Phase I, and the selection by the
Commission of corridors for additional study, the Consultant, upon written
Notice to proceed, was to complete the study and prepare cost estimates and
reports for the most feasible and economical location of a roadway within each
corridor designated and approved by
the Respondent for further study. For
the work to be performed under Phase II, the Contract provided that a lump sum
fee of $119,637.00 to be paid, which fee was based on a complete study for 160
miles of acceptable final study lines. The portion of the Contract which
creates the issue in this case reads:
70 REPORTS
STATE COURT OF CLAIMS [W. VA
?If, after completion and review of work on Phase I, it is agreed that more or
less mileage than 160 miles are agreed to for final study, adjustments will be
made to the final fee on a basis of Seven Hundred Forty-eight Dollars ($748.00)
per mile?.
The total estimated fee of $170,037.00 was stated to be the maximum amount
payable under this Contract without a Supplemental Agreement for any additional
work. Payments under both Phases of the Contract were to be made monthly, based
on Progress Reports submitted by the Consultant, and the Commission was to
retain 10% of the earned fee until the completion and acceptance of the work.
The grievance of the Claimant rests on a letter of the Commission dated
November 29, 1965, to proceed with a designated portion of the work outlined in
Phase II, ?PRELIMINARY ENGINEERING
REPORT?, which directed the Claimant
to proceed with work on Phase II for a distance of only approximately 33.0 miles
of study lines. The study lines were limited to a small area surrounding
Williamson. No further work was authorized by the Respondent under Phase II of
the Contract.
The Claimant was offered payment for the work performed on Phase II at the rate
of $748.00 per mile, or an aggregate compensation of $24,684.00, for which
there is no dispute but takes the position that it suffered damages in the
amount of $11,774.81, representing a loss incurred in performing the work
directed under Phase II as a result of the action of the Respondent in altering
the scope and terms of the Contract by limiting the work to be performed under
Phase II to 33.0 miles rather than 160 miles as contemplated by the Contract.
The Respondent answered admitting substantially all of the facts of ?the
Complaint but denied any liability to pay the Claimant the sum of $11,774.81,
alleged to be the damages sustained by the Claimant. Respondent further denied
any deviation from the terms of the Contract or any alteration of its scope and
terms.
The parties submitted their case on a Stipulation of Facts and Exhibits which
were admitted into evidence without proof as to the authenticity of the
documents, but subject to objection
W. VA.]
REPORTS STATE COURT OF CLAIMS 71
by the parties as to admissibility or relevancy. No evidence was taken at the
hearing.
The lengthy recital of the above facts is required for an understanding of the
Court?s Opinion in this matter.
The issue before the Court requires a construction and interpretation of the
terms and provisions of the Contract between the Claimant and the Respondent.
The intention of the parties must be ascertained from the language employed,
and from the subject matter of the Contract. No rule can be laid down by which
it may be determined whether the Contract is entire or severable. A Contract to
do several things at several times, the parts not being necessarily dependent
upon each other and particularly where the consideration is apportioned among
various items, is ?ordinarily regarded as severable and divisible. The prime
criterion is the intention of the parties, and the conduct of the parties in
performing the Contract has a bearing on its proper interpretation. American
Chlorophyll v. Schertz, 176 Va. 362, 11 S.E. (2d) 625, Dixie Appliance
v. Bourne, 138 W.Va. 810, 77 S.E. (2d) 879. It is ?the opinion of the Court
that the Contract in question, which was divided into two phases, Phase I, for
supplying exploratory information and data, and Phase II, a complete
Preliminary Engineering Report, using the information collected under Phase 1
as a basis for the report, constitutes a divisible Contract.
The Claimant was paid the sum of $50,400.00 upon the completion of Phase I
which covered the total distance of approximately 77 miles from Williamson to
Danville, West Virginia. Upon the completion and review of the work on Phase I,
the Commission requested and required only a part of the additional work
specified in Phase II by giving a Notice to proceed to the Consulting Engineers
to complete their study, make cost estimates and report on approximately 33
miles of study lines from Belo to Williamson, from Delbarton to Williamson and
from Belo to Delbarton. The Notice to proceed with this work was in a letter
dated November 29, 1965, addressed to the Claimant by the State Road
Commission. The Claimant proceeded with this work and was offered and paid
compensation for the 33 miles at the rate of $748.00 per mile. Payments were
made monthly based on Progress Re-
72 REPORTS
STATE COURT OF CLAIMS [W. VA
ports submitted by the Consultant
after the usual retainage. As the Court interprets the Contract, the Respondent
had no legal obligation to request a stipulated or minimum amount of work under
Phase II. The Claimant undoubtedly anticipated more work under Phase II than it
actually received, but their wishes and anticipations do not establish a legal
right; nor do they establish an ambiguity in the Contract. As we interpret the
Contract, upon the completion of Phase I and the payment of the stipulated lump
sum, the Respondent reserved the legal right to abandon the project, disapprove
it, or refuse to give the Notice to proceed with Phase II or any part of Phase
II. The compensation for Phase II, although first stated in a lump sum of
$119,637.00, based on a complete study for 160 miles, is qualified by an
additional formula of adjustment, which states that more or less mileage than
160 miles will result in adjustments to the final fee on a basis of $748.00 per
mile. It is the opinion of this Court that the Contract sum for Phase II was
meant to be a maximum amount payable under the Contract without a Supplemental
Agreement, and tht no minimum payment is prescribed by the terms of the
Contract.
The reduction of the work to 33 miles of study under Phase II does not
constitute a material change in the scope and terms of the Contract as
contended by Claimant, but on the contrary was contemplated by the terms and
provisions of the Contract. The result admittedly works an inequity for the
Claimant, but the Court is constrained to apply principles of law to its
decisions rather than correct inequities or make a new agreement for the
parties, in the absence of a showing of fraud, accident or mistake or other
grounds which would justify the reformation of the agreement.
The State Road Commission had a legal right to prescribe the corridors and the
number of miles to be studied under Phase II of the Agreement. This it did by
the letter of November 29, 1965, directing the Consultants to proceed within a
limited scope of 33 miles. The Commission stands ready to pay the balance owing
for this work in the amount of $3,134.86, said amount not being involved in
this controversy. Upon submission of an invoice by the Claimant, this amount
will be processed and approved for payment.
W. VA.]
REPORTS STATE COURT OF CLAIMS 73
The caveats in dealing with a public
agency are well established in the law and where a contract is divisible and
based on unit prices, we must assume that the contracting parties contemplate a
partial performance and partial compensation under the contract. The Exhibits
admitted by Stipulation, consisting of correspondence between the parties,
attempt to bring into the Contract statements made during the period of
negotiation which clearly are not admissible under the Parol Evidence Rule to
vary or alter the terms of a written Agreement. The Agreement is clear and
unambiguous and represents the final agreement of the parties and evidence may
not be admitted to contradict, add to, alter, enlarge or explain a written
Agreement or vary its legal effect. Shaffer
v. Calvert Fire Insurance Company, 135
W.Va. 153. It is the further finding of this Court that a proper interpretation
of the Contract made Phase II entirely optional with the Respondent and that Phase
II was conditioned not only upon completion of the work under Phase I but the
review and approval of the work under Phase I by the Commission. The failure of
the Claimant to make any protest at the time it received the Notice to proceed
with a small portion of the work under Phase II by letter of November 29, 1965,
and the submission of monthly progress invoices, indicate acquiescence with our
interpretation of the Contract. It was not until the letter of February 20,
1967, to the State Road Commission from the Claimant, almost 15 months later,
that the Claimant raised the question of minimal project termini and reduction
in fee based on a straight per mile basis. We find nothing in the Contract that
commits the Respondent to a maximum mileage under Phase II.
The additional fee request, which is in the nature of losses sustained by the
Claimant in the amount of $11,774.81 for the work actually done under Phase II,
cannot be considered as a claim for damages when there is no showing that the
Respondent breached any provisions of the Contract.
For the foregoing reasons, the Court is of opinion to ?and does hereby disallow
the claim.
Claim disallowed.
74 REPORTS
STATE COURT OF CLAIMS [W.VA
Opinion issued January 14, 1970
KENNETH SPENCER, Claimant,
vs.
STATE OF WEST VIRGINIA, Respondent.
(No. D-165)
Claimant appeared in person without counsel.
George E. Lantz, Assistant Attorney General, for the Respondent.
PETROPLUS, JUDGE:
Claimant was the owner and operator of a 1962 Chevrolet, which was struck by a
? ton Dodge truck owned by the West Virginia National Guard and operated by
Earl C. Banks, Jr., a member of the National Guard, engaged in his officiai
duties. The truck was carrying a load of trash to a City dump on August 2,
1968, on an authorized mission, and was traveling North on State Route No. 20
to Hinton, West Virginia, when it skidded on a wet pavement on Bellepoint
Bridge, struck the Claimant?s motor vehicle which was traveling South on the
Bridge, and then traveled approximately 225 feet before coming to a stop.
It appears quite clearly that the driver of the army truck was guilty of
negligence in its operation, and that the Claimant was free of any contributory
negligence at the time of the accident. The Attorney General at the hearing did
not contest liability and confined his examination to inquiry on damages. The
Claimant?s motor vehicle was damaged beyond repair and was sold for salvage for
the sum of $100.00 shortly before the trial. The testimony revealed that two
out of three persons asked to estimate the damage reported that it would cost
more to repair the car than it was worth.
The measure of damages in West Virginia is the difference in the market value
of the vehicle immediately before the accident and immediately after the accident.
The Claimant utterly failed to prove the fair market value of his 1962
Chevrolet before its was damaged, and the inquiry of the
W.VA.1
REPORTS STATE COURT OF CLAIMS 75
Attorney General failed to elicit this information, although a number of questions
were directed to the Claimant for that purpose.
This Court cannot make an award where damages are not proved, and if it did so,
the damages would be conjectural and unsupported by the record. The estimate
for repairing the car submitted by the City Body Shop of Milton, West Virginia,
in the amount of $592.79, is not competent evidence in view of the testimony
that the car was worth less than the cost of repair, and became a total loss as
a result of the accident save for its salvage value.
On the present record, we have no alternative but to disallow the claim for
failure to prove damages in the proper manner.
Claim disallowed.
Opinion issued January 19, 1970
JOHN L. ROLFE, and HARLEYSVILLE
INSURANCE
COMPANY, Subrogee, Claimants,
vs.
THE ADJUTANT GENERAL of the State of
West Virginia, Respondent.
(No. D-237)
No appearance for the Claimants.
George E. Lantz, Deputy Attorney General for the Respondent.
PETROPLUS, JUDGE:
The facts were submitted to the Court by stipulation and admission in the
Answer of the Respondent that damages in the amount of $275.67 to Claimant?s
motor vehicle were incurred as the result of the negligence of Joseph F. Blum
who was operating a jeep classified as a Military vehicle assigned to the
Fairmont Headquarters of the Adjutant General of
76 REPORTS
STATE COURT OF CLAIMS [W. VA
West Virginia, and that the accident occurred while the jeep was engaged in
official business. The time and place of the accident do not appear in the
record, neither are any facts presented to the Court from which a finding of
negligence may be inferred. The estimate of damage submitted by the Mooers
Motor Company is dated July 14, 1969, so we are assuming that the accident
occurred some time in July, 1969.
Inasmuch as the Answer requests that the claim be allowed as one that the State
in good conscience ought ?to pay, an award will be made to the Claimants in the
amount of $275.67.
Claim allowed in the amount of $275.67.
Opinion issued January 20, 1970
S. P. DAVIDSON, H. H. DAVIDSON and A. L. DAVIDSON,
doing business as DAVIDSON BROTHERS, Claimants,
vs.
STATE ROAD COMMISSION, Respondent.
(No. D-204)
Huston A. Smith, Esq., for the Claimants.
George E. Lantz, Assistant Attorney General, and Robert R. Harpold, Esq.,
for the Respondent.
PETROPLUS, JUDGE:
Claimants, the owners of a certain tract of bottom land lying between the
Guyandotte River and W. Va. Route 10, in Lincoln County, near Branchiand, West
Virginia, instituted this claim for damages in the amount of $567.88, allegedly
resulting from the acts of employees of the State Road Commission in casting
rocks on their property while engaged in clearing the debris of a slide that
occurred on the roadway between the property and a high rock cliff. A partially
exposed gas line on the property was caused to break at a joint or collar,
allowing gas to escape in large quantities. The leak was detected and repaired
by the employees of United Fuel
W. VA.]
REPORTS STATE COURT OF CLAIMS 77
Gas Company at no cost to the Claimants, but they were charged by the Gas
Company with the metered quantity of escaping gas in the amount of the claim.
The line served three or four buildings under an arrangement between the
Company and the Claimants that a maximum amount of free gas would be furnished
and any quantities in excess thereof were to be chargeable to the Claimants.
The Answer of the Respondent states briefly that it did not have sufficient
information upon which to form a belief as to the truth of the allegations.
Upon the trial of the case, evidence of a circumstantial nature was introduced
to the effect that a slide had occurred on the road sometime in January, 1989,
partially blocking the road with debris and rocks of various sizes, some quite
large and heavy, and that heavy equipment was moved to the site by the
Respondent to clear the road and haul away the debris and rocks with a truck
but that some of the debris and rocks were thrown over an embankment on to the
property of the Claimants. Some of the rocks had rolled into and beyond the
area where the gas line was located, although they did not damage another gas
line running near the Claimants? line. Some of the employees of the Respondent
involved in the clearing procedures admitted that debris and rocks were thrown
on the property without the consent of the owners. No one was aware of the
damage to the gas line until the owners received a statement for the metered
gas from the Company in the amount of $567.88. A thick growth of weeds and
underbrush concealed the area where the rocks were thrown, and the sound of
escaping gas could not be heard from the roadway. The claim was not brought to
the attention of the Respondent until July, 1969, six months later, at which
time photographs were taken and some investigation was made, and no explanation
was offered why the Claimants waited so long to report and assert their claim
although they were billed for the gas in February, 1969.
The only question before the Court upon this record is: Does the evidence
support a finding that the Respondent?s employees caused the damage to the line
by disposal of the waste materials on the property of the Claimants? To push
waste material over a hillside on to private property is a trespass and an
78 REPORTS
STATE COURT OF CLAIMS [W. VA.
actionable tort, without proof of negligence. Whether this invasion of the
Claimants? property rights caused the damage is a more difficult question where
there is no direct evidence of the accident to the pipe.
In absence of any evidence .to the contrary, we conclude that it is a
reasonable inference from the circumstantial evidence presented that the damage
occurred as a proximate result of the operations of the Respondent in clearing
up the slide area on the road, and that casting debris on the Claimants?
property without any thought of the consequences, was a trespass that imposes a
liability on the Respondent. It is the opinion of the Court that the State has
a moral obligation to compensate the Claimants for their loss, and that but for
the constitutional immunity of the State this claim would be sustained in the
regular Courts of the State on the evidence presented.
Claim allowed in the amount of $567.88.
Opinion issued January 20, 1970
ALLSTATE PLUMBING CO., Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. D-209)
No appearance for the Claimant.
George
H. Samuels, Assistant Attorney General, and Robert R. Harpold, Esq., for the Respondent.
PETROPLUS, JUDGE:
This case was submitted on an agreed Stipulation of Facts, which was based on a
complete investigation of the circumstances under which the claim arose. On or
about July 15, 1968, an emergency situation arose at a building occupied by the
Advance Planning Division of the State Road Commission situate at 1200 Airport
Road, in Charleston, West Virginia. The septic sewer system backed up causing
effluvium to over-
W. VA.]
REPORTS STATE COURT OF CLAIMS 79
flow, flood and spill out underneath the building creating a serious health
hazard and intolerable working conditions for the employees of the State Road
Commission. The Claimant, called by ?an unknown employee of the Commission,
came upon the scene promptly with two trucks and four men and, without a
written authorization and after a total of fifteen hours of continuous work, satisfactorily
corrected the condition, and removed 6000 gallons of effluviurn in septic
trucks. A charge of twenty cents a gallon for the removal of the sewage was
made, but on being invoiced for the sum of $1200.00, the State refused to pay
the work performed because standard purchasing and payment procedures were not
followed in authorizing the work. The proper procedure for emergency work
required the submission of the contract upon receiving two bids, and a written
authorization as well as a written work order. The Procurement Supervisor of
the State Road Commission stated there was no procedure under which he could
authorize payment.
We are of the opinion that the emergency nature of this work did not afford
sufficient time to follow the usual procedures of preparing a written order and
written contracts after submission of bids, and the fact that no one knows who
authorized the doing of the work should not prejudice the Claimant from being
paid for a prompt and satisfactory performance of what he was called upon to do
for the benefit of the State Government. The efflux of sewage in an area where
a hundred State employees were working created a serious health hazard and a
disruption of the Commission?s activities on behalf of the State, as well as a
possible danger to the general public. Time being of the essence, and the work
having been done in a competent manner with the approval of the Sta.te, the
Court is disposed to allow the claim in its entirety based on the
reasonableness of the charge as determined by the investigation of the
Respondent. It is clearly the moral obligation of the State to pay this claim,
notwithstanding the technical procedures for awarding the work were not
followed and the identity of the person who ordered the work cannot be established.
Claim allowed in the amount of $1200.00.
80 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 22, 1970
CREED SAMPLES, Administrator of the Estate of
Fonda Ann Samples, deceased, Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. 0-187)
CREED L. SAMPLES, Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. 0-188)
JO ANNA SAMPLES, Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. 0-189)
PENNY SAMPLES, a minor who sues by her father and
next friend, Creed L. Samples, Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. 0-190)
LETA SAMPLES, a minor who sues by her father and
next friend, Creed L. Samples, Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. 0-191)
George P. Sovick, for the Claimants.
George H. Samuels, Assistant Attorney General, and Robert
R. Harpo1d, Jr., for the
Respondents.
JONES, JUDGE:
As the same facts apply to each of the above styled claims,
the cases were consolidated and heard together and will be
considered and decided together in this opinion.
W. VA.]
REPORTS STATE COURT OF CLAIMS 81
Much of the evidence in this case is not subject to question or controversy. On
May 30, 1968, at about 9:30 a.m. Jo Anna Samples, the owner of a 1964
Volkswagon, was driving the vehicle in a westerly direction ?along West
Virginia State Route No. 4 from her home at Procious in Clay County to
Clendenin in Kanawha County, accompanied by her daughters, Fonda Ann, twelve
years of age, Penny, seventeen years of age, and Leta, fifteen years of age,
and a young friend and schoolmate of the children, Consuelo Bedoya. As the
vehicle proceeded along the highway in a lawful manner, at a point
approximately 1.3 miles west of the Clay County line, a large tree, 24 inches
in diameter, fell from the top of the embankment along the north side ?of the
highway and struck the top of the Samples vehicle with great force, causing the
death of Fonda Ann Samples, and injuries to Jo Anna Samples, Penny Samples and
Leta Samples. The roots of the tree came to rest at the bottom of the slope and
its trunk extended completely across the highway to the bank of the Elk River.
When the Samples vehicle was struck it was thrown partially into the left
traffic lane and into an automobile operated by James Burdette, who had
observed the falling tree and was almost stopped a few feet short of the crash.
For several weeks prior to the occurrence, the respondent had been engaged in
dynamiting, excavating and removing large quantities of earth and rock from the
steep embankment on the north side of the highway. Work had stopped for the May
30th holiday and no workmen were present. Photographs taken on the same day
showed the exposed roots of trees and overhanging rocks at the top of the
excavation. It was raining and the weather had been rainy for some time.
Both Burdette and his passenger saw the tree start to move from the hillside
and then descend with great speed and force. They foresaw that the tree would
strike the Volkswagon and Burdette, being somewhat farther from the falling
tree, was barely able to avoid the same misfortune.
In most falling rock and falling tree cases, the State has been held not
liable. The principal involved was well stated by Judge Petroplus in the claim
of Etta A. Parsons versus the State Road Commission, Claim No. D-112, as
follows:
?This Court has many times held that the State is not a
82 REPORTS
STATE COURT OF CLAIMS [W.VA
guarantor of the safety of its travelers on its roads and bridges. The State is
not an insurer and its duty to travelers is a qualified one, namely, reasonable
care and diligence in the maintenance of a highway under all the circumstances.
The case of Adkins v. Simms, 130 W.Va. 645, 46 S.E. (2d) 81, decided in 1947, holds
that the user of the highway travels at his own risk, ?and that the State does
not and cannot assure him a safe journey. The maintenance of highways is a
governmental function and funds available for road improvements are necessarily
limited.? In the Adkins case, however, the Supreme Court of Appeals of West
Virginia further said: ?We do not mean to say that situations may not arise
where the failure of the road commissioner properly to maintain a highway, and
guard against accidents, occasioned by the condition of the road, may not be
treated as such positive neglect of duty as to create a moral obligation
against the State, for which the Legislature may ?appropriate money to pay
damages which proximately resulted therefrom.?
In this case, practically no defense was put forward by the respondent; and the
Court has no doubt ?that the excavation of the embankment had weakened the
upper levels of the hillside, causing the tree to fall down and across the
highway, and that this unsafe condition was carelessly permitted to exist over
a holiday period without anyone on the job to inspect or supervise the area.
The several claims include items of damages substantially as follows:
Creed Samples, Administrator of the Estate of Fonda Ann Samples, deceased,
claims $10,000.00 for the wrongful death of hi?s daughter, together with
necessary funeral expenses in the amount ?of $1,065.49, a total claim of
$11,065.49;
Creed L. Samples, in his own right, claims damages in the amount ?of $10,000.00
for burial and medical expenses incurred, and for the loss of his wife?s services;
Jo Anna Samples claims damages in the amount of $20,000.00 for her personal
injuries, pain ?and suffering, medical expenses and automobile damages;
W. VA.]
REPORTS STATE COURT OF CLAIMS 83
Penny Samples, a minor who sues by her
father and next friend, Creed L. Samples, claims damages in the amount of
$10,000.00 for her personal injuries, pain and suffering; and
Leta Samples, a minor who sues by her father and next friend, Creed L. Samples,
claims damages in the amount of $2,500.00 for her personal injuries, pain and
suffering.
This Court?s duty is to decide what claims against the State in equity and good
conscience should be paid from public funds; and in our opinion the claimants
have clearly proved their right to recover. The Court has considered the
evidence pertaining to damages and separate awards will be made to each of the
claimants as follows:
Creed L. Samples, Administrator of the Estate of Fonda Ann Samples, deceased,
is hereby awarded damages in the sum of $10,000.00 for the wrongful death of
his daughter, Fonda Ann Samples, and for funeral expenses in the amount of
$1,065.49, a total award of $11,065.49;
Creed L. Samples, in his own right, is awarded damages in the amount of $699.84
for out-of-pocket expenses for ambulance, hospital and doctor bills, this
amount having been stipulated by the parties as correct, fair and reasonable.
Funeral expenses having been awarded to Creed Samples as Administrator, that
part of his claim is disallowed, along with his claim for the loss of his wife?s
services;
J0 Anna Sample?s claim for damages to her car in the amount of $861.43 was
stipulated by the parties as correct, fair and reasonable, and it is allowed.
This claimant suffered contusions of both knees and of her chest and sternum,
pain and suffering, and great emotional stress, and the Court allows her the
sum of $3,000.00 for these injuries. Her claim for loss of wages is disallowed.
Accordingly, we hereby award the claimant, J0 Anna Samples, the total sum of
$3,861.43;
Penny Samples, now Penny Samples Malone, sustained a fracture of the upper jaw,
the displacement of several teeth and damages to others, a comminuted fracture
of her left little finger and bruises of both knees and her body. There remains
a scar at the base of her left little finger and medical testimony indicates
that this claimant will gradually
84 REPORTS
STATE COURT OF CLAIMS [W. VA.
regain strength but will permanently retain some limitation of motion in the
little finger. Based upon medical testimony, it was stipulated at the hearing
that necessary future medical expenses for the treatment of this claimant?s
teeth would cost $1,434.00, and in addition to this sum, the Court allows the
sum of $4,000.00 for her injuries, and hereby awards the claimant, Penny
Samples Malone, the sum of $5,434.00; and
Leta Samples received a blow to the forehead and across the top of her head.
She has a thin scar over the right side of her forehead and a deeper scar in
the top of the head where there appears to be a foreign body underneath the
skin, probably a piece of glass or wood, according to the examining physician,
and the area is tender to the touch. The physician recommended that this
foreign substance be removed. This claimant further testified that she suffered
occasional headaches as a result of pressure on the scarred area in the top of
her head and also some breaking-out at the point of the scar on her forhead.
The Court hereby awards the claimant, Leta Samples, the sum of $1,250.00.
Opinion issued January 23, 1970
WILLIAM J. TWIGGER, doing business as
R. L. SWEARER COMPANY, Claimant,
vs.
STATE OF WEST VIRGINIA OFFICE OF
FEDERAL-STATE RELATIONS, Respondent.
(No. D-246)
Vito H. Catenaro, Esq., and Donald
L. Phillips, Esq., for the Claimant.
George E. Lantz, Deputy Attorney General, for the Respondent.
PETROPLUS, JUDGE:
This claim was filed by Stipulation in the amount of $1,128.89 for customs
duties paid by Claimant who was the Customs
W. VA.]
REPORTS STATE COURT OF CLAIMS 85
Agent in handling a shipment of certain physiological testing equipment ordered
from Switzerland by the Coordinator of Operation Head Start, an Agent of the
State appointed by the Governor of West Virginia. The equipment was received in
the summer of 1965 and was used by the State Agencies in the program styled
Operation Head Start. The shipment originally was thought to be duty free, but
in October, 1965, the Customs Officials of the United States elected to impose
the duties and Claimant was obligated to make payment in the amount of the claim
on behalf ?of the State of West Virginia. There are no existing appropriations
in Operation Head Start from which Claimant may be reimbursed.
The Attorney General answered admitting all of the above facts, which are set
forth in the Notice of Claim, and stated that it was a claim that the State in
good conscience should pay. B. J. Coffindaffer, the present Director of
Federal-State Relations, by letter dated December 9, 1969, stated the claim was
correct insofar as he could ascertain from available files.
It is the finding of this Court that the claim in equity and good conscience
should be paid, and an award is accordingly made in the amount of $1,128.89 to
reimburse the Claimant for the custom duties so paid.
Claim allowed in the amount of $1,128.89.
Opinion issued January 26, 1970
FRED HENDRICKS and RUTH HENDRICKS, Claimants,
vs.
STATE ROAD COMMISSION, Respondent.
(No. D-111)
Joe N. Patton, Esq., for the Claimants.
George H. Samuels, Assistant Attorney General, and Robert R. Harpold, Jr., Esq., for the Respondent.
PETROPLUS, JUDGE:
This claim arose from damage caused to the roof of the dwelling house of the
Claimants situate near the Right of Way
86 REPORTS
STATE COURT OF CLAIMS [W. VA.
of Interstate 64 in Cabell County,
West Virginia, by a falling tree during a rainstorm and high wind on the night
of December 21, 1967. The tree was a poplar about 60 feet high which was part
of a clump of dead trees located on the State?s right of way about five feet
from the property line. At the hearing certain facts were either stipulated or
admitted by counsel for the parties, such as the amount of the damage in the
sum of $498.00, the death of Fred Hendricks after the filing of the claim, the
ownership of the property by Ruth Hendricks and her two daughters, Rebecca and
Carolyn Hendricks, and a partial subrogation of the claim in favor of
Nationwide Insurance Company. In the interest of doing justice, the additional
parties will be considered as claimants by agreement of the parties and
stipulation, without requiring formal petitions to make them party claimants.
The evidence taken clearly disclosed that the undermining of the roots of the
trees during the construction work of Interstate 64 in that area caused the
trees to die, and become a hazard to adjoining property. A maintenance employee
of the Respondent admitted that during his patrol of the Road he observed the
dead trees, but since no complaints had been received no effort was made to
remove them. He further admitted that he did not know how bad their condition
was, but the trees were promptly removed after the accident. The failure of the
Claimants to report the dangerous condition of the trees does not bar them from
recovery when the condition is obvious from a routine patrolling of the road to
the maintenance employees of the Respondent who are charged with the
responsibility of removing hazards from the right of way.
It is the finding of the Court that the Respondent?s employees failed to exercise
ordinary care under the circumstances, and that their negligence was the
proximate cause of the damage. The falling of a tree or trees on the dwelling
house five feet away during a rainstorm or high wind was a foreseeable
consequence, and we therefore hold the Respondent liable for the damages caused
to the dwelling house, there being nothing in the record before us to indicate
that the Claimants were guilty of any contributory negligence.
W. VA.]
REPORTS STATE COURT OF CLAIMS 87
An award is accordingly made to the Claimants in the amount of $498.00 to be
distributed as their interest may appear.
Claim allowed in the amount of $498.00.
Opinion issued January 29, 1970
ALLERGY REHABILITATION FOUNDATION, INC.,
a West Virginia Corporation, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-275)
Walter C. Price, Jr., Esq. and Mrs.
Lois B. Scherr, Attorney at Law, for
the Claimant.
George E. Lantz, Deputy Attorney General for the Respondent.
PETROPLUS, JUDGE:
The Claimant seeks damages in the amount of $1,703.87, resulting from the
occupancy of the Claimant?s property, known as Camp Bronco Junction, situate in
Putnam County, West Virginia. The property was leased to the West Virginia
Department of Health on September 30, 1968, for a term of eight months and
consisted of approximately 150 acres of land with improvements thereon at a
rental of $7,686.00 for the term. The lease provided that the demised premises
were to be used only for the purpose of housing, maintenance, treatment and care
of patients in any of the institutions of the Lessee, and that the Lessee shall
be responsible for any and all damage to the property, ordinary wear and tear
excepted, and further excepting damage by fire, vandalism and acts of God. The
patients who occupied the Camp apparently committed extensive damage to a
dishwasher, swimming pool, commode tanks, ?sewer line and lavatories, all of
which was itemized and approved by Dr. M. Mitchell-Bateman, Director of the
Department of Mental Health, in a letter dated January
88 REPORTS
STATE COURT OF CLAIMS [W. VA.
8, 1970, conditioned of course upon the submission of proper invoices for the
expenditures. The Attorney General in his Answer admitted the allegations,
referred to the letter of Dr. Bateman, and agreed that the claim should be paid
in good conscience. We must assume that he inspected and approved the invoices
although the record does not so indicate.
Liability in this matter having been stipulated and the damages having been
found to be correctly alleged, it is the opinion of the Court that the damages
were caused by the neglect of the parties in charge of the mental patients to
exercise proper supervision over the property and the patients. Liability for
damage having also been assumed by the terms of the lease, an award is
accordingly made to the Claimant.
Claim allowed in the amount of $1,703.87.
Opinion issued February 2, 1970
ELWOOD H. HEILMAN, M. D., RANDOLPH L. ANDERSON,
M.D. AND ARTHUR A. ABPLANALP, M.D.
vs.
VOCATIONAL REHABILITATION DIVISION
(No. D-260)
No appearance for the claimants.
George E. Lantz, Assistant Attorney General, for the Respondent.
JONES, JUDGE:
This claim is for professional services rendered by the claimants, Doctors
Heilman, Anderson and Abplanalp, to a client of the respondent Vocational
Rehabilitation Division. The claimants were given an ?oral authorization, but
due to an oversight of the respondent, a written authorization was not
submitted and the claimants? invoice was not processed.
The answer of the respondent admits the allegations of the notice of claim,
and, urging equity and good conscience, requests that the claim in the amount
of $116.50 be paid.
W. VA.]
REPORTS STATE COURT OF CLAIMS 89
Accordingly, we award the claimants, Elwood H. Heilman, M. D., Randolph L.
Anderson, M.D., and Arthur A. Abplanalp, M.D., the sum of $116.50.
Opinion issued February 2, 1970
MOUNTAIN STATE CONSTRUCTION COMPANY
vs.
STATE ROAD COMMISSION
(No. D-99)
William T. Brotherton, Jr., for the Claimant.
Theodore L. Shreve and Anthony G.
Halkias for the Respondent.
JONES, JUDGE:
This claim is for damages in ?the amount of $135,201.07 alleged by the
claimant, Mountain State Construction Company, to have been caused by
unreasonable delays and shutdowns by the respondent, State Road Commission,
during the performance of a highway construction contract in Ohio County. The
project was to be completed under the terms of the contract within 900 calendar
days, but required 1226 days to complete.
In lieu of a hearing upon the issues, the parties have seen fit to stipulate in
writing certain facts and to submit the claim for decision thereon. In said
stipulation the parties agree substantially as follows: The claimant was
required to pay increased prices for materials and labor because of shutdowns
ordered by the respondent; the claimant was required to expend additional sums
of money for removal of its equipment, supplies and materials from the project
to accommodate other contractors working on and about the project, at the request
of the respondent; the claimant was required to provide extra materials,
supplies and labor over and above the items specified and bid in said contract;
the claimant was required to expend money for materials, supplies and labor
over and above the
90 REPORTS
STATE COURT OF CLAIMS [W. VA.
bid items in said contract because of errors in the plans and specifications
and because of change orders issued by the respondent; the claimant was
required to provide management supervision during the shutdown and delay
periods; the cost and expense by reason of the aforesaid is $53,966.95,
aggregating thirteen separate items; and that said sum is due and owing from
the respondent to the claimant.
Upon the record it appears to the Court that the claimant has established a
valid claim against the State Road Commission which in equity and good
conscience should be paid, and, accordingly, an award is hereby made to the
claimant, Mountain State Construction Company, in the stipulated sum of
$53,966.95.
Opinion issued February 2, 1970
J. N. CALDWELL AND A. M. CALDWELL
d/b/a CALDWELL?S HARDWARE
vs.
STATE ROAD COMMISSION
(No. D-196)
No appearance for the Claimant.
Robert R. Harpold, Jr., and George H.
Samuels, Assistant Attorney General,
for the Respondent.
JONES, JUDGE:
When this case was called for hearing upon the claimants? petition, counsel for
the respondent, State Road Commission, filed a written statement, recited to be
based upon a complete investigation of the facts and circumstances giving rise
to the claim, and stipulating that the respondent purchased certain materials
from the claimants on authorizations Nos. PMO73OB and PM0749B for use in the
construction of the State Road Commission District Materials lab in Pocahontas
County; that the materials were delivered to the respondent on April 23, 1968;
that the materials were used in the construction of the
W. VA.]
REPORTS STATE COURT OF CLAIMS 91
respondent?s building; that the
materials so purchased, delivered and used were properly invoiced in the amount
of $581.24; and that the claimants were not paid for the materials because of
the failure of employees of the respondent to follow certain prescribed
purchasing procedures.
The Court is of opinion that the petition and stipulation present a valid claim
against the respondent, State Road Commission, which in equity and good
conscience should be paid, and, therefore, an award is hereby made to the
claimants, J. N. Caldwell and A. M. Caldwell, d/b/a Caldwell?s Hardware, in the
sum of $581.24.
Opinion issued February 2, 1970
MOUNTAINEER HIGHWAY ABRASIVES COMPANY, INC.
vs.
STATE ROAD COMMISSION
(No. D-28)
Leslie D. Price for the Claimant.
George H. Samuels, Assistant Attorney General, and Robert R. Harpold, Jr., for the Respondent.
JONES, JUDGE:
This ease was submitted upon the claimant?s petition and an agreement in
writing by counsel for the parties stipulating the facts and circumstances
supporting the claim and the amount due and owing the claimant.
The facts as stipulated are substantially as follows: On November 30, 1965, the
claimant submitted bids to the Department of Purchases on forms prescribed by
the State of West Virginia, for cinders containing calcium chloride for snow
and ice removal; purchase orders Nos. C-350 and C-357 were duly issued to the
claimant on December 1, 1965; upon instructions received from the respondent,
the claimant delivered materials in full compliance with specifications;
92 REPORTS
STATE COURT OF CLAIMS [W. VA.
inspection of the materials was made by the respondent and its consultant, R.
W. Hunt Company; the claimant submitted Invoice No. 1, dated February 1, 1966,
on purchase order No. C-350, in the amount of $9,577.73, and Invoice No. 2,
dated February 17, 1966, on purchase order No. C-357, in the amount of
$7,398.55; on September 22, 1966, the claimant received a cancellation notice
from the State Director of Purchases reading ?To cancel any balance which might
remain? on purchase orders Nos. C-350 and C-357; and ?there is due and owing to
the claimant for materials delivered to the respondent, in accordance with the
specifications set forth in the purchase orders and prior to the cancellation
of the contracts, the sum of $16,976.28.
As this claim was submitted upon the record, which clearly supports every aspect
of the claimant?s case, only one conclusion may be reached. The claim is just
and i equity and good conscience should be paid. Accordingly, the Court awards
the claimant, Mountaineer Highway Abrasives Company, Inc., the sum of
$16,976.28.
Judge Petroplus did not participate in this decision.
Opinion issued February 2, 1970
KING?S JEWELRY INC.
vs.
STATE ROAD COMMISSION
(No. D-216)
The claimant appearing by Charles Perelman, an officer and manager of the
company.
George E. Lantz, Assistant Attorney General, and Robert R. Harpold, Jr., for the Respondent.
JONES, JUDGE:
The claimant, King?s Jewelry Inc., alleges that on December 28, 1968, its 1968
Dodge van truck was damaged through the negligence of the respondent, State
Road Commission,
W. VA.]
REPORTS STATE COURT OF CLAIMS 93
while it was being driven by an employee in a westerly direction along
Interstate 70 near the easterly portal of the Wheeling Tunnel. The respondent
had placed barricades along the entrance to a ramp on the north side of the
highway, which had been paved but not opened to traffic. These barricades were
made of wood, about six to eight feet wide and five to six feet high, they
weighed approximately three hundred pounds each, and to stabilize and keep the
barricades in place it was the practice of the respondent to place four, and
sometimes six sandbags, weighing approximately fifty pounds each, over the base
structure of each barricade. At the time and place in question, high, gusty
winds were blowing and one of these barricades blew onto the traveled portion
of the highway into the path of and against the claimant?s truck. The main
impact of the collision was at the right front of the vehicle, and the
barricade was broken up and strewn over the highway.
While the respondent contends that it exercised due care in the maintenance of
the barricades by making bi-weekly inspections and acting on all reports of the
movement, damage or other disturbance of the barricades or the supporting
sandbags, it appears to the Court that the barricade in question was not
properly secured, and that as a direct result of the failure of the respondent
to keep this structure in a safe condition, the claimant sustained damages,
without any contributing fault on its part.
The claimant has proved damages to its truck in the sum of $437.24, and this is
not disputed by the respondent. It is the opinion of the Court that the claim
in said amount is just and in equity and good conscience should be paid.
Therefore, an award is made to the claimant, King?s Jewelry Inc., in the amount
of $437.24.
94 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued February 2, 1970
THE KROGER COMPANY
vs.
STATE ROAD COMMISSION
(No. D-245)
Sebert Cooper, Store Manager, for the Claimant.
George H. Samuels, Assistant Attorney General, and Robert R. Harpold,
Jr., for the Respondent.
JONES, JUDGE:
The claimant, The Kroger Company, seeks damages in the amount of $226.33 for
the cost of replacement of a large plate glass window in the front of its
store, located on United States Route 60 at Gauley Bridge, which was shattered
by a flying rock during the morning of May 2, 1969. Hearing the crash, the
store manager immediately went outside, and saw an employee of the respondent,
State Road Commission, mowing grass along the opposite side of the highway. He
picked up a rock near ?the point ?of impact, about the size of a half dollar;
and he discussed the incident with the lawn mower operator.
When the lawn mower is in operation, it throws grass cuttings and such stones
or other objects as it may pick up out its right side, which at ?the time of
this incident, was the side nearest the claimant?s store. Only the claimant?s
store manager and the respondent?s lawn mower operator testified and they both
?agreed that when the window was broken there were no other persons or vehicles
in the area.
While the evidence is circumstantial, the Court is satisfied that there was a
direct causal connection between the operation of the lawn mower and the
breaking of the window. The respondent has a duty to operate its equipment so
as not to endanger persons or property on or near a public highway; and, in our
opinion, the respondent?s employee did not exercise due care in this regard.
Therefore, invoking equity and good conscience, we are constrained to allow
this claim, and do hereby award the claimant, The Kroger Company, the sum of
$226.33.
W. VA.]
REPORTS STATE COURT OF CLAIMS 95
Opinion issued February 4, 1970
JOHNSON WELDERS SUPPLY, INC.
vs.
DEPARTMENT OF MENTAL HEALTH
(No. D-181)
Julius W. Singleton for the Claimant.
George
H. Samuels, Assistant Attorney General, and Robert R. Harpold, Jr., for the Respondent.
JONES, JUDGE:
This claim is for demurrage on gas cylinders furnished by the claimant, Johnson
Welders Supply, Inc., to the respondent, Department of Mental Health, at the
Weston State Hospital. Most of the claimant?s records were destroyed in a fire
in January 1968, and the only record produced by ei.ther party was a ledger
sheet showing a starting balance of $264.51 prior to July 12, 1967, and a
closing balance of $157.39, the amount of the claim, dated May 9, 1968. It is
shown by the evidence that all invoices carried a statement in the lower left
corner providing for a demurrage charge after thirty (30) days, but that in
1964 or 1965, an oral ?agreement was entered into under the terms of which no
demurrage would be charged. The claimant testified that in the latter part of
the year 1967, he mailed a letter to all state institutions with which he was
dealing, stating that thereafter demurrage would be charged ?on all accounts,
and that his copies of the letters were destroyed in the fire. The agents of
the respondent employed at Weston State Hospital disclaimed any knowledge of
such a letter. The claimant further contends that custom ?and usage in the gas
cylinder business entitles him to charge for demurrage unless such charges are
specifically waived.
It clearly appears that there was an agreement that no demurrage would be
charged, and the claimant?s proof of any change in that agreement by virtue of
a written notice or custom and usage is insufficient to sustain his position.
The claimant has not proved his case by a preponderance of the evidence.
96 REPORTS
STATE COURT OF CLAIMS [W. VA.
The Court further points out that if the letter giving notice of a change in
the agreement was mailed in the latter part of 1967, as testified by the
claimant, it may not have applied to the demurrage charges shown on the
claimant?s ledger account, ?as all of the unpaid charges were dated prior to
August 30, 1967, and more than one-half of said charges were billed prior to
July 12, 1967.
For the reasons given, the claim is disallowed.
Opinion issued February 4, 1970
JOHNSON WELDERS SUPPLY, INC.
vs.
STATE ROAD COMMISSION
(No. D-182)
Julius W. Singleton for the Claimant.
George H. Samuels, Assistant Attorney General, and Robert R. Harpold, Jr., for the Respondent.
JONES, JUDGE:
According to the petition filed herein, this claim in the total amount of
$2,060.26 is for gases and cylinders furnished by the claimant, Johnson Welders
Supply, Inc., to three separate offices of the respondent, State Road
Commission, located at Clarksburg, Weston and Buckhannon; but as a practical
matter, the only proof of disputed items relates to demuirage charges during
the years 1966, 1967 and 1968, which were not paid by the respondent.
Practically ?all of the claimant?s records were destroyed in a fire in January
1968, but the respondent was able to supply certain records pertinent to these
transactions, including purchase orders and some invoices. All of the invoices
produced carried a statement in the lower left corner, providing for a
demurrage charge after thirty (30) days, but in practice, so far as the subject
accounts are concerned, demurrage was charged or not charged according to the
agreement with the particular office. The claimant testified that in
W. VA.]
REPORTS STATE COURT OF CLAIMS____ 97
the latter part of the year 1967, he mailed ?a letter to all state institutions
with which he was dealing, stating that thenceforth, demurrage would be charged
on all accounts, his copies of these letters having been destroyed in the fire.
While each of the State Road Commission offices involved here had a separate and
different agreement with the claimant, representatives from each office denied
having received or having any knowledge of such a letter.
So far as the record shows, the original purchase order with the Clarksburg
office, dated January 6, 1966, made no reference to demurrage. However, by
purchase order dated January 18, 1966, the original was corrected to provide
for demurrage charges after ninety (90) days. It sufficiently appears that all
of the Clarksburg office demurrage charges in the amount of $616.68 accrued
under this corrected contract and therefore should be allowed. $373.80 of this
claim was not contested by the respondent.
The Weston office purchase agreement, dated March 10, 1964, provided for sixty
(60) days free cylinder rental, with demurrage thereafter, and as these charges
in the amount of $171.65 appear to be in accord with the terms of the purchase
order, this portion of the claim also should be allowed. The respondent
admitted owing $6.30 on this account.
The purchase order presented by the Buckhannon office, dated December 31, 1963,
makes no reference to free rental or demurrage, and it appears that there was
an oral agreement that no demurrage would be charged. The claimant contends
that he rescinded the oral agreement by his letter in the latter part of 1967,
and the respondent?s agents disclaim knowledge of any such communication. The
claimant further contends that custom and usage in the gas cylinder trade
entitles him to charge demurrage where the contract is silent in that respect.
As in the claims against ?the Clarksburg and Weston offices, the Court believes
that the Buckhannon office purchase order is the best evidence produced as to
the true agreement between the parties. There is insufficient proof that this
contract was ever amended or rescinded or that custom and usage will serve to
modify its terms. The claimant not having proved his case by satisfactory
evi?lence, this item of the claim in the amount of $1,271.93 is disallowed.
98 REPORTS STATE
COURT OF CLAIMS [W. VA.
The Court is of opinion that the claimant has substantiated the portions of his
claim pertaining to the Clarksburg and Weston offices of respondent in the
aggregate amount of $788.33, which in equity and good conscience should be
paid, and, accordingly, we award the claimant, Johnson Welders Supply, Inc.,
the sum of $788.33.
Opinion issued February 9, 1970
M. C. HICKS, COMMITTEE FOR LUCY K. HICKS
vs.
DEPARTMENT OF MENTAL HEALTH
(No. D-144)
Claimant appearing in person.
George E. Lantz, Assistant Attorney General, for the State. DUCKER,
JUDGE:
The claimant, M. C. Hicks, as Committee for Lucy K. Hicks, alleges that due to
negligence on the part of the employees of ?the Huntington State Hospital,
operated by the Department of Mental Health, his ward, Lucy K. Hicks, while a
patient in said hospital from November 17th until late December, 1967, lost
clothing and personal property of the value of $201.00.
The claim was denied by the hospital authorities who knew nothing about the
loss but relied chiefly on a written form signed by a daughter of Lucy K. Hicks
which contained a provision stating that the patient or her agent assumed full
responsibility for any loss of property and that the hospital would not be
responsible for any such loss. The patient was feeble and later suffered a
stroke and had to be removed to another hospital. She apparently was in no
condition to see about the removal of her clothing from the quarters she first
occupied to other quarters in the State Hospital and later to another hospital
in Huntington. From the evidence we are of the opinion that there was
negligence of such a character or
WVA.] REPORTS
STATE COURT OF CLAIMS 99
nature as public policy would not permit the hospital authorities to enforce a
waiver by the patient of liability therefor, and, accordingly, we consider the
claim just, and allow the claimant the sum of $201.00.
Award of $201.00.
Opinion issued February 9, 1970
S. J. NEATHAWK LUMBER, INC.
vs.
STATE ROAD COMMISSION
(No. D-180)
No one appeared in behalf of the Claimant.
George E. Lantz, Assistant Attorney General, and Robert 1?. Harpold, Jr., Attorney at Law, for the State.
DUCKER, JUDGE:
S. J. Neathawk Lumber, Inc., a corporation with headquarters in Lewisburg, West
Virginia, alleges that the State Road Commission ordered lumber and other
building materials from it for use on a rush project for which the Road
Commission would supply regular purchase orders at a later date, which the
Commission did later supply on their purchase order form MS 3.
The claimant furnished the lumber and materials so ordered in the amount of
$315.94, but the Commission was unable to provide payment therefor to the
claimant because the budget for the fiscal year had been closed. The material
so sold by claimant to the Road Commission was delivered to the Road Commission
and used by the latter in its work. All these facts are stipulated as true by
counsel for the claimant and by counsel for the State.
As there is no dispute as to the facts and as the state received the benefit of
the purchase, we are of the opinion to and do hold that the claim is entirely
just, and we award the claimant the sum of $315.94.
Award of $315.94.
100 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued February 9, 1970
EARL T. HANSON
vs.
STATE ROAD COMMISSION
(No. D-186)
Claimant appearing in person.
George E. Lantz, Assistant Attorney General, and Robert R. Harpold, Jr., Attorney at Law, for the State.
DUCKER, JUDGE:
Earl T. Hanson claims damages in the amount of $363.38 as a result of a rock
falling upon his automobile while the same was being driven by his wife on
February 9, 1969, on Route 119 near Blue Creek, Kanawha County, West Virginia.
Claimant?s wife and three children were in the car at the time the car was
struck by a rock which was described by the claimant as a boulder weighing 25
or 30 pounds and which he said disintegrated when it hit the car. The claim
consists of $114.00 hospital and x-ray charges incurred for the son and
daughter of claimant, which costs were paid by insurance, and the balance as
damages to the automobile. The road contained ?watch out for falling rock?
signs. No report of the accident was made to the Road Commission until about
two weeks after the accident. The State does not deny the allegation that a rock
hit the car, but does deny liability in the matter.
As the rock had not previously fallen and was not in the road at the time of
the accident, reliance can not be had on any theory that the driver ?of the car
should have seen it and avoided the accident. However, as the State is not an
insurer of the safety of those traveling on the public roads, any one who is
injured or who sustains damages must prove that the State has been negligent in
order to render the State liable. To blandly state that the Road Commission
should have made it reasonably impossible for a rock to fall from a
precipitious cliff adjacent or close to the highway is not sufficient for this
Court to conclude negligence on the part of the State.
W VA] REPORTS
STATE COURT_OF CLAIMS 101
As we are of the opinion that the evidence introduced does not satisfactorily
establish negligence, we are constrained to and do disallow the claim.
Claim disallowed.
Opinion issued February 9, 1970
ARCHIE AND FOSIE GREEN
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS
(No. D-197)
Jerry Cook, Attorney at Law, for the Claimant.
George E. Lantz, Assistant Attorney General, for the State. DUCKER,
JUDGE:
The claimants, Archie Green and his wife, Fosie Green, allege they have
suffered damages in the sum of $50,000 by Archie Green and $10,000 by Fosie
Green, by reason of inadequate and negligent medical care and services rendered
to Archie Green while the latter was a patient from September 15, 1966 until
July 10, 1967 at Pihecrest Sanitarium, an agency of the West Virginia
Department of Public Institutions. The principal basis of the claim is that on
November 14, 1966 Archie Green got up out of bed about 7:30 in the evening to
close the door to his room and blacked out and fell on the floor, broke his leg
and was permanently injured. The claimant, Fosie Green, bases her claim on time
required by her in caring for her husband who was thus disabled. The State
denies all factual allegations upon which they base their claims as well as any
liability in the matter.
The evidence adduced for the claimant consisted of the testimony of the
claimant, their son and daughter, a brother, the occupant of an adjoining room
in the hospital, and a friend, and for the respondent a nurse, the doctor in
charge of and the records of the sanitarium. Except for a two line letter from
David E. Wallace, M. D., claimant?s doctor, to the effect
102 REPORTS
STATE COURT OF CLAIMS [W.VA
that Green ?had an old fracture of the
left femur with some displacement? no medical testimony in behalf of the
claimant was introduced.
Respondent raised the question of the application of the statute of limitations
in this case, and as it is not certain when the claimant discovered, or through
due diligence should have discovered, the alleged cause of his injuries, and as
the Court does not see that there is any cause of action on the merits, we need
not decide such question.
The claimant, Archie Green, whose medical history showed he had suffered from
rheumatoid arthritis since 1951, a back injury in 1950, and had had pneumonia
fever and presently colitis, was admitted to Pinecrest Sanitarium upon a
medical examination which showed that he had far-advanced pulmonary
tuberculosis with emphysema. He had been taking cortisone for his arthritis
which had to be discontinued because it aggravated his tuberculosis. The
testimony of Dr. Y. N. Park, staff physician at the Pinecrest Sanitarium, who
examined the claimant and supervised his treatment, is clear, persuasive and
undisputed, except in comparative general terms by the claimant and his
relatives.
There is no denial of the fact that claimant got up out of his bed and
attempted to go to the door of his room and fell, but the claim that he broke
his leg at that time is not supported by the evidence. Dr. Park testified that
an x-ray was taken the next morning after the fall and that it did not show any
bone broken or any reason to suspect such a fact, and no evidence was
introduced to contradict the report of Dr. Park. Claimant says he was subject
to ?black-outs? and that such occurred and caused him to fall when he got up to
close the room door in order for him to use the bed pan. The evidence shows
that he was instructed to stay in bed or call for help because of his
far-advanced tubercular condition and that he had a bell signal cord on his bed
by which he could receive immediate assistance, but that he failed to abide by
the doctor?s directions and he did not call for help when he got up to close
the room door. The evidence showed that the claimant was conscious after the
fall when the nurse came and the occupant of the adjoining room helped put
claimant back in
W. VA.]
REPORTS STATE COURT OF CLAIMS 103
bed. The claim that the patient broke his leg and received inadequate medical
care after that accident or at any time is simply not in the opinion of this
Court sufficiently substantiated.
Then comes the question of the discharge of the patient from the sanitarium. As
he wanted to obtain other medical services than were provided by the
tuberculosis sanitarium, he asked for a ten-day leave which was granted with
the understanding that he was to return for further care. When he was contacted
by the Health Department, it was learned he would not return and he never
returned, but now seeks to hold the State liable for injuries he claims he
continues to suffer ?by reason of his fall while in the hospital.
Considering all the evidence in the case, we are of the opinion that the
claimants have not proven by any preponderance of the evidence that the State
failed to exercise reasonable care in the treatment of its ?patient, and
accordingly the claims of both Archie Green and Fosie Green are disallowed.
Claim disallowed.
Opinion issued February 9, 1970
JOSEPH P. SECURRO
vs.
DEPARTMENT OF MINES
(No. D-202)
No appearance in behalf of the Claimant.
George E. Lantz, Assistant Attorney General, for the State. DUCKER,
JUDGE:
Joseph P. Securro claims the Department of Mines owes him $108.00 for three
days attendance as ?a witness at a mine explosion hearing in Fairmont, West
Virginia, he having been required by summons to so appear on December 5, 6, and
7, 1968. The claim was originally for four days at $36.00 per day
104 REPORTS
STATE COURT OF CLAIMS [W. VA.
but the claim for the fourth
day was withdrawn. Claimant says that his daily rate of pay as a mine foreman
was $36.00, and that inasmuch as he lost wages at that rate he is entitled to
be reimbursed in that amount, The State does not deny the facts pertaining to
claimant?s attendance as a witness, but does deny the obligation of the State
to pay for such loss and says there is no provision in the law authorizing the
Department of Mines to pay such a claim.
Of course, it is unfortunate that there is not some statutory or other legal
provision fixing a witness fee for such service, but this Court cannot
legislate in the matter. We can only determine the question of liability
according to law, and if found legal we can make an award despite the question
of constitutional immunity. Here we have no legal justification for a finding
of liability, and hence we can impose no moral obligation on the part of the
State. Nor can we establish a precedent in such matters.
Fees for witnesses in Court are in fixed positive and relatively small amounts
per day, regardless of the loss which a witness may actually suffer in being
away from his usual vocation. That is necessarily so, because litigation would
be seriously handicapped and impaired if the State and eventually the litigants
had to pay all losses which might be suffered by witnesses because- of their
attendance at trials and participation in the administration of justice.
By reason of the above, we must and do disallow the claim of the petitioner.
Claim disallowed.
W.VA.]
REPORTS STATE COURT OF CLAIMS 105
Opinion issued February 9, 1970
WARREN N. CONNON
vs.
STATE ROAD COMMISSION
(No. D-207)
No appearance in behalf of the Claimant.
George H. Samuels, Assistant Attorney General, and Robert R. Harpold, Jr., Attorney at Law, for the State.
DUCKER, JUDGE:
Claimant, Warren N. Connon, alleges damages in the amount of $8.24 resulting
from the dropping of hot weld lead by employees of the State Road Commission on
his boat while his boat was docked on May 22, 1969 at the Charleston Boat Club
under or near the Kanawha City Bridge in Charleston. The weld lead burnt a hole
in the canvas boat cover, and there is no dispute as to facts alleged, the same
having been stipulated by the parties. As liability is apparent, this case
being similar to that of Case No. D-248, Beranak v. State Road Commission, we
consider the claim just, and award the claimant the sum of $8.24.
Award of $8.24.
106 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued February 9, 1970
LAWRENCE H. YOUNG, JR.
vs.
STATE ROAD COMMISSION
(No. D-208)
No appearance in behalf of the Claimant.
