STATE OF WEST VIRGINIA
Report of the Court of Claims 1973-1975
Volume 10
STATE OF WEST
VIRGINIA REPORT OF THE COURT OF CLAIMS
For the Period from July 1, 1973 to June 30, 1975
By
CHERYLE M. HALL
Clerk
VOLUME X
(Published by authority Code 14-2-25)
BJW PRINTERS, BECKLEY, W. VA. __________ C-641
CONTENTS Ill
TABLE OF CONTENTS
Claims reported, table of XLVI
Claims classified according to
statute, list of XXVIII
Court of Claims Law — VII
Letter of transmittal —
Opinions of the Court XLV
Personnel of the Court —
— IV
References —
— 197
Rules of practice and procedure XX
Terms of Court —
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 JOHN B. GARDEN Judge
FORMER JUDGES
HONORABLE JULIUS W. SiNGLETON, JR July 1, 1967
—July 31, 1968
HONORABLE A. W. PETROPLUS August 1, 1968
—June 30, 1974
CHERYLE M. HALL 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 July one, one thousand nine hundred seventy-three to June
thirty, one thousand nine hundred seventy-five.
Respectfully submitted,
CHERYLE M. HALL,
Clerk
VI TERMS OF
COURT
TERMS OF COURT
Two regular terms of court are
provided for annually the second Monday of April and September.
STATE COURT OF
CLAIMS LAW VII
STATE COURT OF
CLAIMS LAW
CHAPTER 14 CODE
Article 2. Claims Against the State.
§14-2-1. Purpose.
§ 14-2-2. Venue for certain suits limited to Kanawha county.
§ 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.
§ 14-2-2 3. 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 VI 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.
VIII STATE
COURT OF CLAIMS LAW
§ 14-2-2. Venue for certain suits limited
to Kanawha county.
The following proceedings shall be brought and prosecuted only in the
circuit court of Kanawha county:
1. Any suit in which the governor, any other state officer, or a state agency
is made a party defendant, except as garnishee or suggestee.
2. Any suit attempting to enjoin or otherwise suspend or affect a judgment or
decree on behalf of the State obtained in any circuit court.
This section shall apply only to such proceedings as are not prohibited by the
constitutional immunity of the State from suit under section 35, article VI of the Constitution of the State.
§14-2-3. Definitions.
For the purpose of this article:
“Court” means the state court of claims established by section four [14-2-4J 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
STATE COURT OF
CLAIMS LAW IX
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 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.
§ 14-2-7. 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
X STATE COURT OF CLAIMS LAW
adequate quarters therefor. When
deemed advisable, in order to facilitate the full hearing of claims arising
elsewhere in the State, the court may convene at any county seat.
§ 14-2-8. 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 shall be filed with the auditor and preserved as
public 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 judge 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
STATE COURT OF
CLAIMS LAW XI
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 [
14-2-19] of this article, or (2) a claim
under a special appropriation, as provided in section twenty [ 14-2-20] of this article. The court shall consider claims in accordance
with the provisions of this article.
Except as is otherwise provided in this article, a claim shall be instituted by
the filing of notice with the clerk. Each claim shall be considered by 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 [ 14-2-14], 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 setoff 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
XII STATE
COURT OF CLAIMS LAW
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 twenty-three [23-1-1 et
seq.] of this Code.
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 [9-1-1 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 jurisdic
STATE
COURT OF CLAIMS LAW XIII
tion, it shall order the claim to be
placed upon its regular docket for hearing.
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 with the clerk. If the court finds that the record is
made-
XIV STATE
COURT OF CLAIMS LAW
quate, 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 applies, and falling within the
jurisdiction of the court, may be submitted by:
STATE COURT OF
CLAIMS LAW XV
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.
§ 14-2-2 1. 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 1, 19671, unless notice of such
claim be filed with the clerk within such period of
XVI STATE
COURT OF CLAIMS LAW
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 1, 19671, 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 1, 1967], 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.
§14-2-23. Inclusion of awards in budget.
The clerk shall certify to the department of finance and administration, 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.
STATE COURT OF
CLAIMS LAW XVII
§ 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.
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
XVIII STATE
COURT OF CLAIMS LAW
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 PROCEDURES XIX
Rules of Practice
and
Procedure
of the
STATE COURT OF CLAIMS
(Adopted by the Court
September 11, 1967.
Amended February 18, 1970
Amended February 23, 1972.)
xx
RULES OF PRACTICE AND PROCEDURE
RULE
TABLE
OF RULES
Rules of Practice and Procedure
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.