George H. Samuels, Assistant Attorney General, and Robert R. Harpolcl, Jr., Attorney at Law, for the State.
DUCKER, JUDGE:
Claimant alleges damages in the amount of $249.26 caused by sparks and molten
metal falling upon his boat moored at the Charleston Boat Club near the Kanawha
City Bridge in Charleston, West Virginia, on June 30, 1969. The sparks and
molten metal came from work being done by the employees of the State Road
Commission in repairing said bridge. The claim consists of two instances when
such facts occurred, the first causing $75.00 damage
and the second $174.26, making the total $249.26. The parties have stipulated
that the facts and the amount of the claim are true and correct.
As the damages were caused by the acts of the employees of the Road Commission,
and as a finding that negligence on their part is inescapable, we conclude that
the claimant is entitled to recover, and we award him the sum of $249.26.
Award of $249.26.
W. VA.]
REPORTS STATE COURT OF CLAIMS 107
Opinion issued February 9, 1970
MICHAEL CATSOS AND EVANGELINE CATSOS
vs.
STATE ROAD COMMISSION
(No. D-223)
No appearance in behalf of the Claimant.
George H. Samuels, Assistant Attorney General, and Robert R. Harpold, Jr., Attorney at Law, for the State.
DUCKER, JUDGE:
Claimants, Michael Catsos and Evangeline Catsos, allege damages in the amount
of $101.41 to their 1967 Oldsmobile Cutlass sedan by reason of hot welding lead
having fallen from the upper part of the Kanawha City Bridge in Charleston
where State Road Commission employees were working on April 24, 1969, on
claimants? automobile as claimants were driving across said bridge. The damage
done was to the windshield of the automobile. The allegations of the claimant
are stipulated as true by the respondent.
This case is basically .the same as Case No. D-248, Beranak
v. State Road Commission, and we see no reason to repeat the legal basis for an
award.
As the claim is just, we award the claimants damages in the sum of $101.41.
Award of $101.41.
108 REPORTS
STATE COURT OF CLAIMS [W.VA.
Opinion issued February 9, 1970
ROBERT L. BERANAK
vs.
STATE ROAD COMMISSION
(No. D-248)
No one appeared in behalf of the Claimant.
George H. Samuels, Assistant Attorney General, and Robert R. Hcirpold, Jr., Attorney at Law, for the State.
DUCKER, JUDGE:
Claimant alleges damages in the amount of $149.51, which amount represents the
cost of replacing the windshield of his automobile which was struck by a hot
welding rod falling on it from the top of the Kanawha City Bridge in
Charleston, where State Road Commission employees were working on July 29, 1969
when claimant drove his Cadillac sedan automobile across the bridge. While
there were ?men working? signs in place on both sides of the bridge, traffic
was allowed to pass over the bridge. Counsel for both the claimant and the
State have stipulated these facts as true.
That there was negligence on the part of the employees of the Road Commission
is clearly evident. That the claimant was lawfully using the bridge is not
questioned, nor does it appear in any way that he could have avoided the
accident. Certainly he could not have reasonably expected to foresee what
happened. Care on the claimant?s part did not involve more than caution in
driving through the roadway because of men working. Certainly it did not
involve the possibility of something falling from above.
Because of the negligence of the Road Commission employees, we consider the
claim to be just and, accordingly, award the claimant the sum of $149.51.
Award of $149.51.
WVA.]
REPORTS STATE COURT OF CLAIMS 109
Opinion issued February 9, 1970
HIBBARD, O?CONNOR & WEEKS
vs.
WEST VIRGINIA BOARD OF EDUCATION
(No. D-235)
Edward F. Butler, Attorney at Law, for the Claimant.
George E. Lantz, Assistant Attorney General, for the State. DUCKER,
JUDGE:
Claimant, Hibbard, O?Connor & Weeks, Inc., a Tennessee corporation, claims
it is due the sum of $57,450.00 from the State of West Virginia, on account of
a contract made by said claimant with the West Virginia Board of Education for
claimant?s services in finding a purchaser for $1,915,000.00, principal amount,
revenue bonds for the West Virginia State College Student-Union Dining Hall, at
Institute, West Virginia, for which services the claimant was to receive a
commission of three per cent of the said amount of said bonds, namely, the sum
of $57,450.00. The bond issue involved in this case was designated as ?Series
B?, the issue previously sold as a part of the authorization being in the
amount of $398,000.00 and designated as ?Series A?.
No question of the procedural steps for the issuance and sale of both series of
these bonds is involved in this controversy, except that the State denies
liability on the ground that the private sale made by claimant was not approved
by the Attorney General and the Commissioner of Finance and Administration, and
was made in contravention of an Executive Order promulgated by the Governor in
January, 1969 prior to the sale in February, 1969. The claimant says that under
the statutes relating to such a sale of this type of bond that the Governor?s
Executive Order can not be effective in the matter.
There is no material conflict in the facts, which are as hereinafter related.
The West Virginia Board of Education had sold the ?Series A? Bonds to the
Department of Housing & Urban Development in mid-January, 1969, but
had not then received any bid on the ?Series B? Bonds, and upon being advised
so to do
110 REPORTS
STATE COURT OF CLAIMS [W. VA.
entered into an agreement with Baker, Watts & Co., investment bankers of
Baltimore, to place the Series B bonds on the open market. The latter agreement
expired on February 8 without any success in selling the bonds. On February 11,
the Board of Educartion was advised that the claimant had contacted the
officers of the Board relative to acting as agents for the Board in the matter
of the sale of the bonds and the Board was then advised that claimants had a
buyer ready to purchase the Series B bond issue. And on said date of February
11, 1969 the Secretary of the Board polled all members to explore the proposal
and advised them that, if feasible, the matter would be acted upon the next
day, February 12. Claimant being a participant in the course of the
negotiations and knowing all that was done and being done, had its client,
Wilson White, Inc., a brokerage firm, make an offer dated February 11 to the
Board for the purchase of the bond and accompanied said offer with a certified
check for $38,000.00, the amount required as a deposit. The offer of Wilson
White, Inc. was accepted by the Board on February 12, and then on February 24,
1969 in a regular meeting ratified and confirmed the sale, with one member
voting in the negative.
During the negotiations and at the time of the conclusion of the sale contract
on February 12, the officers of the Board and the representative of the
claimant sought and obtained the opinion of Eugene G. Eason, attorney of
Clarksburg, West Virginia, who had been designated by the Attorney General as
bond counsel for the State in the West Virginia State College building
projects. Mr. Eason approved as legal all the acts of the Board in making the
bond sale ?and contracting for the commission to be paid to the claimant. His
interpretation of the statutes relating to such a sale and contract,
particularly Chapter 25, Article 1A, Section lB of the Code, was that the law
fully empowers and authorizes the sale of the bonds, that the payment of a
commission for ?the sale is a proper item of cost, and that the approval by the
Attorney General and Commissioner of Finance was not necessary.
The evidence shows that the Board had received a bid from the construction firm
of Kenhill Construction Company for the construction of the Student-Union
Dining Room building which would expire either on February 13th or February
14th,
W. VA.]
REPORTS STATE COURT OF CLAIMS 111
and that if the bonds were not sold
prior to such expiration date, there could and most probably would be a large
increase in the construction costs of the building, amounting to as much as
from four and one-half to ten percent of the estimated construction costs of
$1,404,000.00. The evidence also shows that the market for the bonds was bad
and the prospects were that it would get worse, which it did, ?and that a sale
of bonds which had no greater interest rate than six percent was very
difficult, if not impossible at that time. Furthermore, the cost of
re-advertising the sale and other incidental expenses was a real factor. The
bonds were sold and delivered but the State Auditor refused to pay the three
percent commission to the claimant on the basis of, as evidenced by his letter,
the lack of the approval of the Attorney General and the Commissioner of
Finance and Administration.
There was adequate evidence that the fee of three percent for the finding of a
purchaser was a reasonable charge for the service rendered in this class of bonds,
and we think that issue was satisfactorily proven by the testimony of the bond
counsel for the Board and by the other testimony in that regard. As to the
applicability of the statutes, particularly 25-lA-lB of the Code, we are
constrained to agree with the opinion rendered to the parties by Eugene G.
Eason, and hold the action of the Board to be legal, and in doing so we can not
see how the Governor?s Executive Order can render an otherwise legal matter
illegal.
Counsel for the State contend that this Court is without jurisdiction because
claimant could have sought relief by a mandamus proceeding against the Auditor.
Mandamus can only be maintained where there is a clear legal remedy. We cannot
agree that there was a clear legal remedy, even though there may have been a
clear legal contract existing between the State Board of Education and the
claimant. As the Board of Education is an agency of the State and thus immune
from suit under the Constitution, this Court is, we believe, the only forum for
such a claimant.
As the State got the full benefit of the services rendered by claimant and
would be unjustly enriched if claimant is not paid, and upon the theory of
quantum meruit the claimant deserves to recover on its claim, we conclude that
in equity
112 REPORTS
STATE COURT OF CLAIMS [W.VA.
and good conscience the claimant is
entitled to payment of its fee, and, accordingly, we award it the sum of
$57,450.00.
Award of $57,450.00.
Opinion issued February 9, 1970
THOMAS COMPANY, A CORPORATION
vs.
STATE ROAD COMMISSION
(No. D-118)
Henry C. Bias, Jr., Attorney at Law, for the Claimant. Theodore L. Shreve, Attorney at Law, for the State.
DUCKER, JUDGE:
Claimant, Thomas Company, a corporation, with principal office in Huntington,
West Virginia, was on February 16, 1962 awarded by the State Road Commission a
contract for the construction of Route 17 Interchange Bridge No. 2133, being
Project 1-64-1 (30) 142, on a schedule of prices lowest bid f $75,164.38. The
construction under the contract was to begin not later than ten calendar days
after the award and completed in 130 working days ending in August. The delays
in the work amounted to approximately two months, and because of such delays,
which petitioner claims were the fault of the Road Commission in not requiring
the paving contractor to yield sufficiently in his work to allow claimant to
perform its bridge construction work, claimant alleges damages as to that
portion of its claim the sum of $17,565.42. In addition to the above specific
claim as item (1), claimant also alleges damages specifically as follows: (2)
Bridge pier excavation $1,245.78; (3) cleaning concrete and mud from structural
steel $742.53; (4) correction of slope grades for slope paving $3,138.58; (5)
bridge deck, unnecessary work due to improper inspection by S.R.C. $1,299.81;
(6) wrongful retention of $6,399.00, $1,161.57; (7) expenses incurred by
company?s officers and agents in efforts to close projects $1,650.00; and (8)
loss of business for one full year $29,000.00; making a grand total claim of
$55,894.69.
W. VA.]
REPORTS STATE_COURT OF
CLAIMS 113
The record in this case is quite lengthy as the transcript of the evidence
embraces 240 typewritten pages with 32 exhibits, and in the evidence relating
to the causes and the responsibility for the delays there is considerable
conflict. The first principal question for decision involves ?the matter of the
rights of the parties when two independent contractors are working at the same
place on separate road construction contracts and the relative duties of each
with respect to the other as well as the duty of the State Road Commission in
such cases.
As to the first item of the claim amounting to $17,656.42, claimant says it bid
the job on the basis of doing the work with a single crane placed in the center
of Interstate Highway 1-64, over which the bridge to be constructed was to
pass, and the paving contractor did not yield or defer his paving work at such
bridge construction site but continued to pave through the site, thus requiring
claimant to move its crane and other equipment hack and forth along the right
of way to build the abutments and the piers for the bridge. The claimant
alleges that it was required only to coordinate its work with that of the grade
and drain contractor, not with the paving contractor, while the State maintains
that under Sec. 1.5.5 of the Standard Specifications of the Road Commission,
and which are a part of the contract, the claimant was required to ?conduct its
operations so as to interfere as little as possible with those of other
contractors or the public on or near the work.? We are of the opinion that the
expression of the one requirement did not exclude the other, and that both were
applicable to this case, but there must be reasonableness in their application.
It seems apparent to us that the Road Commission could have anticipated the
extra hardship to which the claimant was subjected in having to perform its
contract by moving its equipment back and forth on the sides of the right of
way instead of doing it in the better engineering way with a crane in the
middle of the highway where it could serve both sides and the middle of the
construction project; and that the paving contractor should have been required
to suffer such inconvenience in its work, such contractor being also subject to
the same Standard Specifications. In reviewing the evidence, we conclude that
the claimant was unjustly denied
li 4 REPORTS STATE COURT OF CLAIMS [W. VA.
the right to proceed as it planned and that it should be compensated therefor,
and that as to the amount which was not contradicted we accept the sworn
evidence of claimant?s witnesses to the effect that its damages amounted to
$17,656.42.
As to items (2) and (4) designated above as parts of petitioner?s claim, we are
of the opinion that the work done should have been considered as within that
contemplated by the contract, and that the claimant is not entitled to extra
compensation, and as to item (3) the same was on force account and admittedly
paid for, but, if not, it has the same status as items (2) and (4).
As to item (5) which is in the amount of $1,299.81 for unnecessary work on the
bridge deck, due to improper inspection by the State Road Commission, in wKich
the claimant was required months later to grind the concrete in order to be
within the tolerance specifications of the work, and as to which the Road
Commission admitted it was in error, we think the claimant is entitled to
compensation for such work in the amount claimed.
As to item (6), we conclude that this is tantamount to a charge of interest on
an unpaid account and damages for loss of the use of money can only be interest
for which this Court has no authority to allow.
As to item (7), we conclude that this Court cannot recognize as a proper item
of damages the costs or expenses of any party in trying to settle a
controverted claim with a Department of the State.
And as to item (8), this part of the claim is totally conjectural and
speculative, and we can make no allowance for it.
The evidence indicates there may be still owing a balance of $2,149.85 unpaid
to claimant under its contract, which item this Court does not adjudicate, but
assumes that the same will be paid otherwise than directed by this Court.
We are of the opinion that the claimant is entitled to be paid the sum of
$17,656.42 specified in item (1) of its claim, and $1,299.81 specified in item
(5) of its claim, and we hereby award claimant the total of said amounts,
namely, $18,956.23.
Award of $18,956.23.
W. VA.]
REPORTS STATE COURT OF CLAIMS 115
Opinion issued February 10, 1970
H. L. GILLIAM
vs.
STATE ROAD COMMISSION
(No. D-152)
The claimant appea.red in person without counsel.
George E. Lantz, Assistant Attorney General, and Robert R. Harpold,
Jr., for the Respondent.
JONES, JUDGE:
The claimant, H. L. Gilliam, an employee of the United State Department of
Agriculture, Consumer and Marketing Service, Federal Food Stamp Program,
alleges that he was driving his personal car over Secondary State Route No. 11
in Jackson County at about 10:40 A.M. on August 8, 1968, when his 1967
Chevrolet Chevelle automobile was damaged as a result of the negligence of
employees of the respondent, State Road Commission. The claimant?s version of
what occurred is substantially as follows: ?I had traveled approximately seven
or eight miles on Secondary Route No. 11 when I saw ?a number of ?Men Working?
signs. Soon I encountered men and machines ?ditching? the road. There was a
windrow of earth and rocks in the center of the road, approximately fifty yards
long and two feet high. One of the highway crewmen waved me forward, and I
proceeded on the right-hand side ?of the windrow at about ?one or two miles per
hour. I kept my left wheels as close to the windrow as possible as there was
very little clearance. About two-thirds of the way along the windrow, the
clearance was so narrow that I scraped the right-hand side of my car against
the heavy brush alongside the road. Considerable paint was damaged and my right
rear door was also damaged, being dented in several places.? It was ?a warm day
?and the windows of the claimant?s car were rolled down. He further testified
that ?I didn?t know I had damaged the car until I made my first stop which was
about ten minutes after the damage?, and that there were leaves, twigs ?and
soft mud ?on the damaged side of the car.
116 REPORTS
STATE COURT OF CLAIMS [W. VA.
The claimant obtained three etirnates for repairing damage to the right front
door and right front fender, repairing and refinishing the right rear door and
quarter panel and repairing the rear door lock assembly, the lowest estimate of
$144.66 being the amount of his claim.
Two witnesses for the respondent, a truck driver-foreman and a grader operator,
testified that the gravel and stone read was fourteen to sixteen feet wide, the
windrow of dirt and rock near the center of the road was approximately two feet
wide and two feet high, that there was no heavy brush along the ditch line
which had just been graded and cleared, and that they could see nothing to
interfere with traffic proceeding carefully through the work area. They further
testified that there was considerable traffic over ?the road during their
ditching operation, and that they had no complaints from anyone, including the
claimant.
The Court will concede the probability that claimant?s car was damaged
somewhere in the work area; but no specific aet of negligence on the part of
?the respondent has been proved, and in view of the conflicting testimony, it
is impossible to say which party may or may not have been negligent. The
claimant?s case leaves too much to speculation. An award may not be based on
speculative evidence, but if the Court were to resort to the crystal ball, it
would expect to see some negligence on the part of the claimant which would, in
any event, preclude his recovery.
Accordingly, this claim is disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 117
Opinion issued February 10, 1970
JONES ESSO SERVICE STATION
vs.
STATE ROAD COMMISSION
(No. D-198)
Frank T. Litton and Arthur C. Litton II for the
Claimant.
George H. Samuels, Assistant Attorney General, and Robert R. Harpold, Jr., for the Respondent.
JONES, JUDGE:
This claim was filed by Jones Esso Service Station against the State Road
Commission, but at the hearing it appeared that by a subrogation agreement the
claimant had assigned all but the ?fifty dollar deductible? portion of the
claim to its insurer, Nationwide Mutual Insurance Company. Accordingly, the
Court permitted the insurance company to present its claim for $320.35 of the
total damages of $370.35 set out in the petition.
The petition alleges that on July 14, 1968, at about 11:00 P.M., on United
States Route 219 approximately twelve miles north of Marlinton in Pocahontas
County, the claimant?s automobile was damaged when it struck a sunken place or
dip in the highway and that such damage was the direct proximate result of the
respondent?s negligence in failing to properly maintain the road and in failing
to erect adequate warning signs.
The respondent had dug a ditch across the road about six feet wide for a tile
culvert several weeks before the accident and h?ad filled the ditch and tamped
it. Witnesses for the respondent testified that the excavated area was
inspected during every week day ?and when necessary, gravel was added to bring
the filled ?strip up to road level, and that ?Slow? signs were in place on each
side of the culvert, as well as ?Cattle Crossing? signs. The accident occurred
on a Sunday night after a weekend of considerable rainfall, and the ditch area
had sunk. The depth of the depression was the subject of
118 REPORTS
STATE COURT OF CLAIMS [W. VA.
substantial conflict, the driver of
the ear, a partner in Jones Ess?o Service Station, estimating a dip of six to
eight inches and the respondent?s witnesses contending for a more conservative
two to three inches at the lowest point.
The claimant?s driver testified that at approximately 200 feet and driving at
50 miles per hour, he saw an approaching car bouncing over this culvert as
indicated by its headlights. Still he did not see the culvert until he was
within 20 feet of it and had only two or three seconds to brake his vehicle. He
struck the culvert with great force and the ear was severely damaged. The
driver described the car as an Austin-Healey 3000, a British sportscar, with a
road clearance of four to five inches to the rocker panel, only three to four
inches to the exhaust system, and having ?real stiff suspension? and ?not much
give?. The damages included a stoved rear wheel, bent lower control arms and a
ruined radiator and fan, a stoved transmission and two ruined wire wheels.
The cl?aimamts driver testified that he and his wife looked for signs and found
none, except for a ?Cattle Crossing? sign. The respondent?s witnesses strongly
contend that ?Slow? signs were in place throughout the existence of the rough
culvert crossing. Route 219 is an important, heavily traveled highway, and
according to respondent?s witnesses, they received no other complaints during
the entire time the culvert was under repair. The ?bouncing lights? of the
approaching vehicle 200 feet away should have conveyed some warning to the
claimant?s driver, particularly with his knowledge of the susceptibility of his
sportscar to hazards which would not affect standard models.
The state is not the insurer of the safety of the roads and highways of the
state, and if ?Slow? signs were in place, it is the Court?s opinion that the
respondent had fulfilled its duty to the traveling public. Conversely, if such signs
were not in place, such failure probably would constitute negligence. On this
point, the evidence of the contesting parties is in direct conflict, and the
Court sees fit to refrain from deciding this question of fact, for the reason
that it finds that the claimant?s driver, under all the circumstances, did not
exercise due and reasonable care for his own safety. He theieby con-
W. VA.J
REPORTS STATE COURT OF CLAIMS 119
tributed to the cause of the claimant?s damages and barred recovery. Accordingly,
the Court is of opinion to and does hereby disallow this claim.
Opinion issued February 10, 1970
JOHN C. VARNER, ADMINISTRATOR OF THE
ESTATE OF JULIA M. VARNER, DECEASED
vs.
STATE ROAD COMMISSION
(No. D-185)
A. Blake Billingslea, Leo Catsonis and John S.
Sibray, for the Claimant.
George H. Samuels, Assistant Attorney General and Robert R. Harpold, Jr., for the Respondent.
JONES, JUDGE:
This claim was filed by John C. Varner, Administrator of the estate of Julia M.
Varner, deceased, for the alleged wrongful death of the decedent under Chapter
55, Article 7, Section 6, of the Code of West Virginia, and the damages sought,
including financial and pecuniary loss, are in the amount of $104,551.36. Mrs.
Varner died as the result of a collision on United States Route 250 about ?
mile south of Fairmont on May 12, 1967 at approximately 1: 19 a.m. She was 32
years old and was an employee of Fairmont Lamp Works, a Westinghouse plant. Her
husband, John C. Varner, is her sole distributee.
Mrs. Varner, Sandra Eddy and Jo Ann Smith quit work at
Westinghouse at 12 o?clock midnight, joined Roy Hughes and
John Serafine and were together at the Executive Club in
Fairmont until it closed at 1 a.m. The group then decided to
drive south on United States Route 250 to 3-Ways Inn, Mrs.
Varner driving her 1966 Dodge Dart convertible with Eva
Meconi, Joyce Droddy and John Serafine as passengers, and
Sandra Eddy driving another car accompanied by Jo Ann
Smith and Roy Hughes.
120 REPORTS
STATE COURT OF CLAIMS [W. VA.
In a sitatement in his own handwriting
and made and signed shortly after the accident, Roy Hughes gave this account:
?We were going South on 250 Highway at approximately 1:10 a.m. at approximately
50-55 MPH and Mrs. Julie Varner, driver of the vehicle involved, passed us as
we were slowing down to go around the boulder, we were approximately 150 feet
from the boulder rat that time, she seemed to see the boulder as her brake
lighits came on and she swerved, but caught the left front fender and careened
into the ditch and bounced back on to the road. * * *? He further testified: ?Yes, it appeared that she was
directly in front ?of us ?and just before the impact there seemed to be a
swerve ?to ?the left and then one back to ?the right just when she glanced off of
it.? Hughes and other witnesses for the claimant testified that Mrs. Varner
passed in a passing zone and appeared to be executing a normal, careful passing
of ?the Eddy car until she saw the boulder. According to Miss Eddy?s testimony,
?When she cut back in we saw her brake lights for just an instant. The car
swerved, she hit the boulder and then went into the bank.? Jo Ann Smith
described the happening in these words: ?As she passed, she may have been half
a car length ahead of us and she threw her high beams up. This is when we saw
that there was something in the road and it didn?t look to me as though she saw
the rock because it seemed like about an instant before she hit the rock, there
was brake lights and she did swerve as though she didn?t know which way to go
to get out of the way of the rock.?
The boulder was estimated to be 4 feet high, 14 feet long and 6 to 7 feet wide.
The investigating Deputy Sheriff measured the location of ?the boulder to be 10
feet 5 inches from the edge of the pavement and 7 inches to the right of the
center lane. Mrs. Varner?s car ?traveled 84 feet from the point of collision,
striking the right hand ditch and hillside.
It appears from the evidence that the road was straight, fairly ?level and dry,
and although there is conflicting testim?ony regarding the area being a passing
or no passing zone, it further ?appears from the evidence that the greater part
of the passing ?operation was in a passing zone, although there were skid marks
from left to right across a double line just a few feet after the broken line
ended. The fact that after
W. VA.]
REPORTS STATE COURT OF CLAIMS 121
passing the Eddy?s car Mrs. Varner did
cross a double line does not appear to have proximately contributed to the
collision. There is some testimony referring to lights of an approaching
vehicle, but there is no satisfactory proof that another vehicle was involved.
Route 250 in the area of this accident is rather typical of West Virginia
highways, being located on a narrow, excavated shelf between the West Fork
River and a high cliff. While there is conflicting evidence regarding the fact,
the Court is satisfied that there was a ?Falling Rocks? sign at each end of
this stretch of road, the sign going south being approximately ? to ? of a mile
from the point of collision. Slides in this area appear to have occurred
frequently, rocks and dirt falling to the ditch line and generally being
removed in a routine manner. There is evidence that other large rocks
previously had rolled on to the highway, one causing the wreck of a pickup
truck and another large enough to wreck a car. An ex-mairrtenance
superintendent for the respondent in Marion County described the area as ?the
most dangerous place on Route 250? and another witness who traveled the road frequently,
testified that he had observed the big boulder on many occasions and it looked
like it was ?ready to come down?. Several witnesses testified that physical
markings on the ground clearly indicated that this boulder had broken loose at
an earlier time and had fallen approximately 35 feet to a shelf and after
resting there for some indefinite period of time had become dislodged and
crashed down the steep slope to the highway, leaving a path plainly visible
more than two years later. There was considerable testimony relating to
complaints made to the respondent, some fairly direct an.d credible and others
extremely vague, but, in any event, there is sufficient evidence to show that
the respondent recognized or should have recognized a potential hazard, but
never made any more than a cursory inspection of the area. The attitude of the
respondent?s agents may have been that maintenance funds were already short
enough without looking for places to spend them. The respondent did maintain
patrols of this highway and the road was patrolled by two of respondent?s
employees a short time before the accident. How-
122 REPORTS
STATE COURT OF CLAIMS [W.VK
ever, patrolling was for the purpose of finding and removing obstructions and
had nothing to do with the prevention thereof.
The State is not the insurer of its highways and the State Road Commission
cannot be held responsible for every rock or boulder that falls on them.
?Falling Rocks? signs are practically indigenous to West Virginia roads and to
eliminate every hazard contemplated by such signs would require expenditures so
enormous as to be financially unsound and pro?hibitiive. However, when the
State Road Commission knows or should know that an unusually dangerous
condition exists, there is ?a duty to inspect and to correct the condition
within the limits of funds appropriated by the Legislature for maintenance
purposes. There is substantial evidence in this ease of a dangerous ?condition
and no showing that the respondent did anything beyond the routine cleaning of
ditches and the removal of rocks which previously had fallen on the highway.
The Court has given serious consideration to the contention of the respondent?s
counsel that the claimant?s decedent was guilty of such contributory negligence
as would bar recovery, and there is evidence that would support such a finding,
except for the hard ?and obvious fact that this woman was confronted with a
sudden emergency of considerable magnitude and not of her own making. She was
in a position to pass the obstacle unharmed, but the Court takes into
consideration the stress of the occasion, her natural apprehension ?and
confusion, and concludes that any fault in her judgment must be excused.
After thorough and deliberate consideration of the many facets of ?this case,
including a great deal of conflicting testimony, ?the Court has decided ?that
the claimant has a valid claim which in equity and goo?d conscience the State
should pay. Counsel for the parties have stipulated the following allowable
expenses: Funeral, $1,451.30; ?car damage, $1,740.00; and ambulance service,
$10.00; a total of $3,201.30. The Court is not impressed by the testimony and
argument attempting to show dependen?cy of the decedent?s husband, and,
although t?he decedent was a wage earner and looked after the family finances,
the Court does not find ?any financial or pecuniary los?s ?to the husband as a
dependent distributee. The Court is
W. VA.]
REPORTS STATE COURT OF CLAIMS 123
of opimion that an additional
allowance of $5,000.00 for the wrongful death is fair and just. And, therefore,
a total award in the sum of $8,201.30 is hereby made to the claimant, John
C. Varner, Administrator of the estate of Julia M. Varner, deceased.
Opinion issued March 16, 1970
HUNTINGTON STEEL AND SUPPLY COMPANY, Claimant,
vs.
WEST VIRGINIA STATE TAX COMMISSIONER, Respondent.
(No. D-159)
J. W. St. Clair, Esq., for the Claimant.
George E. Lantz, Assistant Attorney General for the Respondent.
PETROPLUS, JUDGE:
The Claimant, Huntington Steel and Supply Company, filed a claim in this Court
on February 11, 1969, for a Refund of Business and Occupation taxes erroneously
paid for the calendar year 1963 in the amount of $3890.46, and for the calendar
year 1964 in the amount of $8325.19, or in the aggregate amount of $12,215.65
for both years. The facts of the case, which are not in dispute, are as
follows:
Claimant is a corporation engaged in the business of manufacturing steel
products in Huntington, West Virginia, and selling said products at wholesale
and retail. Until the year 1949, Returns were filed with the State Tax
Commissioner for Business and Occupation taxes classifying said business under
the manufacturing and selling classifications, where the rates of taxation are
substantially lower than the rate charged for the contracting business
classification. Sometime in the year 1949, a field auditor from the office of
the State Tax Commissioner called upon the claimant and after inspecting i?ts
business operations advised it that its business had been improperly classified
and that claimant hereafter would
124 REPORTS
STATE COURT OF CLAIMS [W. VA.
be required to report under the classification of ?Contracting?. Claimant?s
corporate officers objected to this ruling and met in Charleston at a
conference with the state representatives in charge of the Business and
Occupation Tax Division where the findings of the field auditor were confirmed.
Thereafter claimant reported its gross receipts as a contractor until the fall
of 1968 when another audit was made by the State, and it was determined and
suggested by the State that the claimant?s business was not in the nature of
contracting but should have been classified as manufacturing and sales at
retail and wholesale. Because of the difference in rates, the audit revealed
that taxes had been over-paid for the years 1963 to 1967, inclusive, in a total
amount of $30,218.09. Claimant was advised that it was entitled to a refund and
in accordance with said advice, filed a Petition for Refund with the State Tax
Commissioner under Chapter 11, Article 1, Section 2a of the Code of West
Virginia, as amended, which reads as follows:
?On and after the effective date of this section (June 8, 1951), any taxpayer
cl&ming to be aggrieved through being required to pay any tax into the
treasury of this State, may, within three 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 ified 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 *
*
Following the administrative procedures,
refund was made to the claimant in the amount ?of $18,002.44, in the aggregate
for the years 1965, 1966 and 1967, but claimant was denied a refund ?for t?he
years 1q63 ?and 1964 on ?the ground that said refunds were barred by the
Statute of Limitations of three years set forth ?in ?the foregoing Code
Section.
The claimant then filed its claim ?in this Court to secure a refund for the
years 1963 ?and 1964 on the ground that it had been misled in 1949 by the field
auditor of the State to change the reporting classification, and had been
induced to pay taxes in the wrong classification for the ensuing years, not
with any
W. VA.] REPORTS
STATE COURT OF CLAIMS 125
intent to deceive or defraud, but by wrongful interpretation of the law by a
state agency. Claimant contends that it was not only unconscionable and
inequitable for the State to collect the additional ?taxes, but that the State
should be estopped from pleading the Statute of Limitations in this case
because the representation was made by persons supposedly skilled in
interpreting the law and regulations and because the claimant imposed trust and
confidence in the judgment of the state agents.
The only is?sue before the Court is a matter of law, namely? Is the State of
West Virginia estopped to plead the Statute of Limitations because of the
mistake, negligence or misconduct of its agents.
Counsel for the claimant contends that Chapter 14, Article 2, Section 21 of the
Code, which Chapter created the Court of Claims, reading as follows:
?The court shall not take jurisdiction of any claim, whether accruing before or
after the effective date of this article (July 1, 1967), unless notice of such
claim be filed with the clerk within such period of limitation as would be
applicable under article two (Sec. 55-2-1 et seq.), chapter fifty-five of the
Code of West Virginia, one thousand nine hundred thirty-one, as amended, if the
claim were against a private person, firm ?or corporation and the
constitutional immunity of the State from suit were not involved * * *?
should be interpreted in such a manner as
to allow the doctrine of estoppel to be asserted against the State in the same
manner as it would be applied ?if the claim were against a private person, firm
or corporation. To put such an interpretation on this provision of the Code, in
our opinion, would be unwarranted. We do not think the section was intended to
treat the State ?as a private person. The Section deals with the filing of
Notice of Claim and states that unless the Notice of Claim is filed with the
Clerk within such period of limitations as would be applicable, the Court shall
not take jurisdiction of the claim. It ?would be improper to interpret said
Section in a manner that would permit the claim to be treated in all respectis
as a claim against a private person, finn or corporation, and ignore the
identity of the State as a defendant. Only
126 REPORTS
STATE COURT OF CLAIMS [W. VA.
constitutional immunity has been removed in this State by the Act establishing
the Court of Claims. A sovereign State has other defenses and immunities
peculiar to itself, which it may assert and which cannot be destroyed by the
wrongful conduct of its agents.
It is not necessary to set forth in this opinion the many cases which ?hold
that a State is not subject to the laws of e?stoppel or waiver when acting in a
governmental capacity and that the State is n?ot bound by contracts which are
beyond the scope of the powers of its agents. There are many caveats in
dealing ?with a governmental agency, and the conduct of its officers cannot
result ffi the application of the doctrine of estoppel.
It was stated in a former opinion of this Court in the case of B ache &
Co., Inc. v. State Tax Commissioner, by Judge Jones, that while the
foregoing provision (14-2-21 Code) refers only to limitations applicable under
Article 2, Chapter 55 of the Code of West Virginia, the Court considered the
intention of the Legislature to be that claims against the State should not be
allowed in any case where the Legislature has decreed in other provisions of
the Code that claims shall be barred after a specified time has elapsed. It was
further stated in said opinion that ?to allow this claim would constitute an
invasion of the province ?of the Legislature and would, in effect, set aside
the legislative will?.
Inasmuch as the administrative prcedure for aggrieved taxpayers seeking refund
of Business and Occupation taxes unlawfully, erroneously or mistakenly paid
into the Treasury of the State requires a Petition for Refund to be filed
within three years from the date ?of payment, and the claimant having failed to
do so for the years 1963 and 1964, the Court is of the opinion that relief
cannot be granted in this case and, accordingly, the claim is disallowed.
Claim disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 127
Opinion issued February 9, 1970
JOE L. SMITH, JR., INC. dba
BIGGS-JOHNSTON-WITHROW
vs.
WEST VIRGINIA ALCOHOL
BEVERAGE CONTROL COMMISSION
(No. D-218)
Sibley Weather ford, Attorney for Claimant.
George E. Lantz, Assistant Attorney General for the State. DUCKER,
JUDGE:
The claimant, Joe L. Smith, Jr., Inc., a corporation doing business as Biggs-Johnston-Withrow,
alleges that the West Virginia Alcohol Beverage Control Commission owes it the
sum of $4907.70 for work done by it in the printing of liquor price lists and
record forms for use by the respondent during the months of May, June and July,
1969.
The claim is based upon a price of $3985.00 per month, totaling $11,955.00, of
which the sum of $7047.30 was paid, leaving the sum of $4907.70 as the unpaid
balance, which balance represents the amount of the monthly difference between
the previously existing contract price for such work and the new lower price
which claimant bid on a new contract, which difference amounted to
approximately $1600.00 per month, and which sum when multiplied by three for
the three months of May, June and July, 1969, totaled the amount of this claim.
The principal issue is whether or not there was a valid agreement between the
parties reducing the price for the work and thus eliminating any liability on
the part of the respondent in the matter. There is no controversy as to the
calculation of the several amounts involved. The respondent either owes the
whole amount claimed or nothing.
Early in May, 1969 the Division of Purchases for the State asked for new bids
on the printing work for the Alcohol Beverage Control Commission, which bids
were to be opened on May 23rd. The printing work had to be done considerably in
128 REPORTS
STATE COURT OF CLAIMS [W. VA.
advance of any new contract work, and
the claimant, who having bid too high and not awarded the new contract, was
asked to continue to do such printing work for the months of May, June and
July, 1969. Respondent says, and it was not denied, that there were
conversations between the parties in the Spring of 1969 through the bid period,
in which respondent says that claimant agreed to ?reduce?, claimant saying that
it only agreed to ?discuss?, the matter of the cost of such printing for said
three month period. Claimant also said it would not specify how much a
reduction it would make, because to do so would disclose the amount of its bid
for the new contract. No price was ever agreed on between the parties. In
support of respondent?s position that it was entitled to a price reduction, it
attempted to show that the claimant?s costs in doing the work had been reduced
by various changes in the forms of the sales lists and the materials used. Even
if it is true that claimant?s costs were reduced, such fact is not material
since all charges for the work had been contemplated only on a price basis and
not on a cost or quantum meruit basis. There is no proof which showed otherwise
than the matter involved a total price deal without any question of cost or
profit or loss.
Therefore, the question resolves itself .into whether the evidence shows a
sufficient meeting of the minds to justify the conclusion that the parties
entered into a binding oral agreement. There was never any specific amount
specified between them. The respondent relies upon the statement of the
claimant?s witnesses that it couldn?t specify an amount because to do so would
disclose its bid for the new contract, which reason seems plausible under the
circumstances, because the disclosure of such bid amount would have very likely
influenced other bidders if they learned about it. Then, too, we cannot
understand what right the respondent had to make a unilateral decision as to
what the reduction in price should be, and to conclude that the bid price of
the claimant for the new contract was the amount of the reduction. Certainly
there was no meeting of the minds as to such a figure as the basis for the
reduction contemplated. Furthermore, the claimant?s bid price for the new
contract was for at least a full year?s work and not for just three months. It
can hardly be questioned
W. VA.]
REPORTS STATE COURT OF CLAIMS 129
that there can be a substantially different cost and price for work over a
period of four times longer than for one for the short period.
As we view the evidence, there was no binding agreement between the parties,
and the claimant was much more warranted in charging for the three month period
what it had previously charged, than respondent was in claiming it was entitled
to have the work done at a price no greater than claimant?s bid price for the
new contract. Being without a mutual agreement, the matter of the price was one
which the claimant had the right to fix for its work and so long as such price
was not grossly unreasonable, it should be sustained.
We are of the opinion, therefore, that the claimant is entitled to recover the
amount sued for, and we hereby award it the sum of $4907.70.
Award of $4907.70.
Opinion issued April 6, 1970
MATZ DEPARTMENT STORE, INC.,
Claimant,*
vs.
THE STATE ROAD COMMISSION OF
WEST VIRGINIA, Respondent.
(No. D-274)
No appearance for the Claimant (except by Stipulation).
Robert R. Harpold, Jr., Esq., and George H.
Samuels, Assistant Attorney General,
for Respondent.
PETROPLUS, JUDGE:
A Stipulation of Facts has been filed wherein it is stated in support of this
claim that on or about the 22nd day of July, 1969 the State Road Commission
construction crews were engaged in the painting of the Kanawha City Bridge in
Kanawha County, West Virginia, and that Marie Matz, who was driving a 1969
Pontiac, owned by the Claimant, across the
*The style of this claim was amended to the name of the insurance carrier,
Travelers Insurance Company, and an opinion was subsequontly filed under the
name of the carrier. See page 168.
130 REPORTS
STATE COURT OF CLAIMS [W. VA.
bridge, received unexplained paint spots on her automobile. The cost of
repairing the automobile is stipulated in the amount of $195.70 without any explanation of the items of repair or who
did the work or when the work was performed.
From these facts we necessarily infer that the paint spots came from the brush,
spray guns or the paint buckets of the employees of the State Road Commission,
as the automobile did not make contact with the painted surface of the bridge.
It appears that the Respondent was negligent in failing to take proper
precautions to protect the property of passing motorists lawfully driving
across the bridge.
The Court, however, is troubled in awarding damages in the amount of $195.70,
notwithstanding that the amount has been agreed upon as the cost of repairing
the automobile, without some showing that the ?Claimant was free from
contributory negligence in correcting or mitigating the damages. It would be a
reasonable assumption from the amount of the damage that either the automobile
was repainted or some costly process was involved in removing the paint spots
after they had dried or hardened. Reasonable care on the part of the motorist
would require her to stop at the next service station and have the spots
removed with turpentine or some proper solvent while they were still wet and fresh
and susceptible of being cleaned off, a rather simple and inexpensive process.
Even though we assume that the Respondent was guilty of negligence in dropping
a quantity of paint on the motor vehicle, we are also constrained to hold the
Claimant had a responsibility and a duty to mitigate damages and remove the
paint within a reasonable time after the damage occurred. It is not reasonable
to find that the removal of a small quantity of wet paint from the finished and
polished body of the car would entail an expenditure of $195.70. A reasonable
conclusion would be that no effort was made to correct the condition until
after the paint had hardened. The stipulation states that ?Men Working? signs
were installed on both ends of the bridge, so the Claimant was put on notice of
the unusual conditions.
Unless there is some further explanation of circumstances causing damage in the
amount stated, we are of opinion to
W. VA.]
REPORTS STATE COURT OF CLAIMS 131
disallow the claim on the grounds that the
Claimant was not free from fault and failed to mitigate damage by taking steps
promptly to remove the paint when the injury occurred.
Claim disallowed.
Opinion issued April 6, 1970
EQUITABLE GAS COMPANY, a Pennsylvania
corporation, Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. D-173)
No appearance for the Claimant (except by Stipulation).
George E. Lantz, Assistant Attorney General, and Robert R. Harpold, Jr., Esq.,
for the Respondent.
PETROPLUS, JUDGE:
This claim was submitted on a Stipulation of Facts and was previously
disallowed by the Court because of an incomplete Stipulation, and leave was
granted to the parties to file a Supplemental Stipulation or present evidence
setting forth material facts upon which the Court could make a decision. A
Supplemental Stipulation was filed on the 25th day of November, 1969,
furnishing the additional facts that the Respondent had no authority to conduct
its operations on the property of the Claimant, and was in effect a trespasser
when the injury or damage occurred. It is now further stipulated that the
damage in the amount of $254.90 for gas lost, labor performed and miscellaneous
expenses is reasonable and represents damages which were the direct and proximate
result of the accident.
It now appearing to the Court that the agents and employees of the Respondent
were operating the State?s dredging equipment on private property without
permission, and that certain damage was caused to the gas line by the equipment
of the
132 REPORTS
STATE COURT OF CLAIMS [W. VA.
Respondent, the Court is of the opinion to and does hereby allow the claim.
Claim allowed in the amount of $254.90.
Opinion issued April 6, 1970
MR. AND MRS. H. B. LEWIS, JR.
Claimants
vs.
THE STATE ROAD COMMISSION OF
WEST VIRGINIA, a corporation, Respondent.
(No. D-256)
No appearance for the Claimants (except by Stipulation).
Robert R. Harpolcl, Jr., Esq., and George H.
Samuels, Assistant Attorney General,
for the Respondent.
PETROPLUS, JUDGE:
By Stipulation it is disclosed that Claimants, while driving their automobile
across the Kanawha Bridge near Kanawha City, Charleston, West Virginia, on
September 4, 1969, susstained damages in the amount of $50.00 to the hood of
their automobile, which were caused by a falling Coca Cola bottle negligently
dropped or caused to fall by a member of a construction crew working overhead
for the State Road Commission in some type of maintenance work. The bottle came
from a direction of the superstructure of the bridge. It clearly appears that
the State was at fault in this matter and that the Claimants should be
compensated for their loss. An award is made to the Claimants in the amount of
$50.00.
Claim allowed in the amount of $50.00.
W. VA.]
REPORTS STATE COURT OF CLAIMS 133
Opinion issued April 6, 1970
SAM MELVIN, Claimant,
vs.
STATE ROAD COMMISSION, now WEST VIRGINIA
DEPARTMENT OF HIGHWAYS, Respondent.
(No. D-257)
No appearance for the Claimant (except by Stipulation).
Robert R. Harpold, Jr., Esq., and George
H. Samuels, Assistant Attorney
General, for the Respondent.
PETROPLUS, JUDGE:
The claim was submitted on a written stipulation, which sets forth the
following facts: On October 28, 1969, while Claimant?s daughter was driving a
motor vehicle owned by the Claimant over U. S. Route 61 near Pratt, West
Virginia, a construction crew working in the area on the installation of a
traffic counter on behalf of the Respondent, tugged or pulled on a rubber hose
across the highway causing a stabilizer nail used to tie down the rubber hose
to the pavement to damage a tire of the motor vehicle passing over the traffic
counter. The tire was damaged in the agreed amount of $11.00.
It appearing to the Court that the vehicle was damaged by the failure of the
Respondent?s agents to exercise proper care under the circumstances, and the
driver being free from fault, the Court makes an award of $11.00 to compensate
the Claimant for his loss.
Claim allowed in the amount of $11.00.
134 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued April 24, 1970
NANCY ANN PETTINGER
vs.
THE WEST VIRGINIA BOARD OF REGENTS
(No. C-6)
James W. St. Clair
for the Claimant.
Thomas P. O?Brien, Jr., Assisbant Attorney General and George E. Lantz, Assistant Attorney General,
for the Respondent.
JONES, JUDGE:
The petition in this case which was filed before the Attorney General of West
Virginia on February 6, 1967 and transferred to this Court after its creation
on July 1, 1967, alleges that on or about October 16, 1963 (shown by the
evidence to be an erroneous date), the claimant, Nancy Ann Pettinger, then an
infant nineteen years of age, and a student at West Virginia State College,
while participating as a member of a regularly constituted swimming class
taught and supervised by the respondent, slipped, was tripped or pushed so as
to fall on or about the pool area located in the premises of said College,
striking the rear portion of her head with great force, and that as the result
of negligence of the respondent ?in designing, maintaining or supervising the
pool?, the claimant suffered a severe head injury, developed traumatic epilepsy
and was totally disabled and damaged in the amount of $500,000.00.
The testimony of the claimant and her witnesses was taken
by deposition in the State of New Jersey on November 6, 1968;
and the respondent?s witnesses were heard by the Court on
November 3, 1969.
There was no witness to the alleged fall and injury except the claimant
herself, and while her recollection appears to be clear as to her fall and
circumstances immediately connected therewith, her account of conditions before
and after her injury leave much to conjecture. Some things are acceptably
certain:
Claimant enrolled at West Virginia State College prior to the
W. VA.]
REPORTS STATE COURT OF CLAIMS 135
beginning of classes on September 12, 1963, and moved into a college dormitory;
soon thereafter she became ill, as evidenced by unnaturally long periods of
deep sleep; she was treated as an outpatient at the College infirmary on
September 25, 1963, again on October 3, 1963 and on October 6, 1963; she was
admitted to St. Francis Hospital on September 16, 1963, discharged October
twenty-fourth, 1963, and on the same day she was admitted at Charleston
Memorial Hospital, from which she was discharged on November 1, 1963 and
returned to her home in New Jersey with her mother; thereafter she was under
the care of several neurosurgeons and psychiatrists and was a patient in sundry
hospitals; according to medical evidence she suffered from traumatic epilepsy
caused by subdural hemorrhage of the brain; she and her mother incurred doctor
bills of $319.00 and hospital bills in the amount of $5,275.47; and there is no
question as to the seriousness of her condition and disability, although
happily she has recovered and at the time of the taking of her deposition, she
had been accepted for service in the United States Air Force.
The claimant testified substantially as follows: She was enrolled in a swimming
class which she had attended four or five times; the instructor blew a whistle
for the end of a class; she and a friend, Donna Bradshaw, stayed for a ?couple
more swims?; the pooi area was dry when the class started but was wet and
slippery when the class ended; she got out of the pooi and ?Then she (Donna)
was up, going up the steps then. I was trying to hurry to get to her and when I
came around here, I started to run, but I didn?t run too far. I remember my
feet went out from underneath me?; she struck her head and she remembers nothing
from that time until she was talking with Dr. Nelson at the College infirmary,
apparently several days after the fall.
A nurse employed at the College infirmary testified that the claimant was
treated at the infirmary three times but made no mention of a fall until the
third visit. The dormitory housemother testified that the claimant seemed to
have hallucinations, told fantastic stories and referred to long sleeping
spells before she came to school. However, on cross-examination the housemother
said that she had not observed the unusual behavior for approximately two weeks
after school started.
136 REPORTS STATE
COURT OF CLAIMS [W. VA.
A physical education instructor at the College testified that all swimming
classes were instructed with regard to established rules and regulations
governing the pool area, and printed rules were posted at the pooi at the time
of this occurrence, one of which was that no one was allowed in the pool unless
an instructor or lifeguard was present.
Negligent acts charged by the claimant involve the slippery condition of the
pooi area, and the failure of the respondent to properly supervise the claimant
after the swimming class had ended.
With regard to the slippery surface contention, there was no showing of any
unusual condition or the violation of any duty to provide mats or other
covering at the place where the claimant fell. Applicable to this situation is
a statement in 48ALR 2d 166: ?Recognizing that the walks around and near
swimming pools are usually unavoidably wet and slippery, the Courts have
generally exonerated the owners or operators of swimming pools from liability
from injuries to patrons resulting from slippi9g and falling on such walks?.
While the owner or operator of a swimming pooi is under a duty to provide
general supervision of the activities of the pool, he is not an insurer of the
safety of his patrons, and a patron must exercise ordinary care for his own
safety. ?Furthermore, it has ben stated or recognized that if the injured or
deceased patron knew of the particular danger, or if he would have known of the
danger by the exercise of ordinary care, but nevertheless placed himself in
peril, or failed to use ordinary care to avoid the danger, and thereby caused,
or contributed to, his injury or death, he was guilty of contributory
negligence precluding recovery against the owner or operator of the bathing
resort or swimming pool.? 48ALR 2d 117.
The claimant, at the time of the alleged occurrence, was nineteen years of age
and knew how to swim and dive. She was an intelligent college girl, capable of
understanding the rules applicable to the use of the pool. She emerged from the
pool without injury. She had observed, and therefore knew, that the pool deck
was wet and slippery at the conclusion of the swimming class. Despite such
knowledge, and in violation of the posted rules, she chose to run on the
slippery surface.
W. VA.]
REPORTS STATE COURT OF CLAIMS 137
Such conduct does not indicate reasonable care for her own safety, and,
therefore we find that the claimant was guilty of contributory negligence as a
matter of law.
It is doubtful that the evidence in this case was sufficient to show any
negligence on the part of the respondent. However, the Court is of opinion that
this question need not be decided because of our determination that the
claimant was guilty of negligence proximately contributing to her injury.
Accordingly, this claim is disallowed.
Opinion issued July 20, 1970
WILLIAM GARLICK AND SONS, INC.
vs.
STATE AUDITOR
(No. D-224)
Robert W. Dinsmore, Esq., for the Claimant.
George E. Lcintz, Assistant Attorney General for the State. DUCKER,
JUDGE:
The claimant, William Garlick and Sons, Inc., seeks to recover the sum of
$1690.00, which it paid under protest to Vincent V. Chaney, Special Receiver
for Delinquent Corporations, in a suit brought by the latter in the Circuit
Court of Kanawha County by the Attorney General of West Virginia to collect
corporation license taxes for the fiscal year 1962-1963, the said amount of
$1690.00 being for the fiscal years from July 1, 1964. to June 30, 1969, as a
prerequisite to a reinstatement of claimant of the right to do business as a
foreign corporation in the State of West Virginia. The contention of the
claimant is that it did not know of the suit and that its authority to do
business in the State was revoked, and that being so revoked and having done no
business from 1964 to 1969, it should not now be required to pay the license
taxes for said years. Claimant paid the amount of the license tax for 1963-1964
and all costs without protest, but the amount claimed herein was paid by
claimant under protest so that
138 REPORTS
STATE COURT OF CLAIMS [W. VA.
it could again do business in the State. The claimant did not withdraw in
1962-1963 from doing business in West Virginia, but it simply left the State.
The position of the State is that as provided in Chapter 11, Article 1, Section
2A and Article 12, Section 86, and Chapter 31, Article 1, Section 84, of the
Code, the claimant is bound by the service by publication, and the requirement
of the payment by claimant of all corporate license taxes before it could be reinstated
for doing business in the State as a foreign corporation, and that inasmuch as
a remedy at law is provided for in the statute for the refunding of any
improper assessment, this Court does not have jurisdiction in such a matter.
The provisions of said sections of the Code are clear, explicit and
unambiguous. The claimant is charged with notice of what may develop if its
taxes are not paid, and it cannot claim lack of any personal notice, summons or
other notice of the impending suit other than the publications required. The
claimant did not notify the State of its desire to withdraw from doing business
as it should have done and which if done would have saved itself from liability
for the taxes accruing thereafter.
As the statutes on the subject are most elaborate, comprehensive and
unequivocal, we deem it unnecessary to set forth herein the several provisions
of the law contained in the statutes referred to. The claimant is presumed to
have known, and indeed should have known of its rights, among which are
provisions for a refund through court proceedings if the taxes were improper
and if application had been tinkly and properly made. Claimant has failed to
avail itself of the remedy available to it. This Court by the provisions of
Section 14, of Article 2, Chapter 14 of the Code, is without jurisdiction of
any claim with respect to which a proceeding may be maintained against the
State by or on behalf of the claimant in the courts of the State. Certainly
this Court cannot base jurisdiction on a failure of a claimant to enforce
rights given to the claimant in courts other than this Court.
We are, therefore, of the opinion to and do disallow the claim.
Claim disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 139
Opinion issued July 20, 1970
HAROLD R. PRICE
vs.
STATE ROAD COMMISSION
(No. D-243)
No appearance for Claimant.
Robert R. Harpold, Jr., for State Road Commission. DUCKER, JUDGE:
The claimant, Harold E. Price, who resides at 1322 Temple Street, Hinton, West
Virginia, alleges and it is stipulated be-P tween the parties as true, that at
about 4:00 P. M., August 2, 1969, a large piece of State Road equipment
described as a 20 yard Michigan pan, driven by a Road Commission employe,
Hulert Crimer, drove upon the sidewalk in front of claimant?s house so as to
avoid striking parked vehicles in the street, and by so doing the sidewalk
which was approximately ten inches above the street level was plowed up for a
distance of thirty-six feet. The cost of repairing the sidewalk amounted to
$81.24, and the claimant now asks reimbursement for such costs.
As a strictly legal matter, the sidewalk which was damaged is a part of a
public street and not owned by the claimant, but as we believe the claimant
could have been compelled by the City of Hinton to rebuild or repair the
sidewalk, it is only equitable for the State to pay for its negligence and not
leave the claimant liable to the City.
Accordingly, we are of the opinion to, and do hereby award the claimant, Harold
E. Price, the sum of $81.24.
Award of $81.24.
140 REPORTS
STATE COURT OF CLAIMS {W. VA.
Opinion issued September 15, 1970
THE
CHESAPEAKE & OHIO RAILWAY COMPANY
vs.
STATE
ROAD COMMISSION
(No. D-150)
R. Kemp Morton, Esq., for the Claimant.
Robert R. Harpold, Jr., Esq., for the Respondent.
DUCKER, JUDGE:
Claimant, Chesapeake & Ohio Railway Company, alleges damages in the sum of
$1297.20 by reason of a derailment of a car containing a load of gravel near
Surveyor, West Virginia, on August 5, 1968, the car having been placed on a railroad
siding for delivery of the gravel to the State Road Commission and having been
derailed and overturned in an attempt on the part of a State Road Commission
employee to move the car from the place it had been spotted on the siding to
the place on the siding where it was to be unloaded. The amount of damages,
which is undisputed, is based on the cost of the repairs to the car. The
respondent claims the brakes on the car were faulty and did not function when
applied.
The claimant had placed the car, which was coupled with another car on the
siding, and the testimony is to the effect that someone, presumably one
connected with the State Road Commission, uncoupled the cars with a Road
Commission employee on the brake end of the car to manage the removal of the
car to the place of unloading. The witness testified that after the car was
uncoupled from the car to which it was coupled on the siding, it drifted about
twelve feet and hit gravel on the track and stopped at a point about ten feet
from the point for unloading; that when the car stopped someone with a pinch
bar behind it started it to rolling again, and that when the Road Commission
employee tried to apply the brakes, the brakes failed to check or stop the car
which proceeded down the track until it derailed and overturned.
W. VA.]
REPORTS STATE COURT OF CLAIMS 141
The claimant had no witness to the accident but offered evidence to describe
the type of brake on the car and its normal functioning, and also as to the
nature and cost of the repairs, that in repairing the car no defect was
discovered in the brake mechanism.
The respondent?s only witness testified that he had worked in and around coal
mines for about twenty-three years and had had experience in unloading and
?dropping? railroad cars. As to who uncoupled the car and who used the pinch
bar, the evidence does not show. The defense depends solely on the evidence of
the employee to the effect that when he attempted to apply the brake it didn?t
hold.
The result of this case depends on whether the claimant was guilty of
negligence in leaving a car with faulty brakes for the respondent to move and
unload, or whether the respondent was negligent in not discovering such faulty
condition of the brakes before or during its attempt to move the car to its
place of unloading.
The relationship of the parties is one of bailor and bailee, and it is
fundamental in this type of bailment that a bailee must return to the bailor
the bailment property in the condition it was in at the time of the bailment,
usual wear and tear excepted. Proof of the delivery of possession of the car to
the bailee constituted a prima facie case on the part of the bailor, whereupon
the obligation to prove the damages to the car was not the fault of the bailee
shifted to the bailee. Prettyman v. Hopkins
Motor Company, 139 W. Va. 711, 81 S. E. 2d 78;
8 Corpus Juris Secundum 518.
From the evidence it appears that there was nothing done at the time the ears
were uncoupled or as the car drifted to a stop on account of gravel on the track,
and that the only attempt to apply the brake or see if it was in working order
was after a pinch bar was used to start the car moving again. The witness
testified that evidently a chemical car to which the gravel car was attached
was the only thing holding the gravel car before the latter was uncoupled. If
that were the case, then it appears to us that respondent?s employee by an
examination of the brake at the time of the uncoupling should have known or
been able to determine the condition of the
142 REPORTS
STATE COURT OF CLAIMS [W. VA.
brake on the gravel oar. While the respondent?s employee may have thought it
unnecessary to apply ?the brake before the ear reached the gravel it does not
seem reasonable for one handung a loaded oar on a down grade to wait to be
stopped by gravel ?on the track. We think there was a greater burden on the
respondent ?to take ?care of the ?bailment property than was done in this
instance, and that the respondent has not borne the burden required of it
according to law.
Accordingly, we are of the opinion that the claimant is entitled to recover its
damages, and we ?hereby award the claimant, Chesapeake & Ohio Railway
Company, the sum of $1297.20.
Award of $1297.20.
Opinion issued September 15, 1970
OLAF HUMPHREY
vs.
DEPARTMENT OF HIGHWAYS
(No. D-277)
No appearance for Claimant.
George H. Samuels, Assistant Attorney General, and Donald L. Hall,
Esq., for the Respondent.
DUCKER, JUDGE:
Claimant, Olaf Humphrey, alleges that on August 14th, 1969, his ex-wife, Edith
Bridges, was, with claimant?s permission, driving claimant?s 1966 Pontiac
Catalina sedan automobile over the 35th Street Kanawha City Bridge in
Charleston, West Virginia, the bridge being open for traffic, when a piece of
hot welding slag fell from the overhead structure of the bridge where employees
of the West Virginia Department of Highways were making repairs, and landed on
the windshield of claimant?s automobile, causing damages thereto in the amount
of $128.24.
The facts in the case are stipulated both as to the cause and the
reasonableness of the amount of the damages.
W. VA.]
REPORTS STATE COURT OF CLAIMS 143
Inasmuch as it is clear that the
damages resulted from the negligence of the employees of the Department of
Highways, we sustain the claim and award the claimant, Olaf Humphrey, the sum
of $128.24.
Award of $1297.20.
Opinion issued September 14, 1970
MONONGAHELA POWER COMPANY
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-252)
No appearance for the claimant.
George H. Samuels, Assistant Attorney General, and Robert 1?. Harpold, Jr., for the respondent.
JONES, JUDGE:
This case was submitted upon the petition of the claimant, Monongahela Power
Company, and a stipulation filed by the respondent, West Virginia Department of
Highways (formerly State Road Commission of West Virginia).
The facts giving rise to this claim, according to both the petition and the
stipulation, which recites that it was made after a complete investigation, are
that on or about February 5, 1969, the respondent, in the course of clearing
right of way on Route 24 near Pughtown, caused a tree to fall into power lines
of the claimant, that the extent of damages consisted of a broken pole and five
spans of secondary electric lines, and that the cost of repairing the damage
amounted to $189.67.
The Court finds that the damages claimed resulted from the negligent conduct of
the respondent; and, accordingly, the claimant, Monongahela Power Company, is
awarded the sum of $189.67.
144 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued September 14, 1970
PITNEY-BOWES, INC.
vs.
OFFICE OF THE GOVERNOR
(No. D-255)
Claimant not represented by counsel.
George E. Lantz, Assistant Attorney General, for the respondent.
JONES, JUDGE:
This claim is on an open account for rental and maintenance of postage meter
equipment furnished the Office of the Governor during the years 1966, 1967 and
1968. The amount of the claim is $90.05, being the balance of the account which
shows sundry credits.
A representative of the claimant testified that the services were performed and
were not paid for, and the account was introduced in evidence. Counsel for the
respondent stated that no related invoices were found in the Governor?s office
and that present personnel had no knowledge of the transactions.
A case having been made by the claimant, and no defense being available, the
Court will allow the claim, and an award hereby is made to the claimant,
Pitney-Bowes, Inc., in the sum of $90.05.
W. VA.] REPORTS
STATE COURT OF CLAIMS - 145
Opinion issued September 14, 1970
M & M CONSTRUCTION COMPANY
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-299)
Rex Burford for the claimant.
George H. Scimuels, Assistant Attorney General, and Anthony G. Halkias and Donald L. Hall for the respondent.
JONES, JUDGE:
The claimant, M & M Construction Company, and the respondent, West Virginia
Department of Highways (formerly State Road Commission of West Virginia)
entered into a contract under date of November 15, 1966, for the improvement of
Division Street, from 6th Avenue to 10th Avenue, in the City of Parkersburg,
Wood C?ounty. Under the contract documents a telephone conduit running the
entire length of the project within the right of way was to remain in place. On
or about May 4, 1967, it was determined that the presence of the telephone
conduit would necessitate the redesign and relocation of several crossdrains
included in the contract. The revised crossdrain design elevations were
completed and the claimant was given notice to proceed with this work on or
about July 25, 1967. By letter darted October 5, 1967, the respondent granted
the claimant 57 days? extension of time for performance of the contract by
reason of the delay. In the same letter the respondent acknowledged that the
claimant had been further delayed for 11 days due to indecision over the size
of the water line to be installed, which was complicated by the necessity of
obtaining agreement of the City of Parkersburg, ?and this delay was ?added to the
contract time, making a total extension of 68 days.
It appears that there never was any substantial disagreement between the
parties as to ?the extent of the delays or the responsi?biity of the respondent
for damages resulting therefrom. However, the amount of the claim totaling
$83,244.96 was disputed.
146 REPORTS STATE
COURT OF CLAIMS [W.VA.
By written stipulation filed in ?this Court on June 16, 1970, the parties have
agreed that by reason of delay and shutdowns pursuant to ?orders issued by the respondent,
the claimant incurred certain costs and expenses over and above those
contemplated and taken into consideration when the claimant bid the contract.
It was further stipulated that as a result ?of said delay and ?shutdowns, the
claimant was damaged in the amount of $27,095.75, itemized as follows:
1. Increased cost and expense resulting from
the loss of efficiency of employees $ 3,299.45
2. Increased cost and expense resulting from
utility exploration 583.80
3. Increased cost and expense for rental of
paving equipment, bulldozer and crane. 11,955.00
4. Increased cost and expense resulting from the maintenance of ?traffic for ?a
longer period ?of time ?than contemplated ?and taken
into account by the contract 8,400.00
5. Cost of maintaining eontrator?s field office
and storage building 1,281.54
6. Extra expense to protect concrete reinforcing, jo?int assemblies and curing
concrete
pavement 750.00
7. Overhead, and supervision during shut dow ?and delay periods 895.96
TOTAL $27,095.75
It was ?also stipulated and agreed that ?all other claims set out in the
claimant?s petition were abandoned.
The Court perceiving that the petition and ?stipulation present ?a valid claim
against the respondent, West Virginia Department of Highways, which in equity
and good conscience should be paid, ?an award is hereby ?made to th?e claimant,
M & M Construction Company, in the sum of $27,095.75.
W.VA.] REPORTS
STATE COURT OF CLAIMS 147
Opinion issued September 23, 1970
MRS. JESSIE P. RANDALL, Claimant,
vs.
DEPARTMENT OF HIGHWAYS, Respondent.
(No. D-151)
Claimant appeared in person.
Donald L. Hall, Esq., for the Respondent.
PETROPLUS, JUDGE:
Claimant sustained damages to the tires and the right side of her automobile as
the result of striking a protruding wooden structure, constituting a part and
extension of a walk-way on the Goff Plaza Bridge in Clarksburg, West Virginia.
The bridge was under the care and supervision of the respondent, The West
Virginia Department of Highways (formerly The State Road Commission).
The facts developed at the hearing established that the claimant was driving
her automobile over the bridge at night on August 17, 1968, when another car
turning onto the bridge slightly crowded her causing her to move to the extreme
right of her lane of travel in order to avoid a collision. She struck an
obstruction extending eight to ten inches beyond the normal curbing into the
traveled lane, which obstruction was an unpainted wooden beam, crude in design
and dark with age. The area was unlighted and no sign or warning indicated the
presence of a hazard.
Photographs of the structure clearly reveal a hazardous condition which in the
opinion of the Court the respondent knew or by the exercise of a casual
inspection should have known, would expose a traveling motorist to unreasonable
risk. On impact, the right front tire of the vehicle blew out, the right rear
tire was damaged and the front alignment of the automobile had to be restored
by repairs. The total amount of damage was $139.88.
Upon this evidence, the Court finds that the respondent?s negligence in failing
to remove the hazard or, at least, to give
148 REPORTS
STATE COURT OF CLAIMS [W. VA.
notice that the hazard existed by warning light or sign was the proximate cause
of the damage, and there being no evidence of contributory negligence on the
part of the claimant, an award is made to her in the amount of $139.88, the
claim being one which in the opinion of the Court, the State in equity and in
good conscience should pay.
Claim allowed in the amount of $139.88.
Opinion issued September 23, 1970
DALE E. OLIVE, Claimant,
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS,
Respondent.
(No. D-290)
Claimant appeared in person.
George H. Samuels, Assistant Attorney General, and Donald L. Hall, Esq. for Respondent.
PETROPLUS, JUDGE:
This case was presented on a stipulation of facts agreed to by both parties,
including the amount of damages.
The Claimant?s dwelling was located on a hillside adjacent to and below the
level of West Virginia Route 14, South Hills area, in Charleston, West
Virginia. On December 30, 1969, a landslide occurred above and behind
Claimant?s residence at 527 Ferry Street, in said City of Charleston.
From the investigation of the Respondent, it was determined that a drain and
drainage line on the side of the above mentioned road became clogged and
obstructed with debris and refuse. As the result of said clogging, surface
water was flushed from the drainage line and overflowed across Route 14,
draining through a large crack in the road surface and saturating the earth
beneath the road surface. The earth losing its cohesiveness because of the
water saturation, gave way under the paved portion of the road precipitating a
landslide down
W. VA.]
REPORTS STATE COURT OF CLAIMS 149
the hill, causing earth and debris to be thrown into the rear and against the
Claimant?s residence. The landslide damaged furniture and other personal
property in the residence in the amount of $1071.27.
The crack in the road surface through which the water flowed had previously
been patched by employees of the West Virginia Department of Highways, who
apparently had done some work in this area and should have observed the
condition of the drain as well as the roadway.
From the stipulated facts it appears that the blocked drain diverted surface
water into a road defect that should have been observed or reasonably
anticipated by the employees of the State at the time they performed their
repair work on the road. The failure of the State to keep the drain open for
proper drainage of the road constituted actionable negligence and the slide
which occurred was a foreseeable event that due care might have avoided. The
negligence of the Respondent was the proximate cause of the earth slide, which resulted
in damage to the residence and personal property of the Claimant. Photographs
taken at time of the slide indicate a substantial flow of mud and debris down
the hillside into and against the rear wall of the Claimant?s residence.
Under the circumstances, it is the opinion of the Court that the State has a
moral obligation to compensate the Claimant for damages sustained, and that the
Claimant could have successfully prosecuted a civil action for damages in the
regular Courts of the State.
The damages having been agreed upon after a complete investigation by the
Respondent, an award is accordingly made to the Claimant in the amount of
$1071.27.
Claim allowed in the amount of $1071.27.
150 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued September 23, 1970
HERMAN D. AFFOLTER, Claimant,
vs.
STATE ROAD COMMISSION, Respondent.
(No. D-221)
Claimant appeared in person.
George H. Samuels, Assistant Attorney General, and Donald L. Hall, Esq. for Respondent.
PETROPLUS, JUDGE:
The Claimant in this case is Delbert Gene Affolter, who was substituted for the
original Claimant, Herman D. Affolter, because title to the vehicle in question
was registered in the name of Delbert Gene Affoiter.
This
claim which came on for hearing against
the West Virginia Department of Highways (formerly the State Road Commission)
arises from a windshield broken by a flying
object, believed to have been a rock
or gravel, coming from a State Road Commission truck which passed the
Claimant?s motor vehicle traveling in an opposite direction, while Claimant was
returning to Charleston from Clendenin, A line of traffic was coming up the
hill and the Claimant was going down the hill, also in a line of traffic. The
driver of Claimant?s automobile, Herman D. Affolter, who was unable to stop his
motor vehicle because of the traffic congestion, could not identify the truck
from which the rock or gravel came as a vehicle of the State Road Commission.
He did know, however, that it was a yellow truck because he saw it approaching.
His 13 year old granddaughter told him it was a State Road truck. The driver
also was unable to describe the type of truck or definitely state that the
missile came from the truck. He did see two men or boys in back of the yellow
truck, who he stated might have thrown the rock.
The granddaughter who identified the truck as a State Road truck did not
testify in the case.
W. VA.]
REPORTS STATE COURT OF CLAIMS - 151
From the above facts developed at the hearing which were vague and uncertain,
this Court cannot determine responsibility for the accident. Although hearsay
evidence is admissible under the Statute creating the Court of Claims, the
Court is constrained to give such evidence only the weight that it deserves.
Statements of a 13 year old girl to her grandfather and related by him on the
stand, do not constitute satisfactory proof, particularly when the State does
not have the opportunity to cross-examine. The claim is based on speculative
assumptions as all yellow trucks on the highway are not State Road Commission
trucks.
On the present state of the record, this claim will be disallowed.
Claim disallowed.
Opinion issued September 23,
1970
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, Claimant,
vs.
THE STATE ROAD COMMISSION OF WEST VIRGINIA
(NOW DEPARTMENT OF HIGHWAYS) AND
HOWARD R. WHITE, Respondents.
(No. D-251)
Robert J. Louderback, Esq., for the Claimant.
Larry D. Taylor, Assistant Attorney General, and Donald L. Hall, Esq., for the Respondents.
PETROPLUS, JUDGE:
The Claimant, State Farm Mutual Automobile Insurance Company, after paying a
collision loss in the amount of $740.00 to Roy Bourne and George Keczan, doing
business as General Hydraulic Service, under coverage provided in its policy of
insurance issued to General Hydraulic Service, said loss representing damages
sustained by a pick-up truck in a collision with a vehicle of the State Road
Commission of West Virginia, now seeks reimbursement from the State Road
Commission (West Virginia Department of Highways) as subrogee.
152 REPORTS
STATE COURT OF CLAIMS [W. VA.
All material facts were agreed upon by stipulation between counsel for the
respective parties, and briefly are as follows:
1. The pick-up truck, owned by a partnership composed of Roy Bourne and George
Keczan, doing business as General Hydraulic Service, was insured against
collision damage by the State Farm Mutual Automobile Insurance Company,
Claimant herein.
2. The truck was damaged by a collision caused by the negligent operation of a
road grader owned by the State Road Commission and driven by one Howard R.
White, as agent and employee of the State Road Commission.
3. The accident occurred on November 14, 1967, on West Virginia Route 7, north
of Welch, McDowell County, West Virginia, and Howard R. White, who was acting
within the scope of his employment by the State, admitted his faulty driving to
the investigating officer. Liability is not disputed.
4. The Respondent, State Road Commission, at the time of the accident carried
public liability insurance with the Buckeye Union Casualty Company on all of
its vehicles, notwithstanding its constitutional immunity from liability or
suit in the regular Courts of our State.
5. Roy Bourne and George Keczan had an adequate legal remedy in the Courts of
record of our State for their property loss caused by the State?s negligence,
and likewise the Claimant had a remedy as subrogee in the event it paid for the
loss under its coverage.
6. George Keczan, who was driving the vehicle involved in the accident with the
State?s road grader, received serious personal injuries in the accident and
settled his claim in the amount of $3000.00, accepting said amount from the
Buckeye Union Casualty Company in full settlement of his personal injuries. At
the time of settlement, he delivered a Release to the Buckeye Union Casualty
Company which released any and all claims that he had against the Respondents.
He also received a check in the amount of $100.00 for property damage to the
truck owned by the partnership (said amount representing the deductible portion
of the collision loss which was not covered by the Claimant?s insurance
policy), the total property loss being in the amount of $840.00.
W. VA.]
REPORTS STATE COURT OF CLAIMS 153
7. The check in the amount of $100.00, payable to the order of the partnership
known as General Hydraulic Service is dated September 22, 1969, and carries the
notation on the face thereof ?In full and final payment of all claims arising
from the accident of November 14, 1967?.
8. Counsel were unable to inform the Court of the contents of the Release
executed by George Keczan, and particularly whether the Release also covered
property damages. It was agreed that a Release of some kind was signed by Mr.
Keczan and exchanged for the checks at the time of settlement.
9. For some unexplained reason the Buckeye Union Casualty Company
procrastinated and finally refused to reimburse the Claimant subrogee for the
property damage, although it admitted liability for the accident and settled
the personal injury claim in whole and the property damage claim in part by
payments under the coverage of its insurance policy. Correspondence between the
two insurance companies indicates that settlement of the property damage claim
was being considered and delayed because negotiations involving the personal
injury claim had not been completed. The ultimate refusal to pay for property
damage was based on the lapse of the two year Statute of Limitations.
10. Claimant filed its Notice of Claim in the amount of $840.00 in this Court
on November 12, 1969, two days before the Statute of Limitations was to expire.
No civil action was instituted by the Claimant against Buckeye or the
Respondents for the recovery of the subrogated amount of property damage in the
regular Courts of the State.
On this stipulation of agreed facts this Court is petitioned to reimburse the
Claimant on the portion of the collision loss it paid under its insurance policy
with Bourne and Keczan, who are not parties in this Court. The Court of Claims
was established to recommend to the Legislature payment of claims which the
State in equity and in good conscience should pay, notwithstanding the
sovereign immunity of the State, and provided that claims would be tenable in a
Court of record but for the defense of constitutional immunity.
When the State carries public liability insurance to protect its citizens and
others against the negligence or misconduct of
154 REPORTS
STATE COURT OF_CLAIMS -
its agents and employees in the operation
of State owned vehicles, the State in effect provides a means of compensation
without resort to the legislative grace which gave rise to the Court of Claims.
It is also an effectual waiver of the defense of constitutional immunity,
otherwise the insurance coverage would be meaningless and unprotective of the
rights of those who may be injured by the irresponsible acts of the State?s
agents and employees.
The Claimant had a full and complete remedy in a Court of record, and by
neglecting to file a civil action against the insured driver of the State
operated vehicle in a case where liability was not disputed, it now seeks after
such neglect full reimbursement on its subrogated claim from the taxpayers of
the State of West Virginia. Had it filed a civil action, the Claimant would
have received full restitution. The Claimant not only knew the driver was
insured but actually made efforts by correspondence to collect its claim from
the State?s insurer. Buckeye Union Casualty Company delayed and evaded payment
of the full property claim until the tolling of the Statute of Limitations,
although it did acknowledge and paid a part of the claim by issuing a check for
the sum of $100.00. Buckeye?s conduct in this matter was not only reprehensible
but appears to have been designed to foist the payment of an admitted liability
upon the taxpayers of West Virginia, although it had received a premium from
the State for the insurance that it had issued.
The Claimant, as an innocent party, stands to lose and the wrong-doer has been
unjustly enriched; this may give rise to some form of equitable relief for the
Claimant elsewhere. This Court is of the opinion that to acknowledge and accept
a subrogation claim under the circumstances here presented would not satisfy
the mandate to this Court that only claims be paid from public revenues which
constitute a moral obligation of the State.
For the foregoing reasons, the Court is of the opinion to and does hereby
disallow the subrogation claim.
Claim disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 155
Opinion issued October 14, 1970
HELEN I. WOTKIEWICZ
vs.
WEST VIRGINIA BOARD OF REGENTS
(No. D-294)
Robert B. Stone for the Claimant.
George E. Lantz, Assistant Attorney General for the Respondent.
DUCKER, JUDGE:
The claimant, Helen I. Wotkiewicz, a former student at West Virginia
University, alleges that for the second semester 1967-1968, the first semester
1968-1969, second semester 1968-
1969 and the summer session 1969, she was required to pay non-resident tuition
fees while she was a full-time student at the University, which fees exceeded
the resident fees in the total sum of $1258.00, and upon her contention that
she was legally a resident of West Virginia during the period she was so
required to pay said non-resident fees, she now claims she is entitled to be
refunded the amount of such excess payment. The issue is whether the claimant
was legally a resident of West Virginia who was obligated to pay only resident
student tuition and fees.
The payment of the fees on a non-residency basis was made under protest and
appeals were presented to the Residency Committee of the University and denied.
However, claimant was awarded residency status for the first semester of 1969-
1970 and excess tuition and fees for that semester were refunded. It would seem
to appear that one reason the Residency Committee may have refused to order
refund for previous semesters was because of fiscal year budgetary restrictions.
The Regulations of the University contain in Section 7-A-i the following
provision:
?No person shall be considered eligible to register in the University as a
resident student who has not been domiciled in the State of West Virginia for
at least twelve consecutive months next preceding college registration.
156 REPORTS
STATE COURT OF CLAIMS [W. VA.
No non-resident student may establish domicile in this State, entitling him to
reductions or exemptions of tuition, merely by his attendance as a full-time
student at any institution of learning in the State. * * *?
The evidence discloses the following
undisputed facts.
Claimant while a resident of Pittsburgh, Pennsylvania, was secretary to Dr.
Ernest Vargas, director of a research project at the University of Pittsburgh,
from June 1963 until August 1966 when the research project ended and claimant?s
employment then ceased. Dr. Vargas then accepted a position as a professor at
West Virginia University, and as he and his wife and claimant had become close
friends, he suggested to claimant that she seek employment at Morgantown where
the Var- gases were moving. Claimant thereupon applied for a position and was
employed as a secretary to Dr. Bernard Scher, Director of the Division of
Social Workers in Morgantown, on a full-time basis beginning in August 1966.
Having taken a few courses of a general academic nature at the University of
Pittsburgh, claimant was encouraged by her employer, Dr. Scher, to use her
otherwise noon hour recess time to take part-time courses at West Virginia
University. In the fall of 1967, Dr. Scher became seriously ill, after which he
took a position at Florida State University, which meant to claimant a change
in the personnel of her employer. Claimant concluded she was tired of being a
secretary and decided then that it was a good time for her as she said ?move
out of the secretary slot and start wrapping up my education?and to begin
taking classes on a full-time basis?. She further said that as she was becoming
interested in social work and social studies, she enrolled as a full-time
student in January 1968, when she was over 22 years of age.
Other pertinent facts are that the claimant after beginning her employment in
August 1966 as a secretary in Morgantown lived there the year round
continuously thereafter, returning to see her parents in Pittsburgh only on
occasional visits. For a month she lived with the Vargases until she found an
apartment, and thereafter shared an apartment with another young girl who was
teaching and a graduate student at the University. She got a West Virginia
driver?s license in the fall of 1966, and she filed resident returns and paid
West Virginia income
W. VA.]
REPORTS STATE COURT OF CLAIMS 157
taxes for the years 1967 and 1968, showing
her residence to be Morgantown.
Although the claimant testified that she had no future plans as to where she
expected to live in the future or where she expected to be employed, there is
nothing in her testimony to indicate any domicile or residence remaining in Pittsburgh.
On the contrary, her residency in Pennsylvania appears to have been completely
terminated when she moved to Morgantown and became Dr. Scher?s secretary.
From the above facts it is necessary to see if the Residency Regulation
heretofore quoted is sufficiently applicable to this case as to justify the
non-residency tuition and fees charged against claimant for the semesters in
question.
The regulation prohibits anyone who has not been a resident of the State for at
least a year from being eligible for residency status and that such one year
residency status cannot be obtained merely by being a full-time student. The
facts clearly indicate that claimant became a bona fide resident of Morgantown
when she accepted and entered upon full-time employment as a secretary at the
University, taking only part- time courses in lieu of the time she would have
had for her noon hour recess, and that she did not become a full-time student
until she registered in December 1967 as such, a year and five months after she
moved to Morgantown.
The provision in the Regulations is a necessary and valid one, and should be
enforced where the facts are in accordance with its specified restrictions, but
not where they are not within its terms, as in the case before us.
In view of all the facts, we are of the opinion that claimant having moved to
Morgantown and engaged in full-time employment there with no purpose evident
except to make her home there indefinitely, constituted an establishment by her
of a legal domicile there and that her residency meets the requirements of the
regulations of the Residency Committee, and that she should have been charged
only resident tuitions and fees.
Accordingly, we are of the opinion that the claimant is entitled to the refund
sought, and we hereby award her the sum of $1258.00.
Award of $1258.00.
158 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued November 16, 1970
PETERS FUEL CORPORATION and
FRANKLIN W. PETERS & ASSOCIATES
vs.
STATE TAX COMMISSIONER
(No. D-226)
Louis R. Tabi.t for the Claimant.
Larry D. Taylor, Assistant Attorney General for the Respondent.
DUCKER, JUDGE:
The Claimant, Peters Fuel Corporation, a corporation with principal office and
headquarters in Oakland, Maryland, licensed to do business in West Virginia,
sold gasoline and diesel fuel to Franklin W. Peters and Associates, an
individual proprietorship, the latter being by amendment also made a claimant
herein, for use by the latter in mine reclamation work at Elkins, West
Virginia. Gasoline taxes at seven cents a gal- ion were assessed against
claimants for the period, July 20, 1966 to December 29, 1966, amounting to
$7,124.60, and for the period, January 1, 1967 to February 28, 1967, amounting
to $1,575.07, making a total assessment of $8,699.67, from which total amount
the sum of $403.15 was deducted as not properly chargeable. Claimants, who paid
such taxes under protest, allege that they have been unlawfully and unjustly
required to pay $8,296.52 and here ask that said amount be refunded to them
because the gasoline and diesel fuel was used in work done by Franklin W.
Peters and Associates under the latter?s contract with the Federal Government,
and, therefore, such sales were exempt from the payment of the gasoline tax.
One of the two questions here involved is whether the claimants complied with
the legal requirements pertaining to the returns, payment and refunds of such
taxes paid. The amount of gallonage involved is not in question. The claimants
base their case principally on the claim that (1) the taxes paid are not legal
and are refundable under Code Chapter 11, Article 1, Section 2A, (2) that Code
Chapter 11, Article 14 (the Gasoline Tax statute) does not authorize any
?assessment?
W. VA.]
REPORTS STATE COURT OF CLAIMS 159
to be made by the Tax Commissioner, (3) that the latter section of the Code
does not provide for a hearing or an appeal therefrom, and that the ninety day
provision for applying for a refund is unreasonable and unconstitutional, and
(4) that the State has been unjustly enriched and in equity and good conscience
should refund the taxes so collected by it.
A recital of the facts in their chronological order is necessary to see what
transpired in regard to the matter under consideration.
As has been shown, the taxes for which refunds are now claimed were for a
period of a little over the last five months in 1966 and for the first two
months in 1967. Taxes on these sales were not reported by claimants, who said
they did not do so because they were orally advised that these sales were
exempt from the tax. An audit by the Tax Commissioner was made for the said
first period on February 15, 1967. Claimants petitioned the Tax Commissioner on
March 1, 1967 for a reassessment for the said first period and on May 24, 1967
the Commissioner after a hearing held that the claimants were liable for the
taxes, exclusive of penalties, of $7,124.60 for said period. The taxes were on
August 16, 1967 paid under protest and no appeal was taken. On October 8, 1967
the Commissioner made a further and additional audit for the said second period
resulting in the issuance of a statement of liability on the part of the
claimants for $1,525.07, which taxes were paid on August 20, 1968, apparently
under protest, with no appeal in either case within ninety days after payment.
Claimants filed with the Tax Commissioner on January 4, 1969, their petition
for a refund. On September 4, 1969 the Tax Commissioner made an Administrative
Decision as provided in Code 11-14-20 denying petitioners? claim for a refund
and so notified the claimants, which notice was received by the claimants on
September 10, 1969, and within the thirty day period specified in the statute,
namely October 7, 1969, claimants wrote the Tax Commissioner that claimants
were not satisfied with the Commissioner?s decision and requested the
Commissioner to promptly institute a declaratory judgment suit to ascertain
whether the tax has been lawfully or unlawfully collected. No further
proceedings were had until the institution of this suit in this Court.
160 REPORTS
STATE COURT OF CLAIMS [W. VA.
While it appears to this Court that under the provisions of Code ll-l-2A the
claimants may have had and may still have the remedy of mandamus in the courts
of the state to determine their rights under said code provisions, the
determination of the right to such remedy being not within this Court?s
jurisdiction, we consider it our duty to first consider and adjudicate this
claim as to the question of the applicability of Code 11-14-20, the gasoline
statute, to the facts in this case.
The provisions of Code 11-14-20 provide that the Tax Commissioner shall cause a
refund to be made only when an application for refund is filed with the Tax
Commissioner, upon forms prepared and furnished by the Tax Commissioner, within
ninety days from the date of purchase or delivery of the gasoline, and that any
claim for refund not filed within ninety days from the date of purchase or
delivery of the gasoline shall not be construed to be or constitute a moral
obligation of the State of West Virginia for payment. These provisions give a
claimant who has paid the taxes the right to apply for a refund within ninety
days of the sale or delivery of the gasoline. This was not done as payment was
made only after hearings were had upon the claimants? request for reassessment.
Claimants have evidently considered only the thirty day provision for appeal
under Code 11-1A-2 as applicable to this claim, especially since they claim
there was no basis for assessment, hearing, or appeal provided in the gasoline
tax statute. The provisions of Code 11-14-20 are clear, unambiguous and
reasonable, and have a very apparently definite purpose, and we are unable to
interpret or construe them as authorizing anything other than strict compliance
with them. Nor, in the absence of judicial or legislative pronouncement to such
effect, do we consider it proper for this Court to determine the
constitutionality of this legislative enactment. Here the legislature has
prescribed a fair method for taxpayers to obtain refunds of taxes on sales
which were exempt, but it has not allowed taxpayers to determine for themselves
the matter of exemption. It first requires report of the sales and then gives
ninety days for the ffling of an application for refund. Here the taxpayers,
relying on what they claim was
W. VA.]
REPORTS STATE COURT OF CLAIMS 161
a verbal authorization by an employee of the State, did not pay the taxes. Such
alleged authorization was not confirmed either in writing or by the testimony
of the State employee, and, even if it were, the State cannot in tax matters be
bound by unauthorized acts of its employees contrary to the statutes. There is
no authority for such acts which could be the basis of loss of tax revenue and
possible fraud, although in this case everything was done honestly and in good
faith.
The legislature has here in advance declared a failure to follow the prescribed
procedure as not to constitute a moral obligation on the State for payment.
While this Court determines cases according to law and our findings are then
considered by the legislature as moral obligations, our jurisdiction is thus
limited by the Gasoline Act specifically denying such a claim a moral
obligation status.
It is, indeed, unfortunate this situation deprived the claimants from
recovering the amount of these taxes from the Federal Government as an expense
in their performing their contractual work, but this is a consequence of the
claimants? failure to comply with the requirements of the tax laws for which
the State cannot be held responsible.
As to the question of the right of the Tax Commissioner to make assessments and
for the taxpayer to have no right of appeal, we see no reason for specific
provisions for assessment, as it is the inherent duty of the Tax Commissioner
to audit, when requested, the tax returns and advise the taxpayers of any
deficiencies or overpayments, otherwise he could hardly function in his duty to
determine and collect taxes. Furthermore, we are of the opinion that the
legislature has prescribed a method and a remedy which we consider as reasonable,
and which having been so prescribed, we cannot disregard.
For these reasons we are of the opinion that the claimants have failed to show
grounds for an allowance of their claim, and we, therefore, disallow the same.
As heretofore indicated, the remedy in this case may have been and may still be
solely under the general refund statute (Code 1l-l-2A). That section of the
statute provides that:
?any taxpayer claiming to be aggrieved through being required to pay any tax
into the treasurer of this State,
162 REPORTS
STATE COURT OF CLAIMS [W. VA.
may, within three 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.?
The procedure is specified for such determination. If, upon such determination,
the Tax Commissioner shall determine the taxes collected to be lawful, he shall
so notify the taxpayer who has thirty days to advise the Commissioner that he
is not satisfied with the ruling and that he requests the Commissioner to
institute a declaratory judgment suit to determine the validity of the
question. If such notice is given to the Commissioner, the statute provides
that the Commissioner ?shall promptly institute against said taxpayer, in a court
of competent jurisdiction, a declaratory judgment proceeding to determine the
question?. The claimants complied with this statute within the thirty day
period provided, but, so far as this Court is advised, no declaratory judgment
proceedings were instituted and nothing done to compel the Commissioner to so
act. While under the statute the Tax Commissioner may, on his own initiative
file suit, it was mandatory upon him to file a declaratory judgment suit when
requested by the taxpayer to do so. It was not a discretionary matter. There,
in the opinion of this Court, the claimants had and may still have the right to
require the Commissioner to do his duty, namely institute the declaratory
judgment suit.
The Act creating the Court of Claims, Code 14-2-14, provides as follows:
?The jurisdiction of the Court shall not extend to any claim: . . . 5. With respect to which a proceeding may be maintained
against the state by or on behalf of the claimant in the courts of the state.?
This Court has specifically held that where a writ of mandamus is obtainable,
there is a proceeding which can be maintained against the State in the Courts
of the State, such as compelling the State Road Commission to institute
condemnation proceedings to determine damages to real estate and compensate
property owners. Johnson v. State Road Commission,
7 Court of Claims Reports p. 186. We
are of the opinion that inasmuch as it appears that the claimants may have had
W. VA.]
REPORTS STATE COURT OF CLAIMS 163
and may still have the right under the
general refund statute, Code 14-2-14, to require the Tax Commissioner to
institute a declaratory judgment suit, this Court should disallow their claim
herein for such additional reason.
Accordingly, the Claimants? petition herein is dismissed.
No award.
Opinion issued November 16, 1970
JOHN STANFORD BRADLEY, Claimant
vs.
DEPARTMENT OF HIGHWAYS, Respondent
(No. D-296)
CARL P. BOOTHE, Claimant
vs.
DEPARTMENT OF HIGHWAYS, Respondent
(No. D-297)
Claimants appeared in person and by W.
H. Ballard, Esq.
Donald L. Hall, Esq., for Respondent.
PETROPLUS, JUDGE:
These cases involved the same set of facts, and were consolidated for the
purpose of the hearing. The claims were filed for the loss of certain cattle by
poisoning and for injuries to other cattle, attributing the sickness and death
of the animals to eating wilted wild cherry leaves or shrubs which had been cut
on the State?s right of way by employees of the West Virginia Department of
Highways, and allegedly permitted to lie on the right of way of the road where
the leaves or shrubs could be reached and eaten by the livestock pastured on
farms adjoining the road.
The damages are based on the alleged negligence of the employees of the State
Road Commission either in the failure to pick up the debris from the right of
way or leaving the
16?i REPORTS
STATE COURT OF CLAIMS [W. VA.
fragments in such a position where they would be accessible to cattle.
The evidence introduced at the hearing established that
wild cherry leaves or shrubs are very toxic and high in prussic acid,
especially for the first twenty-four hours after they have been cut, and will
cause the death of field cattle if eaten.
Although, admittedly, prussic acid in vegetation is highly poisonous to cattle,
the standard of care required of employees of the State Road Commission is that
required of a person of ordinary prudence under the same circumstances.
It must be shown that the employees either have knowledge of the hazard, or as
reasonably prudent persons, should have had such knowledge. The contention of
the Claimants is that the Respondent failed to exercise ordinary care to
prevent injury to their cattle, and that they knew or should have known that
the cutting of wilted cherry trees and shrubs was a dangerous act and that the
leaves being edible would cause the death or sickness of livestock. Claimants
contend that the Respondent did not exercise ordinary care to avoid the
consequences of this negligence and should have anticipated that the animals
would consume the dangerous substance.
A requisite of proximate cause is an act or omission which a person of ordinary
prudence could reasonably foresee might naturally produce an injury. The
criterion of care is that of a reasonably prudent man, and not a reasonably
prudent farmer. We cannot apply a higher standard of care to the Respondent?s
act than the circumstances warranted. Since it is not common knowledge that
wild cherry leaves are toxic to cattle, particularly when in a wilted
condition, we cannot hold the Respondent?s employees should have anticipated
the injury to the animals; leaving the vegetation on the right of way of the
road after it was cut down does not constitute negligence, and even though we
assume that it did, an ordinarily prudent person could not have anticipated
that the omission would expose cattle in an adjoining field to danger.
For the foregoing reasons, it is the opinion of the Court that no negligence
has been proved in this case and the claims are accordingly denied.
Claims disallowed.
W. VA.] REPORTS STATE
COURT OF CLAIMS 165
Opinion issued Novernbcr 16, 1970
EDWARD C. FREEMAN, Claimant
vs.
WEST VIRGINIA DEPARTMENT OF NATURAL
RESOURCES, Respondent
(No. 0-298)
Billy E. Burkett, Esq. for the Claimant.
George B. Lantz, Assistant Attorney General for the Respondent.
PETROPLUS, JUDGE:
The Claimant, Edward C. Freeman, Esq., a practicing attorney at law of
Princeton, West Virginia, was employed by George E. Wise, Jr., Land Agent for
the Department of Natural Resources, Respondent, to perform certain legal
services for the State of West Virginia, namely, to examine title to and
prepare abstracts for certain tracts of land adjacent to Pinnacle Rock State
Park in Mercer County. The services were performed in a competent and
satisfactory manner, and the abstracts and certificates of title were forwarded
to the Respondent with an itemized invoice in the amount of $500.00, charging
twenty hours at a rate of $25.00 per hour. Neither the quality of the services
nor the reasonableness of the charge is in issue.
The Respondent admitted all of the allegations of the petition, but denied
liability on the ground that the contract of employment was illegal and void
under Chapter 5, Article 3, Section 1, of the West Virginia Code, which
provides as follows:
?The attorney general shall give his written opinion and advice upon questions
of law, and shall prosecute and defend suits, actions, and other legal
proceedings, and generally render and perform all other legal services,
whenever required to do so, in writing, by the governor, the secretary of
state, the auditor, the State superintendent of free schools, the treasurer,
the commissioner of agriculture, the board of public works, the tax
commissioner, the State archivist and historian, the commissioner of banking,
the adjutant general, the chief of the department of mines,
166 REPORTS
STATE COURT OF CLAIMS [W. VA.
the superintendent of public safety,
the State commissioner of public institutions, the State road commission, the
workmen?s compensation commissioner, the public service commission, or any other State officer, board or commission, or the head of any State educational, correctional,
penal or eleemosynary institution; and it
shall be unlawful from and after the time this section becomes
effective [August 17, 1932] for any of the public officers, commissions, or
other persons above mentioned to expend any public funds of the State of West
Virginia, for the purpose of paying any person, firm, or corporation, for the
performance of any legal services: Provided,
however, that nothing contained in this section shall impair or affect any
existing valid contracts of employment for the performance of legal services
heretofore made.
?It shall also be the duty of the attorney general to render to the president
of the senate and/or the speaker of the house of delegates, a written opinion
or advice, upon any questions submitted to him by them or either of them
whenever he shall be requested in writing so to do.?
(underscoring ours)
Citing said statute as a basis for its defense, Respondent takes the position
it has no moral obligation to the Claimant and that this is not the type of claim
that the State of West Virginia in good conscience should pay.
At the hearing Mr. Wise, the Land Agent, testified that his duties encompassed
handling land transactions for the Department of Natural Resources and dealing
generally with attorneys, providing information and assistance to them, and
otherwise working with them in matters involving real estate. It was his
practice to employ attorneys approved by the Attorney General?s office. At the
time Mr. Freeman was employed, several other attorneys were also employed
throughout the State on different projects, all of the names being on an
approved list which originally came from the Governor?s office. There was no
question in his mind that he had authority to employ Mr. Freeman as his name
was on the approved list. Although the practice of the Department was to
communicate with the Attorney General?s office and request that private counsel
be appointed to perform legal services for the State, as special assistants to
the Attorney General, this procedure was not followed in the case of Mr.
Freeman. The attorney origi
W. VA.]
REPORTS STATE COURT OF CLAIMS 167
nally designated by the Attorney General to do the work was removed from a
revised list prepared in the office of the incoming Governor, Arch A. Moore,
Jr., and Mr. Freeman was substituted for the attorney appointed by the Attorney
General. The substitution of counsel was done without the approval or
designation of the Attorney General?s office. On cross examination Mr. Wise
admitted that prior to the administration of Governor Moore, that he never
employed private counsel to perform work for the State without the approval of
the Attorney General. The State Auditor properly sought authorization from the
Attorney General in October, 1969, to pay the invoice, and refused to do so
when the approval was not forthcoming. Hence the claim came in this Court for a
hearing and disposition.
The employment of private counsel for a State agency without the approval of
the Attorney General is clearly a violation of the above cited statute, which
undoubtedly was intended to curb the indiscriminate employment of attorneys to
render legal services to the State when it is the function and duty of the
Attorney General by law to perform all legal services. This prohibition applies
to all State agencies, including the Governor?s office. If because of
insufficient personnel, or other reasons, the office of the Attorney General
cannot serve the State?s legal requirements, the device of appointing and
designating special assistants is used by the Attorney General. That is to be
the prerogative of his office or position, and all others mentioned in the
statute, including the Governor, are precluded from expending public funds for
the purpose of making payment for the performance of legal services rendered to
the State.
The Claimant, being an attorney, is certainly chargeable with the knowledge of
the statutory law of our State, and he probably more than a layman would be
cognizant of the caveats attendant in dealing with public officers and
government agencies, and the limitations upon their authority.
Interdepartmental struggles or lack of communication between State officers is
not the concern of this Court, but unless there is a legal basis for a claim
this Court is without power to make an award, regardless of how sympathetic we
may be to the cause of the claimant.
163 REPORTS STATE
COURT OF CLAIMS [W. VA.
The contract of employment being in direct violation of a statute, we are
constrained, for the reasons stated in this opinion to deny the claim.
Claim disallowed.
Opinion is,uec1 November 19, 1970
TRAVELERS INSURANCE CO., Claimant
vs.
THE STATE ROAD COMMISSION OF WEST VIRGINIA,
Respondent.
(No. D-274)
Charles Hurt, Esq., appeared for the Claimant.
Donald L. Hall, Esq., for the Respondent.
PETROPLUS, JUDGE:
The Court upon a prior hearing disallowed the claim of Matz Department Store,
Inc., in the amount of $195.70, for alleged damage to the automobile of the
Claimant resulting from paint being sprayed thereon while crossing the Kanawha
City Bridge in Kanawha County, West Virginia. At the time the damage occurred,
the State Road Commission construction crew was engaged in the painting of the
Bridge and some days after the crossing, the Claimant?s attention was called to
certain unexplained paint spots on the automobile owned by the Claimant and
driven by Marie Matz. The cost of repainting the automobile was stipulated in
the amount of $195.70, although the Claimant did not incur this expense by
having the automobile repainted.
The claim was denied on the ground that the Claimant had a responsibility and a
duty to mitigate damages by removing the wet paint within a reasonable time
after the damage occurred and that no effort was made to mitigate damages and
correct the condition before the paint hardened by drying.
On Petition of the Claimant, the Court granted a rehearing. The automobile was
produced at the rehearing for inspection
W.VA.] REPORTS
STATE COURT OF CLAIMS 169
of the Court, and after taking a view the Court is of the opinion that the
damage, if any, was so slight that it could not be observed by an ordinary
inspection of the surface of the automobile. This may also explain why the
Claimant did not discover the damage within a reasonable time after she crossed
the bridge. The inspection of the automobile did not disclose any obvious
damage from the paint spray, although on very close inspection certain very
minute shaded spots barely discernible to the naked eye could be detected on
the hood and top of the car.
Inasmuch as the Claimant incurred no expense in having the automobile repainted
and the damage being so trivial, it is our opinion that the maxim of ?de
minimis non curat lex? should apply. The law does not take notice of small or
trifling damage and our former ruling in this case is affirmed.
Claim disal] owed on rehearing.
Opinion issued November 19, 1970
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY, Assignee to
the rights of SARAH G. ROMANS,
its assured, Claimant
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS,
a corporation, Respondent.
(No. D-285)
No appearance for the Claimant.
Donald L. Hall, Esq. for the Respondent.
PETROPLUS, JUDGE:
This case was submitted upon Petition, Answer and Stipulation between the
parties, setting forth the following undisputed facts:
On April 19, 1968, while the Respondent was operating a 1960 Ford Dump Truck on
Riverside Drive, Route 52, in Welch, West Virginia, the outside section of the
rim of the left rear
170 REPORTS
STATE COURT OF CLAIMS [W. VA.
wheel of the Respondent?s vehicle broke off and struck the side of the
automobile of Sarah G. Romans while the vehicles were passing each other,
thereby causing damage to the Romans? automobile in the agreed amount of
$168.83.
The Answer of the Respondent denies any negligence but does admit that the
Claimant?s automobile was damaged as heretofore stated. The Answer further
asserts a defense that this claim should not be allowed in equity and in good
conscience because the real party in interest has been reimbursed by the
Claimant for any and all damages incurred, and that the subrogee who has filed
the claim should not be allowed to recover against the State as a matter of
public policy.
It is the opinion of the Court that in the absence of any evidence that the
flying object which struck the Claimant?s car was an unavoidable accident or a
latent defect in the construction of the wheel that would not be apparent by an
ordinary inspection, the Court must infer that the 5tte owned vehicle had a
loose or broken rim which could have been discovered by proper inspection and
maintenance of the vehicle. A failure to maintain and keep the vehicle in
repair constitutes negligence and the resulting damage from broken parts is a
foreseeable consequence. From the Stipulation, we infer negligence of the West
Virginia Department of Highways in the maintenance of its truck, and the damage
to the Claimant was the proximate and foreseeable result of said negligence.
We cannot agree with the contention of the State that a subrogation claim has
no standing in this Court. The subrogee under the Insurance Policy has the same
right of recovery as the insured and is entitled to the same relief, in the
absence of some provision in the Statute conferring jurisdiction upon the Court
of Claims which would deny the subrogee the remedy afforded to the insured. It
is accordingly the opinion of the Court that this is a claim which in equity
and in good conscience should be paid even though the real party in interest
has been reimbursed.
Having found that the Respondent in the exercise of reasonable care could have
avoided the damage to the Claimant, we are of the opinion to allow the claim.
Claith allowed in the amount of $168.83.
I
W. VA.]
REPORTS STATE COURT OF CLAIMS 171
Opinion issued November 19, 1970
FRANK FEDORKA, Claimant
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS,
Respondent.
(No. D-289)
No appearance for the Claimant.
Donald L. Hall, Esq., for the Respondent.
PETROPLUS, JUDGE:
This case was submitted on a Stipulation setting forth the following facts:
That on or about July 9, 1970, members of a crew of Neighborhood Youth Corps
Workers, employed under the supervision and control of the West Virginia
Department of Highways, while engaged in the clearing of brush from the north
side of State Route 88, approximately one-half mile north of Clinton, Ohio
County, West Virginia, did cut down, chop, hack or otherwise destroy a 3 inch
caliper sugar maple and forsythia bush belonging to and situate upon the
property owned by the Claimant and providing a part of the landscaping for the
entrance into a housing development. The Claimant was free from any fault or
negligence and it is agreed that the cost of replacing the sugar maple and the
forsythia is in the amount of $76.00.
It appearing to the Court that the conduct of the workers under the supervision
and control of the West Virginia Department of Highways constituted a trespass
on private property, resulting in damage to said property and that the State is
liable for the damage caused by its employees acting within the scope of their
employment, an award is accordingly made to the Claimant in the amount of
$76.00.
Claim allowed in the amount of $76.00.
172
REPORTS STATE COURT OF CLAIMS [W. VA.
Opinion issued November 30, 1970
SOUTHERN HARDWARE COMPANY
vs.
DEPARTMENT OF HIGHWAYS
(No. D-206)
Leslie D. Price for the claimant.
George E. Lantz, Assistant Attorney General, and Robert R. Harpold, Jr., for
the respondent.
JONES, JUDGE:
The claim of Southern Hardware Company in this case against the respondent West
Virginia Department of Highways (formerly State Road Commission) is alleged to
be sustained by certain facts stipulated by the parties sub,antially as
follows:
In 1967 the respondent constructed a parking lot on land which it owned on the
south side of Smith Street in the City of Charleston, adjoining property on the
east, the front portion of which was owned by William Pugh and Pugh Furniture
Company and the rear or southerly portion of which was owned by Dickinson
Company. The claimant owned the land adjoining the Pugh and Dickinson Company
lots on the east. For many years prior to the matters complained of in this
case surface water draining from a 48-inch concrete culvert under the Penn
Central Railroad tracks approximately 70 feet east of the claimant?s property
was discharged into a ditch which led in a northwesterly direction through the
claimant?s property and the adjoining Pugh and Dickinson Company properties and
into a 15-inch drain pipe which, according to a rough plat attached to the
stipulation, opened on the Dickinson Company lot and extended westerly through
the respondent?s lot to a manhole on land known as the A & P Store
property. Robert Agsten, contractor for the A & P Store building, removed
the manhole and filled the same during the construction of the parking area for
the A & P Store. Some time after the manhole was so eliminated, the
respondent constructed its parking lot and in so doing raised the elevation
W. VA.] REPORTS
STATE COURT OF CLAIMS 173
of the rear or southerly portion of the lot approximately five feet, sloping
gradually to the level of Smith Street on the north. On January 24, 1968, a
heavy rain storm caused water to accumulate on the claimant?s parking lot west
of its warehouse and building, covering almost the entire lot and running into
the side door and down the elevator shaft of the building, causing damage
thereto. On several occasions water standing on the parking lot during freezing
conditions caused the black-top to crack and swell and resulted in severe
damage to the paved surface of the entire lot. The claimant contends that the
filling of the respondent?s lot and the elimination of the manhole on the A
& P Store lot are the causes of its damages, as it had experienced no major
flooding until after the happening of both of those events. During the
investigation of this claim, a test was conducted on the premises in the
presence of representatives of all interested parties, which conclusively
proved that the 15-inch drain pipe was unobstructed through the entire width of
the respondent?s property.
The stipulation further discloses extensive negotiations in an effort to
compromise and settle the matters involved. As a result the City of Charleston
agreed to and did construct a 10-inch drain from Smith Street to the rear of
the claimant?s lot and a catch basin connecting therewith, to catch surface
waters running along the drain from the railroad property, at a cost of more
than $2,000.00; and Robert Agsten paid the claimant $1,500.00 for one-half of
the cost of re-surfacing the parking lot. The respondent persisted in its contention
that it was in no way at fault, but did agree that if this Court should find in
favor of the claimant, its fair share of the damages would be $1,500.00.
Upon careful consideration of the facts and circumstances set forth in the
stipulation, we are unable to find any wrongful conduct on the part of the
respondent which would be judicially recognized as negligence in a case such as
this between private persons. Such a standard of proof has been set by our
Supreme Court of Appeals. State ex rel
Vincent
v. Gainer, 151 W.Va. 1002 (1967).
Further it seems clear to the Court that the direct and proximate cause of the
damages sustained by the claimant was the filling and shutting off of
174 REPORTS
STATE COURT OF CLAIMS [W. VA.
the manhole on the A & P property. Conversely, it is our opinion that any
change in the flow of surface water by reason of the filling of the
respondent?s lot was not a direct and proximate cause of such damages. The
15-inch drain pipe through the respondent?s property was shown not to have been
obstructed and the ifihing of the respondent?s lot in its preparation of the
same for parking in no way affected the use of the drain pipe for the purpose
for which it was installed and theretofore had been utilized.
Accordingly, the Court is of opinion that a moral obligation of the State has
not been sufficiently established in this case, and the claim is disallowed.
Opinion issued November 30, 1970
LOWELL C. SHINN
vs.
DEPARTMENT OF HIGHWAYS
(No. D-254)
Carl Smithers for the Claimant.
George H. Samuels, Assistant Attorney General, and Robert R. Harpold, Jr., for the Respondent.
JONES, JUDGE:
The facts and circumstances giving rise to this claim are the same that were
alleged and proved in Lois and Dayton Shinn vs. State Road Commission, 7 Court
of Claims (W.Va.) 162, and the opinion in that case is applicable here.
Briefly, on November 24, 1967, the Claimant?s automobile was parked
approximately seven feet off the paved portion of State Secondary Road 23 and
U. S. Route 35 in Mason County, when it was struck and damaged by a State Road
Commission (now Department of Highways) truck, operated by a State Road
Commission employee. The Respondent admits that the truck?s brakes were
defective, and it is undisputed
W. VA.]
REPORTS STATE COURT OF CLAIMS 175
that the cause of the collision was the failure of the driver to keep the
vehicle under control.
The Claimant presented an estimate of the cost of repairs in the amount of
$409.87, and the same has been stipulated to be fair and reasonable.
Accordingly, the Court hereby awards the claimant, Lowell C. Shinn, the sum of
$409.87.
Opinion issued December 1, 1970
PAUL CRISS AND PEARL CRISS
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-137)
Ernest V. Morton, Jr. for the Claimants.
Donald L. Hall, Attorney, Department of Highways, for the Respondent.
DUCKER, JUDGE:
The claimants, Pearl Criss and Paul Criss, who are wife and husband
respectively, claim damages against the West Virginia Department of Highways in
the amount of $150,000 for their personal injuries and medical and hospital
expenses resulting from the sudden stopping of their automobile when a tree
fell from a cliff in front of and on the front part of their automobile.
As there is no substantial conflict in the testimony, the question presented is
a legal one as to whether the facts are sufficient to render the respondent
liable.
It appears from the evidence that on April 22, 1967 the claimant, Paul Criss,
with his wife, the claimant Pearl Criss as a passenger, was driving his car, a
1963 Chevrolet four door sedan, in a northerly or easterly direction, on the
right hand side of State Route 20, near the intersection of Bennett Avenue in
Webster Springs, West Virginia, about 1:30 p.m. on the said date, when suddenly
a tree on the cliff on the left hand or other side of the road fell across the
road striking the bumper or front part of claimant?s oar. The driver of the oar
when he saw a woman running away from something and then saw
176 REPORTS
STATE COURT OF CLAIMS [W. VA.
a tree falling on his car, ?stomped? on his brakes and stopped the car
suddenly, thereby throwing his wife in such a manner as to cause injuries to
her neck, back, ear, and ribs, for which she was confined in a hospital for
approximately five weeks, and from which injuries she says she continues to
suffer. The tree was a beech about 18 inches in diameter and one of twin
beeches growing on a cliff estimated to be between 20 and 30 feet high adjacent
to the road, the tree falling being the one nearest the road. It was estimated
that the tree was about 55 to 65 feet in height and had some leaves on it.
There was testimony to the effect that it had been windy early that morning and
as one witness said ?a good pace of wind was blowing that day, average? and
?windy day in April?. The tree was not, according to the witness, Paul Criss, a
?dead tree? but ?the inside, the heart of any tree is dead? only just a little
bit of the sap is all the life in any tree?. The right of way cut for the State
Route was made some forty to fifty years ago, leaving the cliff on the side of
the road where the beech tree stood. The Highway Department?s office for the
maintenance of roads in that area showed that no reports of any dangerous
condition at the place of this accident had been made by anyone, although there
was testimony to the effect that there had been a fallen tree occurrence a month
or two after the accident here involved.
After the fact, it could easily be said that if a thorough inspection had been
made of the trees along the cliff adjacent to the road prior to the accident it
would have been apparent that it was necessary for the work to be done to
eliminate the cause of this accident, and the duty of the respondent to remedy
the situation would have been obligatory. But hindsight is not the test.