16.
Re-Hearings.
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.
(c) No paper, exclusive of exhibits, shall be filed in any action or proceeding
or be accepted by the Clerk for filing nor any brief, deposition, pleading,
order, decree, reporter’s transcript or other paper to be made a part of the
record in any claim be received except that the same be upon paper measuring
8-1/2 inches in width and 11 inches in length.
RULE 3. RECORDS.
The Clerk shall keep the following record books, suitably indexed in the
names of claimants and other subject matter:
XXII RULES OF
PRACTICE AND PROCEDURE
(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.
(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.
RULES OF
PRACTICE AND PROCEDURE XXIII
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, 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
XXIV RULES OF
PRACTICE AND PROCEDURE
file with the Court for its
consideration a brief on any question involved, provided a copy of said brief
is also presented to and furnished the opposing party or counsel. 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 file 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 therefore, 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 agency, shall be the responsibility of the
party by whom or at whose instance such witness is subpoenaed.
XXVI RULES OF
PRACTICE AND PROCEDURE
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 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
RULES OF
PRACTICE AND PROCEDURE XXVII
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.
Amended February 23, 1972.
CHERYLE M. HALL,
Clerk
REPORT
OF THE COURT OF CLAIMS
For the Period July 1, 1973 to June 30, 1975
(1) Approved claims and awards not
satisfied but to be referred to the Legislature, 1976, for final consideration
and appropriation:
r4
-I C
0
O
—
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
D-679 |
Burch, Geneva Marie |
Rehabilitation Environ D-76 |
|
|
|
D-752 |
Carney, Dana H. Casdorph, L. M. |
mental Action Program Department of Highways Department of Highways |
$ 550.00 |
$ 150.00 |
January 8, 1975
|
D-698 |
Coal River Public |
|
|
|
|
D-699 |
Service District Coal River Public |
Department of Highways |
90.00 |
90.00 |
June 18, 1974 |
0-787 |
Service
District |
Department of
Highways |
111.00 |
111.00 |
June 18, 1974 |
D-687 |
& Huntington
Federal Savings and Loan Association Greene, Clarke W. Harris, H. Ronald |
Department of
Hiighways |
25,000.00 |
7,500.00 |
October 22,
1974 |
D-656 |
Funeral Home, Inc. Maryland Casualty Co. |
Fund |
1,200.00 |
1,200.00 |
May 28, 1975 |
REPORT OF THE COURT OF CLAIMS (Continued)
(1) Approved claims and awards not satisfied but to be referred to the Legislature, 1976, for final consideration and appropriation:
CD
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
D-888 |
Miller, Samuel |
Department of
Highways Department of Highways |
123.60 |
123.60 |
January 16, 1975
January 16, 1975 |
|
TOTALS |
|
$ 272,265.17 |
$ 23,815.17 |
|
REPORT
OF THE COURT OF CLAIMS (Continued)
For the Period July 1, 1973 to June 30, 1975
(2) Approved claims and awards
satisfied by payments out of appropriations made by the Legislature for the
period July 1, 1973, to June 30, 1975:
11
0
z
0
‘TI
CD
*Subrogation claims were omitted from the Claims Bills by the 1974 and 1975 Legislature and, therefore, have not been satisfied.
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
D-633 D-623 |
Amburgey, F.