Anticipation of the danger in the reasonably foreseeable future is more properly
the basis for the determination of liability. It is unfortunate indeed, when
occasions like this arise, but misfortune is not determinative of liability. We
must decide in this case on whether there was actionable negligence on the part
of the respondent in failing to protect the highway from the falling of the
tree. From the evidence it appears that no special consideration had been given
by anyone to the effect that there was a hazardous condition existing by reason
of the trees on the cliff adjoining the road.
W. VA.]
REPORTS STATE COURT OF CLAIMS 177
It had been forty years or more since the cut leaving the cliff was made, and
that no complaints of or occurrences of accidents on that account prior to this
occasion had been made, and that constant checkings of the state route are made
by the respondent?s supervisor, assistant and foreman, and no report of hazard
had been made. While the day of the accident was windy, that fact is hardly
material except to indicate some weakness of the tree.
The respondent is not required to be infallible in its inspection of its
highways and rights of way, nor is it an insurer of the safety to travelers on
its roads, as the Courts have held and as has been previously held by this
Court in the case of Parsons v. State Road Commission, Claim No. D-112, in
which it is said:
?This Court has many times held that the State is not a guarantor of the safety
of its travelers on its roads and bridges. The State is not an insurer and its
duty to travelers is a qualified one, namely, reasonable care and diligence in
the maintenance of a highway under all the circumstances?.
For the State to guarantee the safety of the travelers upon its highways
against the possibility of any tree falling from the many hills and cliffs
adjoining the highways in this mountainous state when it has had no notice, or
could have reasonably foreseen the probability of such an occurrence, would
place liability on the State beyond all reason ?and expense.
While there was no negligence on the part of the claimants, we think that the
respondent has used reasonable care and diligence under all the circumstances
in the maintenance of this highway and that the claimants have not shown that
it was clearly apparent that the road was hazardous or that the respondent
should have made a greater and more detailed inspection to eliminate the
condition as an impending hazard to travelers on that road.
Accordingly, we are of the opinion that the respondent has exercised such care
as was incumbent upon it in such matters, the claimants are not entitled to
recover the damages sustained by them, and we hereby dismiss their claim
herein, and make no award.
No award.
178 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued December 7, 1970
VELMA COOPER
vs.
DEPARTMENT OF HIGHWAYS
(No. D-166)
James H. Ware for the Claimant.
Donald L. Hall for the Respondent.
JONES, JUDGE:
This claim is for damages to the claimant?s automobile and for personal
injuries sustained when the claimant was driving along old State Route No. 38
near Nestorville in Barbour County. Damages to the automobile are stipulated to
be $644.77 and $1,000.00 is claimed for personal injuries, including stipulated
medical bills of $84.00.
The claimant was enroute from her home in Frederick, Maryland, to Philippi,
West Virginia, a distance of about 188 miles. She had learned that a sister was
critically ill and after an eight-hour shift as an electronics worker she left
her home at about 5:30 p.m. on July 19, 1967, and being delayed by hazardous,
foggy weather she reached the place of the accident at about 3:00 a.m. on July
20, 1967. She approached the Nestorville intersection traveling south on State
Route 92 and turned west on old State Route No. 38 as she had done on several
prior trips to Philippi. According to the claimant there were no signs at the
intersection to indicate that by traveling about one-fourth mile further on
Route No. 2 she would be able to drive over a newly opened Route No. 38 which
was constructed to take the place of old Route No. 38, and she testified that
she checked the non-existence of such signs in daylight the following morning.
It appears that the new road had been opened for traffic for about a month and
the construction was finally approved by the State Road Commission (now Department
of Highways) about September 1, 1967.
The plaintiff?s witness, Carl S. Nestor, who operated a filling station at the
intersection in question and lived close to the
W. VA.]
REPORTS STATE COURT OF CLAIMS 179
place where the wreck occurred, was uncertain as to what signs were in place
except that old Route No. 38 was still marked as leading to Philippi; and
Gerald B. Hall, Project Supervisor for the respondent, testified definitely
that there was a sign at the southwest corner of the intersection with an arrow
pointing to new Route No. 38.
As she had done before, the claimant did take the old route and proceeded to
the point of the wreck near the Nestor home, a short distance from and within
sight of new Route No. 38. At this point the course of old Route No. 38 had
been changed, taking a rather sharp turn to the left in order to join new Route
No. 38 at right angles as required by Federal specifications. The new portion
of the road was in the process of being paved and had already received an asphalt
base course and was in good condition. Barricades had been erected by the
contractor but had been knocked down by errant motorists and were not in place.
There was evidence that several other accidents had occurred at this location.
The claimant testified that the road had been very foggy and that she had been
traveling at about 20 miles per hour, but that the fog lifted as she passed the
Nestor home and that she could see ?two lengths of a car, if not more?. At this
point the claimant says ?the road disappeared and I slammed on the brakes?. At
another time in her testimony the claimant said:
?The berm was about six inches high and my front wheels went off and when I
slammed on the brake, I just went on into the ditch?.
Counsel for the claimant rests his case primarily on the alleged failure of the
respondent to have proper signs at the Route No. 92 old Route No. 38
intersection so out-of-state motorists traveling south on Route No. 92 would
continue on to the new highway. Assuming that the claimant proved the absence
of such signs by a preponderance of the evidence, liability would be very
doUbtful under the decisions of our Supreme Court of Appeals. The cases
consistently hold that every user of our highways travels thereon at his own
risk and that the State does not insure him a safe journey. The mere failure to
provide road markers has been held not to be such negligence as would create a
moral obligation on the
180 REPORTS
STATE COURT OF CLAIMS [W. VA.
part of the State to pay damages assumed to have arisen through such failure
and as the proximate cause thereof. Adkins, et at. v. Sims, 130 W.Va.
646.
If we should find that the respondent was negligent in this case the Court
still could not allow recovery by the claimant. Our view of all the testimony
is that it clearly shows contributory negligence on the part of the claimant.
The road did not end or disappear; it was there and in good repair and if the
claimant?s automobile had been under proper control under the conditions
existing, she would not have needed to ?slam on her brakes? causing her to slip
off the edge of the highway into a culvert. In our opinion this is not a case
wherein the conscience of the State should be invoked, and this claim is
disallowed.
Opinion issued January 19, 1971
IN THE WEST VIRGINIA COURT OF CLAIMS
AIRKEM SALES AND SERVICE, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-333)
ODORITE SERVICE AND SUPPLY CO., Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-334)
McCORMICK OFFICE SUPPLIES, INC.,
Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-335)
RIVERSIDE PAPER COMPANY, INC., Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-.336)
W. VA.]
REPORTS STATE COURT OF CLAIMS 181
LAIRD OFFICE EQUIPMENT COMPANY, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-337)
GUTHRIE-MORRIS-CAMBELL COMPANY, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-33)
SOUTHERN CHEMICAL COMPANY, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-339)
TRI-STATE DRUG COMPANY, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-340)
COPCO PAPERS, INC., Claimant
vs.
DEPARTMENT OF MENTAL hEALTH, Respondent.
(No. D-341)
COPCO PAPERS, INC., Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-342)
FRY BROTHERS COMPANY, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-343)
FRY BROTHERS COMPANY, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-344)
182 REPORTS
STATE COURT OF CLAIMS [W. VA.
UNION 76-PURE OIL DIVISION, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-345)
VAUGHAN?S TERMITE CONTROL COMPANY, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-346)
S. B. WALLACE AND COMPANY, Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH, Respondent.
(No. D-347)
No one appeared for the Claimants.
George E. Lantz, Deputy Attorney General for the Respondent.
PETROPLUS, JUDGE:
For purpose of submission, the above claims were consolidated and represent an
aggregate claim of $7,982.96, against the Department of Mental Health of the
State of West Virginia, and represent supplies, expendable commodities and
services furnished to an Agency of the State for which an appropriation was
made by the State Legislature during the preceding fiscal year. The Respondent
on October 7, 1970, answered admitting all of the allegations pertaining to
each of the claims and requested that the claims be allowed in the amount
claimed as the State in equity and in good conscience should pay them. An
Amended Answer was filed by the Respondent on December 1, 1970, admitting that
the Claimants furnished goods and services as alleged in their Petition and
that the charges were reasonable, and setting forth that the Respondent did not
have sufficient funds remaining in its budgeted account for the payment of said
claims during the fiscal year 1969-1970.
The Amended Answer states further that the overcommitment of budgeted funds
occurred inadvertently and as the result of negligence or mismanagement rather
thart any in-
W.VA.] REPORTS
STATE COURT OF CLAIMS 183
tentional plan or design on the part of any Agent or Agency of the State of
West Virginia. The responsible State Agency believed in good faith that it had
sufficient funds remaining in its budgeted account to satisfy said obligations
and that since the overcommitment resulted from negligence or mismanagement,
and since the State of West Virginia has received the benefit of the goods and
services, counsel for the Respondent is of the opinion that said claims
constitute a moral obligation on the part of the State of West Virginia and
should be allowed. The Answer concludes that to do otherwise would result in
irreparable harm to the credit of the State of West Virginia.
Paragraph 7 of the Amended Answer further adds the following suggestion:
?Notwithstanding that counsel for the respondent believes that a moral
obligation does exist as hereinabove indicated, it is our strong suggestion
that the appropriate individuals and agencies of State government directly
charged with the responsibility of expending state funds take adequate and
proper steps to insure that such over- commitment of budgeted funds does not
again occur. Clearly the laws of West Virginia provide satisfactory safeguards
and procedures in the administration of fiscal matters so that when all of the
individuals and agencies of State government involved in any way with the
expenditure of state funds properly, efficiently and knowledgably perform their
functions and carry out their responsibilities, overspending of budgeted public
funds should not occur, and the budget as adopted by the Legislature will be
complied with in all respects.?
The claims were submitted on Petition, Answer and Stipulation as to their
accuracy.
A letter from the State Auditor?s Office dated August 5, 1970, addressed to M.
Mitchell Bateman, M.D., Director of the Department of Mental Health, from
Denzil L. Gainer, State Auditor, copies of which were furnished to the Governor,
the Commissioner of the Department of Finance & Administration, Cohn
Anderson Center and the Legislative Auditor, was filed with the Court pointing
out that the invoices were more than six months old and suggesting that
immediate steps be taken to determine the responsibility for this condition and
that
184 REPORTS
STATE COURT OF CLAIMS [W. VA.
corrective measures be taken to prevent a recurrence of the same. The letter
further states:
?A considerable amount of state money has been expended for consultants and
system analysis to prevent this very situation. Such a condition does have a
bad effect on the state?s credit and does not conform to the statutes which
were enacted to safeguard the state and creditors as well.
I should like to point out that the statute is very clear concerning
expenditures in excess of appropriations.
Chapter 12, Article 3, Section 14 reads as follows:
?It shall be unlawful for the superintendent, manager, any officer, or any
person or persons, board or body, acting or assuming to act for and on behalf
of any institution, kept or maintained in whole or in part by this State, to
expend for any fiscal year any greater sum for the maintenance or on account of
such institution than shall have been appropriated by the legislature therefor
for such year except as provided in section thirteen, article one, chapter
twenty-five of this Code.?
Also, Chapter 12, Article 3, Section 15 provides:
?It shall be unlawful for any such officer, board, body or person to expend for
the erection, improvement or repair of any building or structure, or for the
purchase of any real estate or other property, or upon any contract or
undertaking whatsQever to be performed in whole or in part by the State, any
sum exceeding that which shall have been appropriated or authorized therefor by
the legislature, nor shall they incur any debt or obligation on any such
account not expressly authorized by the legislature, nor use in part payment
only upon the purchase or construction of any land or structure any sum which
shall have been appropriated or authorized by the legislature in full payment
for such object.?
The statute further provides in Section 16 of the chapter and article above
cited:
?Any such officer or person who, in violation of any of the provisions of the
two preceding sections, shall expend any sum of money, or incur any debt or
obligation, or make or participate in the making of any such contract, or shall
be a party to any such transaction in any official capacity, shall be
personally liable therefor, both jointly and severally, and an action may be
maintained therefor by the State, or any person prejudiced thereby, in any
court of
W. VA.]
REPORTS STATE COURT OF CLAIMS 185
competent jurisdiction, and such official shall further be guilty of a
misdemeanor, and, upon conviction thereof, be fined not less than ten nor more
than five hundred dollars, and may be confined in jail not less than ten days
nor more than one year, and, in addition to the penalties herein- before
provided, shall forfeit his office. And there shall be no liability upon the
State, or the funds thereof, on account of any such debt, obligation or
contract.?
While the Court of Claims may feel in its wisdom that there is a moral
obligation on the part of the state to pay these unpaid bills, there is also a
moral obligation on the part of those in administrative positions to correct
such situations which are far too numerous to be condoned.?
In acdition to the statutory provisions pointed out by the State Auditor,
Chapter 12, Article 3, Section 17 of the West Virginia Code provides:
?Except as provided in this section, it shall be unlawful for any state board,
commission, officer or employee: (1) To incur any liability during any fiscal
year which cannot be paid out of the then current appropriation for such year
or out of funds received from an emergency appropriation; or (2) to authorize
or to pay any account or bill incurred during any fiscal year out of the
appropriation for the following year. unless a sufficient amount of the
appropriation for the fiscal year during which the liability was incurred was
cancelled by expiration or a sufficient amount of the appropriation remained
unexpended at the end of the year . .
It is the opinion of this Court that to
allow the payment of an illegal claim as a moral obligation of the State, when
it is admitted that the spending unit clearly violated the Statute by incurring
liabilities which could not be paid out of the current appropriation, clearly
exceeds the jurisdiction of the Court. The fact that the parties were mistaken
as to the law, and may have acted without any corrupt or criminal intent does
not confer jurisdiction or give this Court authority to allow the payment. The
general statutory law of the State of West Virginia is binding upon this Court
and under the general powers given to the Court in Chapter 14, Article 2,
Section 12 of the Code, the Court is authorized to consider claims which, but
for the constitutional immunity of the State from suit, could be maintained in
the regular Courts of the State.
186 REPORTS
STATE COURT OF CLAIMS [W. VA
This Court has no existing appropriation for the payment of accrued claims and
is constrained to follow the statutory law of our State.
A similar question was decided adversely to the claimants in the case of State ex ret. Point Towing Company, a corporation, v.
Robert P. McDonough, Director of the West
Virginia Department of Natural
Resources, et at, 150 W.Va. 724,
decided July 12, 1966, 149 S.E.2d 302. In an Opinion written by Judge Caplan,
reference is made to Code 1931, 12-3-17, hereinbefore mentioned, and the claim
of the plaintiff for a Writ of Mandamus to require the State Auditor to issue a
requisition for the payment of a towboat illegally purchased in violation of the
Statute was denied. The Opinion stated:
?The obvious purpose of the above statute is to prevent
a spending unit of the state government from creating
a liability which cannot be paid from then
exising funds.
It expressly precludes the creation of an obligation during
a fiscal year which is to be satisfied in the next fiscal
year...? (underscoring ours)
Judge Caplan further quoted with approval the case of Shonk Land Co. et at. v. Joachim, et at., 96 W.Va. 708, 123 S.E. 444, considering a like statute,
stating:
?The legislative policy is clear, and the statute must not be warped by
construction to defeat it. The phrases ?funds legally at the disposal of the
fiscal body,? and ?which cannot be paid out of the levy for the current fiscal
year,? refer to the time when the contract is made, and not in futuro. No
contract is valid which will bind the levies of future years . .
Following Judge Caplan?s Opinion, we must
also hold that these contracts are controlled by the Statute and the contention
that the Legislature had made an appropriation for the fiscal year 1969-1970,
out of which the liability could have been paid is without merit. An officer of
a State spending unit must necessarily plan the operations of his Department in
such a manner as not to spend funds unless they are actually available in his
appropriation. The spending policies of the State are limited by law and anyone
dealing with a State Agency must know its powers and limitations. Any contract
in viola-
W. VA.] REPORTS
STATE COURT OF CLAIMS 187
tion of the Statute is void and cannot be enforced in any Court.
Judge Caplan further stated:
?To declare this contract valid by permitting a strained construction, or a
justification, to change the plain provisions of Code, 1931, 12-3-17, would be
tantamount to opening the proverbial ?Pandora?s Box?, and before it could again
be secured the fiscal affairs of the State might well decline to a chaotic
level, a situation which the above statute was designed to prevent.?
Consequently, we are of the opinion that the contracts before the Court are
invalid and that the allowance of any claims based thereon by this Court would
be unwarranted and unlawful, not withstanding that both the Claimants and the
Attorney General?s Office join in a request that the claims be allowed as
lawful obligations of the State of West Virginia. It is true that the
commodities and services were furnished and the State has received the benefit
thereof, but that in itself is insufficient to establish a legal obligation to
make payment when the above quoted Statutes prohibit such conduct. Otherwise,
this Court would be condoning the neglect and mismanagement set forth in the
Attorney General?s Amended Answer and would be ignoring completely Chapter 5A, Article
3, Section 19 of the West Virginia Code which places a limitation on
expenditures, which states:
PURCHASES OR CONTRACTS VIOLATING
ARTICLE VOID; PERSONAL LIABILITY.
?If a department purchases or contracts for commodities contrary to the
provisions of this article or the rules and regulations made thereunder, such
purchase or contract shall be void and of no effect. The head of such
department shall be personally liable for the costs of such purchase or
contract, and, if already paid out of State funds, the amount thereof may be
recovered in the name of the State in an appropriate action instituted
therefor.?
The law must be administered as it is written and to do otherwise would be an
effort on the part of this Court to control the policy of Government and change
the plain provisions of statutory law.
For the foregoing reasons, the claims are denied.
Claims disallowed.
REPORTS STATE
COURT OF CLAIMS [W.VA.
The Airkem decision was applied to the following claims through Per Curiae:
0-397
0-406
D-367j
D-39le
0-371
0-333
D-369
D-337c
D-?379
0-367k
D-415
D-341
0-342
D-367s
0-381
D-422
D-367p
D-367q
0-3671
0-386
D-391b
0-343
0-344
D-387
0-435
0-359
0-3 60
0-361
0-338
D-367m
D-367b
D-391a
0-410
D-389
0-337
D-419
0-373
0-335
0-358
D-449
D-367a
0-393
D-367g
D-367n
0-421
D-367f
0-443
0-334
A. B. Dick
Products Co.
A. B, Dick Products Co. Accounting Supplies and Systems, Inc.
Ace Exterminators, Inc.
Acme Cotton Products Co., Inc.
Airi:ein Sales and Service
Appalachian Power Company
Appalantic Corporation
Armour and Company
Bell Lines. Inc.
Capitol Paper Supply, Inc.
COpLO Papers, Inc.
Copuo Papers, Inc.
Croeker-Pels Co., The
Crook?s Wholesale Food Co.
Dowling Pool Company
DuBois Chemicals
Eaton Laboratories
Economic Laboratories
Empire Foocs, Inc.
Fairmont Foods Co.
Fry Brothers Company
Fry Brothers Company
General Electric Company
Genuine Parts Company of West Virginia
Go] dsmit-Black, Inc.
Goldsmit-Black, Inc.
Goldsmit-Black, Inc.
Guthrie-Morris-Campbell Co.
Harry W. Higgins General Store
Industrious Blind Enterprise
James Produce Company
Karoll?s, Inc.
Kellogg Sales Company
Laird Office Equipment Co.
Lance, Granville H.
Lederle Laboratories
McCormick Office Supplies, Inc.
McCormick Office Supplies, Inc.
McGlothlin Printing Company
Mallinckrodt Chemical Works
Martini Packing Co.
Medical Arts Supply Co., Inc., The
Merck Sharp & Dohme
Mt. Clare Provision Company
Noe Office Equipment
Noe Office Equipment
Odorite Service and Supply Company
Name of
Respondent
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Menta] Health
Board of Regents
Dept. of Mental HeJth
Dept. of Metal Health
Dept. of Mental Health
Dept. of Mental Hcaith
Dept. of Mental Health
Dept. of Mental Ilcalth
Dept. of Ment l Health
Dept of Public Institutions
Det. of Mental Heahh
Dajt of Mental health
Dept. of Mental Health
Dept. of Mental I{ealth
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
188
No. Name of Claimant
W. VA.] REPORTS STATE COURT OF CLAIMS
189
De.t. f Mental
Health
Dot. of Mental Health
Dept. of Mental Health
Deft. of I?dental Health
Dept. of Mental Health
Board of Regents
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Dept. of Mental Health
Board of Regents
Dept. of Mental Health
Dept. of Mental Health
No.
Name of Claimant Name of Respondent
D-380
D-367d
0-376
D-420
D-385
0-403
D-367i
0-430
0-336
D-367h
0-372
D-367e
D-367r
D-374
D-418
D-367o
0-394
D-339
0-377
D-423
D-424
D-425
D-426
D-427
0-428
D-429
D-391d
D-383
0-401
0-417
0-340
0-345
D-391c
D-447
D-364
D-346
0-347
Odorite Service
and Supply Company
Ohio Valley Office Equipment
Oxford Chemicals
K. V. Pathology, Inc.
Picker X-Ray
Potomac Edison Co. of W. Va.
Raybestos-Mar1hattan, Inc. Revolite Div.
Red Head Oil Company, The
Riverside Paper Company, Inc.
Roche Laboratories
Wiliiam H. Rorer, Inc.
Will Ross, Inc.
Sandoz-Wander, Inc.
Scientific Products
Selby, Charles V., Jr.
Shouidis Department Store
Smith, Kline & French Co.
Southern Chemical Co.
Spencer Business Forms Co., Inc.
St. Joseph?s Hospital
St. Joseph?s Hospital
St. Joseph?s Hospital
St. Joseph?s Hospital
St. Joseph?s Hospital
St. Joseph?s Hospital
St. Joseph?s Hospital
Standard Brands Sales Co.
Willard C. Starcher, Inc.
Storck Baking Company
Swearingen, Wm. J.
Tn-State Drug Company
Union 76-Pure Oil Division
Union Oil Co. of California
Universal Supply Company, The
Utilities, Inc.
Vaughan?s Termite Control Co.
S. B. Wallace and Company
190 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 19, 1971
LEMUEL L. WARDEN and ESTELLE WARDEN
vs.
DEPARTMENT OF HIGHWAYS
(No. D-195)
William Sanders, for the Claimants.
Donald L. Hall, for the Respondent.
JONES, JUDGE:
The claimants allege in their petition that during the months of October,
November and December, 1967, the respondent conducted blasting operations upon
its property situate near Princeton, in Mercer County, in the construction of a
County garage and office complex known as the Mercer County Headquarters
Building, and thereby negligently damaged the claimants? real estate, situate
across the highway, consisting of lots upon which is located a wheelchair house
built in 1962 under Veterans Administration specifications and supervision.
Damages were claimed in the amount of $11,500.00, and the claimants filed two
estimates of the cost of repairs in amounts of $11,210.85 and $10,885.00.
Another estimate made in behalf of the respondent and filed herein fixed the
cost of repairs at
$2,807.40.
This claim was submitted by the parties upon a stipulation of facts which
admits all of the allegations of the claimants? petition, except the amount of
damages claimed, and lays a basis of liability. The stipulation further fixes
the amount of damages which the claimants should reasonably recover at
$3,000.00.
Having considered the allegations of the petition and the stipulation filed
herein, the Court is of opinion that this is a valid claim which in equity and
good conscience should be paid and, therefore, an award is hereby made to the
claimants, Lemuel L. Warden and Estelle Warden, in the amount of
$3,000.00.
W, VA.)
REPORTS STATE COURT OF CLAIMS 191
Opinion issued January 19, 1971
EVERETT MILLER AND BETTY MILLER
vs.
DEPARTMENT OF HIGHWAYS
(No. D-286)
Marshall J. West, Jr. for the Claimants.
Donald L. Hall for the Respondent.
JONES, JUDGE:
From the record in this case it appears that the claimants, Everett Miller and
Betty Miller, operate a small utility under the name Betty Gas Company for the
service of customers in the vicinity of Brenton in Wyoming County. They
purchase gas from Consolidated Gas Supply Corporation and transport the same through
a plastic pipeline along a private right-of- way leased by them from
Georgia-Pacific Corporation. This claim is for damages in the amount of $936.25
for the loss of gas from the claimants? pipeline which the claimants allege
resulted from the negligent puncturing of the pipeline by the respondent. A
public highway runs parallel to the pipeline and the claimants allege that
employees of the respondent carelessly dumped dirt and rock from the highway
upon the pipeline right-of-way and that a large boulder weighing approximately
700 pounds came to rest on the pipeline, which was buried approximately 18
inches deep. A sharp corner of the boulder had cut through the earth cover and
into the plastic pipe allowing gas to escape.
The loss of gas was discovered by the claimants when they received their bill
from Consolidated Gas Supply Corporation for the month of October 1969. The
bill was for $882.11 and they had charged their customers $293.06 for the gas
used, showing a deficit of $589.05. For the month of November the Gas Company?s
bill for gas was $912.46 for which the claimants charged their customers
$565.26, a deficit of $347.20, and a total loss for the two months of $936.25.
When the October bill arrived about the middle of November the claimant Everett
Miller walked the pipeline and discovered the puncture. He
192 REPORTS
STATE COURT OF CLAIMS {W. VA.
testified that the respondent?s employees had on several occasions dumped dirt
and rock onto the slope in question and that he had notified them of the
existence of his pipeline and had warned them not to damage it. This claimant
specifically recalled and testified that the respondent?s employees dumped
large rocks at the place in question on or about October 16, 1969, and
considering all of the facts and circumstances adduced in testimony it appears
that the pipeline was damaged at that time.
There was no testimony taken on behalf of the respondent and therefore the
claimants should be entitled to recover if they have made a prima facie case.
We are of opinion that the claimants have made such a case and that the same
would go to a jury in a court of law. There being no defense, we are of opinion
that the claimants are entitled to recover and the amount of the loss being
well established and not being questioned by the State, we do hereby award to
the claimants, Everett Miller and Betty Miller, the sum of $936.25.
Opinion issued January 19, 1971
GEORGE S. SWIGER
vs.
DEPARTMENT OF HIGHWAYS
(No. D-303)
No appearance for the Claimant.
Donald L. Hall for the Respondent.
JONES, JUDGE:
It appears from the petition and a stipulation of facts filed in this casethat
the claimant, Gerald S. Swiger, on February 4, 1970, and while an employee of
the respondent, Department of Highways, was operating an endloader on the
Harrison County maintenance lot in Clarksburg, Harrison County, when he became
ill and lost control of the machine, resulting in a collision with and damage
to a 1964 Chevrolet Impala automobile owned by the claimant and properly parked
on the
W. VA.]
REPORTS STATE COURT OF CLAIMS 193
respondent?s lot. The claimant had passed out and had to be carried from the
cab. He was taken to St. Mary?s Hospital where he was examined by a physician,
and his condition diagnosed as carbon monoxide intoxication. It further appears
that the exhaust system of the endloader was not functioning properly and the
defect was later repaired. Investigation revealed that another employee, who
had driven the machine previously, also had become ill. Two estimates for the
repair of claimant?s vehicle were obtained, the lowest of which was $423.49,
and this amount has been stipulated as fair and reasonable.
Based upon the verified petition and the stipulation of facts which was signed
by the claimant and by counsel for the respondent, the Court is of opinion that
the claimant has proved a valid claim which in equity and good conscience
should be paid and, therefore, an award is hereby made to the claimant, Gerald
S. Swiger, in the amount of $423.49.
Opinion is.su?d Jannary 25, 1971
C. J. LANGENFELDER & SON, INC.,
Petitioner
vs.
THE STATE OF WEST VIRGINIA and THE STATE ROAD
COMMISSION OF WEST VIRGINIA, Respondents.
(No. D-120)
Philip J. Graziani, Esq., Robert D.
Myers, Esq. and Thomas P. O?Brien, Esq. for the Petitioner.
Anthony G. Halkias, Esq. and George H.
Samuels, Assistant Attorney General,
for the Respondents.
William T. Marsh, Esq. appeared for Fort Pitt Bridge Works, in support of a
portion of Petitioner?s claim.
PETROPLUS, JUDGE:
This is a claim filed in this Court on October 21, 1968, in the amount of
$224,768.11, and later amended by Petition seeking an additional amount of
$366,829.56, or a total sum of $591,-
194.
REPORTS STATE COURT OF CLAIMS [W. VA.
597.67, in which the petitioner, C. J. Langenfelder & Son, Inc., a
corporation, seeks damages from the State Road Commission, now the West
Virginia Department of Highways, in connection with a construction contract
between the parties to construct a roadway and two bridges in the City of Wheeling,
Ohio County, West Virginia.
The contractor claimant, C. J. Langenfelder & Son, Inc., a Maryland
corporation, brought this action against the State Road Commission of West
Virginia, respondent, to recover damages for alleged delays caused by the Commission
in the construction of a highway and bridges near the east portal of Wheeling
Tunnel on a section of Interstate Route No. 70, within the corporate limits of
the City of Wheeling. The claimant- petitioner is a Company engaged in heavy
highway and industrial construction work and has been so engaged for the past
fifty years in the construction of dams, airports, power houses, highways,
bridges and tunnels. Some of its projects have included the Andrews Air Force
Base, the Dulles International Airport, the New York State Thruway, the
Connecticut Turnpike, the New Jersey Turnpike and the Pennsylvania Turnpike and
tunnels. There can be no doubt that the claimant was well qualified to
undertake a complicated and expensive multi-million dollar project in a
congested and highly urbanized area of the City of Wheeling, involving many
variables, such as traffic flow? Acts of God, floods, slides, relocation of
streets and utilities, and unforeseen conditions which required many change
orders, extras, supplemental agreements and forced account agreements during
the progress of the work.
In order to bring the project to completion in accordance with the voluminous
plans and specifications prepared and furnished by the Commission, the
contractor was required to coordinate his work with other projects in the area,
maintain a traffic flow, and subcontract portions of the work to other
contractors. The contract was awarded pursuant to bids on December 29, 1964, to
the petitioner, on specified unit prices rather than on a lump sum agreement
and the project was designated therein as ?East Portal of Tunnel to DeChantal
Road, 1-70-1 (13) 2, Contract No. 2?, covering an area of approximately 1657
feet in length. The project was to be completed in 550 working days. The work
was satisfactorily performed and was accepted by the State Road Commission as
W. VA.]
REPORTS STATE COURT OF CLAIMS 195
being in accordance with the plans and specifications. However, the work was
not completed until the month of August, 1966, 110 working days beyond the
planned and scheduled completion date.
Because of the complexity of the project, and the activity in other separate
projects in the same area, which encompassed a winding creek, a heavily
traveled City Street, railroad rights of way, sewer lines, water lines, gas and
telephone lines, the contractor prepared a sequence of coordinated operations,
which it intended to follow and which sequence was made a part of the
specifications.
The contractor claims that many unreasonable delays, not contemplated by the
parties and attributable to the inefficiency and incompetence of State Road
Commission personnel, disrupted a critical and planned sequence of operations
for the work, resulting in damages of great magnitude to the contractor. Two other
contracts had been awarded to the petitioner in adjoining areas of operation
which involved the construction of two tunnels through a hillside and the
portals and approaches thereto.
According to the allegations of the Petition, the Company started to work soon
after the contract was executed, when a defect in the plans and specifications
was discovered which caused an enforced suspension of the work to provide time
for the consulting engineers of the State to make subsurface explorations and
studies. This delayed the progress of the work from June 3, 1965, to September
20, 1965, a period of approximately 110 days. The suspension of operations was
ordered by the Chief Engineer of the respondent when pile driving for the
construction of a pier designated as EB-2 revealed a hazard which required the
consideration of the consulting engineers for the project, who had been
independently employed by the Commission. The apprehension of the consulting
engineers was evidenced by a long delay in studying the problem and eventually
redesigning the bridge structure. The suspension of operations naturally
delayed the planned relocation of the utilities, which delay in turn prevented
the construction of other bridge piers in the area, and the erection of the
structural steel which was on order and planned for delivery on specific dates,
as well as the paving of a relocated
196 REPORTS
STATE COURT OF CLAIMS [W. VA.
City Street. The bridge piers which were planned for construction in the summer
and early fall of 1965 were not constructed and completed until the late winter
of 1966. The maintenance of a detour was prolonged and piers constructed
adjacent to the detour required sheeting protection. The relocation of
McColloch Street was constructed under adverse winter weather rather than in
the summer of 1965, as originally planned when the weather would be dry and the
area would be workable. Muddy excavated material had to be replaced by suitable
stockpiled materials. None of these factors were taken into consideration by
the contractor in his bid proposal as they were not anticipated and within the
contemplation of the parties.
The steel for the bridges which was planned for erection in September, 1965,
under a schedule and sequence of shipments from the Fort Pitt Bridge Works was
not erected until January, 1966, resulting in heavy costs for storing,
rehandling and reconditioning the steel. Lighting facilities which were to be
provided for the highway and bridges which required adjustments to the
superstructure were not planned and specified by the Commission until one and
one-half years after the work started on the project, thereby delaying the
construction of the concrete superstructures on the bridges from November,
1965, until April, 1966.
When the contractor made his proposal, the bids were prepared on a plan to
complete the project within 550 working days. The additional expenses incurred
by the contractor in idle equipment and maintaining its plant, paying
supervisory personnel and overhead items for the extra 110 days, not
contemplated by the contract, is the basis for this action. The contractor
claims a sustained loss in the aggregate of $591,- 597.67, supported by
numerous exhibits and cost calculations.
All of the above contentions were supported by evidence from reliable and
trustworthy witnesses.
The Answer of the respondent sets forth that the expense in relocating the
office trailer was the responsibility of the contractor, who should have known
that the location thereof was detrimental to operations under other contracts
awarded to the petitioner. The evidence clearly indicated that the trailer
W. VA.]
REPORTS STATE COURT OF CLAIMS 197
was located on a site approved by the engineers of the respondent, who
apparently have the last word on where the field offices should be located for
the convenience of all parties concerned. Since the trailer had to be removed
as an obstruction to other projects, we conclude that the cost of its removal
must be borne by the State. If its original location was improper, the State
should not have given its approval to the site selection; the contractor being
subject to thc supervision of the State engineers is required to obey the
orsiers of the engineers and failure to do so is cause for the contractor ?s
remo al from the job site.
The Answer otherwise denies petitioner?s allegations, and affirmatively states
that the petitioner should have sought compensation under the ?extra work?
provisions of the Standard Specifications. Paragraph 1.5.11, which is
applicable to cases where the contractor seeks extra compensation for work or
materials not clearly covered by the contract. The claim before us is
essentially a claim for damages resulting from a breach of contract, causing
losses to the contractor sounding in tort. It is not a claim for work under the
contract not clearly covered in the terms of the contract, and we rule the
particular specification as being inapplicable to the case before us for
decision. For the same reasons, we rule that Standard Specification 1.9.4 relating
to compensation for extra work ordered and accepted by the contractor is
inapplicable to the factual situation of this case. In all other respects the
Answer charges the petitioner with inefficiency, overcharges, duplication of
items and failure to use reusable materials, all of which allegations being in
effect a general denial of the allegations in the Petition.
The Court has carefully considered the pleadings, exhibits and evidence in this
case and has made certain findings of fact.
The contractor did encounter a number of delays, one being an error in the
design of the bridge which enforced suspension of work for more than 100 days.
Unanticipated sub-surface conditions created a serious problem during the pile
driving operation for the foundation of the bridge. Pile driving opera- ions
were suspended on a critical pier designated as Bent EB-2. Anomalous
sub-surface rock formations in Wheeling Creek, which were unforeseen and
unanticipated by both the
198 REPORTS
STATE COURT OF CLAIMS 1W. VA.
State Road Commission and the contractor, as well as the consulting engineers,
who designed the foundation for the bridge, puzzled the engineers of both
parties, and caused a lengthy program of exploration, testing, core driving,
analysis and ultimately a redesigning of the foundation for this pier,
extending over a period of three months. Pile driving crews on the site had to
be committed elsewhere and the troublesome pier site had to be de-watered and
re-excavated as a result of the delay caused by the design error. The delay
resulting from the error was very costly to the contractor who was required to
turn his equipment on and off at the will of the State Road Commission and
revise his planned sequence of operations from time to time to meet the
changing conditions. Although the standard specifications of the State Road
Commission, which are incorporated into and made a part of the contract,
provide for suspension of work by the State Engineer (who is in control of the
work) due to unsuitable weather or other conditions considered unfavorable for
suitable prosecution of the work, we deem such a specification to be authority
to suspend the work only temporarily for such time as may be necessary until
conditions become favorable so that the work may be performed in accordance
with the provisions of the contract. We cannot accept the contention of the
respondent that the right to suspend the work on the project includes a right
to disrupt substantially a planned sequence of operations in an area, where
coordination, subcontracts, shipment of steel, storage of materials and planned
relocation of utilities and maintenance of heavy traffic are critically
involved, as disclosed by the evidence in this case. Future coordinated
construction depended heavily on the timely construction of the foundation for
the bridge. A sequence of operations planned in advance on a tight schedule of
commitments with other contractors was severely disrupted. The orderly
prosecution of the work was seriously handicapped by the delay required to
correct the design defect and threw the eontractor into confusion and
construction under adverse winter weather conditions causing substantial
damages and loss of efficiency, overtime, overhead charges and other expense.
In no way was the contractor responsible for the design error and the failure
of the State to take more prompt and efficient action to remedy the error
aggravated the damages by preventing
W. VA.] REPORTS
STATE_COURT OF CLAIMS 199
the relocation of utilities already planned, the paving of a relocated
McColloch Street, the construction of bridge abutments, the erection of
structural steel, and the planned removal of a detour road which impeded
construction of other bridge piers in the area.
The end result was an accordion effect on the entire project which created
additional labor and material problems continuing over the winter into the
following year and rendering the cost accounting standards on which the
contractor made his bid proposal obsolete and meaningless. Costs were figured
and allocated on the orderly procedure of the work under a planned schedule
which involved not only this but two other projects on which the contractor was
working, all of these facts being known to the officials of the State Road
Commission. To require management flexibility to cope with the confusion and
delay caused by the State, and reintegrate his work as a prime contractor would
place an unreasonable and unnecessary hardship on the contractor which is not
contemplated by the contract or the specifications which authorize a temporary
suspension of the work for various reasons.
It appears from the evidence that the contractor had to adopt a wait-and-see
attitude on the entire project after the first sweeping and costly change in
the project because of the problems arising from the design failure. Under the
circumstances of this case, it would be decidedly unfair to strait-jacket the
claimant to a sequence of Gperations formulated by the State without
consideration of overhead and other costs. The responsibility for performing
the contract with reasonable change orders is undoubtedly that of the
contractor, but when the State becomes so deeply involved in the subject that
the contractor is caused expenses of the magnitude presented in this case, it
is the opinion of the Court that the State has both a legal and a moral
obligation to reimburse the contractor for the losses sustained as items of
damage which are the direct and proximate result of a delay or delays caused by
the respondent in furnishing defective plans.
200 REPORTS
STATE COURT OF CLAIMS [W. VA.
A careful study of the items of damage reveals the following items of expense
and damage:
Claimed Allowed Disallowed
Expense in relocation of a
trailer $
1,179.89 $ 1,179.89
Winter protection of the
concrete 6,00140 6,001.40
Providing sheeting for vents
G-5 and EB-4 11,705.35 11,705.35
Additional expense in grading
and drainage of relocated
McColloch Street 20,506.19 20,506.19
Maintenance of a detour for
a prolonged period 6,710.25 6,710.25
Fort Pitt Bridge Company,
additional costs incurred as
a result of delay in having
the job site substructures
ready for the delivery and
erection of fabrie2ted struc tura
steel 62,867.98 46,007.21 16,860.77
Electrical and aluminum
work 4,270.63 4,270.63
Employment of labor on an
overtime basis .
35,969.31 35,969.31
Overhead:
Labor 50,871.95 25,435.97 25,435.98
Equipment rental 9,620.00 9,620.00
Utilities 4,295.22 4,295.22
Miscellaneous damages 377,599.50 20,000.00 357,599.50
Total $591,597.67 $191,701.42 $399,896.25
The aggregate claim filed by the petitioner is in the amount of $591,597.67,
which is derived by deducting the gross income received from the project from
the expenses of the project revealed by its cost accounting. The Court has
reduced the loss from $591,597.67 to $191,701.42 by disallowing an alleged loss
of profit on the job and many other irrelevant items, as well as reducing the
alleged claims for damages to amounts clearly and indisputably supported by the
evidence. All doubts have been resolved in favor of the respondent where the
petitioner has not sustained its burden of proof.
W. VA.]
REPORTS STATE couRT OF CLAIMS 201
Although the contractor has contended
through counsel that it is entitled for loss of profits as a proper measure of
damages, it is the opinion of the Court, after considerable research and study,
that loss of profits is not a proper item of damage under the circumstances of
this case. It is further the opinion of the Court that where a contract has
been breached by the State by a substantial interference with the critical
sequence of operations, requiring the contractor to pay his expenses on an ?as
built schedule? as distinguished from a ?planned schedule?, the contractor
should be reimbursed for the actual extra expenses and damages sustained.
We feel that the Commission had a contractual duty not to impede the orderly
prosecution of the work, wilfully or negligently, and not to drastically revise
work schedules during the course of construction with the end result of forcing
the prime and integrating contractor into another winter of uncontemplated
construction and completion of the work 110 working days beyond the planned
schedule. The contention of the State that the delays suffered by the
contractor were attributed to the contractor?s failure to properly plan its
work schedule is untenable under the evidence of this case.
We conclude that the claimant has shown a causal connection between the breach
of contract and the damages suffered and that it has sustained the burden of
proof for the items herein- before mentioned. Although the petitioner contends
that the difference between the reasonable costs of doing the work in the
absence of delay, and the actual costs of doing the work is the proper measure
of damages, we refuse to adopt the contractor?s bid estimate as a basis for
measuring the reasonable cost of doing the work in the absence of delay. We
believe that under the evidence in this case, the ?actual cost? of doing the work
under adverse conditions entailed by the unreason-. able delays to be a better
method of measuring damages. The contractor is entitled to compensation and not
to a profit on the damages sustained. The Courts have been in disagreement on
whether loss of profits is a proper item in measuring damages.
The complexity of this claim makes it impractical to discuss in this Opinion
each and every item of disallowed and allowed damage with particularity.
Inasmuch as this Court has held
202 REPORTS
STATE COURT OF CLAIMS [W. VA.
that the suspension of the work was definitely due to a design error, which
gave the consulting engineers of the project considerable apprehension about
the safety of a bridge design for a heavy flow of traffic, the entire project
was critically affected by the State?s efforts to remedy the error and the
contractor in equity and in good conscience should be reimbursed for the
damages resulting from the delay. The contractor had a right to rely on the
integrity of the plans furnished by the State and if those plans required
correction for the safety of the travelling public, they should have been
corrected with proper compensation to the contractor for its extra expense
incurred because of the enforced suspension of the work.
For the foregoing reasons, an award is made t? the claimant in the amount of
$191,701.42, with no allowance for interest.
Claim allowed in the amount of $191,701.42.
Opinion issued February 15, 1971
CECIL SMITH, JR., Claimant,
vs.
DEPARTMENT OF MENTAL HEALTH,
STATE OF WEST VIRGINIA, Respondent.
(No. D-300)
CECIL SMITH, JR., Claimant,
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS, Respondent.
(No. D-301)
Morton I. Taber, Esq., and Thomas P.
O?Brien, Jr., Esq. for the Claimant.
George E. Lantz, Deputy Attorney General, for the Respondents.
PETROPLUS, JUDGE:
The above captioned cases were consolidated and heard together on October 13,
1970. The material facts of the first case, Claim No. D-300, are found to be
substantially as follows:
W. VA.]
REPORTS STATE COURT OF CLAIMS 203
Claimant, Cecil Smith, Jr., while legally committed and confined in Weston
State Hospital, an Agency of the State of West Virginia under the supervision
and control of the Respondent, Department of Mental Health of the State of West
Virginia, was attacked and beaten by another inmate of Weston State Hospital in
a brief fight on July 4, 1967. The other inmate, Jack Biggs, who had been
confined periodically in the Penitentiary at Moundsville for various offenses,
including homicide, was transferred from time to time to the Mental Hospital at
Weston for psychiatric evaluation, treatment and restraint. He had an erratic
history of mental disturbances and delusions. On July 29, 1965, about two years
before the assault in question, a written psychiatric evaluation disclosed him
to be a man of mental confusion, suffering from emotional and mental
disturbances, anti-social reactions with delusions of all kinds. In his
history, we find that he stabbed a Penitentiary Guard for interfering with his
reading of the Bible, an attempt to commit suicide by jumping off the wall of a
building and delusions of persecution. A later report dated August 22, 1966,
found him in active psychosis, harboring feelings that outside people were against
him, impaired judgment but physically in good condition. The latter report
shows an improvement in his conduct. Further reports in the file indicate
behavioral problems and anti-social conduct up to the time of the assault but
no particular acts of violence during that time. The technical diagnosis of
Biggs? condition was ?schizophrenic reaction, paranoid chronic undifferentiated
type?. Biggs was discharged from the Hospital on August 11, 1967, and returned
on April 13, 17O, after being re-arrested for breaking into and vandalizing a
Church and his conduct thereafter has been very aggressive and hostile. We have
gone into considerable detail on his history as it has a bearing on whether the
Respondent?s Agents, Officers and Employees have failed to use reasonable care
to safeguard the Claimant from harm by another inmate in the Institution.
At the hearing, the evidence developed that the attack on the Claimant was
unprovoked and resulted in a serious compound fracture of the Claimant?s arm in
the same place where it had previously been fractured in a baseball game and
secured in place with screws. An 80% impairment of the normal use of the arm
has resulted from the re-fracture.
204 REPORTS
STATE COURT OF CLAIMS [W. VA.
Respondent is charged with negligence in supervising and safeguarding the
Claimant while he was confined in Weston.
The second case, Claim No. D-301, has been filed against the Department of
Public Institutions of the State of West Virginia and alleges that the Claimant
did not receive proper medical care from the State for his injuries. The
Claimant was x-rayed at Weston, given first aid arid transferred to Fairmont
Emergency Hospital shortly after the attack where his injury was diagnosed as a
re-fracture of the distal humerus of the right arm. Claimant remained there
with his arm in a cast until September, 1967, at which time he was returned to
Weston State Hospital. The fracture was reduced by manual manipulation and
Claimant?s arm remained in a cast on a closed reduction until September, 1967,
when the cast was removed, revealing excessive swelling in a crooked arm, and
with much pain and suffering. The arm was disfigured and could not be used
functionally. A further examination at Weston State Hospital disclosed that
there was considerable overriding of the fragments at the fracture joint and
that an open re-reduction would have to be performed on the arm through the
medium of surgical incision. The bone had to be rebroken and reset to correct
this condition and on September 23, 1967, Claimant was returned to Fairmont
Emergency Hospital where Dr. Salazar performed an operation to bring the bones
into alignment. Claimant?s arm was again placed in a cast until on or about
December 1, 1967, and now appears to be in proper alignment. He has less than
20% of the normal use of his arm. The condition is not improving and another
operation may be needed. The second claim is based on the failure of
Respondent?s Agents and Employees to properly diagnose the fracture and the
failure to use reasonable care in reducing the fracture, in accordance with the
usual and ordinary standards of the medical profession. Damages in the amount
of $10,500.00 are sought in each of the above cases.
At the hearing, by agreement of counsel, the National Bank of Commerce,
Committee for Cecil Smith, Jr., Claimant, was substituted as the complaining
party. Inasmuch as the Claimant was under a mental disability, the two-year
Statute of Limitations has no application to the cause of action in each case.
W.VA.] REPORTS
STATE COURT OF CLAIMS 205
After careful consideration of the evidence and the duties and obligations of
the Department of Mental Health to protect an incompetent person in its care
and custody from a violent ?attack by other inmates in the Institution, it is
the opinion of ?the Court that under the circumstances of this case there is no
showing of negligence on the part of the Hospital. In a Mental Institution
where many persons are confined under various kinds of insanity, it must be
necessarily assumed that deranged persons will deviate from normal conduct and
will engage in irrational ac?ts and fights. Biggs became incensed at Claimant
for refusing to ?hang it up? (meaning commit suicide) after Claimant had
promised to do so. They had formerly been buddies for some months. This, of
course, does not relieve the Institution from exercising ordinary and
reasonable care to protect its inmates from the violent and unpredictable
conduct of other disturbed persons. The medical history of J?ack Biggs does
reveal an incompetent person prone to violence, motivated towards suicide and
with delusions of persecution. It appears to us that the Hospital was without
notice of the imminent danger to the Claimant and should not be held liable for
his mistreatment by another patient unless the Hospit?al failed to protect the
Claimant from an obvious and certain danger. We find no evidence in the Record
that the administrative conduct of the Hospital was such a?s to expose the
Claimant unnecessarily to injuries through failure to use reasonable care
under the circumstances. Three to six guards were on duty in this area o?f the
Hospital where maximum security was provided because of the bad histories of
the inmates confined in this particular wing. A constant surveillance to restrain
insane, delirious or disabled patients is physically and economically
impossible. In the opinion of the Court, the Hospital should only be held
liable if the patient is unreasonably exposed to h?azards other than those
which would be considered ordinary and normal risks in any Mental Institution.
The Court is of the opinion to deny any award ?to the Claimant or impose any
liability on the Hospital for failure to exercise reasonable care in guarding
the Claimant, i?ts patient, from violence inflicted by others. To hold
otherwise, would require the Hospital to place eac?h mental patient in solitary
seclusion to ?alleviate quarrels, assaults and attacks. A Hospital
206 REPORTS
STATE COURT OF CLAIMS [W. VA.
must operate within the budget
furnished by the Legislature and its personnel is necessarily limited for
employment of doctors, nurses, guards :and other employees. No Institution can
be an insurer of the safety of its occupants and this is particularly true of
an insane asylum maintained by the State as ?a public institution. Certain
physical hazards are inherent in the operation of a mental institution and
cannot be controlled by the personnel or guards of the institution except by
superhuman effort and constant observation of a patient?s movements.
On the damages claimed for inadequate medical care, we are of the opinion that
the Claimant has made a showing by a preponderance ?off the evidence that he
did not receive competent and careful medical care from the State of West
Virginia, and we find medical malpractice. We are of the opinion that the
Department of Public Institutions is required by law to exercise reasonable
care ?to protect the health and lives of those in its care and custody, human
beings who are weak or unwary inmates, from careless, unskillful or negligent
medical practitioners. It would appear from the evidence in this case that the
general standards of the medical profession were not followed under the
circumstances related ?to the Court. The Claimant had a serious fracture of the
humerus of his right arm with overriding bone fragments and a manual
manipulation and closed reduction of the fracture without orthopedic advice was
a deviation from the exercise of reasonable skill and care for the safety and
well-being of the patient, particularly when ?the same bone had previously been
fractured. The failure to properly diagnose and reduce the fracture by open
surgery at the outset is not a failure to exercise the best judgment in a
medical diagnosis, which would be a tolerable error of doubtful judgment. The
arm of the Claimant?s was fixed in a crooked position in a cast so that it
could not properly heal. It was disfigured ?and painful when removed from the
cast and could not be used. A subsequent examination at Weston State Hospital two
months later revealed an improper setting of the broken bones in the arm and
the necessity of placing the bones in proper alignment by breaking the arm and
inserting pins. It definitely ?appears ?th?at the bones were not properly
aligned ?in the first instance at th?e Fairmont Emergency Hospital. It is our
finding that the Respondent?s
W. VA.]
REPORTS STATE COURT OF CLAIMS 207
Agents and Employees were not only negligent in their original diagnosis and in
the attempted closed reduction of the fracture from July 4, 1967 to September
21, 1967, but that the full nature and extent of the fracture was not
understood or treated by the usual and ordinary standards of the medical
profession. No effort was made to determine whether a proper alignment of the bones
was made by adequate use of X-ray photography or visual inspection. Had the
Hospital?s personnel exercised the ordinary care required, there should have
been a complete and satisfactory recovery from the fracture with a minimum
residual disability. The loss of 80% of the normal use of the right arm in the
absence of some explanation for the unsatisfactory result indicates that the
requisite skill and care was not exercised, which ordinarily would be exercised
by members of the medical profession. The skill of physicians and surgeons in
populated communities is ordinarily of high standard. In applying this standard
to the treatment received by the Claimant, we find negligence in the making of
this examination and diagnosis.
The charitable immunity of public and private hospitals from tort liability,
aside from the question of sovereign immunity, has been practically eliminated
in our State by recent decided cases and we are of the opinion that the State
had a legal as well as a moral responsibility to treat its patient with more
medical skill in collecting all factual data essential to arriving at a
judgment as to the proper course of treatment to minimize residual disability.
For the foregoing reasons, the Court is of the opinion to allow the Claimant
the sum ?of $3,000.00 in damages to cover his medical treatment, pain and
suffering and permanent impairment. We are not inclined to include loss of past
or future earnings as an item of damage because of the erratic employment
record of the Claimant prior to the injury.
Claim disallowed in Case No. D-300.
?Claim allowed in the amount of $3,000.00 in case No. D-301.
208 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued February 15, 1971
WEST VIRGINIA BUSINESS FORMS, INC.
vs.
DEPARTMENT OF MOTOR VEHICLES
(D-382)
Homer Hanna, Jr., for the Claimant.
George E. Lantz, Deputy Attorney General, for the Respondent.
JONES, JUDGE:
The claimant?s petition alleges that it is entitled to payment from the
respondent in the amount of $249.97 for an over shipment of supplies, within
accepted limitations, under a certain purchase order dated August 15, 1969. The
order was for 100 rolls of Class A Application Forms for automobile licenses,
and by mistake 107 rolls were delivered. The respondent paid for 100 rolls but
retained and used the additional seven rolls. As the seven rolls were not
returned to the claimant, an invoice was presented to the respondent for $24997
under date of May 6, 1970.
The respondent has filed its answer admitting the allegations contained in the
claimant?s petition, further asserting that this is a claim which the State in
good conscience ought to pay, and recommending an award in favor of the
claimant in the amount of $249.97.
Having considered the petition and answer which clearly show that the State has
been unjustly enriched and that good conscience and equity require payment for
the supplies furnished and used, the Court is of opinion to and does hereby
award to the claimant, West Virginia Business Forms, Inc., the sum of $249.97.
W. VA.]
REPORTS STATE COURT OF CLAIMS 209
Opinion issued February 15, 1971
RHEA RAE McCOY
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS
(No. D-281)
John Slack, Attorney at Law, Jackson, Kelly, Holt & O?Farrell,
for the Claimant.
George
E. Lantz, Assistant Attorney General, for the Respondent.
JONES, JUDGE:
The only allegations in the notice of claim filed in this case are that the
amount of the claim is $165.00; ?The side of the house owned by Rhea Rae McCoy
was damaged by a piece of steel from a tractor of the W. Va. State
Penitentiary. Penitentiary has had worker look at damage.?; and that claim
forms were sent by the claimant to Insurance Company of North America. A sworn
statement of proof of loss filed with the notice of claim describes the cause and
origin of the loss as follows: ?Side on house damaged by a tractor of West
Virginia State Penitentiary which was mowing on adjoining lot.? While no formal
assignment of this claim was presented, it appears that the beneficial owner of
the claim is Insurance Company of North America.
At the hearing of this case, counsel for claimant presented a recorded
telephone conversation wherein the claimant answered questions concerning the
damage to her property. Thereupon, counsel for the respondent stated that the
employees of the respondent at the State Penitentiary had no knowledge of the
matter, and the hearing was concluded.
The unsworn statement of the claimant will not be considered as evidence in
this case, and nothing further having been offered in support of the claim, the
same is hereby disallowed.
210 REPORTS STATE COURT OF CLAIMS [W. VA.
Opinion issued February 15, 1971
HAROLD D. LOWE and DAISY LOWE
vs.
DEPARTMENT OF HIGHWAYS
(No. C-19)
Rudolph L. DiTrapano and Robert W.
Lawson, III for the Claimants.
Donald L. Hall for the Respondent.
JONES, JUDGE:
On February 11, 1967, the claimant, Harold D. Lowe, was driving his 1963
Chevrolet Pick-up Truck in an easterly direction alog West Virginia Route No.
27, accompanied by his wife, the claimant Daisy Lowe, and her cousin, Clarence
Jones. During the afternoon of that day, at a point approximately two miles
east of Wellsburg, a collision giving rise to this action occurred. The highway
at that point consists of two eastbound lanes and one westbound lane, and Mr.
Lowe was driving in the outside or right-hand lane around a curve to his right.
The claimants? version of what happened next is that they suddenly came upon a
boulder about two feet in diameter in their lane of traffic and about thirty
feet ahead of them; they could not swerve to the left because of a passing
pick-up truck, and there was no room to the right as the hillside came down
very close to the pavement; they struck the boulder, breaking it into small
fragments, and their truck upset into the hillside. The parties have stipulated
damages to the claimants? vehicle in the amount of $653.00 on a total loss
basis; and there is ample medical evidence that Mrs. Lowe sustained severe
injuries. The claimants seek damages in the total amount of $10,000.00.
William VanCamp, an employee of the respondent, who was patroling the highway
and arrived at the scene of the collision a few minutes after its occurrence,
testified that snow had blown onto the highway in the area of the curve, making
travel at that point dangerous, and he further testified that tracks or skid
marks on the highway showed that the claim-
W.VA.]
REPORTS STATE COURT OF CLAIMS 211
ants? vehicle had veered across the highway to its left, a distance of
approximately forty feet, and then had re-crossed the highway a distance of
approximately forty feet more before it crashed into the side of the hill. This
witness said that he saw no evidence of a boulder, but instead, only three or
four small shovels full of shale.
The claimants testified that they did not see any fallen rock signs; but Mr.
VanCamp testified that there was such a sign in the direction from which the
claimants had come and within one-fourth mile of the place in question.
Before this Court can make an award in a case of this nature, it must appear
that the State Agency or its employee has been negligent. We will turn our
attention first to that question, and if we find that the respondent was not
negligent, then it will not be necessary to decide such issues as contributory
negligence or the amount of damages.
Claimants? counsel contends that the respondent was negligent in failing to
construct a barrier at the bottom of the hillside in question to prevent
falling rocks from rolling upon the highway. To show a need for such protective
measures, the claimants presented certain photographs which were admitted into
evidence. Some of these were taken by Mrs. Lowe and her son, perhaps ten days
to two weeks after the mishap, and show at least one large rock and several
smaller ones on the berm and ditch area along the highway. Other pictures,
which were not identified as to the time they were taken, but obviously taken
in the summertime, at least a few months after the accident, show at least one
large rock on the hillside, which appears to be in a precarious position. No
other evidence to show a hazardous condition was adduced by the claimants,
except certain general statements to the effect that this area was susceptible
to slides and therefore dangerous.
Mr. Lowe was well acquainted with this stretch of highway, as he had traveled it
frequently over many years, and he testified that he had never observed fallen
rocks or shale at the place where the collision occurred, but that he had
observed such deposits in other cuts along the highway. At one point in his
testimony, Mr. Lowe stated that he had traveled this highway ?every night and
every morning for going on six
212 REPORTS
STATE COURT OF CLAIMS [W. VA.
years?, and was familiar with the cut in question. He further testiflcd that
the curve he was rounding was a blind curve, and that he v.as traveling forty
to forty-five miles per hour. The re$)ondent?s witness, Mr. VanCamp, testified
that in the springtime tue Department of Highways had some trouble wilh fallen
rocks at the place in question, but no more so than at other places along this
and other highways in the Panhaidle area. There is no evidence that the
claimants or any other person had ever complained or given notice to the
respondent that a dangerous condition existed at this location.
From all of the evidence in this case, it seems to the Court that this highway
cut and resultant hillside with its many layers of rock and shale is little
different from the hundreds and hundreds of other cuts and hillsides along
highways all around the State of West Virginia. The unhappy reality of the
situation is that our Department of Highways cannot guarantee the traveling
public that rocks or trees may not fall upon our highways and thereby cause
injury and damage to persons and property. The claimants? counsel in his brief
places great reliance on State ex rel
Vincent v. Gainer, 151 W.Va., 1002, in
which the Supreme Court of Appeals of West Virginia found the State Road
Commission negligent in a fallen rock case and allowed recovery by the
claimant. The opinion in that case quotes from Adlcins v. Sims, 130 W.Va., 64, a case in which recovery was denied, as follows:
?We do not mean to say that situations may not arise where the failure of the
road commissioner properly to maintain a highway, and guard against accidents,
occasioned by the condition of the road, may not be treated as such positive
neglect of duty as to create moral obligation against the State *
In the Vincent case, the Court found that
a huge boulder had fallen immediately in front of the claimant?s moving
automobile; that the State Road Commission had removed a boulder from almost
the same place the day before; that other similar rocks on the hillside were
visible; that complaints had been made to the State Road Commission concerning
the danger of this particular portion of the road relative to large boulders
falling in the road; that no warning signs were erected nor were any protective
measures taken; and that the
W. VA.]
REPORTS STATE COURT OF CLAIMS 213
claimant had proved a prima facie case
of negligence which the State did not attempt to rebut.
In the case of Parsons v. State Road
Commission, Claim No. D-112, this
Court said:
?This Court has many times held that the State is not a guarantor of the safety
of its travelers on its roads and bridges. The State is not an insurer and its
duty to travelers is a qualified one, namely, reasonable care and diligence in
the maintenance of a highway under all the circumstances. The case of Adkins v. Sims, 130 W.Va., 645, 46 S.E. (2d) 81, decided in 1947, holds that the user of
the highway travels at his own risk, and that the State does not and cannot
assure him a safe journey. The maintenance of highways is a governmental
function and funds available for road improvements are necessarily limited.?
While credible testimony in behalf of the respondent would tend to refute
certain important allegations of the claimants, even if we give full weight to
the claimants? case, we are unable to say that the respondent should reasonably
have foreseen the unfortunate happening here involved. The Adkins case
holds that the failure of the State to provide guard rails does not constitute
negligence, and we believe that the logic underlying that holding should apply
to the erecting of barricrs in this kind of a case, unless there is a clear
showing that such a dangerous condition is permitted to exist as reasonably
would he expected to cause injury or damage to users of the highway. Only
reasonable care and diligence are required; and we are of O1)iflIOfl that
the claimants in this case have not proved such a positive neglect of duty on
the part of the respondent as to crevte a moral obligation against the State.
We have carefully considered all of the record in this case and the law
ap1ilicable thereto, including the helpful briefs of counsel for hoP parties,
and it is our conclusion that equity and good ccnshen a do not require that an
award be made, and, accordingly, these claims are disallowed.
214 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued February 16, 1971
VOGT-IVERS & ASSOCIATES
vs.
DEPARTMENT OF NATURAL RESOURCES
(No. D-192)
Walter W. Burton for the Claimant.
George E. Lantz, Assistant Attorney General, for the respondent.
DUCKER, JUDGE:
The claimant, Vogt-Ivers & Associates, an engineering partnership of
Charleston, West Virginia, alleges it is due from the Department of Natural
Resources of the State of West Virginia, the sum of $16,275.00 as additional
compensation for services rendered in connection with the development of the
Cass Scenic Railroad at Cass, West Virginia.
A contract for engineering services by the claimant was entered into between
the Department of Natural Resources and the claimant on July 9, 1964, under the
terms of which the claimant was to prepare all working drawings, specifications
and cost estimates for all the work contemplated in the project, and to assist
in the taking of bids and to provide field supervision of construction. The
claimant estimated the cost of the project to be $509,050.00 and in Article IV
of the contract the payment to the claimant was to be ?for its services set out
and required in the contract a total lump sum fee of Fifty Thousand and Nine
Hundred Dollars ($50,900.00) for the Cass Scenic Railroad project as outlined
in the Area Redevelopment Administration?s offer to the West Virginia
Department of Natural Resources, dated 27 June 1963.?
Claimant now says the total cost of the project was $696,652.66 and that its
offer of $50,900.00 was based on ten percent of the cost which was first
calculated on a basis of $509,050.00, and that the ten percent on such part of
said
$696,652.66 in excess of $509,050.00 as is properly chargeable, amounts to an
additional $16,275.00, which the clairiant now
W. VA.]
REPORTS STATE COURT OF CLAIMS 215
seeks to recover in this proceeding. No agreement as to compensation other than
the $50,900.00 was ever made between the parties. Claimant was paid the
$50,900.00 and respondent says it is not liable for the extra amount claimed,
that the fee was a lump sum fee for the whole project.
Claimant contends that it figured its fee on a basis of ten percent of the
estimated cost which was less than the amount of the bids received for
performance of the contract. When it was seen that the cost would be higher the
respondent in 1966 obtained from the Department of Housing and Urban
Development an additional grant of approximately $220,000.00. After the
original bids proved greater than the amount available, claimant says it was
requested by respondent to see if the deductive alternates in the plans would
not bring the bids within the available funds but such reduction in the
estimate costs were not sufficient to do so, and consequently the additional
funds were requested and obtained.
Claimant says that it was required to make changes in the plans and do extra
work in connection with the completion of the work after the additional funds
were received, but the evidence of the claimant fails to show that what was
done and claimed as extra was not contemplated in the project. Deductive
alternates, it appears to this Court, were in the original plans and when more
funds were available the alternates were susceptible of use. It is difficult to
conclude that additional plans had to be drawn for their use, and even if
additional plans were necessary, paragraph 2 of Phase II of Article 1 of the
contract provides that ?if in the opinion of the Owner, any additions to said
plans and specifications are necessary, the Engineer/Architect shall furnish
such additional plans and specifications without additional compensation from
the Owner.?
From the evidence in this case it appears to this Court that when the plans
were drawn by the claimant for the Cass Railroad Project it was considered that
$509,500.00 would be sufficient funds for the purpose, and the claimant was
willing to do all the engineering and supervisory work necessary for the
project for $50,900.00, which no doubt was calculated on a ten percent basis,
but claimant apparently wanted to be sure
216 REPORTS
STATE COURT OF CLAIMS [W. VA.
it received $50,900.00, regardless of whether the cost was $509,050.00, or more
than that amount or less than that amount, and accordingly so provided, instead
of making the fee a contingent one of ten percent of the cost. Surely the
respondent could not have said it owed claimant only $40,000.00 if the cost had
been only $400,000.00.
The evidence of the respondent in our opinion sufficiently contradicts the
claim that claimant has done work over and above that specified in or
contemplated by the contract and we conclude that the claimant is not entitled
to the extra compensation alleged, and accordingly, the claim is disallowed.
Claim disallowed.
Opinion issued December 29, 1970
JERRY K. & ANNE B. CALDWELL
vs.
DEPARTMENT OF HIGHWAYS
(No. D-194)
Jerry K. & Anne B. Caidwell, appearing only by Petition and Stipulation for the
Claimants.
Donald L. flail, Of Department of Highways for the Respondent.
DUCKER, JUDGE:
Claimants, Jerry K. Caldwell and Anne B. Caidwell, allege that they were the
joint owners of certain real estate and the dwelling house thereon situate
about one-half mile west of Princeton, West Virginia, adjacent to Route 20, and
that on or about September 1, 1967, the respondent purchased certain real
estate on said highway across from the said property of claimants, for the
purpose of constructing and operating a county garage and office complex. In
September, October, November and December, 1967, respondent began and proceeded
in excavating its property for its building, and in said excavation work used
blasting operations with TNT, dynamite and other explosives, which resulted in
damages to the claimants? dwelling house in the alleged amount of $Z,000.00.
W. VA.]
REPORTS STATE COURT OF CLAIMS 217
The facts in the case are admitted by stipulation of the parties, which
stipulation shows the actual damages occasioned by the blasting to be
$1,497.00.
As the damages were the result of the blasting which was not properly
controlled and which presumably involved negligence on the part of the
respondent, we are of the opinion to, and do hereby, award the claimants the
sum of $1,497.00.
Award of $1,497.00.
Opinion issued February 15, 1971
JOYCE J. DRODDY AYERS
vs.
DEPARTMENT OF HIGHWAYS
(No. D-288)
John S. Sibray, Michael Tomasky, Mike
Magro, Jr., for the Claimant.
Donald L. Hall, of Department of Highways for the Respondent.
DUCKER, JUDGE:
Claimant, Joyce J. Droddy Ayers, alleges damages in the amount of $50,000.00
for injuries and disabilities resulting from a collision of the automobile, in
which she was a passenger, with a large boulder in the road designated as U. S.
Route 250, about one-fourth of a mile south of Fairmont, West Virginia, on May
12, 1967, at approximately 1:15 a. m. This is the same accident in which Julia
A. Varner was killed and the claim of her administrator for her death was heard
and decided by this Court on February 10, 1970, in Claim No. 185, styled John
C. Varner, Administrator of the Estate of Julia A. Varner, deceased, v. State
Road Commission, and an award was made to the claimant in that case, pursuant
to a finding by this Court of liability on the part of the respondent.
A full recital of the facts in that case upon which liability was determined
and the award made are contained in the opinion of this Court, and it would
only be repetitious to recite them here. Those facts and our conclusions
thereon have not
218 REPORTS
STATE COURT OF CLAIMS - [W. VA
been shown to have been changed or
otherwise altered or varied and inasmuch as the claimant here was merely a
passenger in the Varner car, we reach the same conclusion in this case as to
the liability of the respondent.
The sole question here is one of damages, and in this respect, the evidence
shows that the claimant, in addition to pain and suffering, has sustained
hospital and medical expenses in excess of Fifteen Hundred Dollars and loss of
wages in excess of Three Thousand Dollars, and that she has not fully recovered
from her injuries. The report of Dr. C. M. Caudill, who examined claimant at
the request of the respondent, reports that claimant cannot extend her left arm
to a full normal degree, that his impression is that she is doing well as far as
her basic neurologic condition is concerned, but he recommends future
psychiatric evaluation and consultation with an otolaryngologist. So in view of
the fact that claimant may still have physical difficulty and further medical
expense, we are of the opinion that she should be compensated for such
anticipated difficulty and costs.
We are of the opinion that Ten Thousand Dollars will be a fair amount of
compensation and damages and, accordingly, we award the claimant the sum of
$10,000.00.
Award of $10,000.00.
Opinion issued February 15, 1971
W. M. McCLINTIC
vs.
DEPARTMENT OF NATURAL RESOURCES,
STATE OF WEST VIRGINIA
(No. D-353)
W. M. McClintic, for the Claimant.
George E. Lantz, Deputy Attorney General for the Respondent.
DUCKER, JUDGE:
The claimant, W. M. McClintic, of Romney, West Virginia, alleges damages in the
amount of $46.77,
the cost of replacing
W. VA.]
REPORTS STATE COURT OF CLAIMS 219
on his automobile the windshield which was broken by a rock thrown by a grass
mower operated by an employee of the respondent at the parking lot of the
Department of Natural Resources located in Romney. Claimant?s car was lawfully
parked in the parking lot.
The case was submitted on affidavits and admission of the facts by the
respondent, and it appears from the proof that there was negligence on the part
of the operator of the grass mower, and that the respondent is therefore
responsible for the damages.
We, therefore, allow the claim and award the claimant the sum of $46.77.
Claim allowed.
Opinion issued February 15, 1971
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
(William A. Riddle)
vs.
DEPARTMENT OF HIGHWAYS
(No. D-327)
Robert J. Louderback, for the Claimant.
Donald L. Hall, of Department of Highways for the Respondent.
DUCKER, JUDGE:
Claimant, State Farm Mutual Automobile Insurance Company as subrogee of William
A. Riddle, alleges damages in the amount of $105.46, done to the car of said
Riddle, who while driving his automobile north on Route 2, one mile south of
New Cumberland, West Virginia, on July 2, 1970, was stopped by a flagman of the
respondent which was engaged in blasting operations, and while so stopped a
large rock from the blasting struck the hood of Riddle?s automobile. Respondent
admits the blasting and the stopping of Riddle?s car and that the atten
220
REPORTS STATE COURT OF CLAIMS [W. VA.
tion of respondent?s employees of the occurrence was called by Riddle at the
time, but that no employee saw the rock hit the car and respondent says it is
without knowledge of the truth of the allegations. Respondent, however, agreed
to submit the case for decision upon the pleadings and the affidavit of Riddle
without other evidence or any proof denying the facts alleged.
As the evidence of the claimant is not contradicted, that Riddle was without
fault, and that the damage has been caused by the wrongful act of the
respondent which under the circumstances we presume to have been the result of
negligence, we are of the opinion to, and do hereby award the claimant as
subrogee of Riddle, the sum of $105.46.
Award of $105.46.
Opinion issued February 15. 1971
ESDEL B. and SYLVIA J. YOST
vs.
DEPARTMENT OF HIGHWAYS
(No. D-272)
Esdel B. Yost and Sylvia J.
Yost, for the Claimants.
Donald L. Hall, of Department of Highways for the Respondent.
DUCKER, JUDGE:
Claimants, Esdel B. Yost and Sylvia J. Yost, owners of a tract of land
containing ?six to ten acres? on Tribble Road, Mason County, West Virginia,
allege they have been damaged by the respondent in the amount of $825.00, of
which sum $625.00 represents loss of a hay crop, $150.00 as compensation for
the parking of a trailer on their land, and $50.00 for damages to a fence
against which respondent had placed supplies.
The loss of the hay crop is based on the claim that the respondent with its
supply trailer and heavy supplies against a fence had blocked the only access
to claimants? meadow in
W.VA.]
REPORTS_STATE COTJRT OF CLAIMS 221
which they had a crop of hay. The value of the crop of hay presents the only
real qilestion in serious dispute as this Court considers the amounts claimed
for rental space of the trailer and for damages to the fence as reasonable.
As to the question of the damages for the hay, the testimony of a qualified
disinterested witness on behalf of the respondent affords a reasonable and fair
basis for the determination of claimants? loss. Such evidence was to the effect
that the land should produce nine tons of hay, which at a valuation of $50.00
per ton would produce a gross amount of $450.00, and that the cost of cutting
it would be sixty percent of such gross sum and there would be left a net
profit of forty percent, amounting to
$180.00.
We are, therefore, of the opinion that the claimants are entitled to receive
$180.00 for the hay, $150.00 trailer rental space, and $25.00 for the fence
damage, the latter being only an estimated amount because proof was not
definite or sufficiently satisfactory to allow more. Accordingly, we allow and
award the claimants the total sum of $355.00.
Award of $355.00.
Opinion issued February 15, 1971
CHARLESTON CONCRETE FLOOR COMPANY, INC.
vs.
DEPARTMENT OF HIGHWAYS
(No. D-322)
Charles E. Hurt, for the Claimant.
Donald L. Hall, of Department of Highways for the Respondent.
DUCKER, JUDGE:
Claimant, Charleston Concrete Floor Company, Inc., claims the respondent owes
it the sum of $299.93, with interest from June 7, 1965, by reason of a special
sidewalk paving assessment made by the Town of Hurricane against the property
of re
222 REPORTS
STATE COURT OF CLAIMS [W.VA.
spondent located in said town, and known as a parcel of land adjoining Lots 1
and 2, Taylor Series, and fronting 136.67 feet on Putnam Avenue, said Putnam
Avenue being a part of State Route 34.
The facts which are undisputed are substantially as hereinafter stated, and the
question presented is solely one of law.
The property against which the assessment was made was a land fill, owned by
the respondent, consisting of an embankment as an approach to a bridge, and as
such property was not otherwise used by respondent, respondent claimed that
such special assessment against it offered no special benefit to the
respondent, a contention which claimant denied. Upon the refusal of the
respondent to pay the assessment the claimant brought suit in the Circuit Court
of Putnam County against the respondent and the nearest individual property
owners, namely, John W. Chapman and Evelyn Chapman, to have the Court determine
whether the assessment should be against the respondent or said Chapmans, and
whether or not there should be a reassessment in the matter against the
Chapmans. The respondent was not a party to this suit, but it was notified of
the assessment at the time the assessment was made and could have contested its
legality before the town council at the meeting at which the assessment was
confirmed. The Circuit Court held that the assessment against the respondent
was proper and that there was no need for a reassessment against the Chapmans.
The respondent claims that the assessment against it is not valid because the
sidewalk is on state property, does not ?abut? the road, and does not afford
any special benefit within the meaning of the law. While these contentions of
respondent could have been presented to the Council and the latter?s decision
could have been subsequently appealed, they were not so presented, and this
Court is of the opinion that the Council?s decision of the questions of fact is
binding and not subject to review by this Court. The respondent has had its
opportunity to contest both the action of the Council and the decision of the
Circuit Court, and has relied entirely upon this Court to determine the
legality of all the proceedings, an act which we do not consider proper to do.
W. VA.]
REPORTS STATE COURT OF CLAIMS 223
Accordingly, we are of the opinion to, and do award the claimant the sum of
$299.93, but we are prohibited by the statute and we disallow any claim for
interest.
Award of $299.93.
Opinion issued March 29, 1971
JAMES A. ESPOSITO
vs.
WEST VIRGINIA BOARD OF REGENTS
(No. D-329)
No appearance for the Claimant.
George E. Lantz, Deputy Attorney General for the Respondent.
DUCKER, JUDGE:
Claimant, James A. Esposito, a former student in the Law School of West
Virginia University from September, 196, until his graduation in June, 1969,
was charged nonresident student tuition fees. The difference between resident
student tuition fees and nonresident student tuition fees amounted to a total
of $1,950.00, and claimant, contending that he should have been required to pay
only resident tuition, now claims he should be awarded that sum as a refund.
The facts in the case are stipulated as hereinafter related and the only issue
is whether the facts constitute a valid claim.
Claimant, born December 2, 1938, in New Jersey, was reared and educated through
high school while living with his parents in New Jersey, and after graduation
from high school worked at various jobs in New Jersey until 1963 except for a
period of six months while in the army. In January 1963, claimant enrolled at
Salem College, in Salem, West Virginia, residing at various homes in Salem and
returning to his parents? home th New Jersey during the summertime. On June 5,
1965, claimant married Charlotte J. Rauer, a life-long resident of Carolina,
Marion County, West Virginia, who owned and operated a beauty salon in
Monongah, Marion County, West Vir
224 REPORTS
STATE COURT OF CLAIMS [W. VA.
ginia, and immediately upon their marriage, claimant and his wife established
their home at a rented house in Carolina, West Virginia, and claimant?s wife
continued her employment at Monongah, and they have continued to reside at said
house until the present time. Claimant was graduated from Salem College in
June, 1966, and in September 1966 he enrolled as a resident student in the
College of Law at West Virginia University and then paid resident student fees,
but three months later he was required, after rejection of his protest, to pay
nonresident tuition fees for the whole period of his law school enrollment
until his graduation in June 1969.
To substantiate claimant?s allegation that he was entitled to be considered a
resident and chargeable only with resident fee tuition, the stipulation shows
claimant on February 1, 1966, registered to vote in West Virginia, was assessed
in 1965 for capitation tax, automobile tax in 1965, and for 1966 a tax on his
dog, paying all of them for each year thereafter, and in the fall of 1966 he
acquired a driver?s license, continuing his use of the same since that time.
The records pertaining to claimant?s child born in 1967, reflect the residence
of the claimant to be Carolina, Marion County, West Virginia. Claimant filed
joint federal and state income tax returns for 1967 and thereafter showing his
residence as being in West Virginia. Claimant worked in the Marion County
Assessor?s office and as a law clerk between his second and third years in law
school, and upon graduation he entered the private practice of law at Fairmont.
Claimant alleges that from the time of his marriage in 1965 which occurred more
than a year before he enrolled in West Virginia University, he had no other
plans but to make his home in Marion County, West Virginia, and since that time
has treated Marion County as his home, severing all connections with his former
residence in New Jersey.
While all the facts, self-serving as they are to indicate the claimant became
domiciled in West Virginia in 1965, the question remains as to whether there
has been compliance with the regulations of the University pertaining to such
subject.
The regulation involved is as follows:
?No person shall be considered eligible to register in the University as a
resident student who has not been
W. VA.] REPORTS
STATE COURT OF CLAIMS 225
domiciled in the State of West Virginia for at least twelve consecutive months
next preceding college registration. No nonresident student may establish
domicile in the State, entitling him to reductions or exemptions of tuition,
merely by his attendance as a full-time student at any institution of learning in
the State.?
In the case of Detch v. Board of
Education, 145 W. Va. 722, 117 S. E.
2d 138, the Supreme Court of Appeals of West Virginia confirmed the right of
the West Virginia Board of Education to determine education policies of public
schools, if such policies are not unreasonable or arbitrary. Such undoubtedly
applied to the Board of Governors of West Virginia University, and we consider
the regulation here involved a reasonable policy.
As indicated, the claimant may have established his domicile in West Virginia
and entitled to voting and other privileges by proof of facts shown and by
proof of his intention in that regard, but as to his rights with respect to the
institutions of learning in this State there is the additional requirement that
he must not be in violation of the regulation which provides that he cannot
establish the domicile which would entitle him to reductions or exemptions of
tuition by his attendance as a full-time student at any institution of learning
in the State.
Claimant says his marriage in 1965 definitely determined his status more than
one year before he entered West Virginia University, and that fact, in addition
to the other facts, rendered him eligible as a resident student. Such argument
would probably prevail, were it not for the positive prohibition in the
regulation which denies a student from another educational institution in the
State to so establish residency rights by attending such other school in the
State. Salem College is a college in the State and claimant?s attendance there
brings his claim within such prohibition. With claimant?s domicile having been
in New Jersey prior to his marriage in 1965, we are of the opinion that such
fact and the other facts evidencing change of residency or domicile are not
sufficient to overcome the prohibition contained in the regulation, even though
claimant may have legally become a citizen the year before his last year of
attendance at Salem College. While it may be argued that the claimant has not
established his residence merely by his last year?s attendance at Salem College before
entering
226 REPORTS STATE COURT OF CLAIMS [W.VA.
West Virginia University, we think the facts do not satisfactorily negative an
apparent attempt to circumvent the rule, and, so we conclude that the facts
substantiate the application of the prohibitory provisions of the regulation.
The claimant, in support of his claim, relies upon the decision of this Court
in the case of Wotkiewicz v Board of
Regents, D-294, decided October 14,
1970. That case is distinguishable from this case in that the claimant in that
case came to this State to accept a secretarial position with a member of the
faculty of West Virginia University, with no thought or intention of attending
school, not even as a part time student, although after she was here a while
she was induced to take a part time course at the University during her
noontime recess, and more than a year later when she was forced to change her
employment she decided to enter the University on a full time basis. The facts
in that case, in the opinion of this Court, clearly substantiated her right to
be considered eligible as a resident student when she became a full time
student. We do not consider that case as a precedent for the claim here made.
As we are of the opinion that the claimant did not qualify as eligible for
resident status in the matter of his tuition fees, and that the action of the
Board of Governors was within its authority, we hold the claimant is not
entitled to recover, and, accordingly, we disallow his claim and make no award
therein.
Claim disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 227
Opinion issued March 29, 1971
CHARLES E. & LILLIE F. EVANS
vs.
DEPARTMENT OF HIGHWAYS
(No. D-310)
Mrs. Janice Trent, Daughter of Claimants for the Claimants.
Donald L. Hall, of Department of Highways for the Respondent.
DUCKER, JUDGE:
The claimants, Charles E. Evans and Lillie F. Evans, whose property located at
330? Mary Street and 1602 O?Dell Avenue, Charleston, West Virginia, was subject
to condemnation for highway purposes, herein ask damages in the amount of
$1,201.54 because of loss of rent from their lessees or tenants for the period
existing between the date the tenants were notified that the property was to be
taken by the respondent and the date the property was purchased by the
respondent pursuant to an option given by the claimants to the respondent.
The facts as testified to by the daughter of the claimants and as shown by the
other testimony and exhibits are substantially as hereinafter stated. The
respondent advised the claimants in July, 1969, that claimants? property would
be taken for highway purposes, and in September, 1969, the tenants of the
claimants were notified by the respondent that they would have to move. On
March 9, 1970, the claimants executed and delivered to respondent an option
whereby the respondent could purchase within six months the property for the
sum of $17,500.00, which option was exercised by the respondent and the
property was purchased by the respondent at said price, whereupon a deed
therefor, dated March 30, 1970, was executed and delivered. Both the option and
the deed contained provisions releasing the respondent from all claims for
damages or compensation other than the purchase price, such provision in the
deed being in the following language:
?* *
* it being agreed that the compensation
herein provided for as purchase price is full compensation both for
228 REPORTS STATE
COURT OF CLAIMS [W. VA.
the land herein described and for all rights and easements hereby released and
all damages herein mentioned which Grantor has or may hereafter suffer.?
It appears that there was some discussion by telephone between the claimants,
who lived in Maryland, and the agents of the respondent, both as to the
purchase and as to loss of rent, but the respondent?s agents always told
claimants that any rent claim in such a matter was a noncompensable item. There
is no evidence of fraud or misrepresentation, and it was admitted the claimants
were able to read.
The transaction was apparently closed by the respondent delivering the purchase
price check to the sellers at a bank in Maryland and simultaneously receiving
the executed deed, the claimants alleging that the respondent said the matter
of rents could be claimed later, but respondent denied that any such statement
was made. The statement alleged to have been made was only testified to in the
form of hearsay by claimants? daughter.
While this Court has considerable sympathy for the claimants, it is forced to
adhere to the law in such cases, and where the parties here executed formal
options and deeds containing releases of the claims now asserted, this Court
must abide by the provisions of such releases unless fraud or other illegality in
regard thereto is shown.
For the reasons stated, we are of the opinion to, and do hereby, disallow the
claim and make no award thereon.
Claim disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 229
Opinion issued March 29, 1971
DOROTHY ELSWICK
vs.
DEPARTMENT OF HIGHWAYS
(No. C-32)
Warren R. McGraw, for the Claimant.
Donald L. Hall, Attorney for Department of Highways for the Respondent.
DUCKER, JUDGE:
Claimant, Dorothy Elswick, alleges that on August 4, 1965, she was driving a
1950 Ford Station Wagon on State Route 10 out of Pineville, West Virginia, down
through the last curve of Jesse Mountain toward Oceana, when a rock from a cut
on the side of the mountain came down and struck her car doing damage to the
front of the car and causing personal injuries, for which she seeks damages in
the amount of $50,000.00. As to the damages to the automobile she makes no
claim, because she says she was compensated therefor by insurance.
As to the cause of the accident, claimant testified that the rock came from
within 10 to 12 feet of the edge of the pavement of the road, that her car
?came to a stop someway? and that she remembered jerking her feet and that the
impact jerked her body ?every which way.? Claimant did not go to a doctor until
a day or two after the accident although she said she had a severe headache and
was nauseated and ?shook all over? immediately after she got out of her car at
that time, and that she thought that at the time of the accident her foot
struck the pedals in the car. Claimant alleges injuries to her foot, her lower
back, and that she has difficulty in bending.
At the instance of the respondent, M. M. Ralsten, M.D., on March 27, 1968
examined the claimant and his opinion and conclusion was that ?she was
afflicted merely by fright due to the impact of the surrounding circumstances
and that apparently she is not aware that her body made any contact with any
object so as to cause contusions or other objective evidence of injury.?
230 REPORTS
STATE COURT OF CLAIMS [W. VA.
The claimant testified that if there
were any ?falling rock? signs at the time of the accident she did not see any,
but that she did see one after the accident. She said the rock fell suddenly;
that she had traveled this road many times. The claimant produced no other
witness to testify as to facts, although she had a passenger in the car with
her at the time of the accident, which witness was now a resident of Florida.
A review of the testimony and the lack of evidence to substantiate the
allegations, as well as nothing to indicate the condition of the road or the
area adjoining the place of the accident, forces this Court to conclude that
the claimant has not proved negligence on the part of the respondent. The fact
that a rock fell is not alone sufficient to show such negligence. Damages
cannot be awarded unless caused by negligence. Nor, in the light of the
evidence of Dr. Raisten, do we consider the evidence of injuries alleged as
attributable to the accident satisfactory for an award.
For the reasons stated, we are of the opinion to, and do hereby disallow this
claim, and make no award herein.
Claim disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS _____? 231
Opinion issued March, 29, 1971
MARTHA V. WHITTINGTON
vs.
DEPARTMENT OF HIGHWAYS
(No. D-311)
CHARLES G. WHITTINGTON
vs.
DEPARTMENT OF HIGHWAYS
(No. D-312)
Thomas P. O?Brien, Jr., Attorney at Law, for the Claimants.
Donald L. Hall, of Department of Highways, for the Respondent.
DUCKER, JUDGE:
Claimants, Martha V. Whittington and Charles G. Whittington, allege damages in
the amounts of $5,000.00 and $1,500.00, respectively, by reason of injuries
suffered by Martha V. Whittington, and medical expenses incurred by, and loss
of services by Charles G. Whittington as husband of Martha V. Whittington, all
occasioned by the alleged negligence of the respondent in leaving a hole in the
paving of MacCorkie Avenue, Kanawha City, Charleston, West Virginia, a state
highway, into which hole claimant Martha V. Whittington alleges she fell on
August 20, 1968, while said claimant was crossing said avenue.
These claims being based on the same facts, pursuant to agreement of counsel,
were heard together and submitted for decision.
Claimant, Martha V. Whittington, alleges that while crossing said MacCorkle
Avenue on said date she tripped and fell in a large hole negligently opened and
left in said boulevard, and that she was thrown to the ground breaking her
right arm, to which claim respondent answered denying the claim and alleging
that any injuries suffered by claimant were the re
232 REPORTS
STATE COURT OF CLAIMS [W. VA.
suit of her own negligence, and that consequently neither she nor her husband
are entitled to recovery of any damages.
Claimant, Martha V. Whittington, testified that she was on her way to work at
Heck?s discount store in Kanawha City at about 9:20 am., August 20, 1968, and
that when the traffic light changed she started across the street, did not see
the hole in the street until she ?started to fail and then when I (she) tripped
and went down I (she) throwed my (her) elbow to catch myself (herself),? and
fractured her right elbow. It does not appear that claimants made any
subsequent examination of the hole in the street which they allege was the
cause of the accident. A witness for the claimant who was with claimant at the
time of the accident stated that the hole in the street was a ?round circle?
with smooth edges, ?no jagged edges,? and that as to the depth of the hole, in
answer to a qLestion as to whether she could state approximately how deep it
we;, she stated ?I don?t think I could but I think it wa about an inch at
least,? and in answer to a further question as ta the depth of the hole and the
circumference of the hole, she replied that it was ?about an inch deep? and
?about the circumference of a grapefruit.?
We are of the opinion that the evidence does not prove the street was
sufficiently out of repair to justify a conclusion that there was actionable
negligence on the part of the respondent, regardless of what may have caused the
hole, or whether the respondent was required by law to repair the place as a
hazard to pedestrians or to traffic.
As the claimant, Martha V. Whittington, is not entitled to recover, it follows
that her husband i3 not entitled to recover for his expenses and the ioss of
the services of hiS wife.
Accordingly, we are of the opinion to, and do hereby, disallow both of the
claims in these two cases.
Claims disallowed.
W. VA.1
REPORTS STATE COURT OF CLAIMS 233
Opinion issued March 29, 1971
VOGT-IVERS & ASSOCIATES
vs.
STATE TAX COMMISSIONER
(No. D-193)
Walter W. Burton for the Claimant.
George E. Lantz and Edward G.
Atkins, Assistant Attorneys General,
for the Respondent.
JONES, JUDGE:
By a written stipulation filed in this case, counsel for the claimant,
Vogt-Ivers & Associates, and counsel for the respondent, State Tax
Commissioner, have agreed that the parties entered into three separate written
contracts of like import for the preparation of tax maps for Webster, Lewis and
Upshur Counties upon terms substantially as hereinafter set forth.
The estimated compensation of $36,733.92 for the tax mapping of Webster County
was arrived at by assigning $2,500.00 of that figure for aerial photography,
with the remainder of the total estimated compensation being based on 8,432
entries on the land books at $4.06 per parcel, 7,882 of which entries were
included on the completed tax maps, leaving 550 entries which were not
included. The amount paid the claimant for the preparation of the Webster
County maps was $34,500.92, made up of $2,500.00
for aerial photography and $4.06 per
parcel for the 7,882 parcels or $32,000.92. It is agreed that if the respondent
owes the claimant any additional sum of money under the Webster County contract
the amount owing would be for the 550 parcels not included on the completed tax
map at $4.06 per parcel or $2,200.33.
The estimated compensation of $68,779.00 for Lewis County was based on 12,620
entries on the land books at $5.45 each, 10,811 separate parcels of which were
included on the completed tax maps of Lewis County and 1,809 entries not being
included. The amount paid to the claimant for the preparation of the Lewis
County maps was $5.45 per parcel for 10,811 parcels, a total payment of
$58,919.95, and it is agreed that if
234 REPORTS
STATE COURT OF CLAIMS [W. VA.
the respondent owes the claimant any additional compensation, it would be for
the 1,809 land book entries which were not included on the final tax maps at
$5.45 per item or $9,859.05.
The estimated compensation in the amount of $61,377.30 for Upshur County was
based on the number of parcels of land listed on the land books of said County,
being 12,146 entries at $5.05 each. 11,409 of the total entries were included
on the completed tax maps and 737 such entries were not included. The amount
paid to the claimant for the preparation of the Upshur County maps was at the
rate of $5.05 per parcel for 11,409 parcels or $57,615.45, and it is agreed
that if the respondent owes the claimant any additional compensation it would
be for 737 parcels at $5.05 per parcel or $3,721.85.
It further has been stipulated that in the case of each County the number of
entries appearing on the land ?joks but which were not included in the
completed tax maps is accounted for by the following: (a) double assessments on
the same piece of property; (b) recorded deeds for portions of land which could
not be located; (c) numerous deeded portions which ended up in rights of way
for railroads, highways, etc.; and (d) divided interests in the same piece of
property.
The total amount of this claim is $15,813.90 and, according to the stipulation,
if the claimant is entitled to recover under its interpretation of the terms of
the three contracts, that amount is admitted to be due and owing.
Pertinent sections of the contracts, which are identical except for the
compensation to be paid, are the following:
?ARTICLE I
* * *
6. Definition of a Parcel
A. For the purposes of this agreement, a ?parcel? shall mean any portion of
land described by a deed recorded in the official records of the county wherein
the land is situate. Provided, however, where the owner of any such parcel has
subdivided his land into separate lots and recorded a map or plat of such
subdivision, the Engineer shall treat each separate lot of such subdivision as
a separate parcel. However, where an owner of land has consolidated his
contiguous real estate holdings into
W. VA.]
REPORTS STATE COURT OF CLAIMS 235
one entry upon the assessor?s land books,
then such holdings shall be treated as one parcel in spite of the fact that
ownership is evidenced by more than one deed.
B. Each parcel shall be numbered. Map parcel numbers shall be consecutive,
beginning with number one on each map sheet. Parcel numbers shall begin in the upper
left hand corner of map sheets and shall continue from left to right ending in
the lower right hand corner of each sheet.?
?ARTICLE VI
The party of the first part will pay to the Engineer, in consideration of and
as compensation for, the Engineer?s performance of its obligations under the
terms of this agreement, the sum of ($4.06 for Webster County, $5.45 for Lewis County and $5.05
for Upshur County) for each separate
parcel of land actually included in the completed tax maps to be provided for
said (Webster, Lewis, Upshur) County under the terms of this agreement, the total
estimated cost of which is ($36,733.92
for Webster County, $68,779.00 for Lewis County and $61,377.30 for Upshur County) .? (Words and figures in parenthesis supplied from
separate contracts.)
The claimant would have the decision in this case turn on the first sentence in
Article I, Paragraph 6A, of each of the contracts, which reads: ?For the
purposes of this agreement, a ?parcel? shall mean any portion of land described
by a deed recorded in the official records of the county wherein the land is
situate.? Claimant contends that it was to be paid for every portion of land
described by a deed in the County Clerk?s office whether such portion actually
existed or not or was left off the final tax maps for one of the other reasons
hereinabove set out. The claimant further says that there were as many or more
tracts of land dealt with than were actually numbered and shown on the final
maps, and that somehow each of these theoretical tracts or parcels are
?included? in the completed tax maps.
However, the consideration and compensation for the engi- fleer?s services is
specifically set out and described in Article VI as being a fixed sum for each
separate parcel of land actually
included in the completed tax maps to
be provided for the respective County under the terms of the agreement. Each of
these contracts calls for an estimated
compensation based upon an estimated number
of parcels to be paid for at a fixed rate
236 REPORTS
STATE COURT OF CLAIMS [W. VA.
per parcel. It is obvious that neither party knew how many parcels would
finally be shown on the tax maps but it was equally obvious to anyone having
knowledge of our county land book records that many of the items listed on the
land books and included in the estimates would prove to be nonexistent or for
other reasons would not be includable upon the maps for the purposes outlined in
the contracts. It is also obvious that the pieces of land shown on the land
books but found not to be includable upon the maps should entail greater work
and investigation than the land book entries which were easily identifiable,
but that must have been taken into account by the claimant and may not alter
the plain language of the contracts. It seems very likely that the claimant
underestimated the additional trouble these items would cause when it submitted
its bid.
We think it may be assumed that the items of property appearing upon the land
books, upon which the estimated compensation was based, were not recorded
without some reason, and in practically all cases there would be some
description, no matter how erroneous, in a deed ?recorded in the official
records of the County wherein the land is situate.? One of the purposes of the
mapping projects was to eliminate improper assessments and as accurately as
possible to determine the number and descriptions of the taxable units of real
estate in each of the counties. Under the contracts each separate parcel included in
the completed maps was to be numbered, and upon consideration of the whole
contract, it appears to the Court and the Court finds that the parties intended
that the total of such numbered parcels should be paid for at the specified
rate per parcel. The Court believes that the contracts are clear as to the
amount of compensation to be paid and it appears from the record in this case
that the claimant has been paid in full.
Accordingly, the claim for an award in this case is disallowed.
W. VA.]
REPORTS STATE COURT OF CLAIMS 237
Opinion issued April 5, 1971
C & D EQUIPMENT COMPANY, A
CORPORATION,
FOR THE USE AND BENEFIT OF THE FIRST
NATIONAL BANK OF SOUTH CHARLESTON,
Claimant,
vs.
THE STATE BUILDING COMMISSION OF WEST VIRGINIA,
AN AGENCY OF THE STATE OF WEST VIRGINIA,
Respondent.
(No. D-324)
Robert H. C. Kay, Esq., and Kay, Casto & Chaney,
for the Claimant.
Thomas P. O?Brien, Jr., and George E.
Lantz, Deputy Attorney General, for the
Respondent.
PETROPLUS, JUDGE:
The claimant, C & D Equipment Company, a corporation, filed its Notice of
Contract claim against the respondent, the State Building Commission of West
Virginia, a public corporation created under the laws of the State of West
Virginia, with powers and duties conferred upon it by Chapter , Article 6 of the official Code of West Virginia,
seeking to recover the sum of $48,340.36. The case was submitted on a
Stipulation of Facts and only legal questions relating to the interpretation of
the Contract are presented to this Court for determination.
The following is the factual situation as revealed by the Record. The State
Building Commission was created for the construction of public buildings for
specified purposes with powers to contract and acquire by purchase or otherwise
real property necessary for its corporate purposes and to exercise the power of
eminent domain to accomplish such purposes. The Commission is also authorized
to construct buildings on real property which it may acquire in the City of
Charleston, and issue State Building Revenue Bonds to finance the costs of its
projects. Prior to the 29th day of December, 1967, the State Building
Commission decided upon and did commence the acquisition of property for the erection
and construction of
238 REPORTS
STATE COURT OF CLAIMS [W. VA.
certain buildings, and on December 29, 1967, entered into a Contract with the
claimant for the furnishing of all equipment, labor and performing all of the
work necessary for the demolition of certain structures described in the
Contract by street addresses and parcel numbers. The Contract stated that time
was of the essence and the Commission would pay the amounts set forth with unit
prices in the claimant?s Proposal which was attached to and made a part of the
Contract by reference. The Proposal covered approximately 63 structures with a
specified bid price for each structure ranging from $45.00 to $4550.00,
depending upon the size and condition of each structure. The Notice to bidders
requesting sealed bids to be submitted stated that separate bids must be made
for each building in the Capitol Complex Project, and possession of each
building for demolition purposes will be awarded to the contractor on an
individual basis. The contractor?s bid proposal included detailed
specifications for a complete demolition of the buildings, severance of utility
services, grading and parking lot surfacing, rat control, as well as a time
schedule for the completion of the demolition work for designated buildings not
later than April 1, 1968, and other designated buildings not later than May 1,
1968. The project was not completed until June 30, 1968, because of the alleged
failure of the respondent to release the properties to the claimant with proper
order and timing to allow the contractor to schedule and complete its work in
an orderly, efficient and economical manner as it had planned to do when it
examined the Proposals and made its bid to demolish all structures for an
aggregate sum of $41,717.00.
The delay of the State Building Commission to make available the structures is
charged as a breach of its contract. The claimant was required to raze a
structure in one area and move to an entirely different location to demolish
another structure, completely disrupting its plans to execute the Contract
according to a schedule of operations as contemplated by the parties, thereby
causing the plaintiff to spend an additional sum of money for the rental of
equipment, labor and for the idleness of its own equipment and other costs and
expenses over and above the Contract price, making a total claim of $48,340.36.
The claim for damages and extra compensation, with supporting data and
affidavits, was thoroughly investigated by the State
W. VA.]
REPORTS STATE COURT OF CLAIMS 239
Building Commission and, as a result of such investigation, the losses were
verified and the Commission recommended the payment to the claimant of the sum
of $29,907.68. The respondent thereupon made its requisition for payment of
said sum to Denzil L. Gainer, Auditor of the State of West Virginia, for the
issuance of a Warrant to the Treasurer of the State for the payment of said
sum. The State Auditor would not approve the payment of the requisition and
thereupon the claimant filed a Petition for Mandamus in the Supreme Court of
Appeals of the State of West Virginia to compel the payment of the sum of
$29,907.68, the agreed amount of the settlement between the parties. The
Supreme Court of Appeals, in its Opinion dated April 14, 1970, refused the
Writ, holding that the State Office Building Commission was a State Agency and
as such immune from suit and that the claim should be submitted to the State
Court of Claims for determination. The Court further held that the Auditor had
no authority to issue a Warrant for such a claim without authorization for
payment by the Legislature after the claim had been considered favorably by the
Court of Claims.
In order to finance the work, the claimant assigned the money it was to receive
under the Contract to The First National Bank of South Charleston, which
Assignment was accepted by the State Building Commission.
The claimant?s contention is that it is entitled to recover damages for the
delayed release of structures for demolition in violation of a contemplated
sequence of operations which would have enabled the contractor to do its work
efficiently and economically. The State?s contention admits the authorized
payment to the claimant of $29,907.68 as additional compensation for damages
and extra work, but denies any legal obligation to the claimant.
An examination by this Court of all the contract documents, including the
specifications, bid proposal and all the circumstances surrounding the project,
reveals that the contractor relied upon an orderly, efficient and business-like
release of the structures for demolition. In our opinion, it cannot be
seriously contended by the respondent that when a completion date is specified
for designated structures not
240 REPORTS
STATE COURT OF CLAIMS [W. VA.
later than April 1, 1968, and other designated structures not later than May 1,
1968, that a proper interpretation of the Contract would permit the respondent
to release the properties for demolition in a haphazard manner requiring the
contractor to keep its equipment idle and causing him to move unnecessarily
from one site to another to suit the convenience of the respondent. A
reasonable performance of the Contract required the respondent to make the
properties available in a sequence of operation which would allow the
contractor to perform its work in a reasonably efficient manner. It is clear
from this Record that the Building Commission after an investigation admitted
its fault by recommending the payment to the contractor of the additional sum
of $29,907.68, which amount is not entirely sufficient to compensate the
contractor for its full loss.
In view of the foregoing, we are of the opinion that this is a legal claim
which the State in good conscience should pay for failure to perform its part
of the Contract in a reasonable and proper manner. If the State, for reasons
beyond its control, was unable to make structures available for timely
demolition, it should have exercised its right set forth in the Contract
documents, to eliminate from the project such structures as were not available
for demolition.
For the reasons stated herein, the Court is of opinion to award claimant the
sum of $29,907.68.
Claim allowed in the amount of $29,907.68.
W. VA.]
REPORTS STATE COURT OF CLAIMS 241
Opinion issued February 15, 1971
CHARLES E. TALBERT, Claimant,
vs.
DEPARTMENT OF HIGHWAYS, Respondent.
(No. D-348)
No appearance for the Claimant.
Donald L. Hall, Esq., for the Respondent.
PETROPLUS, JUDGE:
The claim in the amount of $40.17, submitted on Notice of Claim and Answer
without any evidence, arises from damage caused to the white canvas top of a
boat passing under the Fort Henry Bridge in Wheeling, West Virginia, caused by
tar being dropped and splattered from the bridge while the Respondent?s employees
were applying tar to the road surface of the bridge on July 8, 1970. The State
confirms that the asphalt leaked into the river during its application and that
no precautions were taken to warn persons passing under the bridge of its
application. It is also admitted that one approaching the bridge by boat would
not be able to observe that work was being performed on the bridge or the
nature of the work.
The claim is, therefore, allowed.
Claim allowed in the amount of $40.17.
242 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued February 15, 1971
ROBERT LEE HOLLEY, Claimant,
vs.
DEPARTMENT OF HIGHWAYS, Respondent.
(No. D-351)
No appearance for the Claimant.
Donald L. Hall, Esq., for the Respondent.
PETROPLUS, JUDGE:
This claim in the amount of $56.14 is submitted on Petition and Answer
admitting the facts.
The Claimant was driving his motor vehicle over a bridge near Barboursville,
West Virginia, when a large metal plate covering a hole in the bridge became
loose and detached. A bent up corner of the plate caused a cut in the wheel and
tire of the motor vehicle, and damaged the wheel cover, as the car passed over
the bridge, resulting in damage in the amount of $56.14.
The State has admitted liability because of its negligence in covering the hole
with a large metal plate that was not securely fastened to the biidge surface
by the crew of the Respondent which made recent repairs to the bridge. After
the accident the State welded the metal to the bridge and placed bituminous
concrete around it.
The negligence of the State being apparent, and the Claimant being free from
fault, the claim is accordingly allowed.
Claim allowed in the amount of $56.14.
W. VA.]
REPORTS STATE COURT OF CLAIMS 243
Opinion issued June 15, 1971
ESTATE OF L. M. GATES
vs.
DEPARTMENT OF HIGHWAYS
(No. D-453)
No appearance in behalf of Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, and Donald L. Hall, of Department of Highways, for the Respondent.
DUCKER, JUDGE:
Claimant, Florence C. Gates, Executrix of the Estate of L. M. Gates, alleges
that on January 13, 1971, the workmen of the Department of Highways cut down a
tree adjacent to the Claimant?s property located at 532 Ferry Street,
Charleston, West Virginia, and allowed the tree to strike a high voltage
electric power line leading into the home of Claimant resulting in a surge of
approximately 7200 volts of electricity in the Claimant?s household wiring, and
that such surge of electricity damaged the service entrance box in Claimant?s
house requiring repair costs in the amount of $89.25.
Respondent admits the allegations of the Claimant and the consequent liability
for the damage and the amount of the damage. As the question of negligence is
clearly obvious, we are of the opinion to, and do hereby award the Claimant the
sum of $89.25.
Award of $89.25.
244 REPORTS STATE COURT OF CLAIMS [W. VA.
Opinion issued June 15, 1971
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY
vs.
WEST VIRGINIA BOARD OF REGENTS
(No. D-414)
No appearance in behalf of Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, for the Respondent.
DUCKER, JUDGE:
Claimant, State Farm Mutual Automobile Insurance Company, a corporation, as
subrogee of Damaris 0. Wilson, alleges damages in the amount of $97.56. the
cost of necessary repairs to the automobile of said Damaris 0. Wilson which was
damaged by an act of an employee of the Respondent, while such employee was at
work on the premises of Concord College at Athens, West Virginia.
The facts are stipulated by the Claimant and Respondent, and liability is
admitted by counsel for the Respondent.
The facts appear to be that on September 12, 1970, Damaris 0. Wilson, who was
at that time Dean of Women at said College, had her automobile lawfully parked
behind the west wing of the College?s Administration Building, and while so
parked an employee of the college was driving a stake in the ground with a
hammer which evidently had a loose head, and the loose head flew off and struck
the windshield of the Wilson car, damaging it so as to require replacement at a
cost of the amount of this claim. That this was negligence in the employee
using a tool which was defective is obvious, and because of said negligence we
are of the opinion to, and do hereby award the Claimant the sum of $97.56.
Award of $97.56.
W VA.] REPORTS
STATE COURT OF CLAIMS 245
Opinion issued June 15, 1971
RETREADING RESEARCH ASSOCIATES, INC.
vs.
DEPARTMENT OF FINANCE & ADMINISTRATION
(No. D-356)
Calvin W. Cole, President, for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, for the Respondent.
DUCKER, JUDGE:
Claimant, Retreading Research Associates, Inc., a Virginia corporation, of
McLean, Virginia, seeks payment of $5,400.00 for services rendered to the Department
of Finance and Administration in giving tests for mileage, durability, wearing
and strength of automobile tires so that Respondent could determine the best
tires for the State to purchase.
The evidence introduced by the Claimant consisted of the testimony of the
President of the claimant company as to the work done and there was no
contradiction of the facts related by him, and the only question involved in
this matter is the legality of the agreement, the State?s position being that
the contract was not approved by the Attorney General in accordance with the
requirements of Chapter 5A, Article 3, Section 15 of the Code.
The evidence of the Claimant is that in the last few days of October, or the
first few days of November, 1969, it received a call from the Director of the
Division of Transportation of the State of West Virginia to the effect that
there was a tire purchase contract in the process and the State would like to
have test work done before November 20, 1969, the date for the acceptance of
bids, to determine whether or not the tires involved in the bids submitted to
the State were of equal quality and whether the low bid was, in fact, a good
value. Following the conversation the Claimant was furnished with twelve tires,
two tires from each of six companies that were bidding on a contract, and
requested and directed Claimant to proceed with the testing contemplated. The
tests showed the varying qualities of the tires and the Claimant so reported to
246 REPORTS STATE
COURT OF CLAIMS [W. VA.
the State and the State was enabled to save money in its purchases. When the
testing work was in process the Respondent assured the Claimant early in
November that an order or written contract for the work would be forthcoming
from the State and such an order dated November 14th was signed by both the
Commissioner of the Department of Finance and Administration and by the
Director of the Division of Purchasing, which order specified the sum of
$5,400.00 as the contract price. When the work was completed, Claimant reported
its findings before November 20th and the State had the benefit of the
Claimant?s work. Claimant at the time of making its report to the State
requested payment and stated that although it was customary for it to receive a
formal written contract before proceeding, it had proceeded nevertheless with
the work because of the urgency of the matter. Upon completion Claimant was
advised that a check for payment was in the mail. Such check was never received
and about two months later Claimant was advised that it could not be paid
because the contract had not been approved by the Attorney General.
With the facts undisputed, we must decide whether or not this claim which was
without approval of the Attorney General should be allowed as a moral obligation
of the State.
Code 5A-3-15 requires contracts of this nature to be approved as to form by the
Attorney General. Code 5A-3-17 allows for purchases in the open market in cases
of emergency by compliance with special provisions applicable thereto. While
this latter section of the Code may be considered as not applicable, and we do
not consider it strictly applicable, but it does evidence a certain spirit of
the law in that 5A-3-15 refers only to the matter of form. In the instant case
the emergency was created by the Respondent, but the State officers in charge
evidently felt the work necessary immediately in order to avoid costs of
re-advertising and other expenses and inconveniences to bidders. The work here
involved was necessary to be done before November 20th, the day of the tire
letting contracts. However, we are not holding that this was such an emergency
as is contemplated by the statute but we believe that the statute should be
liberally construed, when to do so is equitable and fair.
W. VA.]
REPORTS STATE COURT OF CLAIMS 247
The statute requiring the approval by the Attorney General is as to form only. It
was not intended for the Attorney General to pass upon the substance of the
agreement, but only that the agreement was legally expressed. There seems to be
no question that the form of the contract was correct because it was on the
regular printed forms of the Department.
The requirement of the statute requiring the approval of such contracts by the
Attorney General is a salutary one and this Court will not disregard it in any
case which does not have special reason for not enforcing it. However, here
there are, we think, special reasons why it should not be so strictly
construed, when in all fairness and justice a strict application thereof would
be unconscionable.
The Claimant has in all good faith performed the agreement upon the
representations of high officers of the State, and being an out-of-state
citizen or corporation should be allowed greater consideration in its dealings
with the State where everything appears valid and all its conduct is
unquestionably up and above board. According to the record the State has saved
money by Claimant?s work and if Claimant is not paid, the State will be
unjustly enriched at Claimant?s expense.
In view of all the facts this Court is of the opinion that this claim
constitutes a moral obligation of the State, and we hereby award the Claimant
the sum of $5,400.00.
Award of $5,400.00.
248 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued June 15, 1971
ROY VANDERGRIFT
vs.
DEPARTMENT OF HIGHWAYS
(No. D-354A)
STONEWALL CASUALTY COMPANY
vs.