B., Trustee for Hensley Heights Maintenance Fund |
Adjutant General Department of Highways |
$ 1,308.47 |
$ 1,308.47 |
February 7, 1974 November 8, 1973 |
D-5 10 |
Baltimore Contractors, Inc. |
Department of Natural Resources |
712,105.36 |
200,000.00 |
January 8, 1975 |
D-907 |
Bateman,
Mildred |
Department of
Mental Health |
2,500.00 |
2,500.00 |
February 6,
1975 December 3, 1973 |
*D585b |
Buckeye Union Insur |
|
|
|
|
D74l |
ance Company |
Department of
Highways |
22,180.50 |
11,000.00 |
February 7,
1974 |
D-731 |
Corporation Cleveland Clinic |
Commission |
7,805.83 |
7,777.37 |
February 6, 1975 |
D-695 |
Eaton Laboratories |
Vocational
Rehabilitation Department of |
805.88 |
805.88 |
August 14, 1974 February 7, 1974 |
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 July 1, 1973, to June 30, 1975:
.I1
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of Determination |
D-657a |
Exxon Company,
U.S.A. |
Department of |
134.65 |
134.65 |
January 14,
1974 |
D-506 |
Forney, Helen |
Department of Finance & Administration |
10,000.00 |
1,593.24 |
October 15, 1973 |
D-506 |
Forney, Richard M., Jr. |
Department of Natural Resources |
200,000.00 |
14,900.00 |
October 15, 1973 |
D-6 16 |
General Telephone Company of the Southeast |
Department of Highways |
235.40 |
235.40 |
October 15, 1973 |
*D..585b |
Globe Indemnity Company |
Department of Highways |
22,180.50 |
11,000.00 |
February 7, 1974 |
D-665 |
Hodge, James |
Department of Highways |
172.00 |
162.20 |
February 7, 1974 |
D-902 |
Hoffman La Roche, Inc. |
Department of Mental Health |
275.94 |
275.94 |
February 6, 1975 |
D-603 |
House, Ronald
F., |
Department of Mental Health |
112,000.00 |
12,000.00 |
January 10, 1974 |
D-619 |
Joe L. Smith, Jr., Inc. d/b/a Biggs-Johnston-Withrow |
Office of the Governor |
27,180.96 |
27,180.96 |
December 6, 1973 |
D-676 |
John H. Brunetti Hardware & Painting |
Department of Mental Health |
2,264.43 |
2,264.43 |
June 26, 1974 |
D-624 |
McGuffey, John G. |
Board of Regents |
360.00 |
269.00 |
December 3, 1973 |
D-548 |
Mclver, William C. |
|
|
|
|
*D585c D-645a |
& Wilma L. |
Department of
Highways |
3,000.00 |
1,000.00 |
October 19,
1973 |
D-645b |
Monongahela Power Company |
Department of Highways |
26.63 |
26.63 |
December 3, 1973 |
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 July 1, 1973, to June 30, 1975:
D-645c
D-645d
D-7 19
D-507
D-507
*D720
*D4 13
D-579 &
D-634
D-681b
D-743
D-615
*D$99
Monongahela Power
Company
Monongahela Power Company
Moore, John
Moss. Hans Peter
Moss, Lenwood 3.
Nationwide Mutual
Insurance Company
Nationwide Mutual
Insurance Company,
subrogee of William
H. Wright
Osborne, Laura
Physician Accounts Department, Albert B. Chandler Medical Center, University
Hospital, University
of Kentucky
Raines Piano & Organ Center, Inc.
Russell Transfer, Inc.
State Farm Fire & Casualty
Company, as subrogee of
Sydney C. Bias
Department of
Highways
Department of Highways
Adjutant General
Department of Natural Resources
Department of Finance & Administration
Department of Public Safety
Department of Highways Department of Highways
Board of Vocational Education, Division of Vocational Rehabilitation
Board of Regents
Department of Finance & Administration
128.71
65.04
416.38
300,000.00
20,000.00
705.59
272.99
3,833.05
1,375.00
399.50
183,496.00
128.71
65.04
416.38
21,500.00
3,508.43
605.59
272.99
2,163.00
1,375.00
399.50
44,825.17
C-)
C,)
C,)
—
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0
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4
C’,
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December 3, 197
December 3, 1975
June 18, 1974
October 15, 1973
October 15, 1973
November 8, 1974
February 11, 1974
February 11, 1974
January 24, 1974
November 14, 1974
December 4, 1973
Department of Highways 1,809.44
1,500.00 December 5, 1973
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of Determination |
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 July 1, 1973, to June 30, 1975:
C.)