DEPARTMENT OF HIGHWAYS
(No. D-354B)
Stephen P. Meyer, Attorney at Law, for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, and Donald L. Hall, of Department of Highways, for the Respondent.
DUCKER, JUDGE:
Roy Vandergrift, Claimant in case No. D-354A, and his subrogee, Stonewall
Casualty Company, a corporation, Claimant in case No. D-354B, which cases are
based on the same accident, were by agreement of all parties heard together,
Claim No. 354A being for $4,178.45 and No. 354B being for $1,909.00 damages
which Stonewall Casualty Company paid on account of its payment of insurance on
the truck involved in the accident.
Vandergrift?s employee was on January 5, 1970, driving a tractor-trailer truck
owned by Claimant at about eleven o?clock in the morning on Interstate Route 77
going toward Parkers- burg, West Virginia, when his truck struck a large
boulder in the road with resultant damage in the amount claimed.
The driver testified that he had come to the top of the hill at Etna and ?had
dropped over the hill where this slip was, and there was only one-lane road?;
that a State Road truck had pulled out on the road behind him and he looked
through his mirror to see where the State Road truck was and as he turned
around he hit a dip in the road and there was a rock in the one-lane travel
portion of the road; that he tried to
W. VA.] REPORTS STATE COURT OF CLAIMS 249
miss the rock which he thought he had
missed but hadn?t. He described the rock as 18 inches high and 18 inches long,
but from the photographs introduced in evidence the rock would seem to have
been much larger.
Road work was being done at the place of the accident and the right lane was
blocked off with barricades and the rock was in the middle of the left lane
adjacent to the median. The speed of the truck was estimated at forty miles an
hour although witness had previously stated fifty miles an hour which statement
he later said he desired to correct.
Claimants base their claims on the contention that the rock had fallen from a
Department of Highway?s truck which had been hauling rocks from that vicinity.
No one testified as to either seeing the rock fall or that it was in the road
at any time prior to the time of the accident. As the State was doing work to
correct a slip in the road at that place and time, we can only assume that the
rock must have fallen from a truck or somehow left there in the work. A
decision in this case does not depend upon the establishment of such fact.
The driver further said that the sun was shining and when he went into the
?dip,? there the rock was, and it was of the same color as the road, and
consequently he did not see the rock until right on it and he tried not to hit
it. The road signs showed there was a ?dip? in the road.
From the evidence it appears that the driver had full warning of the work on
the road and of the dip in the road, and should have known that driving at a
speed of between forty and fifty miles under such conditions was unsafe for
that part of road, and that he should have seen such a large rock in t1le
sinc?le lane of travel, and that his failure to see and avoid the rock was
conduct not of a reasonably careful driver. The proximate cause of the
accident, in our opinion, was the negligence of the driver of Claimant?s
tractor-trailer truck which sufficiently contributed to the cause as to bar any
recovery for the damages sustained.
We deny both claims and make no award herein.
Claims disallowed.
250 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued June 15, 1971
KEELEY BROTHERS, INC.
vs.
STATE TAX DEPARTMENT
(No. D-330)
Patrick J. Keeley, Vice-President, for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, for the State.
DUCKER, JUDGE:
Claimant, Keeley Brothers, Inc., of Clarksburg, West Virginia, seeks a refund
of $420.00 from the State Tax Department, which amount Claimant paid as an
excise tax on 6,000 gallons of Diesel fuel oil purchased by Claimant on March
26, 1970, from R. H. Bowman, Inc., of Rainelle, West Virginia, a distributor
for Gulf Oil Corporation.
The tax paid at the rate of .07 cents per gallon was subject to refund if
application were made in accordance with the provisions of Section 20, Article
14, Chapter 11 of the Code of West Virginia. The invoice for the purchase of
the fuel oil shows that the fuel oil was delivered on March 26, 1970, and the
payment therefor was made on June 29, 1970. The application of the Claimant to
the Tax Commissioner for the refund was mailed at Rainelle on June 30, 1970,
and received in Mail Division No. 2 of the Capitol at Charleston on July 1,
1970. Claimant?s check in payment of the account was dated June 23rd, and the
same evidently was not received in Rainelle until June 29th, six days later,
which Claimant says was the fault or slowness of the mail service. However,
when payment was mailed or received is not important in the decision in this
case.
The statute providing for refunds, Code 11-14-20, specifically states that the
Tax Commissioner shall cause a refund to be made only when an application for
refund is filed with the Tax Commissioner, upon forms prepared and furnished by
the Tax Commissioner, within ninety days from the purchase
or delivery of the gasoline, and
that any claim for refund not filed
W. VA.]
REPORTS STATE COURT OF CLAIMS 251
within ninety days from the date of
the purchase or delivery shall not be construed to be or constitute a moral
obligation of the State of West Virginia for payment.
The date of payment is not material although the invoice which showed the
payment was proof of the purchase and its introduction in the evidence was
proper for that purpose. The only date on the invoice that is material to the
application for refund is the date of purchase, namely March 26, 1970, which
according to the invoice was evidently the date of delivery.
The real and only question is whether the applicaticrn for refund was
made in ninety days from the date of purchase or delivery of the fuel oil which
would be within ninety days from March 26th. The application for refund was
contained in an envelope with a postmark of Rainelle, West Virginia, dated June
30th and recived in the Capitol mail division on July 1, 1970. There is no
dispute in the record as to these dates.
Claimant contends that delay in the mail service was the cause of the lateness
in the arrival of Claimant?s application for refund. As the application was
postmarked June 30th in Rainelle and received in Charleston on July 1st, such
delay must have been entirely in the post office at Rainelle if the application
was mailed prior to the postmarked date of June 30th, a period of three or four
days after the ninety day period had expired.
A Tax Department witness testified that the Department always accepted the
postmarked date of the place of mailing as controlling the matter of time,
which in this instance was June 30th. This practice seems to this Court as the
only safe and fair practice in such matters, although it is conceivable that
there could be other means of determining such fact. In the absence of such
other proof, and the fact that Claimant has not attempted to prove otherwise,
we must accept the record that the application for refund was mailed at
Rainelle on June 30th.
Statutes of the nature of that involved in this case must of necessity be
strictly applied in order to protect the State against negligent, careless, and
even fraudulent claims, although in many instances, such as this one, this
Court knows
252 REPORTS
STATE COURT OF CLAIMS [W. VA.
it is made in all good faith. Even though we may feel exceptions to applying
the statute should in some cases be made, the statute expressly prohibits this
Court from doing so by the provision that there shall not be a moral obligation
of the State to pay such a claim.
For the reasons herein stated, this Court is constrained from making and does
not make any award to the Claimant herein.
Claim disallowed.
Opinion issued June 15, 1971
LARRY AND EMMA LOU DOLIN
vs.
DEPARTMENT OF HIGHWAYS
(No. D-308)
P. W. Hendricks, Attorney at Law, for Claimants.
Thomas P. O?Brien, Jr., Assistant Attorney General, and Donald L. Hall, of Department of Highways, for the Respondent.
DUCKER, JUDGE:
Claimants, Larry Dolin and Emma Lou Dolin, husband and wife respectively,
allege damages in the sum of $10,000.00 on account of injuries sustained and
medical expenses incurred by reason of said Emma Lou Dolin falling from a
bicycle she was riding, the front wheel of which hitting a large hole in a
blacktop road on Camp Creek off of Route 3, in Boone County, West Virginia,
between noon and one o?clock on April 28, 1969.
The evidence is substantially the following: Emma Lou Dolin, a resident of
Mantua, Ohio, was visiting her husband?s parents in Boone County, and that she
rode a bicycle to a school where her brother, age 1, was, and as she was
returning to her place of visit with the brother on the back seat or place
behind her on the bicycle, the wheel of the bicycle hit and went into a large
hole in the road, causing her to be thrown off of the bicycle onto the road and
to suffer injuries to her
W. VA.]
REPORTS STATE COURT OF CLAIMS - 253
eye, face, and abrasions on her arms and knees and pains in her back. The hole
in the road described as being round, a foot and a half wide, and a ?little
bigger? lengthwise. The day was bright and sunny and visibility was good. The
depth of the hole was stated to be knee deep and one witness said it was waist
deep.
One witness said he lived 150 yards from the place of the accident and that
when he was sitting under an apple tree near his house he saw the accident:
that the hole in the road could not be seen until a person was ?right on it,?
and that it had been there for four or five months but the Road Commission had
filled up the hole after the accident and had later blacktopped the road.
A witness for the Respondent testified that although there was a little bank or
rise in the road shortly before one approaches the place of the hole, the hole
was visible ahead some 50 to 55 feet and that one?s vision of the hole was not
obscured, and that the hole was partly in the traveled part of the highway and
partly in the berm.
No evidence that notice of the hole was given to the Respondent. It appears
that as it was early Spring there were other holes in and along the highway in
that vicinity.
Claimant testified that she had passed over that part of the road on her way to
the school to pick up her brother and she then had to go around some of the
holes and that nothing prevented her from seeing the hole. She was not well
acquainted with the road although she was in the area about two months before
the accident. Claimant, the husband, testified that when he had driven an
automobile over the hole he did not lose control of the car, but only that it
?throwed me quite a bit.?
The bicycle was ridden with Claimant on the seat and her brother behind her ?on
the seat or the metal,? the latter referring to the ?fender with the long extra
piece that goes on the back? and ?over the back so someone can sit on the
back.? Whether this bicycle can be classified as one which cannot be ridden
legally by more than one person is difficult to determine, but in view of our
finding as hereinafter contained, it is not necessary to determine such
question in this case.
254 REPORTS
STATE COURT OF CLAIMS [W. VA.
Considering all the facts in the
case, particularly the fact that the hole was a large one as it appears from
the picture exhibits as well as the testimony, the fact that it was plainly
observable a distance of 50 to 55 feet, the fact that Claimant had previously
observed many holes, though smaller, as she had traveled the road on her way to
get her brother, and that the weather was clear and dry, we are of the opinion
that Claimant could and should have seen the hole and avoided it, and that her
failure to do so constitutes contributory negligence which deprives her of a
valid claim for damages for her injuries, which by the exercise of proper care
she could have avoided.
We, therefore, deny the claims of the two Claimants, and make no award herein.
Claim disallowed.
Opinion issued June 15, 1971
PETER P. CASSEL, by Ruth M. Cassel,
his mother and next
friend, and RUTH M. CASSEL, individually
vs.
DEPARTMENT OF HIGHWAYS
(No. D-108)
Galbraith, Seibert &
Kasserman, and Ronald W. Kasserman, for
the Claimants.
George H. Samuels, Assistant Attorney General, and Donald L. Hall for
the Respondent.
JONES, JUDGE:
The claimant, Peter P. Cassel, individually, and by Ruth
M. Cassel, his mother and next friend, claims damages in this case against the
Department of Highways, formerly State Road Commission, in the amount of Four
Hundred Thousand Dollars ($400,000.00) for personal injuries, and Ruth M.
Cassel, in her own right, claims damages in the amount of One Hundred Thousand
Dollars ($100,000.00) for medical, hospital and rehabilitation expenses
resulting from the wreck of an
I
W. VA.1
REPORTS STATE COURT OF CLAIMS 255
Austin-Healey Sprite automobile, driven by Glenn R. Wenzel, along West Virginia
Route No. 67, in Brooke County, on the 8th day of September, 1967, at about
11:50 p. m., at which time the claimant, Peter P. Cassel, was a passenger in
said car. Cassel and Wenzel were students and fraternity brothers at Bethany
College. Cassel was nineteen years old, just starting his sophomore year, and
Wenzel, twenty, was in his junior year. The claimant as a freshman, had made
the N.A.I.A. All-America Swimming Team and was an outstanding prospect for national
and perhaps Olympic honors as a swimmer.
Earlier in the evening, both boys had gone, in separate cars, to Harry?s Bar in
Wellsburg for sandwiches and beer, and after returning to their fraternity
house, again in separate cars, they went to a place on Route 67, near the
Pennsylvania State Line known as Emily?s or Buffalo Inn, apparently a favorite
gathering place for Bethany students. After about two hours, Wenzel let it be
known that he was going back to school and asked if anyone wanted to ride with
him. The claimant accepted the invitation. As they took their places in the two
bucket-seats, they fastened their seatbelts and rode away with the top of the
car down. At a point approximately one mile east of Bethany, the Wenzel ear
failed to negotiate a dangerous horseshoe curve known in the area as ?Gibson?s
Turn.? The Wenzel car crossed the highway to its left, ran over about a
ten-foot embankment and turned over, trapping both passengers under the
vehicle. The claimant and Wenzel were extricated from the wreck by friends who
were following in another car but did not witness the accident. The following
day the driver, Wenzel, pleaded guilty before a Justice of the Peace to a
charge of failure to have his vehicle under control.
The claimant suffered a broken neck and his spinal cord was injured between the
sixth and seventh vertebrae resulting in paralysis from his chest down through
and including his lower extremities and also paralysis in the extremities of
his fingers and hands. He was taken by ambulance to North Wheeling Hospital
where he remained until September 12, 1967, when he was transferred to a
hospital in his home city, Buffalo, New York, where he was treated by Dr.
George A. Cohn, who diagnosed his case as a fracture dislocation of the cervical
spine. On October 31, 1967, the claimant was admitted to Rusk
256 REPORTS
STATE COURT OF CLAIMS [W.VA
Institute, the rehabilitation center of New York University in New York City
and remained a patient there and in the New York University Medical Center
Hospital until May 1969. The claimant is a quadriplegic; his lower extremities
are completely paralyzed and he has partial paralysis of the upper extremities.
He will require continued medical treatment so long as he lives and his life
expectancy is nearly normal. Dr. Donald A. Covalt, Associate Director of the
Institute of Rehabilitation Medicine of New York University Medical Center,
comments on the permanency of the injuries as follows: ?Peter is now completely
disabled and as far as physical work is concerned, he must contemplate a
wheelchair existence for the rest of his life.?
The claimant charges that his injuries are the proximate result of acts or
omissions of the respondent constituting negligence, substantially as follows:
(1) The curve in question at the time of the accident was completely and
totally unmarked by signs or warning devices of any type or nature;
(2) The curve was completely and totally unprotected by guardrail around the
same; and
(3) The paved portion of the road on said curve was in a defective condition
and contained a rut variously described as approximately three to six inches
deep and approximately twelve to fifteen feet long. The claimant further
contends that the respondent had notice of these hazards and failed to do anything
about them.
First we will dispose of the matter of signs and guardrails. There is
conflicting evidence as to whether there was a curve sign at a proper location,
or whether there was no sign, or a damaged sign. Years before, perhaps twenty
or more, a guardrail had been constructed around this curve but apparently for
reasons of economy or upon judgment that such guardrail was unnecessary, the
same was allowed to deteriorate until only remnants remained?a few rotten posts
and no cable. This curve was well known to the driver and his passenger, the
claimant, and we do not believe that their conduct on entering the curve was
affected in any way by the absence of warning
W. VA.i
REPORTS STATE COURT OF CLAIMS 257
signs or guardrails. The driver testified that he was not misled by the absence
of either. In any event, we will apply the law laid down in Adlcins v. Simms, 130 W.Va. 645, 46 S.E. 2nd 81 (1947), as follows:
?We do not think the failure of the state road commissioner to provide
guardrails and roadmarkers, and to paint a center line on the highway,
constitutes negligence of any character, and particularly no such negligence as
would create a moral obligation on the part of the State to pay damages for injury
or death, assumed to have occurred through such failure, and as the proximate
cause thereof. The very nature of the obligation of the State, in respect to
the construction and maintenance of its highways, precludes the idea that its
failure to exercise discretion in favor of a particular location over another,
or whether it should provide guardrails, center lines or danger signals at that
point, is an act of negligence. Certainly, it must be known, as a matter of
common information, that places of danger on our highways exist at innumerable
points, particularly on our secondary roads, and in many instances on primary
roads. This being a mountainous country, many of these roads are narrow, with
steep grades and sharp curves. Considering the financial limitations placed
upon the road commissioner, it would seem impossible to take care of all
defects at one time, even in one year, assuming that labor and supplies could
be made available. In the very nature of things the road commissioner must be
permitted a discretion as to where the public money, entrusted to him for road
purposes, should be expended, and at what point guardrails, danger signals and
center lines should be provided, and the honest exercise of that discretion
cannot be negligence.?
The difficult crux of this case involves the claimant?s charge that respondent
was negligent in permitting a defect in the public road to exist and failing to
repair the same after it knew or should have known that the defect was
hazardous to the traveling public. The defect was described by the driver
Wenzel as a ?rut? three inches deep and ten to fifteen feet long. Wenzel
referred to the ?rut? in his testimony as follows: ?s * * Something like grabbed the front end of the car and put
me out of line where I was intended to go. I had no control. * * * I could not steer. My wheels were locked. I would say
the righthand wheel was caught in a rut which was directing the control of the
car.? John Cruchiak, Jr., Mainte
258 REPORTS STATE COURT OF CLAIMS [W. VA.
nance Superintendent of the West Virginia Department of Highways for Brooke
County, would not call the defect a rut but described the condition as the
result of an overlapping of the last laid asphalt over an old blacktop surface,
the new layer of asphalt not having a proper base and consequently breaking
down. This witness described the defective condition as ?frayed.? A photograph
introduced in evidence lends some confirmation to both of these descriptions.
While the picture shows a depression on the paved portion of the road, it
appears that there is a stepped drop-off to the shoulder of the road, the so
called rut being the first step and then another drop-off of three to four
inches to the shoulder.
Drop-offs, frayed edges and ruts along the borders of our highways are a way of
life in West Virginia. The traveling public contends with them every day in all
parts of the State. In this case there was a defect in the highway, but the
question is whether the break in the pavement was such a defect as would
support a claim of negligence and a consequent moral obligation of the State to
compensate the claimants for their injuries and expenses. The evidence
discloses that Route 67 was patched from end to end each year, and the
Maintenance Superintendent for Brooke County testified that unusual hazards
were corrected upon discovery insofar as funds were available.
We are not impressed by the testimony of the Deputy Sheriff who said he had
given notice of the hazardous condition of the curve to the State Road Office
and to other State Road employees. This is the same Deputy Sheriff who
investigated the accident and wrote in his report that no defect existed, then,
after examining the road later in daylight, changed his report to show a
defect. The other investigating officer testified that he did not notice any
defect at the time of the accident. Both the Maintenance Superintendent and the
State Road Office and Maintenance Secretary testified that no notice was ever
given to them by anyone that a hazardous condition existed at Gibson?s Turn.
The Maintenance Superintendent further testified that he traveled the road
frequently and had observed no condition at Gibson?s Turn which he would
consider out of the ordinary. All witnesses agreed and
W. VA.]
REPORTS STATE COURT OF CLAIMS 259
confirmed the common knowledge that Gibson?s Turn, in itself, is a hazardous
curve, requiring extreme care by all who traverse it.
Apparently, the five to six-inch ground clearance of the Austin-Healey car and
its small tires increased the danger of a drop-off and driving with the top
down added to the chance of personal injuries. This in many ways was a ?freak?
accident insofar as the magnitude of the claimant?s injuries is concerned, as
the car turned over rather slowly, without great violence, and the driver was
only slightly injured.
Following decisions of the Supreme Court of Appeals of West Virginia, this
Court has consistently held that the State is not an insurer and its duty to
travelers is a qualified one, namely, reasonable care and diligence in the
maintenance of its highways under all the circumstances. The maintenance of
highways is a governmental function and funds available for road repairs are
necessarily limited. We do not believe there is a clear showing in this case
that the respondent knew or should have known that such a dangerous condition
existed as reasonably would be expected to cause injury or damage to users of
the highway. In our opinion, the claimants have not proved such a positive
neglect of duty by the respondent as would create a moral obligation on the
part of the State to pay damages to the claimants.
Even though we assume arguendo that the respondent failed to exercise ordinary
and reasonable care in the repair and maintenance of this highway, we are of
the opinion that the rut or break complained of could only have been a remote
and incidental cause of the injuries sustained by the claimant Peter Cassel and
not the efficient proximate cause thereof. The physical facts and circumstances
persuasively indicate that Wenzel?s careless and improper driving was the
proximate cause of the accident, and such finding is supported by the driver?s
plea of guilty to the charge of failing to have his vehicle under control.
The Court is not unmindful of the terrible tragedy involved in this case, nor
of the inherent impulse for compassion. The courage of Peter Cassel commands
respect, and his needs are of such magnitude that our decision becomes an
extremely un
260 REPORTS STATE COURT OF CLAIMS [W. VA.
happy one. We are further constrained to say that this case was ably tried,
briefed and argued by counsel for the claimants. However, we believe that our
findings of fact and our view of the law of the State of West Virginia
governing this case require the disallowance of these claims and, accordingly,
the same are hereby dismissed.
Opinion issued June 30, 1971
BETSY ROSS BAKERIES, INC.
vs.
DEPARTMENT OF MENTAL HEALTH
(No. D-404)
Stanley H. Ser gent, Jr., for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General, for the Respondent.
JONES, JUDGE:
During the months of May and June, 1968, the claimant, Betsy Ross Bakeries,
Inc., of Ashland, Kentucky, furnished bakery products to Cohn Anderson Center
at St. Marys, in Pleasants County, under a valid State contract. Invoices
totalling $841.10 were duly and timely submitted to the respondent, but the
same were mislaid by an unknown employee of the respondent so that transmittals
for payments were not received by the State Auditor until after July 31, 1968.
By this time, funds appropriated for the fiscal year 1967-1968 had expired by
operation of law and payment could not be made. The respondent specifically
alleges in its answer that funds were available in the Cohn Anderson Center
budget to pay the claimant and, but for the mislaid invoices, the claimant
would have been paid.
This case was submitted on the notice of claim and answer thereto, and based
upon such record, it is clear that this is a valid claim which in equity and
good conscience should be paid. Accordingly, an award is hereby made to the
claimant, Betsy Ross Bakeries, Inc., in the sum of $841.10.
W. VA.] REPORTS
STATE COURT OF CLAIMS 261
Opinion issued June 30, 1971
ANDY SHANABARGER and LORA SHANABARGER
vs.
THE ADJUTANT GENERAL OF WEST VIRGINIA
(No. D-440)
No appearance for the
Claimants.
Thomas P. O?Brien, Jr., Assistant Attorney General for the Respondent.
JONES, JUDGE:
On August 9, 1970, a National Guard jeep driven by a member of the West
Virginia National Guard in the course of his official duties collided with
another National Guard vehicle, pushing it into the rear of the 1951 Chevrolet
automobile owned and driven by the claimant, Andy Shanabarger. At the time of
the collision this claimant?s car was legally stopped on United States Route
250, near Philippi, in Barbour County, waiting for on-coming traffic to pass so
that he could make a left turn into a church parking lot. The claimant, Lora
Shanabarger, was examined and treated for injuries at The Myers Clinic at
Philippi and her bill was $39.00.
The above stated facts have been stipulated by the respondent and, after
investigation of the incident by an officer of the West Virginia National
Guard, under pertinent military regulations and directives, the respondent
further stipulates that the claimants sustained damages which were caused by
the negligence of the military driver and agent of the respondent. The claim of
$154.50 for damages to the claimant?s car has been negotiated and compromised
for the sum of $50.00.
Based on the record in this case, the Court finds that this is a valid claim in
the agreed amount which in equity and good conscience should be paid, and an
award is hereby made to the claimants, Andy Shanabarger and Lora Shanabarger,
in the sum of $89.00.
262 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued June 30, 1971
SAFECO INSURANCE COMPANY
vs.
DEPARTMENT OF HIGHWAYS
(No. D-441)
No appearance for the Claimant.
Thomas P. O?Brien, Jr., Assistant Attorney General and Donald L. Hall, for the Respondent.
JONES, JUDGE:
The claimant, Safeco Insurance Company, as subrogee of its insured, Marvin
Cohen, claims the sum of $166.86 for damages to Cohen?s 1969 Mark III Lincoln
Continental Sedan automobile, when paint was dropped on it by employees of the
Department of Highways who were engaged in painting the Elk River Bridge on
Washington Street in Charleston. A tarpaulin was used by the workmen to catch
any falling paint but the wind blew it to one side and drops of paint were
permitted to fall upon the passing car.
An investigation of this claim was made by the Claims Division of the
respondent and the facts were found to be as set out above. These facts are
admitted by the State and, in our opinion, they show negligent conduct on the
part of the respondent which proximately caused the damages sought. The amount
of the claim is not disputed.
Accordingly, the claimant, Safeco Insurance Company, is awarded the sum of
$166.86.
W. VA.]_ REPORTS
STATE COURT OF CLAIMS -
263
Opinion issued June 30, 1971
FRANK WHITEHAIR and ARNOLD WHITEHAIR
vs.
DEPARTMENT OF HIGHWAYS
(No. D-318)
No appearance for the Claimants.
Thomas P. O?Brien, Jr., Assistant Attorney General and Donald L. Hall, for the Respondent.
JONES, JUDGE:
By agreement signed by the claimants, Frank Whitehair and Arnold Whitehair, and
the respondent, Department of Highways, by its counsel, the parties have
stipulated the facts pertinent to this case substantially as follows:
The claimants are the owners of a farm upon which is situate a fence adjacent
to State Route 7 approximately one mile west of Terra Alta. During the winter
of 1969-1970, heavy snow fell in this area and accumulated on State Route 7,
necessitating its removal by the respondent. While engaged in plowing and
removing the snow from the highway, the respondent damaged the claimants? fence
by forcing snow against it. The claim for damages to the fence in the amount of
$107.08, which is the cost of four rolls of wire, is fair and equitable.
The Court accepts the stipulation and finds that the claimants are entitled to
recover. Accordingly, an award is made to the claimants, Frank Whitehair and
Arnold Whitehair, in the sum of $107.08.
264 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued June 30, 1971
DOUGLAS T. ELLISON
vs.
DEPARTMENT OF HIGHWAYS
(No. D-320)
E. BELDEN AGUILAR AND
NATIONWIDE INSURANCE COMPANY
vs.
DEPARTMENT OF HIGHWAYS
(No. D-321)
Pauley, Curry & Sovick, and George T.
Sovick, Jr., for Claimant Douglas T.
Ellison.
Arthur C. Litton II, for the Claimants E. Belden Aguilar and Nationwide
Insurance Company.
Donald L. Hall, for the Respondent.
JONES, JUDGE:
These claims arose from a collision which occurred on July 11, 1968, at
approximately 8: 45
a.m., while the claimant, Douglas T.
Ellison, was driving his 1961 Chevrolet automobile in an easterly direction on
United States Route 60 in Fayette County, and the claimant Aguilar?s 1966
Volkswagon automobile was stopped in a line of ten to twelve vehicles which had
been flagged down by a Department of Highways employee. The Ellison automobile
ran into the rear of the Aguilar automobile causing substantial damage to both
vehicles, and the claimant Ellison sustained severe personal injuries. Claimant
Ellison seeks damages in the amount of $100,000.00 and claimant Aguilar and his
insurer, Nationwide Insurance Cornpany, claim damages stipulated to be
$1,360.66.
Upon agreement of the parties, these claims were consolidated for the purposes
of hearing and while the legal principles involved are not identical, the facts
are the same, and it appears to be proper and expedient further to consolidate
the claims for the purposes of this opinion.
W. VA.]
REPORTS STATE COURT OF CLAIMS Z65
Most of the facts surrounding these claims are undisputed, some are subject to
question but are quickly resolved, and others present substantial conflicts
which the Court will deal with. At the time of the accident, the respondent?s
employees were pulling ditch lines on the north side of the highway, a process
of grading and re-dressing shoulders to remove high or low places as well as to
clean and re-open ditches. The grader used in the operation deposited
substantial amounts of dirt and debris upon the highway in a sort of windrow
and then would scrape the windrow back onto the shoulder, leveling and
rebuilding the same. Quantities of dirt remained on the highway in the area of
work, particularly in the north or westbound lane of traffic. A flagman was on
duty and one-way traffic was maintained. The day was dry and clear and when the
eastbound lane of traffic was stopped, there is little doubt that dust was
raised from the road surface as westbound traffic proceeded along the highway.
It appears that no sweepers broom or sprinkling equipment was being used on the
project. Except for such dust as may have been in the air there was no
obstruction to claimant Ellison?s view from 600 to 800 feet before he reached
the point where he struck claimant Aguilar?s vehicle.
Claimant Ellison contends that as he drove on the highway he was suddenly and
completely enveloped in a cloud of dust which prevented his seeing anything,
that he was unaware of the road work in progress, although he did testify at
one point that ?The only thing I could see was those road men working,? and he
further testified that ?all I did was slow up on the car and jump back in low
gear and proceeded very cautiously into this cloud of dust.? Ellison saw no
?men working? or other warning signs, and the several witnesses on both sides
were about evenly divided as to whether such signs were in place However, he
did see ?taillights?, presumably brake lights, on cars in front of him, but did
not know whether they were stopped or not.
There is great conflict as to how much, if any, dust was raised by westbound
traffic at the time of the collision. Claimant Aguilar testified that as he
approached the line of cars stopped by the flagman, he had an unobstructed view
of 600 to 800 feet, and that he could see the road work at that distance.
266 REPORTS
STATE COURT OF CLAIMS [W. VA.
When asked what happened after his vehicle was stopped in the line of traffic,
he gave this answer: ?Well, I was standing there and then in a split second I
looked in the rearview mirror and I saw this car coming too fast. I heard the
tires screeching and I began to lie down on the seat because I had the oldtimey
seats that did not have a back rest. It happened in a split second and then I
was hit from the rear.? He further testified that he saw the Ellison car when
it was 60 to 80 feet behind him, that his foot was on the brake at the time he
was hit, that his car was stopped on a slight up-grade and that, when struck,
the vehicle was thrown forward approximately a car length.
The claimants? view of the case is that the respondent was negligent in failing
to have in operation a highway broom, sweeper or watering truck, in failing to
give proper warning, which is debatable, and in creating a sudden emergency by
permitting such quantities of dust in the air that it diverted his attention
and blurred his vision. However, some things are clear, and one is that Dr.
Aguilar, against his own interest, testified that he could see the Ellison car
coming too fast toward him when it was only 60 to 80 feet away, and that being
true (and we have given full credit to Dr. Aguilar?s testimony), the Aguilar
car and the line of traffic must have been visible at that time to the claimant
Ellison. In our opinion it must follow that if the Ellison car had been under
proper control, the collision would not have occurred and no one would have
been injured. If there was negligence on the part of the State, it was not the
proximate cause of this collision and the resultant damages, because the
negligence of claimant Ellison became the intervening, independent proximate
cause of the damages sustained by both claimants. Accordingly, the Court holds
that this is not such a case as in equity and in good conscience should require
compensation by the State, and the claims of Douglas T. Ellison, E. Belden
Aguilar, and Nationwide Insurance Company, as subrogee, are all disallowed.
REFERENCES
ADJOINING LANDOWNERS
The common-law rule that surface water
is considered a common enemy, and that each landowner may fight it off as best
he can prevails in Virginia and West Virginia, with the modification that an
owner of higher ground may not inflict injury on the owner of lower ground
beyond what is necessary. Whiting v. Smith (No. D-177) 45
Unless a landowner collects surface water into an artificial channel, and
precipitates it with greatly increased or unnatural quantities upon his
neighbor?s land, causing damage, the law affords no redress. If no more water
is collected on the property than would naturally have flowed upon it in a
diffused manner, the dominant tenement cannot be held liable for damage to land
subject to the servitude of flowing waters. Whiting
v. Smith (No. D-177). 45
Land at lower levels is subject to the servitude of receiving waters that flow
naturally upon it from adjoining higher land levels, and unless a property
owner diverts the natural flow of surface water in such a manner as to damage
the property of another, there is no liability on the owner of the higher
property. Whiting v. Smith (No. D-177) 45
AGENCY
The spending policies of the State are
limited by law and anyone dealing with a state agency must know its powers and
limitations. Airkem Sales & Serv. v. Department of Mental
Health (No. D-333) 180
The State of West Virginia is not estopped to plead the statute of limitations
because of the mistake, negligence or misconduct of its agents. Huntington
Steel & Supply Co. v.
West Virginia State Tax Comm?r (No. D-159) 123
There are many caveats in dealing with a governmental
agency, and the conduct of its officers cannot result in the
application of the doctrine of estoppel. Huntington Steel &
Supply Co. v. West Virginia Tax Comm?r (No. D-159) 123
The State is not bound by contracts which are beyond the scope of the powers of
its agents. Huntington Steel & Supply
Co.
v. West Virginia State Tax
Comm?r (No. D-159) 123
While it is true that the constitutional immunity of the State has been removed
by the act establishing the Court of Claims, a sovereign State has other
defenses and immunities peculiar to itself, which it may assert and which
cannot be destroyed by the wrongful conduct of its agents. Huntington Steel
& Supply Co. v. West Virginia State Tax Comm?r (No.
D-159) ?
? 123
[267 1
268 REPORTS
STATE COURT OF CLAIMS [W. VA.
AMUSEMENTS AND RECREATION
A claim for damages for an injury
sustained by claimant in slipping on a diving board while he was a guest at
Cacapon State Park was disallowed, where the testimony showed that there were
at least two lifeguards on duty at the time of the accident, that no complaint
or report was made to either of them or to anyone else at the park, that the
diving boards were regularly inspected at least once every ten days, and that
there were no complaints of a slick board at any time during the year. Dubisse v. Department of Natural Resources (No.
D-129) 21
An engineering firm?s claim for additional compensation for services rendered
in connection with the development of the Cass Scenic Railroad was disallowed,
where there was sufficient evidence to contradict the contention that claimant
had done work over and above that specified in or contemplated by the contract.
Vogt-Ivers & Associates v. Department
of
Natural Resources (No. D-192) 214
APPEALS
Where respondent?s contentions
regarding the legality of a sidewalk assessment could have been presented below
to a town council and the council?s decision could have been subsequently
appealed, but such contentions were not so presented, a town council?s
decisions of questions of fact were binding and not subject to review by the
Court of Claims. Charleston
Concrete Floor Co. v. Department of Highways (No. D-322) - 221
ATTORNEY GENERAL
A claim for legal services performed
in examining titles and preparing abstracts for the Department of Natural
Resources was disallowed, where the contract of employment was in direct
violation of ? 5-3-1, W. Va. Code, which prohibits employment of
private counsel for a state agency without the approval of the attorney
general. Freeman v. Department of
Natural Resources (No. D-298). 165
Claimant Virginia corporation was awarded the sum of $5,400 for services
rendered to the Department of Finance and Administration in testing automobile
tires, notwithstanding lack of approval of its contract by the attorney
general, where claimant had in good faith performed the agreement upon the
representations of high officers of the State, and, being an out-of-state
citizen or corporation, should have been allowed greater consideration in its
dealings with the State where everything appeared valid. Retreading Research Associates, Inc. v. Department of Fin. &
Administration
(No. D-356) -- -- 245
Section 5A-3-l5, W. Va. Code, requires contracts involving purchases by the
State to be approved as to form by the Attorney General. It was not intended
for the Attorney General to pass upon the substance of the agreement, but only
that the agreement was legally expressed. The requirement is a salutary one and
the Court of Claims wiil not disregard it in any case which does not have
special reason for not enforcing it. Retreading
Research Associates, Inc. v. Department of Fin. & Administration (No. D-356) 245
W.VA.] REPORTS
STATE COURT OF CLAIMS 269
ATTORNEYS
An attorney is certainly chargeable
with knowledge of the statutory law of the State. Freeman v, Department
of Natural
Resources (No. D-298) 165
A claim for legal services performed in examining titles and preparing
abstracts for the Department of Natural Resources was disallowed, where the
contract of employment was in direct violation of ? 5-3-1, W.
Va. Code, which prohibits employment of private counsel for a state agency
without the approval of the attorney general. Freeman v. Department
of Natural Resources (No. D-298) 165
BAILMENTS
A bailee must return to the bailor the
bailment property in the condition it was in at the time of the bailment, usual
wear and tear excepted. Chesapeake & 0. Ry. v. State Road
Comm?n (No. D-150). 140
Proof of the delivery of possession of a bailed railroad car as a bailment to
the bailee constitutes a prima facie case on the part of the bailor railroad,
and the obligation to prove that damage to the car was not the fault of the
bailee shifts to the bailee. Chesapeake & 0. Ry. v. State Road
Comm?n
(No. D-150) 140
BAKERIES
Claimant was awarded the sum of
$841.10 for bakery products furnished to Cohn Anderson Center under a valid
State contract, where invoices had been mislaid by an unknown employee of
respondent so that transmittals for payments were not timely received by the
State Auditor. Betsy Ross Bakeries, Inc. v. Department of Mental
Health (No. D-404) 260
BICYCLES
A claim for damages, sustained when
claimant fell from a bicycle after its front wheel hit a large hole on a
blacktop road, was disallowed, where claimant was contributorily negligent in
failing to see and avoid the hole. Dolin V. Department of Highways (No. D-308) 252
BLASTING
Claimants were awarded the sum of
$1,497 for damages caused to their dwelling house as a result of blasting which
was not properly controlled and which presumably involved negligence on the
part of respondent Department of Highways. Caldwell v. Department of
Highways (No. D-194) 216
Claimant subrogee insurer was awarded the sum of $105.46 for damages sustained
by its insured?s automobile as a result of blasting operations conducted by
respondent. State Farm Mut. Auto. Ins. Co. v. Department of Highways (No.
D-327). 219
Claimants were awarded the sum of $3,000 for damages to their real estate
resulting from blasting operations conducted by respondent Department of
Highways. Warden v. Department of Highways (No. D-195) 190
270 REPORTS
STATE COURT OF CLAIMS [W. VA.
BONDS
Claimant was awarded the sum of
$57,450 for services rendered in finding a purchaser for revenue bonds for the
West Virginia State College student-union dining hail. Hibbard, O?Connor & Weeks v. West
Virginia Bd. of Educ. (No. D-235). 109
BRIDGES
Claimant construction corporation was
awarded the sum of $2,500 for damages occasioned by unreasonable delay on the
part of the State Road Commission in directing work on a bridge construction
project. Bates & Rogers Constr. Corp. V. State Road Comm?n (No. D-126) 17
Claimant was awarded the sum of $149.51 for damages sustained when a hot
welding rod fell from the top of a bridge onto his automobile. Beranak v.
State Road Comm?n (No.
D-248) 108
Claimant was awarded the sum of $191,701.42 for damages resulting from
unreasonable delays caused by respondent State Road Commission in connection
with a highway and bridge construction contract. C. J. Langenf elder & Son V. Department
of Highways (No. D-120) 193
In the case of a contractor?s claim for damages resulting from unreasonable
delays caused by respondent State Road Commission in connection with a highway
and bridge construction contract, the contractor?s bid estimate was rejected as
a basis for measuring the reasonable cost of doing the work in the absence of
delay, and the ?actual cost? of doing extra work under adverse conditions
entailed by the delays was deemed to be a better method of measuring damages.
C. J. Langenfelder & Son v. Department
of Highways (No.
D-l20) 193
Claimants were awarded the sum of $101.41 for damages
sustained when hot welding lead fell from the upper part of a
bridge onto their automobile. Catsos v. State Road Comm?n
(No. D-223) ? 107
The State is not a guarantor of the safety of its travelers on its roads and
bridges. Criss v. Department
of Highways (No.
D-l37) ?
175
Claimant was awarded the sum of $56.14 for damages sustained when a bent metal
plate cut the tire of his automobile as it passed over a bridge. Holley v. Department of Highways
(No. D-351) 242
Claimant was awarded the sum of $128.24 for damages sustained when a piece of
hot welding slag fell onto his automobile from the overhead structure of a
bridge where employees of the West Virginia Department of Highways were making
repairs. Humphrey v. Department of Highways (No.
D-277) 142
Claimants were awarded the sum of $50 for damages sustained when a member of a
State Road Commission construction crew negligently dropped (or caused to fall)
a bottle onto claimants? automobile while the vehicle was crossing a
bridge. Lewis v. State Road Comm?n
(No. D-256) . 132
W. VA.]
REPORTS STATE COURT OF CLAIMS 271
The State is not a guarantor of the safety of its travelers on its roads and
bridges. Lowe v. Department of Highways (No.
C-19) 210
A claim for damages, sustained when paint was dropped on claimant?s automobile
while it was being driven across a bridge, was disallowed, where, even though
negligence on the part of State Road Commission employees could be assumed from
the facts, it was found that claimant, who sought $195.70 for the costs of
repair, had failed to mitigate damages by taking steps promptly to remove the
paint when the injury occurred. Travelers
Ins.
Co. v. State Road
Comm?n (No.
D-274) 129
Claimant was awarded the sum of $69.79 for damages sustained when, in crossing
a state road bridge, the left rear wheel of his automobile dropped into a hole
in the floor of the
bridge. Monk v. State Road Comm?n (No. D-139) 32
The State is not a guarantor of the safety of its travelers on its roads and
bridges. Parsons v. State Road Comm?n
(No. D-112) 35
Claimant was awarded the sum of $139.88 for damages sustained when her
automobile struck an obstruction on a bridge, where the evidence supported a
finding that respondent?s negligence in failing to remove the hazard or give
notice of its existence was the proximate cause of the damage. Randall
v. Department of Highways (No.
D-151) _---
147
Claimant subrogee insurer was awarded the sum of $166.86 for damages sustained
when paint was dropped on its insured?s automobile by employees of the
Department of Highways who were engaged in painting a bridge. Safeco Ins. Co. v. Department of Highways (No.
D-441) 262
The State is not a guarantor of the safety of its travelers on its roads and
bridges. Samples v. State Road
Comm?n (No.
D-187) ?-
80
Claimant was awarded the sum of $40.17 for damages sustained when tar was
dropped and splattered onto his boat from a bridge while the respondent?s
employees were applying tar to the road surface of the bridge. Talbert v. Department of Highways (No.
D-348)._ 241
Claimant was awarded the sum of $18,956.23 for damages occasioned by delays and
improper inspection on the part of the State Road Commission in connection with
a bridge construction contract. Thomas Co. v. State
Road Comm?n (No.
D-118) 112
A claim for damages, sustained when paint was dropped on claimant?s automobile
while it was being driven across a bridge, was disallowed on rehearing, where
the damage, if any, was so slight that it could not be observed by an ordinary
inspection of the surface of the automobile. Travelers Ins.
Co. v. State Road Comm?n (No. D-274) ?
168
CONFLICT OF LAWS
A claim for a refund of nonresident
student tuition fees paid by a former New Jersey resident while attending the
law school of West Virginia University was disallowed,
272 REPORTS
STATE COURT OF CLAIMS [W. VA.
where, although claimant may have established his domicile in West Virginia,
the facts did not satisfactorily negative an apparent attempt to circumvent a
rule providing that no nonresident student could establish domicile which would
entitle him to reductions or exemptions of tuition by his attendance as a
full-time student at any institution of learning in the State. Esposito v.
West Virginia Bd. of Regents (No.
0-329) 223
Claimant was awarded the sum of $1258 as a refund of nonresident student
tuition fees paid by her while attending West Virginia University, where her
actions in having moved from Pennsylvania to Morgantown and engaged in
full-time employment there constituted an establishment by her of a legal
domicile in West Virginia. Wotkiewicz v. West
Virginia Bd. of Regents (No. D-294) 155
CONTRACTS
Claimant construction corporation was
awarded the sum of $2,500 for damages occasioned by unreasonable delay on the
part of the State Road Commission in directing work on a bridge construction
project. Bates & Rogers Constr.
Corp.
V.
State Road Comm?n (No. 0-126) 17
Claimant was awarded the sum of $29,907.68 for damages and extra compensation
in connection with a demolition contract, where respondent had failed to make
certain structures available for timely demolition, thereby preventing claimant
from doing its work efficiently and economically. C & D
Equip. Co. v. State Bldg. Comm?n (No. 0-324) 237
Claimant was awarded the sum of $191,701.42 for damages resulting from
unreasonable delays caused by respondent State Road Commission in connection
with a highway and bridge construction contract. C. J. Lan genfelder & Son v.
Department of Highways (No. 0-120) 193
Where a contract has been breached by the State by a substantial interference
with a critical sequence of operations, requiring a contractor to pay his
expenses on an ?as built schedule? as distinguished from a ?planned schedule?,
the contractor should be reimbursed for the actual extra expenses and damages
sustained. C. J. Langenf elder &
Sons v. Department of Highways (No.
D-120) 193
In the case of a contractor?s claim for damages resulting from unreasonable
delays caused by respondent State Road Commission in connection with a highway
and bridge construction contract, the contractor?s bid estimate was rejected as
a basis for measuring the reasonable cost of doing the work in the absence of
delay, and the ?actual cost? of doing extra work under adverse conditions
entailed by the delays was deemed to be a better method of measuring damages. C. J. Langenf elder & Son v. Department of Highways (No.
D-120) ?
? ? ? 193
A liquidated damage clause is a penalty provision and should not be enforced
unless real damage is sustained or where there are no circumstances which give
the contractor equitable reasons for his failure to complete his work.
Frederick Eng?r Co. v. State Road Comm?n
(No. D-130) 26
W. VA.]
REPORTS STATE COURT OF CLAIMS 273
Claimant engineering company was awarded $21,720, a sum which had been withheld
by the State Road Commission as liquidated damages for claimant?s failure to
complete work on a highway construction project within a specified time, where
the evidence showed that certain delays (which were not attributable to
claimant) furnished a reasonable basis for claimant?s inability to complete the
contract within the period required, and where it appeared that, in all equity,
claimant should not have been assessed under the liquidated damage provision of
the contract. Frederick Eng?r Co. v. State Road
Comm?n (No. D-130) - 26
The intention of the parties must be ascertained from the language employed,
and from the subject matter of the contract. Highway Eng?rs. Inc. v. State Road Comm?n (No.
D-154) --
-- - 68
The conduct of the parties in performing a contract has a bearing on its proper
interpretation. Highway Eng?rs, Inc. v.
State Road Comm?n (No. D-154). - - - - - -- 68
Where a written highway engineering contract was clear and unambiguous and
represented the final agreement of the parties, evidence relating to statements
made during the period of negotiation were clearly not admissible under the
parol evidence rule to vary or alter the terms of the written agreement. Highway Eng?rs, Inc. v. State Road Comm?n
(No. D-154). - 68
A contract to do several things at several times, the parts not being
necessarily dependent upon each other, and particularly where the consideration
is apportioned among various items, is ordinarily regarded as severable and
divisible. Highway Eng?rs Inc. v. State Road Comm?n (No. D-154). 68
A claim for losses sustained in connection with a highway engineering contract
could not be considered as a claim for damages, where there was no showing that
respondent had breached any provisions of the contract. Highway Eng?rs. Inc. v. State Road Comm?n (No. D-154) 68
Claimant was awarded the sum of $27,095.75 for damages sustained by reason of
delay and shutdowns pursuant to orders issued by respondent Department of
Highways in connection with a street improvement contract. M & M Constr. Co. v.
Department of Highways (No. D-299) 145
Claimant was awarded the sum of $53,966.95 for damages caused by unreasonable
delays and shutdowns by respondent State Road Commission during the performance
of a highway construction contract. Mountain
State Constr. Co. V.
State
Road Comm?m (No. D-99).. 89
Claimant was awarded a total sum of $33,979.32 for removal of certain material
and for extra work performed in connection with a highway construction
contract. Ralph Myers Contracting Corp.
v. State Road Comm?n (No. B-382)
56
Section 5A-3-15, W. Va. Code, requires contracts involving purchases by the
State to be approved as to form by the Attorney General. It was not intended
for the Attorney General to pass upon the substance of the agreement, but only
that the agreement was legally expressed. The requirement is a salutary one and
the Court of Claims will not disregard
2?4 REPORTS STATE COURT OF CLAIMS [W. VA.
it in any case which does not have special reason for not enforcing it. Retreading
Research Associates, Inc. v. Department of Fin. & Administration (No.
D-356) 245
Claimant Virginia corporation was awarded the sum of $5,400 for services
rendered to the Department of Finance and Administration in testing automobile
tires, notwithstanding lack of approval of its contract by the Attorney
General, where claimant had in good faith performed the agreement upon the
representations of high officers of the State, and, being an out-of-state
citizen or corporation, should have been allowed greater consideration in its
dealings with the State where everything appeared valid. Retreading Research
Associates, Inc. v. Department of Fin. & Administration (No.
D-356). 245
Claimant was awarded the sum of $4907.70 for printing liquor price lists for
respondent Alcohol Beverage Control Commission, where, although there had been
conversations between the parties as to a possible price reduction, the
evidence did not show a sufficient meeting of the minds to justify a conclusion
that the parties had entered into a subsequent binding oral agreement which
would have eliminated any liability on the part of the respondent. Smith v.
West
Virginia Alcohol Beverage Control Comm?n (No. D-218) 127
Claimant was awarded the sum of $18,956.23 for damages occasioned by delays and
improper inspection on the part of the State Road Commission in connection with
a bridge construction contract. Thomas Co. v. State Road Comm?n (No.
D-118) 112
A claim for additional compensation in connection with three separate contracts
for the preparation of tax maps was disallowed, where the contracts were clear
as to the amount of compensation to be paid and the record showed that claimant
had been paid in full. Vogt-Ivers & Associates v. State Tax Comm?r (No.
D-193) 233
An engineering firm?s claim for additional compensation for services rendered
in connection with the development of the Cass Scenic Railroad was disallowed,
where the evidence was not sufficient to contradict the contention that
claimant had done work over and above that specified in or contemplated by the
contract. Vogt-Ivers & Associates v.
Department of Natural Resources (No. D-192) 214
A contract is entire and not severable when, by its terms, nature and purposes,
it contemplates and intends that each and all of its parts, material provisions
and the consideration are common each to the other and interdependent. Wet
her- all V.
State Road Comm?n (No. D-92).
A contract providing for highway and dam construction was severable, where such
contract encompassed two divisible projects, payment for which was to be
received on the basis of unit prices assigned to each project. Wet herall v.
State Road Comm?n (No. D-92)
CUSTOMS AND DUTIES
Claimant was awarded the sum of
$1,128.89 for customs duties paid by him as customs agent in handling a
shipment of certain physiological testing equipment ordered from
W. VA.]
REPORTS STATE COURT OF CLAIMS 275
Switzerland by the coordinator of Operation Head Start, an
agent of the State. Twig ger v. State (No. D-246) 84
DAMAGES
Proof of the delivery of possession of
a bailed railroad car as a bailment to the bailee constitutes a prima facie
case on the part of the bailor railroad, and the obligation to prove that
damage to the car was not the fault of the bailee shifts to the bailee. Chesapeake & 0. Ry. v. State Road Comm?n
(No. D-150) 140
Where a contract has been breached by the State by a substantial interference
with a critical sequence of operations, requiring a contractor to pay his
expenses on an ?as built schedule? as distinguished from a ?planned schedule?,
the contractor should be reimbursed for the actual extra expenses and damages
sustained. C. J. Langenf elder &
Son v.
Department of Highways (No. D-120) -- 193
In the case of a contractor?s claim for damages resulting from delays caused by
respondent State Road Commission in connection with a highway and bridge
construction contract, the contractor?s bid estimate was rejected as a basis
for measuring the reasonable cost of doing the work in the absence of delay,
and the ?actual cost? of doing the work under adverse conditions entailed by
the delays was deemed to be a better method of measuring damages. C. J. Langenfelder & Son v. Department of Highways (No. D-120). - 193
The courts have been in disagreement on whether loss of profits is a proper
item in measuring damages. C. J.
Langenfelder & Son v. Department of Highways (No. D-120) 193
A liquidated damage clause is a penalty provision and should not be enforced
unless real damage is sustained or where there are no circumstances which give
the contractor equitable reasons for his failure to complete his work.
Frederick Eng?r Co. v. State Road Comm?n
(No. D-130) 26
Claimant engineering company was awarded $21,720, a sum which had been withheld
by the State Road Commission as liquidated damages for claimant?s failure to
complete work on a highway construction project within a specified time, where
the evidence showed that certain delays (which were not attributable to
claimant) furnished a reasonable basis for claimant?s inability to complete the
contract within the period required, and where it appeared that, in all equity,
claimant should not have been assessed under the liquidated damage provision of
the contract. Frederick Eng?r Co. V.
State Road Comm?n (No.
D-130) 26
A claim for damages, sustained when paint was dropped on claimant?s automobile
while it was being driven across a bridge, was disallowed, where, even though
negligence on the part of State Road Commission employees could be assumed from
the facts, it was found that claimant, who sought $195.70 for the costs of
repair, had failed to mitigate damages by taking steps promptly to remove the
paint when the injury occurred. Travelers
Ins. Co. v. State Road Comm?n (No.
D-274) ?
? 168
276 ? REPORTS STATE COURT OF_CLAIMS [W. VA.
The Court of Claims cannot make an award where damages
are not proved. Spenccr v. Adjutant
General (No. D-165). 74
The measure of damages in the case of a damaged motor vehicle is the difference
in the market value of the vehicle immediately before the accident and
immediately after the
accident. Spencer v. Adjutant
General (No. D-165). 74
An estimate for repairing a damaged automobile was not competent evidence, in
view of testimony showing that the vehicle was worth less than tne cost of
repair and that it had become a total loss save for its salvage value. Spencer
v. Adjutant General (No. D-165) . 74
The law does not take notice of small or trifling damage.
Travelers Ins. Co. v. State Road Comm?n (No. D-274) 168
A claim for damages, sustained when paint was dropped on claimant?s automobile
while it was being driven across a bridge, was disallowed on rehearing, where
the damage, if any, was so slight that it could not be observed by an ordinary
inspection of the surface of the automobile. Travelers Ins.
Co. v. State Road Comrn?n (No. D-274) 168
In awarding damages to a husband for the wrongful death of his wife, the Court
of Claims was not impressed by testimony and argument attempting to show
dependency of the husband, and, although decedent had been a wage earner and
looked after the family finances, the Court found no financial or pecuniary
loss to the husband as a dependent distributee.
Varner v. State Road
Cornin?n (No. D-185) 119
Where claimant?s wife was not entitled to recovery in the case of a claim based
upon the alleged negligence of respondent, it followed that her husband could
not recover for his expenses and the loss of the services of his wife.
Whittington v. Department
of Highways (No. D-311) 231
DAMS
Borrow material is ordinarily material
brought on to a project site for the completion of the project, when material
excavated from the project is insufficient to accomplish the purpose. Wetherall v. State Road Cornrn?n (No. D-92). -.
-
A contract providing for highway and dam
construction was severable, where such contract encompassed two divisible
projects, payment for which was to be received on the basis of unit prices
assigned to each project. Wetherall V. State Road Comm?n (No.
D-92).
Permitting a dam project subcontractor to be joined in a claim proceeding did
not prejudice the respondent State Road Commission, where the prime contractor
was a proper party claimant, and where the subcontractor, though not a
recognized subcontractor by the State Road Commissioner, had a substantial
beneficial interest in the claim by virtue of his contract of employment with
the prime contractor and was the person who performed the work that benefitted
the State, and to whom the State was ?morally? obligated. Wetherall v. State Road Comm?n (No. D-92)
W. VA.] REPORTS
STATE COURT OF CLAIMS 277
DEMOLITION
Claimant was awarded the sum of
$29,907.68 for damages and extra compensation in connection with a demolition
contract, where respondent had failed to make certain structures available for
timely demolition, thereby preventing claimant from doing its work efficiently
and economically.
C & D Equip. Co. v. State Bldg. Comm?n (No. D-324). 237
DEMURRAGE
A claim for dernurrage on gas
cylinders furnished to the Department of Mental Health was disallowed, where
the evidence showed an agreement that no demurrage would be charged, and there
was insufficient proof to sustain claimant?s contention that the agreement had
subsequently been changed, either by written notice or by custom and usage. Johnson
Welders Supply, Inc. v. Department of Mental Health (No.
D-181). 95
Claimant was awarded the sum of $788.33 for demurrage on gas cylinders
delivered to offices of the State Road Commission. Johnson Welders Supply,
Inc. v. State Road
Comm?n (No. D-182). 96
ELECTRICITY
Claimant was awarded the sum of $89.25
for damages susstained by reason of workmen of the Department of Highways
cutting down a tree adjacent to claimant?s property and allowing a tree to
strike a high voltage electric power line, resulting in a surge of
approximately 7200 volts of electricity in claimant?s household wiring. Estate
of L. M. Gates V.