No. |
Name of Claimant |
Name of Respondent |
Amount Claimed |
Amount |
Date of |
*D768 |
State Farm
Mutual |
Department of
Highways Department of Highways |
105.06 |
105.06 |
October 9, 1974
January 9, 1974 |
REPORT
OF THE COURT OF CLAIMS (Continued)
(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:
><
p
‘TI
No. |
Name of Claimant |
Name of Respondent |
Amount Claimed |
Amount |
Date of |
D-516 |
Baltimore Contractors, Inc. |
Department of Natural Resources |
$ 45,778.86 |
Disallowed |
January 8, 1975 |
D-528 |
Baltimore Contractors, Inc. Bartz, William A. III |
Department of
Natural Resources |
54,061.75 |
Disallowed Disallowed |
January 8, 1975 January 16, 1975 |
D-493 |
Black Rock
Contracting, Inc. |
Department of
Highways |
48,722.46 |
Disallowed |
October 11,
1973 |
D-661 |
Casdorph, Sandra Miller |
Department of Public |
|
|
|
D-714 D-628 |
Dairyland Insurance Company, subrogee of Stanford T. Allen DuPont, Jo Ann Rose |
Safety |
500.00 |
Disallowed Disallowed |
May 24, 1974 January 16, 1975 |
D-630a |
Edgell, James Dewey |
Institutions |
50,000.00 |
Disallowed |
October 22, 1974 |
& b |
& Wilma R. |
Department of Highways |
25,000.00 |
Disallowed |
January 8, 1975 |
D-549a |
Hopson, Drema
Gail, Administratrix of the Estates of Nancy Ann, Angela Jean, deceased, and
Dannie Hopson McArthur, D. Mae |
Department of
Natural Resources |
25,000.00 |
Disallowed |
August 6, 1973 |
REPORT
OF THE COURT OF CLAIMS (Continued)
(4) Claims rejected by the Court with
reasons therefor:
O
Cl)
Cl)
.r1
— C-)
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C
— Cl)
>
x
No. |
Name of Claimant |
Name of Respondent |
Amount Clahued |
Amount Awarded |
Date of Determiuation |
D-735 |
Sanitary Board
(The) of the |
Department of
Highways Workmen’s Compensation Fund |
8,544.52 |
Disallowed |
April 2, 1975
June 10, 1974 |
|
TOTALS |
|
$ 418,893.97 |
|
|
REPORT
OF THE COURT OF CLAIMS (Continued)
(5) Advisory determinations made at
the request of the Governor or the head of a State agency:
rJ
0
0
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount Awarded |
Date of Determination |
D-705 |
Dean, E. Keith |
Board of
Architects |
$ 338.36 |
$ 338.36 |
February 11,
1974 |
|
TOTALS |
|
$ 8,701.96 |
$ 8,701.96 |
|
REPORT
OF THE COURT OF CLAIMS (Continued)
(6) Claims rejected by the Court but
payments made by special appropriation by the Legislature in the 1974 and 1975
Legislative sessions:
$
D-827
D-855
D-878a
&b
D-834
D-850
D-889
D-830
D-871
D-805
D-890
D-789a
D-826
D-873
A. H. Robins
Company Ailing & Cory
Ambulatory Care
Associates, Inc.
American Can Company
C & P Telephone Co.
of West Virginia
The City of Moundsville
Water Department
Columbia Gas of West
Virginia, Inc.
Consolidated Midland
Corporation
Cook Motor Lines, Inc.
Crescent Print Shop
Currence, Wilda F.
Dermatology Service, Inc.
Doctors Asaad, Inc.
Department of
Public Institutions
Department of Public Institutions
Department of Public Institutions
Department of Public Institutions
Department of Public Institutions
Department of Public Institutions
Department of Public Institutions
Department of Public Institutions
Department of Public Institutions
Department of Public Institutions
Alcohol Beverage Control Commission
Department of Public Institutions
Department of Public Institutions
$
320.00
72.45
20.00
565.00
39.76
2,464.19
7,283.91
210.00
9.36
42.97
775.00
40.00
100.00
320.00
72.45
20.00
565.00
39.76
2,464.19
7,283.91
210.00
9.36
42.97
775.00
40.00
100.00
January 15, 1975
January 15, 1975
January 15, 1975
January 15, 1975
January 15, 1975
January 15, 1975
January 15, 1975
January 15, 1975
January 15, 1975
January 15, 1975
January 15, 1975
January 15, 1975
January 15, 1975
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount Awarded |
Date of |
REPORT
OF THE COURT OF CLAIMS (Continued)
(6) Claims rejected by the Court but
payments made by special appropriation by the Legislature in the 1974 and 1975
Legislative sessions:
C
z
0
T1
C,)
*Claim has not been satisfied.