Department of Highways (No. D-453). 243
Claimant lumber company was awarded a sum of $2,011 for damages sustained when
a parachutist member of the West Virginia National Euard made a regularly scheduled
jump and, during the course of the drop, struck and broke a power line
providing electrical service to claimants sawmill, thereby causing a power
failure which ?burned out? twelve motors owned and operated by claimant. Interstate
Lumber
Co. v. Adjutant General (No. D-23). 12
An electric utility?s claim for damages, sustained when the parachute of a West
Virginia National Guard officer drifted across an open electric wire, must be
dismissed for lack of jurisdiction, where such claim had been filed more than
two years after the alleged cause of action arose. Monongahela
Power Co. v. Adjutant General (No. D-225). - 49
Claimant was awarded the sum of $189.67 for damages resulting from the
negligent conduct of Department of Highways employees in causing a tree to fall
into claimant?s power lines. Monongahela Power Co. v. Department of
Highways
(No. D-252). 143
EMINENT DOMAIN
The State Building Commission was
created for the construction of public buildings for specified purposes with
powers to contract and acquire by purchase or otherwise
278 REPORTS
STATE COURT OF CLAIMS [W. VA.
real property necessary for its corporate purposes and to exercise the power of
eminent domain to accomplish such purposes. C & D Equip. Co. v. State Bldg. Comm?n (No.
D-324) 237
A claim for loss of rent was disallowed, where claimants, whose property was
subject to condemnation for highway purposes, had signed provisions releasing
respondent from all claims for damages or compensation other than the purchase
price. Evans v. Department
of Highways (No. D-310) 227
ESTOPPEL
There are many caveats in dealing with
a governmental
agency, and the conduct of its officers cannot result in the
application of the doctrine of estoppel. Huntington
Steel &
Supply Co. v. West Virginia
State Tax Comm?r (No.
D-159) 123
A state is not subject to the laws of estoppel or waiver when acting in a
governmental capacity. Huntington Steel & Supply
Co. v. West Virginia State
Tax Comm?r (No. D-159) 123
The State of West Virginia is not estopped to plead the statute of limitations
because of the mistake, negligence or misconduct of its agents. Huntington Steel & Supply Co. V.
West Virginia State Tax Comm?r (No.
D-159) 123
Equitable estoppel cannot be applied against the State.
Massey v. Department of Welfare (No. D-142) 59
EVIDENCE?See also Witnesses
Although hearsay evidence is
admissible under the statute creating the Court of Claims, the Court is
constrained to give such evidence only the weight that it deserves. Affolter V.
State Road Comm?n (No. D-221) 150
Statements of a thirteen year old girl to her grandfather and related by him on
the stand, did not constitute satisfactory proof of the identity of a truck
from which a rock had been thrown against the windshield of claimant?s
automobile.
Affolter v. State Road Comm?n
(No. D-221) 150
It is not common knowledge that wild cherry leaves are toxic to cattle. Bradley v. Department of Highways (No.
D-296) 163
Claimants were awarded the sum of $567.88 for damages sustained when a
partially exposed gas line on their property was broken, where there was a
reasonable inference from the circumstantial evidence presented that the damage
occurred as a proximate result of the operations of State Road Commission
employees in clearing up debris from a slide that had occurred on a nearby
roadway. Davidson v. State
Road Comm?n (No. D-204) - 76
An award may not be based on speculative evidence.
Gilliam v. State Road
Comm?n (No. D-152) 115
Where a written highway engineering contract was clear and unambiguous and
represented the final agreement of the parties, evidence relating to statements
made during the period of negotiation were clearly not admissible under the
W.VA.] REPORTS
STATE COURT OF CLAIMS 279
parol evidence rule to vary or alter the terms of the written agreement. Highway Eng?rs, Inc. v. State Road Comm?n
(No. D-154). 68
Claimant?s unsworn statement could not be considered as evidence. McCoy v. Department of Pub. Institutions (No.
D-281) 209
An estimate for repairing a damaged automobile was not competent evidence, in
view of testimony showing that the vehile was worth less than the cost of
repair and that it had become a total loss save for its salvage value. Spencer V.
Adjutant General (No. D-165) 74
The Court of Claims is not bound by the usual common-law or statutory rules of
evidence. Wet herall v. State Road
Comm?n (No. D-92)
FIRES AND FIRE PROTECTION
Claimant was awarded the sum of $300
for damages caused by the negligence of State Road Commission employees in
setting fires in close proximity to his residence. Arbogast
V.
State Road Comm?n (No. D-l01) 28
It is not equitable for the City of Morgantown to be charged entirely with the
cost of fire protection, which would be the result if the University were held
to be exempt or relieved of its share of the cost of such service. By requiring
the State as a whole to bear the fire service fee, equity is better served
regardless of any strict interpretation or application of the law. City of Morgantown v. Board of Governors of
West Virginia Univ. (No. D-46) 41
An ordinance enacted by the city council of Morgantown and providing for a fire
service charge could not be effectively repealed or rescinded by a simple
resolution which attempted to give West Virginia University credit for certain
charges and thereby release the University?s liability to the extent of the
credit given. City of Morgantown v. Board of
Governors of
West Virginia Univ. (No. D-46) 41
Claimant was awarded the sum of $40,886.22 for fire service fees assessed
against buildings and property of West Virginia University. City of Morgantown v. Board of Governors of West
Virginia Univ. (No. D-46) 41
GAS
Claimants were awarded the sum of
$567.88 for damages sustained when a partially exposed gas line on their
property was broken, where there was a reasonable inference from the
circumstantial evidence presented that the damage occurred as a proximate
result of the operations of State Road Commission employees in clearing up
debris from a slide that had occurred on a nearby roadway. Davidson V. State
Road
Comm?n (No. D-204) 76
Claimant gas company was awarded the sum of $254.90 for damages caused to its
gas line when State Road Commission employees committed a trespass by operating
dredging equipment on claimant?s property without permission. Equitable
Gas Co. v. State Road Comm?n (No. D-173) 131
280 REPORTS STATE
COURT OF CLAIMS [W. VA.
A gas company?s claim for damages, sustained when a gas line was broken as a
result of the operation of equipment employed by the State Road Commission, was
disallowed with leave to the parties to file a supplemental stipulation or
present further evidence, where the brevity and sketchy nature of the stipulation
of facts made it difficult for the court to evaluate the merit of the claim. Equitable Gas Co. v. State Road
Comm?n (No. D-173). -- 131
A claim for demurrage on gas cylinders furnished to the Department of Mental
Health was disallowed, where the evidence showed an agreement that no demurrage
would be charged, and there was insufficient proof to sustain claimant?s
contention that the agreement had subsequently been changed, either by written
notice or by custom and usage. Johnson
Welders Supply, Inc. v. Department of Mental Health (No.
D-181) .
- -- 95
Claimant was awarded the sum of $788.33 for demurrage on gas cylinders
delivered to offices of the State Road Commission. Johnson Welders Supply,
Inc. v. State Road Com7n?n
(No. D-182). --- - 96
Claimants, operators of a small gas utility, were awarded the suni of $936.25
for the loss of gas caused by the negligent puncturing of their pipeline by
employees of respondent Department of Highways. Miller v. Department
of Highways
(No. D-286) -
191
GUARDIAN AND WARD
Claimant was awarded the sum of $201
for clothing and personal property lost by his ward while she was a patient in
the Huntington State Hospital, such loss having occurred as a result of
negligence on the part of hospital employees.
Hicks v. Department of Mental
Health (No. D-144). 98
HOSPITALS
A claim for damages for wrongful
death, based upon an allegation of negligence on the part of the staff and
employees of the Weston State Hospital in placing the intestate in the same
room with another mental patient who apparently strangled the intestate to
death, was disallowed, where although the evidence showed that the other
patient had been admitted approximately eleven hours before the homicide and
had been diagnosed ?schizophrenic reaction-paranoid type? (a diagnosis
described as ?not any different than anyone with a similar classification?),
there was no testimony or other evidence to show that the hospital authorities
knew or should have known that such patient had any violent homicidal tendency.
Creamer v. Department
of Mental Health (No.
D-40) 13
A claim for damages, allegedly caused by reason of inadequate and negligent
medical care and services rendered to claimant while he was a patient at
Pinecrest Sanitarium, was disallowed, where the evidence was insufficient to
show that the State had failed to exercise reasonable care in the treatment of
its patient. Green v. Department of Pub. In
stitution (No. D-197) 101
W. VA.]
REPORTS STATE COURT OF CLAIMS 281
Claimant was awarded the sum of $201 for clothing and personal property lost by
his ward while she was a patient in the Huntington State Hospital, such loss
having occurred as a result of negligence on the part of hospital employees.
Hicks v. Department of Mental Health (No. D-144). - 98
A claim for damages to
claimant?s ambulance, sustained when an electrically operated overhead door at
the West Virginia University Medical Center crashed down onto the vehicle, was
disallowed, and the doctrine of res ipsa loquitur was found inapplicable, where
there was no evidence of negligence on the part of respondent, and, at the time
of the accident, it could not be said that respondent had exclusive control of
the instrumentality, since none of its agents was in the area and the door was,
in fact, being operated by claimant?s son. IVlullins v. Board of
Governors of West Vir gini Univ. (No. D-107) .. 33
HUSBAND AND WIFE
In o\varding damages to a husband for the wrongful death of his wife, the Court
of Claims was not impressed by testimony and argument attempting to show
dependency of the husband, and, although decedent had been a wage earner and
looked aftcr the family finances, the Court found no financial or pecuniary
loss to the husband as a dependent
distributee. Varner v. State Road Comrn?n (No. D-l85) 119
Where claimant?s wife was not entitled to recovery in the case of a claim based
upon the allenged negligence of respondent, it followed that her husband could
not recover for his expenses and. the loss of the services of his wife.
Whittiogton v. Depm tment of Highways (No. D-311) 231
INFANTS
Claimant was awarded the sum of
$226 for expenses incurred in cring for a sixteen year old boy, where the
evidence showec that an employee of the Logan County Welfare Department had
told claimant that a circuit court had placed the boy in the custody of
claimant and his wife and that claimant and his wife would be paid for their
services.
Hall v. Department of Welfare (No. D-106). - - 10
INSURANCE
Claimant?s insurer .vas
permitted to present its claim for a portion of the damages set out in
claimant?s petition, where it appeared that claimant had, by a subrogation
agreement, assigned a portion of the claim to the insurer. Jones Esso
Serv. Station v. State Road Comm?n (No. D-198) - 117
Claimant and his subrogee insurer were awarded the sum of $275.67 for damages
sustained as a result of an accident involving claimant?s vehicle and a jeep
assigned to the Fairmont headquarters of the Adjutant General. Rolfe V.
Adjutant General (No. D-237) 75
Claimant subrogee insurer was awarded the sum of $166.86 for damages sustained
when paint was dropped on its insured?s automobile by employees of the
Department of Highways who were engaged in painting a bridge. Safeco Ins.
Co. v. Department of Highways (No. D-441) . - 262
282 REPORTS
STATE COURT OF CLAIMS [W. VA.
A subrogee under an insurance policy has the same right of recovery as the
insured and is entitled to the same relief. State Farm Mut. Auto. Ins. Co. v.
Department of Highways
(No. D-285) 169
Subrogee insurer was awarded the sum of $168.83 for damages sustained by its
insured, where the evidence showed that the outside section of the rim of the
left rear wheel of a Department of Highways truck broke off and struck the side
of the insured?s automobile. State Farm
Mut. Auto. Ins. Co.
v. Department of Highways (No.
D-285) 169
Claimant subrogee insurer was awarded the sum of $105.46 for damages sustained
by its insured?s automobile as a result of blasting operations conducted by
respondent. State Farm
Mut. Auto. Ins. Co. v. Department of Hghways (No. D-327). - - 219
When the State carries public liability insurance to protect its citizens and
others against the negligence or misconduct of its agents and employees in the
operation of State nwned vehicles, the State in effect provides a means of
compensation without resort to the legislative grace which gave rise to the
Court of Claims. It is also an effectual waiver of the defense of
constitutional immunity, otherwise the insurance coverage would be meaningless
and unprotective of the rights of those who may be injured by the irresponsible
acts of the State?s agents and employees. State Farm Mut. Auto. Ins.
Co. v. State Road Comm?n (No. D-251) 151
Claimant insurer?s subrogated claim, arising out of a collision between the
insured?s truck and a State Road Commission vehicle, was disallowed, where
claimant had neglected to file a civil action against the driver of the State
owned vehicle, although there was evidence showing that claimant had made
efforts by correspondence to collect its claim from the State?s public
liability insurer, who managed to delay and evade payment of the full claim
until the tolling of the statute of limitations. State Farm Mut. Auto. Ins. Co. v. State Road
Comm?n (No. D-251) 151
Claimant subrogee insurer was awarded the sum of $97.56 for damages sustained
when a loose head flew off of a hammer being used by respondent?s employee and
struck the windshield of a parked automobile owned by claimant?s insured. State Farm Mut. Auto. Ins. Co. v. West
Virginia
Bd. of Regents (No. D-414) 244
Claims brought by a truck owner and his subrogee insurer, seeking compensation
for damages sustained when the truck struck a large rock in the road, were
disallowed, where, although it could be assumed that the rock had fallen from a
Department of Highways truck which had been hauling rocks in the vicinity, the
proximate cause of the accident was the contributory negligence of claimant?s
employee in driving at an unsafe speed and in failing to see and avoid the
rock.
Vandergrift v. Department
of Highways (No. D-354A) 248
JURISDICTION
The general statutory law of the State
of West Virginia is binding upon the Court of Claims. Airkem Sales & Serv.
v. Department of Mental Health (No.
D-333) ?
180
W. VA.]
REPORTS STATE COURT OF CLAIMS 283
The Court of Claims is authorized to
consider claims which, but for the constitutional immunity of the State from
suit, could be maintained in the regular courts of the State. Airkem Sales & Serv. v. Department of Mental
Health
(No. D-333) 180
The Court of Claims has no existing appropriation for the payment of accrued
claims and is constrained to follow the statutory law of the state. Airkem Sales & Serv. v. Department of Mental
Health (No. D-333) 180
To allow the payment of an illegal claim as a moral obligation of the State,
when it is admitted that the spending unit clearly violated the statute by
incurring liabilities which could not be paid out of the current appropriation,
clearly exceeds the jurisdiction of the Court of Claims; nor would the fact
that the parties were mistaken as to the law, and may have acted without any
corrupt or criminal intent, confer jurisdiction or give the Court authority to
allow the payment under a contract declared unlawful, void or unenforceable by
statute. Airkem Sales & Serv. v. Department
of Mental Health (No. D-333). - 180
Where respondent?s contentions regarding the legality of a sidewalk assessment
could have been presented below to a town council and the council?s decision
could have been subsequently appealed, but such contentions were not so
presented, a town council?s decisions of questions of fact were binding and not
subject to review by the Court of Claims. Charleston Concrete Floor Co. v.
Department of Highways (No.
D-322) 221
The statute creating the Court of Claims waives on the part of the State the
constitutional immunity of the State in cases where the claimant otherwise has
a legal claim.
Creamer v. Department
of Mental Health (No. D-40) 13
Interdepartmental struggles or lack of communication between State officers are
not the concern of the Court of Claims. Freeman
v. Department of Natural Resources (No.
D-298) 165
Unless there is a legal basis for a claim, the Court of Claims is without power
to make an award, regardless of how sympathetic the Court may be to the cause
of the claimant. Freeman v. Department of Natural
Resources (No. D-298). 165
It is not all claims which the State should in equity and good conscience pay
that the Court of Claims is required to consider, but only those that come
within the purview of the Court?s circumscribed jurisdiction. Hughes Constr. Co.
v. State Tax Comm?r (No. D-123) 38
The Court of Claims is constrained to consider those claims which but for the
constitutional immunity could be maintained in the regular courts of the State.
Hughes Constr.
Co. v. State Tax Comm?r (No. D-123) 38
The Court of Claims is not empowered to overrule a final judgment of a court of
record based on findings or defenses other than sovereign immunity. Hughes Constr. Co.
v. State
Tax Comm?r (No. D-123) 38
The jurisdiction of the Court of Claims does not extend to any claim with
respect to which there is an adequate remedy
284 REPORTS STATE
COURT OF CLAIMS [W. V
at law and which may be maintained against the State, by or on behalf of the
claimant, in the regular courts of the
State. Hughes Constr. Co. v. State
Tax Comm.?r (No. D-123). - 38
The Court of Claims is not established to make awards on a purely sympathy
basis, but only to hear and determine the question of legal liability as though
there was no constitutional immunity to the State. Miller v. West Virginia Div. of Cor rectio (No. D-149) -- 62
The West Virginia Court of Claims is a fact-finding body created by the
Legislature and is an instrumentality of the Legislature to determine which
claims the State of West Virginia, as a sovereign commonwealth, should pay out
of public funds because of equity and good conscience. Damages may be awarded
which proximately result from wrongful conduct of the State or any of its
agencies, which would be judicially recognized as damages resulting from
wrongful conduct.
Parsons v. State Road
Comns?n (No. D-112), .---. 35
Negligence of a state agency or any of its employees must be fully shown to
justify an award by the Court of Claims; and it must be further shown that the
claimant did not know the existence of a danger, or that the claimant, as a
reasonable person under the conditions then existing, could not have foreseen
or discovered the danger. Parsons v. State
Road Comm?n (No. D-112). - 35
The determination of claimants? right to the remedy of mandamus to adjudicate
their rights under certain provisions of the tax law was not within the
jurisdiction of the Court of Claims. Peters
Fuel Corp. v. State Tax Comm?r
(No. D-226). -..- 158
While the Court of Claims determines cases according to law and the Court?s
findings are then considered by the legislature as moral obligations, the
jurisdiction of the Court is nevertheless limited by the express statutory
provision [1l-l4-2O, W. Va. Code] declaring that failure to follow the
prescribed proceoure in obtaining a gasoline tax refund does not coivtitute a
moral obligation on the State for payment.
Peters Fuel Corp. V. State
Tax Commr (No. D-226). 158
Section 5A-3-15, W. Va. Code, requires contracts involving purchases by the
State to be approved as to form by the Attorney General. It was not intended
for the Attorney General to pass upon the substance of the agreement, but only
that the agreement was legally expressed. The requirement is a salutary one and
the Court of Claims will not disregard it in any case which does not have
special reason for not enforcing it. Retreading
Research Associates, Inc.
v. Department of Fin. & Administration (No. D-356) 245
The Court of Claims has jurisdiction to hear a claim against the State Board of
Education. Smith v. State Bd. of
Educ. (No. D-125). -- - -- 31
The Court of Claims cannot make an award where damages
are not proved. Spencer v. Adjutant
General (No. D-165) 74
The Court of Claims was established to recommend to the Legislature payment of
claims which the State in equity and in good conscience should pay,
notwithstanding the sovereign immunity of the State, and provided that claims
would be
W. VA.]
REPORTS STATE COURT OF CLAIMS 285
tenable in a Court of record but for the defense of constitutional immunity. State Farm Mut. Auto. Ins. Co. v. State
Road Comm?n (No. D-251). 151
The Court of Claims was created by the Legislature to consider claims which,
but for the constitutional immunity of the State from suit, could be maintained
in the regular courts of the State. Jurisdiction is extended to claims which
the State as a sovereign commonwealth should in equity and good conscience
discharge and pay. Wetherall v. State Road
Comm?n (No. D-92). -
To constitute a moral obligation of the
State jutifying the appropriation of public funds, it is necessary that a legal
obligation or duty be imposed on the State, by statute or contract, or that
wrongful conduct be shown, which would be judicially recognized as such in
cases between private persons. Whether such moral obligation exists is a
judicial question.
Whiting v. Bd. of
Education (No. D-177) 45
The Court of Claims lacks jurisdiction over any claim with
respect to which a proceeding may be maintained against the
State by or on behalf of the claimant in the courts of the
State. William Garlick & Sons, Inc. v. State Auditor (No.
D-224). -
- - 137
A foreign corporation?s claim for a refund of corporation license taxes, paid
under protest for fiscal years from 1 July 1964 to 30 June 1969, was
disallowed, notwithstanding claimant?s contention that its authority to do
business in the State had been revoked and that it had done no business in the
State between 1964 and 1969, where claimant had failed to use an available
remedy by seeking a refund through court proceedings. William Garlick & Sons, Inc. v. State Auditor
(No. D-224) 137
LANDLORD AND TENANT
Claimant was awarded the sum of
$1703.87 for damages to its premises resulting from the occupancy thereof by
mental patients under the terms of a lease agreement between claimant and the
Department of Mental Health. Allergy
Rehabilitation Foundation, Inc. v. Department of Mental Health
(No. D-275) 87
A claim for loss of rent was disallowed, where claimants, whose property was
subject to condemnation for highway purposes, had signed provisions releasing
respondent from all claims for damages or compensation other than the purchase
price. Evans v. Deportment
of Highways (No. D-310) 227
Claimants were awarded the total sum of $355 as damages as compensation for
rental space furnished to the Department of Highways for the parking of a
trailer, partial destruction of a fence on claimants? property, and loss of a
hay crop. Yost
v. Department of Highways (No. D-272) 220
LIMITATION OF ACTIONS
A claim for the refund of business and
occupation taxes allegedly overpaid for the years 1960 and 1961 was disallowed,
where a circuit court had previously disallowed recovery for
286 REPORTS
STATE COURT OF CLAIMS [W.VA.
the taxes in question by stating they were barred by the statute of
limitations, although it had allowed recovery on taxes paid during three
subsequent years. Hughes Constr.
Co. v. State Tax Comm?r (No. D-123) 38
The State of West Virginia is not estopped to plead the statute of limitations
because of the mistake, negligence or misconduct of its agents. Huntington
Steel & Supply Cd. V.
West Virginia State Tax
Comm?r (No. D-159) 123
A claim for a refund of business and occupation taxes erroneously paid for
calendar years 1963 and 1964 was disallowed, where claimant had failed to
comply with the administrative procedure requiring aggrieved taxpayers seeking
such refunds to file a petition therefor within three years from the date of
payment. Huntington Steel & Supply Co. v. West
Virginia State Tax Comm?r (No. D-159) 123
There is no express or implied right on the part of any department of the State
through its agents or attorneys to waive the period of limitations set forth in
? 14-2-21, W. Va. Code.
Monongahela Power Co. v. Adjutant General (No. D-225) 49
An electric utility?s claim for damages, sustained when the parachute of a West
Virginia National Guard officer drifted across an open electric wire, must be
dismissed for lack of jurisdiction, where such claim had been filed more than
two years after the alleged cause of action arose. Monongahela
Power Co. v. Adjutant General (No. D-225) 49
Claimant insurer?s subrogated claim, arising out of a collision between the
insured?s truck and a State Road Commission vehicle, was disallowed, where
claimant had neglected to file a civil action against the driver of the State
owned vehicle, although there was evidence showing that claimant had made
efforts by correspondence to collect its claim from the State?s public
liability insurer, who managed to delay and evade payment of the full claim
until the tolling of the statute of limitations. State Farm Mut. Auto. Ins.
Co. v. State Road
Comm?n (No. D-251). 151
The statute of limitations does not run where there is a continual and
intermittent trespass to real estate. Whiting v.
Bd. of Education (No. D-177) 45
LWESTOCK
It is not common knowledge that wild
cherry leaves are toxic to cattle. Bradley v. Department of Highways
(No.
D-296) 163
In the case of claims brought by farmers for the loss of and injury to cattle
poisoned by wild cherry tree cuttings left by respondent?s employees, the
applicable standard of care was that of a reasonably prudent man, and not that
of a reasonably prudent farmer. Bradley v. Department of Highways (No.
D-296) 163
Claims for the loss of and injury to cattle, poisoned by wild cherry tree
cuttings left by respondent?s employees, were disallowed, where the acts of
such employees in leaving the cut vegetation on the right of way of a road did
not constitute negligence, and even if it were assumed to constitute negligence
an ordinarily prudent person could not have anticipated
W. VA.]
REPORTS STATE COURT OF CLAIMS 287
that the omission would expose cattle in an adjoining field to
danger. Bradley v. Department
of Highways (No. D-296) . 163
MANDAMUS
Mandamus can only be maintained where
there is a clear legal remedy. Hibbarci,
O?Connor & Weeks v. West Virginia
Ba. of Ecluc. (No.
D-235) 109
The determination of claimants? right to the remedy of mandamus to adjudicate
their rights under certain provisions of the tax law was not within the
jurisdiction of the Court of
Claims. Peters Fuel Corp. v. State Tax
Comm?r (No. D-226) 158
MARSHALL UNIVERSITY
Claimant was awarded the sum of
$727.30 for having shipped 590,000 data cards to respondent under a valid
contract, following an order placed by authorized personnel of Marshall
University. Smith v. State Ba. of Educ.
(No. D-125) 31
MINES AND MINERALS
A claim for wages lost while claimant
was attending a mine
explosion hearing, to which he had been summoned as a
witness, was not allowable without legal justification for a
finding of liability on the part of the State. Securro V.
Department of Mines (No. D-202) 103
The claims of four persons, for expenses incurred when they complied with a
request of the Department of Mines to testify at a hearing concerning the
Farmington mine disaster, were disallowed, where there was no legal basis for
recovery.
Thomas v. Department of Mines (No. D-164) 54
MISTAKE
To allow the payment of an illegal
claim as a moral obligation of the State, when it is admitted that the spending
unit clearly violated the statute by incurring liabilities which could not be
paid out of the current appropriation, clearly exceeds the jurisdiction of the
Court of Claims; nor would the fact that the parties were mistaken as to the
law, and may have acted without any corrupt or criminal intent, confer
jurisdiction or give the Court authority to allow the payment under a contract
declared unlawful, void or unenforceable by statute. Airkem Sales & Serv. v. Department
of Mental
Health (No. D-333) 180
MOTOR VEHICLES
Statements of a thirteen year old girl
to her grandfather and related by him on the stand, did not constitute
satisfactory proof of the identity of a truck from which a rock had been thrown
against the windshield of claimant?s automobile. Affolter v.
State Road Comm?n (No. D-22l) ? 150
Claimant was awarded the sum of $10,000 for damages resulting from a collision
of an automobile, in which she was a passenger, with a large boulder in the
road, where there
288 REPORTS
STATE COURT OF CLAIMS [W. VA
was negligence on the part of the Department of Highways and no negligence
attributable to the claimant. Ayers v.
Department of Highways (No. D-288) . 217
Claimant was awarded the sum of $149.51 for damages sustained when a hot
welding rod fell from the top of a bridge onto his automobile. Beranalc v. State Road Comm?n (No.
D-248). -
-- -- 108
The State is not an insurer, and its duty to travelers is a qualified one,
namely, reasonable care and diligence in the maintenance of its highways under
all the circumstances.
Cassel v. Department of Highways (No. D-108) 254
The very nature of the obligation of the State, in respect to the construction
and maintenance of its highways, precludes the idea that its failure to
exercise discretion in favor of a particular location over another, or whether
it should provide guard rails, center lines or danger signals at that point, is
an act of negligence. Cassel v. Department
of Highways (No.
D-108). 254
An automobile passenger?s claim for damages resulting from a highway accident
was disallowed, where, even assuming arguendo that respondent had failed to
exercise ordinary and reasonable care in the repair and maintenance of the
highway, a rut found on the road surface could only have been a remote and
incidental cause of claimant?s injuries, while the physical facts and
circumstances persuasively indicated that the driver?s careless and improper
driving was the proximate cause of the accident. Casseil v. Department of Highways
(No. D-108). - - 254
Claimants were awarded the sum of $101.41 for damages sustained when hot
welding lead fell from the upper part of a bridge onto their automobile. Catsos v. State Road Comm?n
(No. D-223) 107
Every user of our highways travels thereon at his own risk and the State does
not insure him a safe journey.
Cooper v. Department of Highways (No. D-166) 178
The mere failure to provide road markers is not such negligence as would create
a moral obligation on the part of the State to pay damages assumed to have
arisen through such failure and as the proximate cause thereof. Cooper v.
Department of Highways (No. D-166) 178
A claim for damages, based upon the alleged failure of respondent Department of
Highways to have proper signs indicating a new highway route, was disallowcd,
where the road had been in good repair and claimant had been contributorily
negligent in failing to have her automobile under proper
control. Cooper v. Department
of Highways (No. D-166). - 178
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the circumstances. Criss v. Department of Highways (No.
D-137) 175
The Department of Highways is not required to be infallible in its inspection
of its highways and rights of way, nor is it an insurer of the safety to
travelers on its roads. Criss v. Depart men
of Highways (No. D-137) ? 175
W.VA.] REPORTS
STATE COURT OF CLAIMS 289
For the State to guarantee the safety of travelers upon its highways against
the possibility of any tree falling from the many hills and cliffs adjoining
the highways in this mountainous state, when it has had no notice nor could
have reasonably foreseen the probability of such an occurrence, would place
liability on the State beyond all reason and expense.
Criss v. Department
of Highways (No. D-137) 175
A claim for damages resulting from the sudden stopping of claimants? automobile
when a tree fell across the road and struck the bumper or front part of the
vehicle was disallowed, where respondent Department of Highways had used
reasonable care and diligence under all the circumstances in the maintenance of
the highway, and where claimants failed to show that it was clearly apparent
that the road was hazardous or that respondent should have made a greater and
more detailed inspection to eliminate the condition as an impending hazard to
travelers on that road. Criss v. Department of
Highways (No. D-137). 175
Claims for damages, sustained when claimant A?s automobile collided with
claimant B?s automobile after the latter vehicle had been stopped by a
Department of Highways flagman, were disallowed, where the negligence, if any,
of respondent was not the proximate cause of the collision, since the
negligence of claimant A in failing to keep his vehicle under proper control
became the intervening, independent proximate cause of the damages sustained by
both claimants.
Ellison v. Department
of Highways (No. D-320) 264
A claim for damages allegedly caused by a rock from a cut on the side of a
mountain came down and struck claimant?s automobile was disallowed, where
claimant failed to show negligence on the part of respondent Department of
Highways. Elswjck v. Department
of Highways (No. C-32) 229
A claim for damages, sustained when claimant?s automobile was scraped and
dented while proceeding past a road construction site, was disallowed, where
there was no proof of any specific act of negligence on the part of the State
Road Commission or its employees. Gilliarn
v. State Road
Comm?n (No. D-152) 115
Claimant, an employee of the State Road Commission, was
awarded the suiii of $159.59 for damages sustained when a
parking lot attendant (also employed by the Commission)
negligently operated claimant?s automobile while attempting
to park it in the Commission motor pool parking lot. Grubbs
v. State Road Comm?n (No. D-238)
50
A claim for damages resulting from a collision between claimant?s automobile
and a State Road Commission snow removal truck was disallowed, where the
evidence showed that the driver of claimant?s car was contributorily negligent
in attempting to pass the truck on a snow-covered highway in a blizzard at a
speed of 20 to 25 miles per hour, while the truck was proceeding at a rate of
ten miles an hour. Haistead
v. State Road Comm?n (No. D-140)
24
The State is not an insurer of the safety of those traveling on the public
roads. Hanson v. State Road
Comm?n (No.
D-186). --?
100
Anyone who is injured or who sustains damages on a public road must prove that
the State has been negligent in its
290 REPORTS
STATE COURT OF CLAIMS [W. VA.
maintenance of the road in order to render the State liable.
Hanson v. State Road Comm?n (No. D-186) 100
A claim for damages, sustained when a rock fell on claimant?s automobile, was
disallowed, where there was insufficient evidence to establish negligence on
the part of the
State. Hanson v. State Road
Comm?n (No. D-186) 100
Claimant was awarded the sum of $56.14 for damages sustained when a bent metal
plate cut the tire of his automobile as it passed over a bridge. Holley v. Department of
Highways (No. 0-351) 242
Claimant was awarded the sum of $128.24 for damages sustained when a piece of
hot welding slag fell onto his automobile from the overhead structure of a
bridge where employees of the West Virginia Department of Highways were making
repairs. Humphrey v. Department
of Highways (No.
D-277) 142
The State is not the insurer of the safety of the roads and highways of the
State. Jones Esso Serv. Station v. State
Road Comm?n (No. D-198) 117
A claim for damages, sustained when claimant?s automobile struck a culvert in
the roadway, was disallowed, where, although there was conflicting evidence as
to whether ?slow? signs had been placed so as to warn motorists of the existing
hazard, there was also evidence to sustain a finding that claimant?s driver had
failed to exercise due and reasonable care for his own safety. Jones Esso Serv. Station V.
State Road Comm?n (No. 0-198) 117
Claimants were awarded the sum of $50 for damages sustained when a member of a
State Road Commission construction crew negligently dropped (or caused to fall)
a bottle onto claimants? automobile while the vehicle was
crossing a bridge. Lewis v. State Road
Comm?n (No. D-256). 132
The user of a highway travels at his own risk. Lowe V.
Department of Highways (No. C-19). - 210
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the
circumstances. Lowe v. Department of
Highways (No. C-19). 210
The Department of Highways cannot guarantee the traveling public that rocks or
trees may not fall upon our highways and thereby cause injury and damage to
persons and property. Lowe v. Department of Highways (No. C-19) 210
A claim for damages, sustained when paint was dropped on claimant?s automobile
while it was being driven across a bridge, was disallowed, where, even though
negligence on the part of State Road Commission employees could be assumed from
the facts, it was found that claimant, who sought $195.70 for the costs of
repair, had failed to mitigate damages by taking steps promptly to remove the
paint when the injury occurred. Travelers
Ins. Co. v. State Road Com.m?n (No.
0-274). ?
129
W. VA.]
REPORTS STATE COURT OF CLAIMS 291
Claimant was awarded the sum of $46.77 for the cost of replacing his automobile
windshield, which was broken by a rock thrown by a grass mower operated by
respondent?s employee. McClintic v. Department
of Natural Resources
(No. D-353) -- 218
Claimant was awarded the sum of $11 for damages sustained when members of a
State Road Commission construction crew, while installing a traffic counter,
caused a nail to damage a tire on claimant?s automobile while it was passing
over the counter. Melvin v. State Road
Comm?n (No.
D-257) 133
Claimant was awarded the sum of $69.79 for damages sustained when, in crossing
a state road bridge, the left rear wheel of his automobile dropped into a hole
in the floor of
the bridge. Monk v. State Road
Comm?n (No. D-139) 32
The user of a highway travels at his own risk, and the State does not and
cannot assure him a safe journey. Parsons
v. State Road Comm?n (No.
D-112). -
35
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the
circumstances. Parsons v. State Road Comm?n
(No. D-112) . -- 35
A claim for damages sustained when claimant?s automobile veered across a wet
highway surface and struck two other vehicles was disallowed, where claimant?s
mere recital of a road defect was found insufficient to sustain a recovery in
her favor. Parsons v. State Road Comm?n
(No. D-112) 35
Claimant was awarded the sum of $139.88 for damages sustamed when her
automobile struck an obstruction on a bridge, where the evidence supported a
finding that respondent?s negligence in failing to remove the hazard or give
notice of its existence was the proximate cause of the damage.
Randall v. Department of Highways (No. D-151). 147
Claimant and his subrogee insurer were awarded the sum of $275.67 for damages
sustained as a result of an accident involving claimant?s vehicle and a jeep
assigned to the Fair- mont headquarters of the Adjutant General. Rolfe v. Adjutant
General (No. D-237) 75
Claimant subrogee insurer was awarded the sum of $166.86 for damages sustained
when paint was dropped on its insured?s automobile by employees of the
Department of Highways who were engaged in painting a bridge. Safeco Ins.
Co. v. Department of Highways (No. D-441) 262
The user of a highway travels at his own risk, and the State does not and
cannot assure him a safe journey. Samples
v. State Road Comm?n (No. D-187)
80
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the
circumstances. Samples v. State Road
Comm?n (No. D-187). 80
292 REPORTS
STATE COURT OF CLAIMS [W. VA.
Claimants were awarded separate sums for damages sustained when a tree fell
from the top of an embankment onto their automobile, where there was no doubt that
excavation of the embankment by employees of the State Road Commission had
weakened the upper levels of a hillside, causing the tree to fall, and that the
unsafe condition resulting from the excavation had been carelessly permitted to
exist over a holiday period without anyone to inspect or supervise the
area. Samples v. State Road Comm?n (No. D-187) 80
Claimants were awarded the sum of $89 for damages sustained when a National
Guard jeep collided with another National Guard vehicle, pushing it into the
rear of claimants?
automobile. Shanabarger v. Adjutant
General (No. D-440). 261
Claimant was awarded the sum of $409.87 for damages sustained when his parked
automobile was struck by a State Road Commission truck, where respondent
admitted that the truck?s brakes were defective, and it was undisputed that the
cause of the collision was the failure of the driver to keep the vehicle under
controL Shinn, v. Department of Highways
(No. D-254) 174
The measure of damages in the case of a damaged motor vehicle is the difference
in the market value of the vehicle immediately before the accident and
immediately after the
accident. Spencer v. Adjutant
General (No. D-165) 74
An estimate for repairing a damaged automobile was not competent evidence, in
view of testimony showing that the vehicle was worth less than the cost of
repair and that it had become a total loss save for its salvage value. Spencer V.
Adjutant General (No. D-165)._ 74
Failure to maintain and keep a vehicle in repair constitutes negligence. State Farm Mut. Auto. Ins. Co. v. Department
of
Highways (No. D-285) 169
Subrogee insurer was awarded the sum of $168.83 for damages sustained by its
insured, where the evidence showed that the outside section of the rim of the
left rear wheel of a Department of Highways truck broke off and struck the side
of the insured?s automobile. State Farm
Mut. Auto. Ins.
Co. v. Department of Highways (No.
D-285) 169
Claimant subrogee insurer was awarded the sum of $105.46 f or damages sustained
by its insured?s automobile as a result of blasting operations conducted by
respondent. State Farm
Mut. Auto. Ins. Co. v. Department of Highways (No.
D-327) 219
Claimant insurer?s subrogated claim, arising out of a collision between the
insured?s truck and a State Road Commission vehicle, was disallowed, where
claimant had neglected to file a civil action against the driver of the State
owned vehicle, although there was evidence showing that claimant had made
efforts by correspondence to collect its claim from the State?s public
liability insurer, who managed to delay and evade payment of the full claim
until the tolling of the statute of limitations. State Farm Mut. Auto.
Ins. Co. V.
State Road Comm?n (No. D-251) 151
When the State carries public liability insurance to protect its citizens and
others against the negligence or misconduct of its agents and employees in the
operation of State owned
W. VA.]
REPORTS STATE COURT OF CLAIMS 293
vehicles, the State in effect provides a means of compensation without resort
to the legislative grace which gave rise to the Court of Claims. It is also an effectual
waiver of the defense of constitutional immunity, otherwise the insurance
coverage would be meaningless and unprotective of the rights of those who may
be injured by the irresponsible acts of the State?s agents and employees. State Farm Mut. Auto. Ins.
Co. v. State Road Comm?n (No. D-251) .
151
Claimant subrogee insurer was awarded the sum of $97.56 for damages sustained
when a loose head flew off of a hammer being used by respondent?s employee and
struck the windshield of a parked automobile owned by claimant?s insured. State Farm Mut. Auto. Ins. Co. v. West Virginia
Bd.
of Regents (No. D-414) 244
Claimant, an employee of respondent Department of Highways, was awarded the sum
of $423.49 for damages sustained when an endloader he was operating collided
with his parked automobile, where it appeared that the exhaust system of the
endloader had not been functioning properly, and claimant?s condition after the
collision had been diagnosed as carbon monoxide intoxication. Swiger v. Department of Highways
(No. D-303) 192
A claim for damages, sustained when paint was dropped on claimant?s automobile
while it was being driven across a bridge, was disallowed on rehearing, where
the damage, if any, was so slight that it could not be observed by an ordinary
inspection of the surface of the automobile. Travelers Ins.
Co. v. State Road Comm?n (No. D-274) 168
Claims brought by a truck owner and his subrogee insurer, seeking compensation
for damages sustained when the truck struck a large rock in the road, were
disallowed, where, although it could be assumed that the rock had fallen from a
Department of Highways truck which had been hauling rocks in the vicinity, the
proximate cause of the accident was the contributory negligence of claimant?s
employee in driving at an unsafe speed and in failing to see and avoid the
rock.
Vandergrift v. Department
of Highways (No. D-354A) 248
The State is not the insurer of its highways. Varner V.
State Road Comm?n (No. D-185) 119
Claimant was awarded the sum of $8,201.30 for damages sustained when an
automobile operated by claimant?s decedent wife collided with a boulder on the
roadway, where there was sufficient evidence to show that respondent State Road
Commission had recognized or should have recognized a potential hazard but
never made any more than a cursory inspection of the area. Varner v. State Road Comm?n (No.
D-185) 119
MOVING EXPENSES
Claimant, a Department of Mental
Health employee who was transferred from Huntington to Charleston, was awarded
a sum of $247.50 for moving expenses, where there had been an apparent lack of
knowledge on the part of the official who signed the requisition for moving
services that such services would be considered a gratuity, and where, under
the circumstances, it was determined by the Court that claimant
294 REPORTS
STATE COURT OF CLAIMS [W. VA.
should not be penalized by a mistake which was more of his superiors? making
than his own. Mathison v. Department
of
Mental Health (No. D-116) 9
MUNICIPAL CORPORATIONS
An ordinance of a municipal
corporation may not be repealed by a mere motion or resolution, nor can the
operation of the ordinance be suspended by a resolution or by the acts of
municipal officers. City of Morgantown v. Board of
Governors of West Virginia Univ. (No. D-46)
41
?The act which repeals an ordinance must be of equal dignity with the act which
establishes i, and must be enacted in the manner required for passing a valid
ordinance. Accordingly, an ordinance or bylaw can be repealed only by another
ordinance or bylaw, and not by a mere resolution, order, or motion, or by a
void ordinance. City of Morgantown v. Board
of Governors of West Virginia Univ. (No.
D-46) -
41
An ordinance enacted by the city council of Morgantown and providing for a fire
service charge could not be effectively repealed or rescinded by a simple
resolution which attempted to give West Virginia University credit for certain
charges and thereby release the University?s liability to the extent of the
credit given. City of Morgantown v. Board of
Governors of West Virginia Univ. (No. D-46) --
- - 41
West Virginia University is not simply property or assets within or of the City
of Morgantown but is property and assets of the State as a whole. City of Morgantown v. Board
of Governors of West Virginia Univ. (No.
D-46) 41
It is not equitable for the City of Morgantown to be charged entirely with the
cost of fire protection, which would be the result if the University were held
to be exempt or relieved of its share of the cost of such service. By requiring
the State as a whole to bear the fire service fee, equity is better served
regardless of any strict interpretation or application of the law. City of Morgantown v. Board of Governors of
West Virginia
Univ. (No. D-46) - 41
Claimant was awarded the sum of $40,886.22 for fire service fees assessed
against buildings and property of West Virginia University. City of Morgantown v. Board of Governors of
West Virginia Univ. (No. D-46) 41
NATIONAL GUARD
Claimant lumber company was awarded a
sum of $2,011 for damages sustained when a parachutist member of the West
Virginia National Guard made a regularly scheduled jump and, during the course
of the drop, struck and broke a power line providing electrical service to
claimant?s sawmill, thereby causing a power failure which ?burned out? twelve
motors owned and operated by claimant. Interstate
Lumber Co. V.
Adjutant General (No. D-23) 12
An electric utility?s claim for damages, sustained when the parachute of a West
Virginia National Guard officer drifted across an open electric wire, must be
dismissed for lack of jurisdiction, where such claim had been filed more than
two years after the alleged cause of action arose. Monongahela
Power Co. v. Adjutant General
(No. D-225) 49
W.VA.] REPORTS
STATE COURT OF CLAIMS 295
Claimant and his subrogee insurer were awarded the sum of $275.67 for damages
sustained as a result of an accident nvolving claimant?s vehicle and a jeep
assigned to the Fairmont headquarters of the Adjutant General. Rolfe V. Adjutant
General (No. D-237). - 75
Claimants were awarded the sum of $89 for damages sustained when a National
Guard jeep collided with another National Guard vehicle, pushing it into the
rear of claimants?
automobile. Shanabarger v. Adjutant
General (No. D-440). 261
NEGLIGENCE ? SEE also Blasting; Bridges; Damages; Motor Vehicles;
Rock Slides; Streets and Highways
Claimant was awarded the sum of $300
for damages caused by the negligence of State Road Commission employees in
setting fires in close proximity to his residence. Arbogast
v. State Road Comm?n (No. D-l01)..
28
Claimant was awarded the sum of $149.51 for damages sustained when a hot
welding rod fell from the top of a bridge onto his automobile. Beranak v. State Road Comm?n (No.
D-248). 108
A requisite of proximate cause is an act or omission which a person of ordinary
prudence could reasonably foresee might naturally produce an injury. Bradley v. Department of High way (No. D-296). -- 163
In the case of claims brought by farmers for the loss of and injury to cattle
poisoned by wild cherry tree cuttings left by respondent?s employees, the
applicable standard of care was that of a reasonably prudent man, and not that
of a reasonably prudent farmer. Bradley
v. Department of Highways (No.
D-296) 163
Claims for the loss of and injury to cattle, poisoned by wild cherry tree
cuttings left by respondent?s employees, were disallowed, where the acts of
such employees in leaving the cut vegetation on the right of way of a road did
not constitute negligence, and even if it were assumed to constitute negligence
an ordinarily prudent person could not have anticipated that the omission would
expose cattle in an adjoining field to danger. Bradley v. Department of Highways (No.
D-296) 163
Claimants were awarded the sum of $1,497 for damages caused to their dwelling
house as a result of blasting which was not properly controlled and which
presumably involved negligence on the part of respondent Department of
Highways. Caldwell v. Department of
Highways (No. D-194) 90
The very nature of the obligation of the State, in respect to the construction
and maintenance of its highways, precludes the idea that its failure to
exercise discretion in favor of a particular location over another, or whether
it should provide guard rails, center lines or danger signals at that point, is
an act of negligence. Cassel v. Department
of Highways (No.
D-108) 254
An automobile passenger?s claim for damages resulting from a highway accident
was disallowed, where, even assuming arguendo that respondent had failed to
exercise ordinary and
296 REPORTS
STATE COURT OF CLAIMS [W.VA.
reasonable care in the repair and maintenance of the highway, a rut found on
the road surface could only have been a remote and incidental cause of
claimant?s injuries, while the physical facts and circumstances persuasively
indicated that the driver?s careless and improper driving was the proximate
cause of
the accident. Cassel v. Department
of Highways (No. D-l08). 254
Claimants were awarded the sum of $101.41 for damages sustained when hot
welding lead fell from the upper part of a bridge onto their automobile. Catsos
v. State Road
Comm?n (No. D-223) 107
Claimant was awarded the sum of $1297.20 for damages resulting from the
derailment of a car containing a load of gravel, where the car had been placed
on a siding for delivery of the gravel to the State Road Commission and was
derailed and overturned in an attempt on the part of a Commission employee to
move it prior to unloading. Chesapeake
& 0.
Ry. v. State Road Comm?n (No.
D-150) 140
Claimant was awarded the sum of $8.24 for damages sustained when employees of
the State Road Commission in the course of their work dropped hot weld lead on
his boat.
Connon v. State Road
Comm?n (No. D-207) . 105
The mere failure to provide road markers is not such negligence as would create
a moral obligation on the part of the State to pay damages assumed to have
arisen through such failure and as the proximate cause thereof. Cooper V.
Department of Highways (No. D-l66) 178
A claim for damages, based upon the alleged failure of respondent Department of
Highways to have proper signs indicating a new highway route, was disallowed,
where the road had been in good repair and claimant had been contributorily
negligent in failing to have her automobile under proper control. Cooper v. Department of Highways (No.
D-166) 178
A claim for damages for wrongful death, based upon an allegation of negligence
on the part of the staff and employees of the Weston State Hospital in placing
the intestate in the same room with another mental patient who apparently
strangled the intestate to death, was disallowed, where although the evidence
showed that the other patient had been admitted approximately eleven hours before
the homicide and had been diagnosed ?schizophrenic reaction-paranoid type? (a
diagnosis described as ?not any different than anyone with a similar
classification?), there was no testimony or other evidence to show that the
hospital authorities knew or should have known that such patient had any
violent homicidal tendency. Creamer v. Department
of Mental
Health (No. D-40) 13
A claim for damages resulting from the sudden stopping of claimants? automobile
when a tree fell across the road and struck the bumper or front part of the
vehicle was disallowed, where respondent Department of Highways had used
reasonable care and diligence under all the circumstances in the maintenance of
the highway, and where claimants failed to show that it was clearly apparent
that the road was hazardous or that respondent should have made a greater and
more detailed inspection to eliminate the condition as an impending
W. VA.]
REPORTS STATE COURT OF CLAIMS 297
hazard to travelers on that road. Criss
v. Department of High way (No.
D-137). 175
A claim for damages, sustained when claimant fell from a bicycle after its
front wheel hit a large hole on a blacktop road, was disallowed, where claimant
was contributorily negligent in failing to see and avoid the hole. Dolin V.
Department of Highways (No. D-308) 252
A claim for damages for an injury sustained by claimant in slipping on a diving
board while he was a guest at Cacapon State Park was disallowed, where the
testimony showed that there were at least two lifeguards on duty at the time of
the accident, that no complaint or report was made to either of them or to
anyone else at the park, that the diving boards were regularly inspected at
least once every ten days, and that there were no complaints of a slick board
at any time during the year. Dubisse v. Department
of Natural Resources
(No. D-129) 21
Claims for damages, sustained when claimant A?s automobile collided with
claimant B?s automobile after the latter vehicle had been stopped by a
Department of Highways flagman, were disallowed, where the negligence, if any,
of respondent was not the proximate cause of the collision, since the
negligence of claimant A in failing to keep his vehicle under proper control
became the intervening, independent proximate cause of the damages sustained by
both claimants.
Ellison v. Department
of Highways (No. D-320) 264
A claim for damages allegedly caused by a rock from a cut on the side of a
mountain came down and struck claimant?s automobile was disallowed, where
claimant failed to show negligence on the part of respondent Department of
Highways. Elswick v. Department
of Highways (No. C-32) 229
Claimant was awarded the sum of $89.25 for damages sustained by reason of
workmen of the Department of Highways cutting down a tree adjacent to claimant?s
property and allowing a tree to strike a high voltage electric power line,
resulting in a surge of approximately 7200 volts of electricity in claimant?s
household wiring. Estate of L. M. Gates
v. Department of Highways (No.
D-453) 243
A claim for damages, sustained when
claimant?s automobile was scraped and dented while proceeding past a road
construction site, was disallowed, where there was no proof of any specific act
of negligence on the part of the State Road Commission or its employees. Gilliam v. State Road Comm?n
(No. D-152) 115
A claim for damages, allegedly caused by reason of inadequate and negligent
medical care and services rendered to claimant while he was a patient at
Pinecrest Sanitarium, was disallowed, where the evidence was insufficient to
show that the State had failed to exercise reasonable care in the treatment of
its patient. Green v. Department
of Pub. In stitution (No. D-l97) ? 101
Claimant, an employee of the State Road Commission, was
awarded the sum of $159.59 for damages sustained when a
parking lot attendant (also employed by the Commission)
negligently operated claimant?s automobile while attempting
to park it in the Commission motor pool parking lot.
Grubbs v. State Road
Comm?n (No. D-238) 50
298 REPORTS STATE
COURT OF CLAIMS [W. VA.
A claim for damages resulting from a collision between claimant?s automobile
and a State Road Commission snow removal truck was disallowed, where the
evidence showed that the driver of claimant?s car was contributorily negligent
in attempting to pass the truck on a snow-covered highway in a blizzard at a
speed of 20 to 25 miles per hour, while the truck was proceeding at a rate of
ten miles an hour. Halstead
v. State Road Cornm?n (No. D-140).
24
A claim for damages, sustained when a rock fell on claimant?s automobile, was
disallowed, where there was insufficient evidence to establish negligence on
the part of the State.
Hanson v. State Road
Comm?n (No. D-186). 100
Claimant was awarded the sum of $201 for clothing and personal property lost by
his ward while she was a patient in the Huntington State Hospital, such loss
having occurred as a result of negligence on the part of hmpital employees. Hicks
v. Depart rnesit of Mental Health (No.
D-144). 98
Claimant was awarded the sum of $128.24 for damages susstained when a piece of
hot welding slag fell onto his automobile from the overhead structure of a
bridge where employees of the West Virginia Department of Highways were making
repairs. Humphrey v. Department of Highways (No.
D-277). -
- - 142
A claim for damages, sustained when claimant?s automobile struck a culvert in
the roadway, was disallowed, where, although there was conflicting evidence as
to whether ?slow? signs had been placed so as to warn motorists of the existing
hazard, there was also evidence to sustain a finding that claimants driver had
failed to exercise due and reasonable care for his own safety. Joues Esso Serv. Station V.
State Road Comm?n (No. D-198). - - 117
Claimant was awarded the sum of $437.24 for
damages sustained when its truck
collided with a wooden highway barricade which had not been properly secured in
its position at the entrance to a tunnel. King?s Jewelry, Inc. v. State
Road Comin?n (No. D-216). 92
Claimant was awarded the sum of $226.33 for damages sustained when a large
plate glass window on its premises was shattered by a rock thrown from a lawn
mower operated by an employee of the State Road Commission. Kroger Co.
v. State Road Comm?n (No. D-245) 94
Claimants were awarded the sum of $50 for damages sustained when a member of a
State Road Commission construction crew negligently dropped (or caused to fall)
a bottle onto claimants? automobile while the vehicle was crossing a
bridge. Lewis v. State Road
Comm?n (No. D-256) . -- 132
The failure of the State to provide guard rails does not constitute negligence.
Lowe v. Department of Highways (No.
C-19) 210
The failure of the State to construct a barrier at the bottom of a hillside to
prevent falling rocks from rolling upon the highway does not constitute
negligence unless there is a clear showing that such a dangerous condition is
permitted to exist as reasonably would be expected to cause injury or damage to
users of the highway. Lowe v. Department
of
Highways (No. C-b) 210
W. VA.] REPORTS STATE COURT OF CLAIMS 299
A claim for damages, sustained when paint was dropped on claimant?s automobile
while it was being driven across a bridge, was disallowed, where, even though
negligence on the part of State Road Commission employees could be assumed from
the facts, it was found that claimant, who sought $195.70 for the costs of
repair, had failed to mitigate damages by taking steps promptly to remove the
paint when the injury occurred. Travelers
Ins. Co. v. State Road Comm?n (No.
0-274) .
129
Claimant was awarded the sum of $46.77
for the cost of replacing his automobile windshield, which was broken by a rock
thrown by a grass mower operated by respondent?s employee. McClintic v. Department of Natural Resources
(No. 0-353). 218
Claimant was awarded the sum of $11
for damages susstained when members of a State Road Commission construction
crew, while installing a traffic counter, caused a nail to damage a tire on
claimant?s automobile while it was passing over the counter. Melvin v. State Road Comm?n (No.
D-257). -
133
Claimants, operators of a small gas utility, were awarded the sum of $936.25
for the loss of gas caused by the negligent puncturing of their pipeline by
employees of respondent Department of I-{ighways. Miller v. Department of
Highways (No. 0-286). - - - 191
Negligence, to be actionable, must be such as might have been reasonably
expected to produce an injury. Miller v.
West Virginia Div. of Correction (No. D-149). 62
Negligence, no matter of what it consists, cannot create a cause of action
unless it is the proximate cause of the injury complained of. Miller v. West
Virginia Div. of Correction
(No. 0-149). - - - -- 62
A claim by the administratrix of a
deceased infant, seeking damages from the Division of Correction on account of
the murder of such infant by a parolee, was disallowed, where, not withstanding
claimant?s allegations of negligence on the part of state correction and parole
officers in having allowed the parolee to remain on parole before the murder
was committed, there was no evidence that the action or inaction of such
officers was the cause, much less the proximate cause, of the murder. Miller v. West Virginia Div. of Cor rectio (No. 0-149) 62
Claimant was awarded the sum of
$189.67 for damages resulting from the negligent conduct of Department of
Highways employees in causing a tree to fall into claimant?s power lines. Monoogahela Power Co. v. Department of High way (No. 0-252) 143
The doctrine of res ipsa loquitur
applies when a person, who is without fault, is injured by an instrumentality
at the time within the exclusive control of another person, and the injury is
such as in the ordinary course of events does not occur if the
person who has such control uses due care. Mullins v. Board of Governors of West Virginia Univ. (No.
0-107) ?
33
300 REPORTS
STATE COURT OF CLAIMS [W. VA.
The doctrine of res ipsa loquitur will not be invoked when the existence of
negligence is wholly a matter of conjecture. Mullins v.
Board of Governors
of West Virginia Univ.
(No. D-107) 33
A claim for damages to claimant?s ambulance, sustained when an electrically
operated overhead door at the West Virginia University Medical Center crashed
down onto the vehicle, was disallowed, and the doctrine of res ipsa loquitur
was found inapplicable, where there was no evidence of negligence on the part
of respondent, and, at the time of the accident, it could not be said that
respondent had exclusive control of the instrumentality, since none of its
agents was in the area and the door was, in fact, being operated by claimant?s
son. Mullins v. Board
of Governors of West
Virginia Univ. (No. D-107). 33
Negligence of a state agency or any of its employees must be fully shown to
justify an award by the Court of Claims; and it must be further shown that the
claimant did not know the existence of a danger, or that claimant, as a
reasonable person under the conditions then existing, the claimant could not
have foreseen or discovered the danger. Parsons v.
State Road Comm?n (No. D-112) 35
A claim for damages sustained when claimant?s automobile veered across a wet
highway surface and struck two other vehicles was disallowed, where claimant?s
mere recital of a road defect was found insufficient to sustain a recovery in
her favor. Parsons v. State
Road Comm?n (No. D-112) 35
While the owner or operator of a swimming pool is under
a duty to provide general supervision of the activities of the
pool, he is not an insurer of the safety of his patrons, and
a patron must exercise ordinary care for his own safety.
Pettinger v. West Virginia
State Bd. of Educ. (No. C-6)
134 A claim for damages, occasioned by claimant?s fall on the
deck of a swimming pooi located at West Virginia State College, was disallowed,
where claimant, a nineteen year old college student, was found to have been
contributorily negligent in running on a wet and slippery surface in violation
of posted rules. Pettinger v. West
Virginia State Bd. of
Educ. (No. C-6) 134
Claimant was awarded the sum of $81.24 for damages sustained by reason of the
sidewalk in front of his house was plowed up by a machine operated by a State
Road Commission employee, and where although the sidewalk was part of a public
street and not owned by claimant, it may have been such claimant could have
been compelled by the city to rebuild or repair it. Price v.
State Road Comm?n
(No. D-243). -- 139
Claimant was awarded the sum of $139.88 for damages sustained when her
automobile struck an obstruction on a bridge, where the evidence supported a
finding that respondent?s negligence in failing to remove the hazard or give
notice of its existence was the proximate cause of the damage.
Randall v. Department
of Highways (No.
D-151) 147
Claimant and his subrogee insurer were awarded the sum of $275.67 for damages
sustained as a result of an accident involving claimant?s vehicle and a jeep
assigned to the Fah?mont headquarters of the Adjutant General. Rolfe v.
Adjutant General (No. D-237) 75
W. VA.]
REPORTS STATE COURT OF CLAIMS 301
Claimant was awarded the sum of $409.87 for damages sustained when his parked
automobile was struck by a State Road Commission truck, where respondent
admitted that the truck?s brakes were defective, and it was undisputed that the
cuse of the collision was the failure of the driver to keep the vehicle under
control. Shinn v. Department
of Highways
(No. D-254). 174
A claim for damages caused to claimant?s property by the flow and accumulation
of surface water was disallowed, where any change in the flow of surface water
by reason of respondent Department of Highways having constructed a parking lot
was not a direct and proximate cause of such damages, and there was no wrongful
conduct on the part of respondent which would be judicially recognized as
negligence in a similar case between private persons. Southern
Hardware Co. v. Department of Highways (No.
D-206) ._
172
Failure to maintain and keep a vehicle in repair constitutes negligence. State Farm Mut. Auto. Ins. Co. v. Department of
Highways (No. D-285) 169
Subrogee insurer was swarded the sum of $168.83 for damages sustained by its
insured, where the evidence showed that the outside section of the rim of the
left rear wheel of a Department of Highways truck broke off and struck the side
of the insured?s automobile. State Farm
Mut. Auto. Ins.
Co.
v. Department of Highways (No. D-285) ? -- - 169
Claimant subrogee insurer was awarded the sum of $105.46 for damages sustained
by its insured?s automobile as a result of blasting operations conducted by
respondent. State Farm
Mut. Auto Ins. Co. v. Department of Highways (No. D-327). 219
Claimant subrogee insurer was awarded the sum of $97.56 for damages sustained
when a loose head flew off of a hammer being used by respondent?s employee and
struck the windshield of a parked automobile owned by claimant?s insured. State Farm Mut. Auto. Ins. Co. v. West Virginia
Bd. of Regents (No. D-414) 244
Claimant was awarded the sum of $40.17 for damages sustained when tar was
dropped and splattered onto his boat from. a bridge while the respondent?s
employees were applying tar to the road surface of the bridge. Talbert V.
Department of Highways (No. D-348) ? 241
Claims brought by a truck owner and his subrogee insurer, seeking compensation
for damages sustained when the truck struck .a large rock in the road, were
disallowed, where although it could be assumed that the rock had fallen from a
Department of Highways truck which had been hauling rocks in the vicinity, the
proximate cause of the accident was the contributory negligence of claimant?s
employee in driving at an unsafe speed and in failing to see and avoid the
rock. Vandergrift v. Department of Highways (No.
D-354A). 248
While there was evidence to support a finding of contributory negligence on the
part of a decedent driver whose vehicle collided with a boulder on the roadway,
the Court of Claims, in awarding damages to decedent?s administrator took note
of the fact that decedent had been confronted with a sudden emergency of
considerable magnitude and not
302 REPORTS
STATE COURT OF CLAIMS [W.VA.
of her own making, and the Court took into consideration the stress of the
occasion and her natural apprehension and confusion, concluding that any fault
in her judgment must
be excused. Varner v. State Road
Cornm?n (No. D-185). 119
A claim for damages occasioned by the alleged negligence of respondent in
leaving a hole in the paving of a state highway, thereby allegedly causing
claimant to trip and fall, was disallowed, where the evidence did not prove
that the street was sufficiently out of repair to justify a conclusion that
there was actionable negligence on the part of respondent. Whittington v.
Department of Highways (No.
D-311). -
- - 231
Claimant was awarded the sum of $249.26 for damages sustained as a result of
negligence on the part of State Road Commission employees in the course of
their work in having allowed sparks and molten metal to fall upon his boat.
Young v. State Road
Conrn?n (No. D-208). 106
OFFICE EQUIPMENT AND SUPPLIES
Claimant was awarded the sum of S90.05
for rental and maintenance of postage meter eqeipmont furniahed the office of
the Governor during the ycar 1966, 1967 and 1968. PitneyBowes, Inc. v. Office of the Governor (No,
D-255) .
144
Claimant was awarded the sum of $249.97 for an overshipment of automobile
license apolication forms delivered to the Depertment of Motor Vehicles. West Virginia Business
Forns, Inc. v. Depart nent of
Motor Vehicles (No. D-?38?i). 208
OPERATION HEAD START
Claimant was awarded the sum of
$1,128.89 for customs duties paid by him es customs agent in handling a
shipment of certain physiological testing equipment ordered from Switzerland by
the coordinator of Operation Head Start, an
agent of the State. Twig ger v. State (No. D-246). 84
PARKS
A claim for damages for an injury
sustained by claimant in slipping on a diving board while he was a guest at
Cacapon State Park was disallowed, where the testimony showed that there were
at least two lifeguards on duty at the time of the accident, that no complaint
or report was made to either of them or to anyone else at the park, that the
diving boards were regularly inspected at least once every ten days, and that
there were no complaints of a slick board at any time during the year. Dubisse v. Department
of Natural Resources
(No. D-129) -
- 21
PAROLE AND PROBATION
A claim by the administratrix of a
deceased infant, seeking damages from the Division of Correction on account of
the murder of such infant by a parolee, was disallowed, where, not withstanding
claimant?s allegations of negligence on the part of state correction and parole
officers in having allowed
W. VA.]
REPORTS STATE COURT OF CLAIMS 303
the parolee to remain on parole before the murder was committed, there was no
evidence that the action or inaction of such officers was the cause, much less
the proximate cause, of the murder. Miller
v. West Virginia Div. of Correction
(No. D-149) 62
PARTIES
Claimant?s insurer was permitted to
present its claim for a portion of the damages set out in claimant?s petition,
where it appeared that claimant had, by a subrogation agreement, assigned a
portion of the claim to the insurer. Jones
Esso
Serv. Station v. State Road Comm?n (No. D-198). -
117
A subrogee under an insLirance policy has the same right of recovery as the
insured and is entitled to the same relief. State Farm Mut. Auto. Ins. Co. v. Department
of Highways
(No. D-285).. - 169
Permitting a dam project subcontractor to be joined in a claim proceeding did
not prejudice the respondent State Road Commission, where the prime contractor
was a proper party claimant, and where the subcontractor, though not a
recognized subcontractor by the State Road Commissioner, had a substantial
beneficial interest in the claim by virtue of his contract of eniployment with
the prime contractor and was the person who performed the work that benefitted
the State, and to whom the State was ?morally? obligated. Wetherall v. State Road Comm (Iso.
D-92)
PHYSICIANS AND SURGEONS
Claimants were awarded the sum of
$116.50 for professional services rendered to a client of the respondent
Vocational Rehabilitation Division. Heilman
v. Vocational Rehabilitation
Div. (No. D-260). 88
Claimants were awarded a sum of $134.50 for certain medical services, where their claim had
been presented under the statutory provision authorizing a shortened procedure
for certain claims under one thousand dollars in amount. Squire v. West Virginia Vocational Rehabilitation Div. (No.
D-148) --
44
PLEADING
A gas company?s claim for damages,
sustained when a gas line was broken as a result of the operation of equipment
employed by the State Road Commission, was disallowed with leave to the parties
to file a supplemental stipulation or present further evidence, where the
brevity and sketchy nature of the stipulation of facts made it difficult for
the court to evaluate the merit of the claim. Equitable Gas Co.
V.
State Road Comm?n (No. D-173) 131
Claimant?s motion for a rehearing was
denied, where no purpose could be served by reargument of matters already
considered and passed upon by the court. Highway
Eng?rs, Inc. v. State Road Comm?n (No. D-154) 68
A claim for damages sustained when
claimant?s automobile veered across a wet highway surface and struck two other
304 REPORTS
STATE COURT OF CLAIMS [W. VA.
vehicles was disallowed, where claimant?s mere recital of a
road defect was found insufficient to sustain a recovery in
her favor. Parsons v. State Road
Comm?n (No. D-112) 35
POISONS
It is not common knowledge that wild
cherry leaves are toxic to cattle. Bradley
v. Department of Highways (No.
D-296) 163
In the case of claims brought by farmers for the loss of and injury to cattle
poisoned by wild cherry tree cuttings left by respondent?s employees, the
applicable standard of care was that of a reasonably prudent man, and not that
of a reasonably prudent farmer. Bradley
v. Department of Highways
(No. D-296) ? 163
Claims for the loss of and injury to cattle, poisoned by wild cherry tree
cuttings left by respondent?s employees, were disallowed, where the acts of
such employees in leaving the cut vegetation on the right of way of a road did
not constitute negligence, and even if it were assumed to constitute negligence
an ordinarily prudent person could not have anticipated that the omission would
expose cattle in an adjoining field to danger. Bradley v. Department of Highways (No.
D-296) 163
PRINTING
Claimant was awarded the sum of
$922.50 for printing 4500 copies of a campus newspaper published by Shepherd
College (which is under the control, supervision and management of the State
Board of Education), where it was admitted that a valid contract had been
entered into by the college president and claimant for such printing, and no
reason had been assigned for the failure of the State to make payment of the
invoices submitted. She pherdstown Register, Inc. v. State
Bd. of Educ. (No. D-102) -- - 30
Claimant was awarded the sum of $4907.70 for printing liquor price lists for
respondent Alcohol Beverage Control Commission, where, although there had been
conversations between the parties as to a possible price reduction, the
evidence did not show a sufficient meeting of the minds to justify a conclusion
that the parties had entered into a subsequent binding oral agreement which
would have eliminated any liability on the part of the respondent. Smith v. West
Virginia Alcohol Beverage Control
Comm?n (No. D-218) 127
PUBLIC OFFICERS
An officer of a State spending unit
must necessarily plan the operations of his department in such a manner as not
to spend funds unless they are actually available in his appropriation. Airkem Sales & Serv. v. Department
of Mental
Health (No. D-333) 180
The spending policies of the State are limited by law and anyone dealing with a
state agency must know its powers and limitations. Airkem Sales & Serv. v. Department
of
Mental Health (No. D-333) ? 180
W. VA.]
REPORTS STATE COURT OF CLAIMS 305
The State is not bound by contracts which are beyond the scope of the powers of
its agents. Huntington Steel & Supply
Co. v. West Virginia State Tax Comm?r (No. D-159) 123
There are many caveats in dealing with a governmental
agency, and the conduct of its officers cannot result in the
application of the doctrine of estoppel. Huntington Steel &
Supply Co. v. West Virginia State Tax Comm?r (No. D-159) 123
While it is true that the constitutional immunity of the State has been removed
by the act establishing the Court of Claims, a sovereign State has other
defenses and immunities peculiar to itself, which it may assert and which
cannot be destroyed by the wrongful conduct of its agents. Huntington Steel
& Supply Co. v. West Virginia State Tax Comm?r (No.
D-159) 123
A State or one of its political subdivisions is not bound by the legally
unauthorized acts of its officers, and all persons must take note of the legal
limitations upon their power and
authority. Massey v. Dept. of Welfare (No. D-142) 59
The State cannot in tax matters be bound by unauthorized acts of its employees
contrary to the statutes. Peters Fuel
Corp. v. State Tax Comm?r (No. D-226) 158
RAILROADS
Proof of the delivery of possession of
a bailed railroad car as a bailment to the bailee constitutes a prima fade case
on the part of the bailor railroad, whereupon the obilgation to prove that
damage to the car was not the fault of the bailee shifts to the bailee. Chesapeake
& 0. Ry. v. State Road
Comm?n (No. D-150) 140
Claimant was awarded the sum of $1297.20 for damages resulting from the
derailment of a car containing a load of gravel, where the car had been placed
on a siding for delivery of the gravel to the State Road Commission and was
derailed and overturned in an attempt on the part of a Commission employee to
move it prior to unloading. Chesapeake & 0.
Ry. v. State Road Comm?n (No. D-150) 140
An engineering firm?s claim for additional compensation for services rendered
in connection with the development of the Cass Scenic Railroad was disallowed,
where the evidence was not sufficient to contradict the contention that
claimant had done work over and above that specified in or contemplated by the
contract. Vogt-Ivers & Associates V. Department of Natural Resources (No. D-192) 214
RELEASE
A claim for loss of rent was
disallowed, where claimants, whose property was subject to condemnation for
highway purposes, had signed provisions releasing respondent from all claims
for damages or compensation other than the purchase price. Evans v. Department
of Highways (No.
D-310) 227
306 REPORTS
STATE COURT OF CLAIMS [W. VA.
RES JUDICATA
Where respondent?s contentions
regarding the legality of a sidewalk assessment could have been presented below
to a town council and the council?s decision could have been subsequently
appealed, but such contentions were not so presented, a town council?s decisions
of questions of fact were binding and not subject to review by the Court of
Claims. Charleston Concrete Floor Co. v. Department
of Highways
(No. D-322) 221
ROCKSLIDES
Claimant was awarded the sum of
$10,000 for damages resulting from a collision of an automobile, in which she
was a passenger, with a large boulder in the road, where there was negligence
on the part of the Department of Highways and no negligence attributable to the
claimant. Ayers V.
Department of Highways (No. D-288) 217
Claimants were awarded the sum of $567.88 for damages sustained when a
partially exposed gas line on their property was broken, where there was a
reasonable inference from the circumstantial evidence presented that the damage
occurred as a proximate result of the operations of State Road Commission
employees in clearing up debris from a slide that had occurred on a nearby
roadway. Davidson v. State
Road Comm?n (No. D-204) - - - 76
A claim for damages allegedly caused by a rock from a cut on the side of a mountain
came down and struck claimant?s automobile was disallowed, where claimant
failed to show negligence on the part of respondent Department of Highways.
Elswick v. Department
of Highways (No. C-32). 229
A claim for damages, sustained when a rock fell on claimant?s automobile, was
disallowed, where there was insufficient evidence to establish negligence on
the part of the State.
Hanson v. State Road
Comm?n (No. D-186) 100
The Department of Highways cannot guarantee the traveling public that rocks or
trees may not fall upon our highways and thereby cause injury and damage to
persons and property.
Lowe v. Department of Highways (No. C-19). 210
The failure of the State to construct a barrier at the bottom of a hillside to
prevent falling rocks from rolling upon the highway does not constitute
negligence unless there is a clear showing that such a dangerous condition is
permitted to exist as reasonably would be expected to cause injury or damage to
users of the highway. Lowe v. Department
of Highways
(No. C-19) 210
The State Road Commission cannot be held responsible for every rock or boulder
that falls on the state highways.
Varner v. State Road
Comm?n (No. D-185) -- 119
?Falling Rocks? signs are practically
indigenous to West Virginia roads, and to eliminate every hazard contemplated
by such signs would require expenditures so enormous as to be financially
unsound and prohibitive. However, when the State Road Commission knows or
should know that an unusually dangerous condition exists, there is a duty to
inspect
W. VA.]
REPORTS STATE COURT OF CLAIMS 307
and to correct the condition within the limits of funds appropriated by the
Legislature for maintenance purposes. Varner
v. State Road Comm?n (No. D-185) ? ?------- 119
While there was evidence to support a finding of contributory negligence on the
part of a decedent driver whose vehicle collided with a boulder on the roadway,
the Court of Claims, in awarding damages to decedent?s administrator, took note
of the fact that decedent had been confronted with a sudden emergency of
considerable magnitude and not of her own making, and the Court took into
consideration the stress of the occasion and her natural apprehension and
confusion, concluding that any fault in her judgment must be
excused. Varner v. State Road Comm?n (No. D-185) ? 119
Claimant was awarded the sum of $8,201.30 for damages sustained when an
automobile operated by claimant?s decedent wife collided with a boulder on the
roadway, where there was sufficient evidence to show that respondent State Road
Commission had recognized or should have recognized a potential hazard but
never made any more than a cursory inspection of
the area. Varner v. State Road Comm?n (No. D-185) 119
SANITATION
Claimant was awarded the sum of $1200
for work performed (without written authorization) in correcting conditions
caused by an overflow from a septic sewer system located at a building occupied
by employees of the State Road Commission, where the work was of an emergency
nature and did not afford, sufficient time to follow the usual procedures of
preparing a written order and written contracts after the submission of bids. Allstate
Plumbing Co. v. State Road
Comm?n (No. D-209) 78
SHEPHERD COLLEGE
Claimant was awarded the sum of
$922.50 for printing 4500 copies of a campus newspaper published by Shepherd
College (which is under the control, supervision and management of the State
Board of Education), where it was admitted that a valid contract had been
entered into by the college president and claimant for, such printing, and no
reason had been assigned for tne failure of the State to make payment of the
invoices submitted. Skepherclstown Register, Inc. v. State Bd.
of Ecluc. (No. D-102) 30
STATE
The State Building Commission was created for the construction of public
buildings for specified purposes with powers to contract and acquire by
purchase or otherwise real property necessary for its corporate purposes and to
exercise the power of eminent domain to accomplish such purposes.
C & D Equip. Co. v. State Bldg. Comm?n (No. D-3Z4) 237
The State is not an insurer, and its duty to travelers is a qualified one,
namely, reasonable care and diligence in the maintenance of its highways under
all the circumstances.
Cassel v. Department of Highways (No. D-108) 254
308 REPORTS
STATE COURT OF CLAIMS [W. VA.
The very nature of the obligation of the State, in respect to the construction
and maintenance of its highways, precludes the idea that its failure to
exercise discretion in favor of a particular location over another, or whether
it should provide guard rails, center lines or danger signals at that point, is
an act of negligence. Cassel v. Department
of Highways (No.
D-108). ?--
254
The maintenance of highways is a governmental function, and funds available for
road repairs are necessarily limited.
Cassel v. Department
of Highways (No. D-108) 254
West Virginia University is not simply property or assets within or of the City
of Morgantown but is property and assets of the State as a whole. City of Morgantown v. Board of
Governors of West
Virginia Univ. (No. D-46) . 41
Every user of our highways travels thereon at his own risk and the State does
not insure him a safe journey. Cooper v.
Department of Highways (No. 13-166) ? ? 178
The mere failure to provide road markers is not such negligence as would create
a moral obligation on the part of the State to pay damages assumed to have
arisen through such failure and as the proximate cause thereof. Con per v. Department of Highways (No.
13-166) .__
-_- 178
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the circumstances. Criss v. Department
of Highways (No.
13-137). ?--?
? ? ?------_ ? 175
For the State to guarantee the safety of travelers upon its highways against
the possibility of any tree falling from the many hills and cliffs adjoining
the highways in this mountainous state, when it has had no notice nor could
have reasonably foreseen the probability of such an occurrence, would place
liability on the State beyond all reason and expense. Criss
v. Department of Highways (No.
D-137)_ 175
A claim for legal services performed in examining titles and preparing
abstracts for the Department of Natural Resources was disallowed, where the
contract of employment was in direct violation of ? 5-3-1, W. Va. Code, which prohibits employment of private counsel for a state
agency without the approval of the attorney general. Freeman v. Department of
Natural Resources (No. D-298) 165
The State is not an insurer of the safety of those traveling on the public
roads. Hanson v. State Road
Comm?n (No.
13-186) ?
100
Anyone who is injured or who sustains damages on a public road must prove that
the State has been negligent in its maintenance of the road in order to render
the State hable.
Hanson v. State Road Comm?n (No. D-186) 100
A state is not subject to the laws of estoppel or waiver when acting in a
governmental capacity. Huntington Steel
&
Supply Co. v. West Virginia State
Tax
Comm?r (No. 13-159) 123
W. VA.]
REPORTS STATE COURT OF CLAIMS 309
While it is true that the constitutional immunity of the State has been removed
by the act establishing the Court of Claims, a sovereign State has other
defenses and immunities peculiar to itself, which it may assert and which
cannot be destroyed by the wrongful conduct of its agents. Huntington Steel & Supply Co. v. West Virginia
State Tax Comrn?r
(No. D-159). --- 123
The State of West Virginia is not estopped to plead the statute of limitations
because of the mistake, negligence or misconduct of its agents. Huntington Steel & Supply Co. V.
West Virginia State Tax Comm?r (No.
D-159). 123
The State is not bound by contracts which are beyond the scope of the powers of
it agents. Huntington Steel &
Supply
Co. v. West Virginia State Tax Comm?r (No. D-159). 123
There are many caveats in dealing with a governmental
agency, and the conduct of its officers cannot result in the
application of the doctrine of estoppel. Huntington
Steel &
Supply Co. v. West Virginia State Tax Comm?r (No. D-159). 123
The State is not the insurer of the safety of the roads and highways of the
State. Jones Esso Serv. Station v. State Road
Comm?n (No. D-l98). - - 117
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the
circumstances. Lowe v. Department
of Highways (No. C-19). 210
The maintenance of highways is a governmental function and funds available for
road improvements are necessarily
limited. Lowe v. Department
of Highways (No. C-l9). 210
The failure of the State to provide guard rails does not constitute negligence.
Lowe v. Department of Highways (No.
C-l9) .
210
The failure of the State to construct a barrier at the bottom of a hillside to
prevent falling rocks from rolling upon the highway does not constitute
negligence unless there is a clear showing that such a dangerous condition is
permitted to exist as reaspnably would be expected to cause injury or damage to
users of the highway. Lowe v. Departtnent
of Highways
(No. C-19). - - - ..- 210
Equitable estoppel cannot be applied against the State.
Massey v. Dept. of
Welfare (No. D-142). - -- 59
A State or one of its political subdivisions is not bound by the legally
unauthorized acts of its officers, and all persons must take note of the legal
limitations upon their power and
authority. Massey v. Dept. of
Welfare (No. D-142) 59
There is no express or implied right on the part of any department of the State
through its agents or attorneys to waive the period of limitations set forth in
? 14-2-21, W. Va. Code. Monongahela Power Co. v. Adjutant General (No.
D-225). .
49
The user of a highway travels at his own risk, and the State does not and
cannot assure him a safe journey. Parsons
v. State
Road Comm?n (No. D-112). - 35
310 REPORTS STATE_COURT OF_CLAIMS [W.V
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the
circumstances. Parsons v. State Road Comm?n (No. D-112). 35
The maintenance of highways is a governmental function, and funds available for
road improvements are necessarily
limited. Parsons v. State Road Comm?n
(No. D-112) - 35
The State cannot in tax matters be bound by unauthorized acts of its employees
contrary to the statutes. Peters Fuel
Corp. v. State Tax Comin?r (No.
D-226). -
158
Section 5A-3-l5, W. Va. Code, requires contracts involving purchases by the
State to be approved as to form by the Attorney General. It was not intended
for the Attorney General to pass upon the substance of the agreement, but only
that the agreement was legally expressed. The requirement is a salutary one and
the Court of Claims will not disregard it in any case which does not have
special reason for not enforcing it. Retreading
Research Associates, Inc. v. Department of Fin. & Administration (No. D-356). - - 245
Claimant Virginia corporation was awarded the sum of $5,400 f or services
rendered to the Department of Finance and Administration in testing automobile
tires, notwithstanding lack of approval of its contract by the Attorney
General, where claimant had in good faith performed the agreement upon the
representations of high officers of the State, and, being an out-of-state
citizen or corporation, should have been allowed greater consideration in its
dealings with the State where everything appeared valid. Retreading Research Associates, Inc. v. Department
of Fin. & Administration (No.
D-356) ..
245
The maintenance of highways is a governmental function.
Samples v. State Road Cornm?n
(No. D-187). 80
The user of a highway travels at his own risk, and the State does not and
cannot assure him a safe journey. Samples
v.
State Road Comm?n (No. D-187) 80
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the
circumstances. Samples v. State Road
Comm?n (No. D-187). 80
When the State carries public liability insurance to protect its citizens and
others against the negligence or misconduct of its agents and employees in the
operation of State owned vehicles, the State in effect provides a means of
compensation without resort to the legislative grace which gave rise to the
Court of Claims. It is also an effectual waiver of the defense of
constitutional immunity, otherwise the insurance coverage would be meaningless
and unprotective of the rights of those who may be injured by the irresponsible
acts of the State?s agents and employees. State Farm Mut. Auto. Ins. Co. v.
State Road Comm?n (No. D-251) 151
Claimant insurer?s subrogated claim, arising out of a collision between the
insured?s truck and a State Road Commission vehicle, was disallowed, where
claimant had neglected to file
W.VA.] REPORTS
STATE COURT OF CLAIMS 311
a civil action against the driver of the State owned vehicle, although there
was evidence showing that claimant had made effort?s by correspondence to
collect its claim from the State?s public liability insurer, who managed to
delay and evade payment of the full claim until the tolling of the statute of
limitations. State Farm Mut. Auto. Ins.
Co. v. State Road
Cornm?n
(No. D-251) - - 151
?the State is not the insurer of its highways. Vcirncr V.
State Road Comm?n (No. D-185). - 119
STREETS AND HIGHWAYS
In the case of a contractor?s claim
for damages resulting from unreasonable delays caused by respondent State Road
Commission in connection with a highway and bridge construction contract, the
contractor?s bid estimate was rejected as a basis for measuring the reasonable
cost of doing the work in the absence of delay, and the ?actual cost? of clUing
extra work under adverse conditions entailed by the d]ays was deemed to be a better
method of measuring darnascs. C. J.
Langen felde & Son v. Dept. of Highways (No. D-120). 193
Claimant was awarded the sum of $191,701.42 for damages resulting from
unreasonable delays caused by respondent State Road Commission in connection
with a highway and bridge construction contract. C. J. Lctngenfelder & Son v. Dept. of
Highways (No. D-120). - , - 193
Claimant was awarded the sum of
$581.24 for materials used in the construction of the State Road Commission
district materials lab in Pocahontas County. Caldwc?lI v. State Road
Comm?n (No. D-196). -- - - 216
The State is not an insurer, and its duty to travelers is a qualified one,
namely, reasonable care and diligence in the maintenance of its highways under
all the circumstances. Cassel v. Department
of Highways (No. D-108). . - 254
The maintenance of highways is a governmental function, and funds available for
road repairs are necessarily limited.
Cassell v. Department
of Highways (No. D-108) 254
The very nature of the obligation of the State, in respect to the construction
and maintenance of its highways, precludes the idea that its failure to
exercise discretion in favor of a particular location over another, or whether
it should provide guard rails, center lines or danger signals at that point, is
an act of negligence. Cassel v. Department
of Highways
(No. D-108). 254
Drop-offs, frayed edges and rut?s along the borders of our highways are a way
of life in West Virginia. Cassel V. Depart
men of Highways (No.
D-108) 254
An automobile passenger?s claim for damages resulting from a highway accident
was disallowed, where, even assuming arguendo that respondent had failed to
exercise ordinary and reasonable care in the repair and maintenance of the
highway, a rut found on the road surface could only have been a remote and
incidental cause of claimant?s injuries, while the physical facts and
circumstances persuasively indicated that the driver?s careless and improper
driving was the proximate cause of the accident. Cassei v. Department of
Highways (No. D-108) 254
312 REPORTS
STATE COURT OF CLAIMS [W. VA.
Where respondent?s contentions regarding the legality of a sidewalk assessment
could have been presented below to a town council and the council?s decision
could have been subsequently appealed, but such contentions were not so
presented, a town council?s decisions of questions of fact were binding and not
subject to review by the Court of Claims. Charleston Concrete Floor Co. v.
Department of Highways
(No. D-322). 22,1
Every user of our highways travels thereon at his own risk and the State does
not insure him a safe journey. Cooper v.
Department of Highways (No. D-166). 178
The mere failure to provide road markers is not such negligence as would create
a moral obligation on the part of the State to pay damages assumed to have
arisen through such failure and as the proximate cause thereof. Cooper v. Department of Highways (No. 0-166). 178
A claim for damages, based upon the alleged failure of respondent Department of
Highways to have proper signs indicating a new highway route, was disallowed,
where the road had been in good repair and claimant had been contributorily
negligent in failing to have her automobile under proper
control. Cooper v. Department
of Highways (No. D-166. 178
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the
circumstances. Criss v. Department of Highways (No. D-137). 175
The Department of Highways is not required to be infallible in its inspection
of its highways and rights of way, nor is it an insurer of the safety to
travelers on its roads. Criss V.
Department of Highways (No. D-l37). 175
?For the State to guarantee the safety of travelers upon its highways against
the possibility of any tree falling from the many hills and cliffs adjoining
the highways in this mountainous state, when it has had no notice nor could
have reasonably foreseen the probability of such an occurrence, would place
liability on the State beyond all reason and expense.
Criss v. Department
of Highways (No. D-137). 175
A claim for damages resulting from the sudden stopping of claimants? automobile
when a tree fell across the road and struck the bumper or front part of the
vehicle was disallowed, where respondent Department of Highways has used reasonable
care and diligence under all the circumstances in the maintenance of the
highway, and where claimants failed to show that it was clearly apparent that
the road was hazardous or that respondent should have made a greater and more
detailed inspection to eliminate the condition as an impending hazard to
travelers on that road. Criss v. Department
of High way (No. 0-137) . -- 175
A claim for damages, sustained when claimant fell from a bicycle after its
front wheel hit a large hole on a blacktop road, was disallowed, where claimant
was contributorily negligent in failing to see and avoid the hole. Dolin v. Department of Highways (No. D-308). 252
W. VA.]
REPORTS STATE COURT OF CLAIMS 313
Claims for damages, sustained when claimant A?s automobile collided with
claimant B?s automobile after the latter vehicle had been stopped by a
Department of Highways flagman, were disallowed, where the negligence, if any,
of respondent was not the proximate cause of the collision, since the
negligence of claimant A in failing to keep his vehicle under proper control
became the intervening, independent proximate cause of the damages sustained by
both claimants.
Ellison v. Department
of Highways (No. D-320). 264
Claimant was awarded the sum of $76 to cover the cost of replacing a sugar
maple tree and a forsythia bush destroyed by members of a crew of neighborhood
Youth Corps workers, employed under the supervision and control of the
Department of Highways, where it appeared that the conduct of such workers in
clearing brush along a roadside had constituted a trespass on claimant?s
property. Fedorka v. Department
of Highways (No. D-289). 171
Claimant engineering company was awarded $21,720, a sum which had been withheld
by the State Road Commission as liquidated damages for claimant?s failure to
complete work on a highway construction project within a specified time, where
the evidence showed that certain delays (which were not attributable to
claimant) furnished a reasonable basis for claimant?s inability to complete the
contract within the period required, and where it appeared that, in all equity,
claimant should not have been assessed under the liquidated damage provision of
the contract. Frederick Eng?r Co. v. State
Road Comm?n (No. D-130). 26
A claim for damages, sustained when claimant?s automobile was scraped and
dented while proceeding past a road construction site, was disallowed, where
there was no proof of any specific act of negligence on the part of the State
Road Commission or its employees. Gilliam
v. State Road Comrn?n
(No. D-152). - 115
The State is not an insurer of the safety of those traveling on the public
roads. Hanson v. State Road Comm?n
(No.
D-186). -
- - 100
Anyone who is injured or who sustains damages on a public road must prove that
the State has been negligent in its maintenance of the road in order to render
the State liable.
Hanson v. State Road
Comm?n (No. D-186) 100
Claimants were awarded the sum of $498 for damages sustained when a tree fell
on their house, where the evidence disclosed that the tree had been part of a
clump of trees located on the State?s right of way on an interstate highway and
that the undermining of the roots of the trees during highway construction work
had caused the trees to die and become a hazard to adjoining property. Hendricks v.
State
Road Comm?n (No. D-1ll).. 85 A claim for losses sustained in
connection with a highway
engineering contract could not be considered as a claim for damages, where there
was no showing that respondent had breached any provisions of the contract. Highway Eng?rs, Inc. v. State Road Co?nm?n (No. D-154). 68
The State is not the insurer of the safety of the roads and highways of the
State. Jones Esso Serv. Station v. State
Road Comm?n (No. D-198) 117
314 REPORTS
STATE COURT OF CLAIMS [W. VA.
A claim for damages, sustained when claimant?s automobile struck a culvert in
the roadway, was disallowed, where, although there was conflicting evidence as
to whether ?slow? signs had been placed so as to warn motorists of the existing
hazard, there was also evidence to sustain a finding that claimant?s driver had
failed to exercise due and reasonable care for his own safety. Jones Esso Serv. Station v. State
Road Comm?n (No. D-198) . -. 117
Claimant was awarded the sum of $437.24 for damages sustained when its truck
collided with a wooden highway barricade which had not been properly secured in
its position at the entrance to a tunnel. King?s Jewelry, Inc. v. State
Road Co?,mm?n (No. D-216). - - - 92
Claimant was awarded the sum of $226.33 for damages sustained when a large
plate glass window on its premises was shattered by a rock thrown from a lawn
mower operated by an employee of the State Road Commission. Kroger Co. v.
State Road Comm?n (No. D-245). 94
The maintenance of highways is a governmental function and funds available for
road improvements are necessarily
limited. Lowe v. Department
of Highways (No. C-19). 210
The State is not a guarantor of the safety of its travelers on its roads arid
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the
circumstances. Lowe v. Department
of Highways (No. C-19). 210
The user of a highway travels at his own risk. Lowe V.
Department of Highways (No. C-19) 210
The Department of Highways cannot guarantee the traveling public that rocks or
trees may not fall upon our highways and thereby cause injury and damage to
persons and
property. Lowe v. Department
of Highways (No. C-19). 210
The failure of the State to provide guard rails does not constitute negligence.
Lowe v. Department of Highways (No.
C-19) 210
The failure of the State to construct a barrier at the bottom of a hillside to
prevent falling rocks from rolling upon the highway does not constitute
negligence unless there is a clear showmg that such a dangerous condition is
permitted to exist as reasonably would be expected to cause injury or damage to
users of the highway. Lowe v. Department
of
Highways (No. C-19) 210
Claimant was awarded the sum of $27,095.75 for damages sustained by reason of
delay and shutdowns pursuant to orders issued by respondent Department of
Highways in connection with a street improvement contract. M & M Constr. Co.
v. Department of Highways (No.
D-299) 145
Claimant was awarded the sum of $11 for damages sustained when members of a
State. Road Commission construction crew, while installing a traffic counter,
caused a nail to damage a tire on claimant?s automobile while it was passing
over the counter. Melvin v. State Road Comm?n (No. D-257). 133
Claimant was awarded the sum of
$53,966.95 for damages caused by unreasonable delays and shutdowns by
respondent
W. VA.]
REPORTS STATE COURT OF CLAIMS 315
State Road Commission during the performance of a highway construction
contract. Mountain State Constr.
Co. v. State
Road Comm?n (No. D-99) - 89
Claimant was awarded the sum of $16,976.28 for materials delivered to
respondent State Road Commission. Mountaineer
Highway Abrasives Co. v. State Road Comm?n (No.
D-28). 91
Claimant was awarded the sum of $1071.27 for damages caused to his dwelling as
a result of a landslide, where the negligence of respondent Department of
Highways in failing to keep a drain open permitted the overflow of surface
water and was the proximate cause of the slide. Olive v. Department of Highways (No. D-290) 148
The maintenance of highways is a governmental function, and funds available for
road improvements are necessarily
limited. Parsons v. State Road Comm?n (No. D-112) 35
The user of a highway travels at his own risk, and the State does not and
cannot assure him a safe journey. Parsons
v. State Road Comm?n (No.
D-112) 35
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the
circumstances. Parsons v. State Road
Comm?n (No. D-112). -- 35
A claim for damages sustained when claimant?s automobile veered across a wet
highway surface and struck two other vehicles was disallowed, where claimant?s
mere recital of a road defect was found insufficient to sustain a recovery in
her favor. Parsons v. State Road
Comm?n (No. D-112) 35
Claimant was awarded the sum of $81.24 for damages sustained when the sidewalk
in front of his house was plowed up by a machine operated by a State Road
Commission employee, and where although the sidewalk was part of a public
street and not owned by claimant, it may have been such that claimant could
have been compelled by the city to rebuild or repair it. Price v. State Road Comm?n (No.
D-243) 139
Claimant was awarded a total sum of $33,979.32 for removal of certain material
and for extra work performed in connection with a highway construction
contract. Ralph Myers
Contracting Corp. v. State Road Comm?n (No.
B-382) 56
Claimant was awarded the sum of $315.94 for lumber and other building materials
ordered by and delivered to the State Road Commission. S. J. Neat hawk Lumber, Inc. v. State
Road Comm?n (No. D-180) 99 The maintenance of highways is a
governmental function.
Samples v. State Road
Comm?n (No. D-187) 80
The State is not a guarantor of the safety of its travelers on its roads and
bridges. The State is not an insurer and its duty to travelers is a qualified
one, namely, reasonable care and diligence in the maintenance of a highway
under all the
circumstances. Samples v. State Road Comm?n (No. D-187) 80
The user of a highway travels at his own risk, and the State does not and
cannot assure him a safe journey. Samples
v. State Road Comm?n (No. D-187)
80
316 REPORTS
STATE COURT OF CLAIMS [W.VA.
Claimants were awarded separate sums for damages sustained when a tree fell
from the top of an embankment onto their automobile, where there was no doubt
that excavation of the embankment by employees of the State Road Commission had
weakened the upper levels of a hillside, causing the tree to fall, and that the
unsafe condition resulting from the excavation had been carelessly permitted to
exist over a holiday period without anyone to inspect or supervise the
area. Samples v. State Road
Com,n?n (No. D-l87). - 80
Claimant, an employee of respondent Department of Highways, was awarded the sum
of $423.49 for damages sustained when an endloader he was operating collided
with his parked automobile, where it appeared that the exhaust system of the
endloader had not been functioning properly, and claimant?s condition after the
collision had been diagnosed as carbon monoxide intoxication. Swiger v. Department of Highways
(No. D-303). 192
Claims brought by a truck owner and his subrogee insurer, seeking compensation
for damages sustained when the truck struck a large rock in the road, were
disallowed, where, although it could be assumed that the rock had fallen from a
Department of Highways truck which had been hauling rocks in the vicinity, the
proximate cause of the accident was the contributory negligence of claimant?s employee
in driving at an unsafe speed and in failing to see and avoid the rock.
Vandergrift v. Department
of Highways (No. D-354A) 248
The State is not the insurer of its highways. Varner V.
State
Road Comm?n (No. D-185) -- 119
The State Road Commission cannot be held responsible for every rock or boulder
that falls on the state highways. Varner
v. State Road Comm?n (No. D-185). - - 119
?Falling Rocks? signs are practically indigenous to West Virginia roads, and to
eliminate every hazard contemplated by such signs would require expenditures so
enormous as to be financially unsound and prohibitive. However, when the State
Road Commission knows or should know that an unusually dangerous condition
exists, there is a duty to inspect and to correct the condition within the
limits of funds appropriated by the Legislature for maintenance purposes. Varner V. State
Road Comm?n (No. D-185) 119
Claimant was awarded the sum of $8,201.30 for damages sustained when an
automobile operated by claimant?s decedent wife collided with a boulder on the
roadway, where there was sufficient evidence to show that respondent State Road
Commission had recognized or should have recognized a potential hazard but
never made any more than a cursory inspection of the area. Varner V. State
Road Comm?n
(No. D-185) 119
Borrow material is ordinarily material brought onto a project site for the
completion of the project, when material excavated from the project is
insufficient to accomplish the purpose. Wetherall
v. State Road Comm?n (No.
D-92)
A contract providing for highway and dam construction was severable, where such
contract encompassed two divisible projects, payment for which was to be
received on the basis of unit prices assigned to each project. Wetherall v. State Road Comm?n (No.
D-92)
W. VA.]
REPORTS STATE COURT OF CLAIMS 317
Claimants were awarded the sum of $107.08 for damages caused to their fence as
a result of snow removal operations conducted by the Department of Highways. Whitehair V.
Department of Highways (No. D-318) 263
A claim for damages occasioned by the alleged negligence of respondent in
leaving a hole in the paving of a state highway, thereby allegedly causing
claimant to trip and fall, was disallowed, where the evidence did not prove
that the street was sufficiently out of repair to justify a conclusion that
there was actionable negligence on the part of respondent. Whittington V.
Department of Highways (No.
D-311).. 231
SWIMMING POOLS
A claim for damages for an injury
sustained by claimant in slipping on a diving board while he was a guest at Ca-
capon State Park was disallowed, where the testimony showed that there were at
least two lifeguards on duty at the time of the accident, that no complaint or
report was made to either of them or to anyone else at the park, that the
diving boards were regularly inspected at least once every ten days, and that
there were no complaints of a slick board at any time during the year. Dubisse v. Department of
Natural Resources (No. D-129). 21
While the owner or operator of a swimming pooi is under a duty to provide
general supervision of the activities of the pool, he is not an insurer of the
safety of his patrons, and a patron must exercise ordinary care for his own
safety. Pettinger v. West Virginia State Bcl. of Educ. (No.
C-6). 134
A claim for damages, occasioned by claimant?s fall on the deck of a swimming
pool located at West Virginia State College, was disallowed, where claimant, a
nineteen year old college student, was found to have been contributorily
negligent in running on a wet and slippery surface in violation of posted
rules. Pettinger V. West
Virginia State Bd. of Educ.
(No. C-6) 134
TAXATION
A claim for the refund of business and
occupation taxes allegedly overpaid for the years 1960 and 1961 was disallowed,
where a circuit court had previously disallowed recovery for the taxes in
question by stating they were barred by the statute of limitations, although it
had allowed recovery on taxes paid during three subsequent years. Hughes Constr.
Co. v. State Tax Comirir (No. D-123) 38
A claim for a refund of business and occupation taxes erroneously paid for
calendar years 1963 and 1964 was disallowed, where claimant had failed to
comply with the administrative procedure requiring aggrieved taxpayers seeking
such refunds to file a petition therefor within three years from the date of
payment. Huntington Steel & Supply
Co.
V. West Virginia State Tax Comrn?r (No. D-159). 123
A claim for a refund of a gasoline excise tax payment was disallowed, where
claimant?s application for a refund had not been filed with the tax
commissioner within ninety days
318 REPORTS
STATE COURT OF CLAIMS [W. VA.
from the date of purchase or delivery. Keeley
Bros. v. State
Tax Dep?t (No. D-330) 250
The State cannot in tax matters be bound by unauthorized acts of its employees
contrary to the statutes. Peters Fuel
Corp. v. State Tax Comm?r (No.
D-226) .
158
It is the inherent duty of the Tax Commissioner to audit, when requested, tax
returns and advise taxpayers of any deficiencies or overpayments. Peters Fuel Corp. v. State Tax
Comm?r (No. D-226). - 158
The determination of claimants? right to the remedy of mandamus to adjudicate
their rights under certain provisions of the tax law was not within the
jurisdiction of the Court of Claims. Peters
Fuel Corp. v. State Tax Comm?r
(No.
D-226) -
158
While the Court of Claims determines cases according to law and the Court?s
findings are then considered by the legislature as moral obligations, the
jurisdiction of the Court is nevertheless limited by the express statutor
provision [ 11-14-20, W. Va. Code] declaring that failure to follow
the prescribed procedure in obtaining a gasoline tax refund does not constitute
a moral obligation on the State for payment. Peters
Fuel Corp. v. State Tax Comm?r (No.
D-226) 158
A claim for a gasoline tax refund was disallowed, where claimants not only
failed to comply with the refund provisions of the gasoline tax law but might
also have had the right under the general tax refund statute to require the tax
commissioner to institute a declaratory judgment proceeding to ascertain
whether the tax had been lawfully collected.
Peters Fuel Corp. v. State Tax
Comm?r (No. D-226) 158
A claim for additional compensation in connection with three separate contracts
for the preparation of tax maps was disallowed, where the contracts were clear
as to the amount of compensation to be paid and the record showed that claimant
had been paid in full. Vogt-Ivers &
Associates v. State Tax
Comm?r (No. D-193) 233
A foreign corporation?s claim for a refund of corporation license taxes, paid
under protest for fiscal years from 1 July 1964 to 30 June 1969, was
disallowed, notwithstanding claimant?s contention that its authority to do
business in the State had been revoked and that it had done no business in the
State between 1964 and 1969, where claimant had failed to use an available
remedy by seeking a refund through court proceedings. William Garlick & Sons, Inc. v. State
Auditor
(No. D-224) 137
TRESPASS
To wilfully push waste material over a
hillside onto private property is a trespass and an actionable tort, without
proof
of negligence. Davidson v. State Road Comm?n
(No. D-204). -- 76
Claimants were awarded the sum of $567.88 for damages sustained when a
partially exposed gas line on their property was broken, where there was a
reasonable inference from the circumstantial evidence presented that the damage
occurred as a proximate result of the operations of State Road Commis
W. VA.]
REPORTS STATE COURT OF CLAIMS 319
sion employees in clearing up debris from a slide that had occurred on a nearby
roadway. Davidson v. State Road
Comm?n (No. D-204) 76
Claimant gas company was awarded the sum of $254.90 for damages caused to its
gas line when State Road Commission employees committed a trespass by operating
dredging equipment on claimant?s property without permission. Equitable
Gas Co. v. State Road Comm?n (No.
D-173) --
131
Claimant was awarded the sum of $76 to cover the cost of replacing a sugar
maple tree and a forsythia bush destroyed by members of a crew of neighborhood
Youth Corps workers, employed under the supervision and control of the
Department of Highways, where it appeared that the conduct of such workers in
clearing brush along a roadside had constituted a trespass on claimant?s property.
Fedorlca V.
De partmen of Highways (No. D-289) 171
The statute of limitations does not run where there is a continual and
intermittent trespass to real estate. Whiting
v.
Bd. of Education (No. D-177) 45
VESSELS AND BOATS
Claimant was awarded the sum of $8.24
for damages sustained when employees of the State Road Commission in the course
of their work dropped hot weld lead on his boat.
Connon v. State Road Comm?n
(No. D-207) 105
Claimant was awarded the sum of $40.17 for damages sustained when tar was
dropped and splattered onto his boat from a bridge while the respondent?s
employees were applying tar to the road surface of the bridge. Talbert V.
Department of Highways (No. D-348)._ - - -- 241
Claimant was awarded the sum of $249.26 for damages sustained as a result of
negligence on the part of State Road Commission employees in the course of
their work in having allowed sparks and molten metal to fall upon his boat.
Young v. State Road Comm?n (No. D-208) 106
VOCATIONAL REHABILITATION
Claimant rehabilitation center was
awarded the sum of $411 for services rendered to the division of vocational
rehabilitation over a period of ten days. Harmarville Rehabilitation Center v. Division of Vocational
Rehabilitation (No.
D-175) 53
Claimants were awarded the sum of
$116.50 for professional services rendered to a client of the respondent
Vocational Rehabilitation Division. Heilman
v. Vocational Rehabilitation
Div. (No. D-260) 88
WAGES
Claimant, a retired employee of the
State Road Commission, was awarded the sum of $760.29 for prior services
rendered to the State beyond his regular working hours pursuant to a
requirement of the Commission, notwithstanding the fact that certain payroll
procedural problems created by the
320 REPORTS
STATE COURT OF CLAIMS [W. VA.
Compulsory Retirement Act had earlier prevented the State
Auditor from issuing a warrant for payment. Bice v. State
Road Comm?n (No. D-214) 51
A claim for wages lost while claimant was attending a mine explosion hearing,
to which he had been summoned as a witness, was not allowable without legal
justification for a finding of liability on the part of the State. Securro V. De partmen of Mines (No. D-202) 103
The claims of four persons, for expenses incurred when they complied with a
request of the Department of Mines to testify at a hearing concerning the
Farmington mine disaster, were disallowed, where there was no legal basis for
recovery. Thomas v. Department of Mines (No. D-l64) 54
WAIVER
A state is not subject to the laws of
estoppel or waiver when acting in a governmental capacity. Huntington Steel & Supply Co. v. West
Virginia State Tax Comm?r (No.
D-l59) 123
WATERS AND WATERCOURSES
Claimant was awarded the sum of
$1071.27 for damages caused to his dwelling as a result of a landslide, where
the negligence of respondent Department of Highways in failing to keep a drain
open permitted the overflow of surface water and was the proximate cause of the
slide. Olive v. Department
of Highways (No. D-290). --.- -- 148
A claim for damages caused to claimant?s property by the flow and accumulation
of surface water was disallowed, where any change in the flow of surface water
by reason of respondent Department of Highways having constructed a parking lot
was not a direct and proximate cause of such damages, and there was no wrongful
conduct on the part of respondent which would be judicially recognized as
negligence in a similar case between private persons. Southern Hardware
Co. v. Department of Highways (No. D-206) - 172
The common-law rule that surface water is considered a common enemy, and that
each landowner may fight it off as best he can prevails in Virginia and West
Virginia, with the modification that an owner of higher ground may not inflict
injury on the owner of lower ground beyond what is necessary. Whiting v. Bd. of Education (No.
D-177) .
. - 45
Land at lower levels is subject to the servitude of receiving waters that flow
naturally upon it from adjoining higher land levels, and unless a property
owner diverts the natural flow of surface water in such a manner as to damage
the property of another. there is no liability on the owner of the
higher property. Whiting v. Bd. of
Education (No. D-177) 45
Unless a landowner collects surface water into an artificial channel, and
precipitates it with greatly increased or unnatural quantities upon his
neighbor?s land, causing damage, the law affords no redress. If no more water
is collected on the property than would naturally have flowed upon it in a
diffused manner, the dominant tenement cannot be held liable
W. VA.]
REPORTS STATE COURT OF CLAIMS _____ 321
for damage to land subject to the servitude of flowing waters.
Whiting v. Bd. of
Education (No. D-177). - 45
WELFARE
Claimant was awarded the sum of $226
for expenses incurred in caring for a sixteen year old boy, where the evidence
showed that an employee of the Logan County welfare department had told
claimant that a circuit court had placed the boy in the custody of claimant and
his wife and that claimant and his wife would be paid for their services.
Hall v. Department of Welfare (No. D-106) 10
The Department of Welfare has no legal authority to underwrite loans or make
guarantees for their repayment on behalf of welfare recipients. All parties
concerned are charged with notice that benefits which are payable directly to a
recipient may be terminated at any time that the recipient becomes ineligible
for assistance. Massey v. Dept. of
Welfare (No.
D-142) 59
A welfare recipient?s claim for funds
sufficient to cover the amount of a home improvement loan as disallowed, where
the evidence showed that, while credit had been extended to her on the basis of
an assurance by the Department of Welfare to give her a special grant, claimant
had, by her own conduct in refusing to give up possession of an automobile,
voluntarily made herself ineligible for public assistance.
Massey v. Dept. of Welfare (No. D-142) -- - 59
WEST VIRGINIA STATE COLLEGE
Claimant was awarded the sum of
$57,450 for services rendered in finding a purchaser for revenue bonds for the
West Virginia State College student-union dining hall. Hib bard, O?Connor & Weeks v. West Virginia Bd.
of Educ. (No.
D-235) 109
A claim for damages, occasioned by claimant?s fall on the deck of a swimming
pool located at West Virginia State College, was disallowed, where claimant, a
nineteen year old college student, was found to have been contributorily
negligent in running on a wet and slippery surface in violation of posted
rules. Pettinger v. West
Virginia State Bd. of
Educ. (No. C-6) 134
WEST VIRGINIA UNIVERSITY
West Virginia University is not simply
property or assets within or of the City of Morgantown but is property and
assets of the State as a whole. City of Morgantown v. Board
of Governors of West Virginia Univ. (No.
D-46) 41
It is not equitable for the City of
Morgantown to be charged entirely with the cost of fire protection, which would
be the result if the University were held to be exempt or relieved of its share
of the cost of such service. By requiring the State as a whole to bear the fire
service fee, equity is better served regardless of any strict interpretation or
application of the law. City of
Morgantown v. Board of Governors of West Virginia
Univ. (No, D-46) 41
322 REPORTS
STATE COURT OF CLAIMS [W. VA.
An ordinance enacted by the city council of Morgantown and providing for a fire
service charge could not be effectively repealed or rescinded by a simple
resolution which attempted to give West Virginia University credit for certain
charges and thereby release the University?s liability to the extent of the
credit given. City of Morgantown v. Board of Governors
of West Virginia Univ. (No.
D-46) .
41
Claimant was awarded the sum of $40,886.22 for fire service fees assessed
against buildings and property of West Virginia University. City of Morgantown v. Board of Governors of
West Virginia Univ. (No. D-46) 41
A claim for a refund of nonresident student tuition fees paid by a former New
Jersey resident while attending the law school of West Virginia University was
disallowed, where, although claimant may have established his domicile in West
Virginia, the facts did not satisfactorily negative an apparent attempt to
circumvent a rule providing that no nonresident student could establish
domicile which would entitle him to reductions or exemptions of tuition by his
attendance as a full-time student at any institution of learning in the State.
Esposito v. West Virginia
Bd. of Regents (No.
D-329) 223
A claim for damages to claimant?s ambulance, sustained when an electrically
operated overhead door at the West Virginia University Medical Center crashed
down onto the vehicle, was disallowed, and the doctrine of res ipsa loquitur was
found inapplicable, where there was no evidence of negligence on the part of
respondent, and, at the time of the accident, it could not be said that
respondent had exclusive control of the instrumentality, since none of its
agents was in the area and the door was, in fact, being operated by claimant?s
son. Mullins v. Board of
Governors
of West Virginia Univ. (No.
D-107) 33
Claimant was awarded the sum of $1258 as a refund of nonresident student
tuition fees paid by her while attending West Virginia University, where her
actions in having moved from Pennsylvania to Morgantown and engaged in
full-time employment there constituted an establishment by her of a legal
domicile in West Virginia. Wotlciewicz v. West Virginia
Bd. of Regents (No. D-294) 155
WITNESSES
Fees for witnesses in court are in
fixed, positive and relatively small amounts per day, regardless of the loss
which a
witness may actually suffer in being away from his usual
vocation. Securro v. Department of Mines (No. D-202) 103
A claim for wages lost while claimant was attending a mine
explosion hearing, to which he had been summoned as a
witness, was not allowable without legal justification for a
finding of liability on the part of the State. Securro V.
Department of Mines (No. D-202) 103
YOUTH CORPS
Claimant was awarded the sum of $76 to
cover the cost of replacing a sugar maple tree and a forsythia bush destroyed
W. VA.]
REPORTS STATE COURT OF CLAIMS 323
by members of a crew of neighborhood Youth Corps workers, employed under the
supervision and control of the Department of Highways, where it appeared that
the conduct of such workers in clearing brush along a roadside had constituted
a trespass on claimant?s property. Fedorka
v. De partmen of Highways (No.
D-289) ?
171