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
|
D-877 |
Doctors Barger and Gordon, Inc. |
Department of Public Institutions |
1,035.19 |
1,035.19 |
January 15, |
1975 |
D-872 |
Dung, Robert E., 0. D. |
Department of Public Institutions |
801.00 |
801.00 |
January 15, |
1975 |
D-863 |
Economics
Laboratory, Inc. |
Department of
Public Institutions |
3,396.00 |
3,396.00 |
January 15, |
1975 |
D-657b |
Exxon Company, U.S.A. Exxon Company, U.S.A. |
Department of
Mental Health |
48.73 |
48.73 |
January 14, |
1974 |
D-775 |
Freed, Helen L. |
Alcohol Beverage Control |
|
|
|
|
*D890 |
Goldsmit-Black, Inc. |
Commission |
850.00 |
850.00 |
January 15, |
1975 |
D-789f |
Harper, Louise H. |
Alcohol Beverage Control Commission |
625.00 |
625.00 |
January 15, |
1975 |
D-776 |
Harris, W. M. |
Alcohol Beverage Control Commission |
850.00 |
850.00 |
January 15, |
1975 |
D-869 |
Hillandale Farms, Inc. |
Department of Public Institutions |
318.75 |
318.75 |
January 15, |
1975 |
D-849 |
Hoffman-La Roche, Inc. |
Department of Public Institutions |
526.50 |
. |
January 15, |
1975 |
D-887 |
IBM Corporation |
Department of Public Institutions |
218.75 |
218.75 |
January 15, |
1975 |
REPORT
OF THE COURT OF CLAIMS (Continued)
(6) Claims rejected by the Court but
payments made by special appropriation by the Legislature in the 1974 and 1975
Legislative sessions:
D-803 Independent
Dressed Department of Public
369.60 369.60 January 15, 1975
Beef Company, Inc. Institutions
D-817 Industrious Blind Department of Public
402.12 402.12 January 15, 1975
Enterprise Institutions
D-839 Kellogg Sales Company Department of Public
Institutions 1,840.00 1,840.00 January 15, 1975
D-789a Kimble, Shirley Ann Alcohol Beverage Control
Commission 625.00 625.00 January 15, 1975
D-789k Kirby, James F. Alcohol Beverage Control
Commission 850.00 850.00 January 21, 1975
*D846 Kirk’s Photo-Art Center Department of Public
Institutions 1,015.08 1,015.08 January 15, 1975
D-858 The Kroger Company Department of Public
Institutions 31.86 31.86 January 15, 1975
D-815 Lever Brothers Company Department of Public
Institutions 1,160.60 1,160.60 January 15, 1975
D-833 Louis Anthony Co., Inc. Department of Public
Institutions 1,545.70 1,545.70 January 15, 1975
D-819 M & W Distributors, Inc. Department of Public
Institutions 46.94 46.94 January 15, 1975
D-789e Main, Wayne L. Alcohol Beverage Control
Commission 1,000.00 1,000.00 January 15, 1975
D-840 Marion Paper, Inc. Department of Public
Institutions 4,366.74 4,366.74 January 15, 1975
x
D-857 Marshall County Co- Department
of Public
82.13 82.13 January 15, 1975
operative, Inc. Institutions —
D-828 McNinch, William, Department of
Public
d/b/a McNinch Hardware Institutions 19.10 19.10 January 15, 1975
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount Awarded |
Date of |
REPORT
OF THE COURT OF CLAIMS (Continued)
(6) Claims rejected by the Court but
payments made by special appropriation by the Legislature in the 1974 and 1975
Legislative sessions:
-
D-802 Medical Supply Corn- Department of
Public
pany, Inc. Institutions 13.50 13.50 January 15, 1975
D-835 Merck, Sharp & Dohme Department of Public
Institutions 694.36 694.36 January 15, 1975
D-799 Midland Wholesale Department of Public
Grocery Company Institutions 151.23 151.23 January 15, 1975
D-847 Monroe, Division of Litton Department of Public
Business Systems, Inc. Institutions 32.00 32.00 January 15, 1975
D-814 Mt. Clare Provision Department of Public
Company Institutions 4,459.14 4,459.14 January 15, 1975
D-836 Mutual Wholesalers of Department
of Public
Wheeling, Inc. Institutions 5.76 5.76 January 15,
1975
D-854 Myers Drug Store, Inc. Department of Public
Institutions 83.00 83.00 January 15, 1975
D-829 The National Colloid Department of Public
Company Institutions 220.00 220.00 January 15, 1975
D-804 Norteman Packing Co. Department of Public
Institutions 5,652.11 5,652.11 January 15, 1975
D-789b Norton, Barbara Rae Alcohol Beverage Control
Commission 700.00’ 700.00 January 15, 1975
D-886 Ohio Valley Drug Department of Public
Company Institutions 30.00 30.00 January 15,
1975
D-860 Ohio Valley Medical Department of Public
Center, Inc. Institutions 32.00 32.00 January 15, 1975
D-818 Pepsi-Cola Bottling Co. Department of Public
of Moundsville, Inc. Institutions 1,057.20 1,057.20 January 15, 1975
No. |
Name of Claimant |
Name of Respo4ldent |
Amount |
Amount Awarded |
Date of |
C.)
C,’
C.)
— C
z
C
T1
C.)
C,’
z
C,’
REPORT
OF THE COURT OF CLAIMS (Continued)
(6) Claims rejected by the Court but
payments made by special appropriation by the Legislature in the 1974 and 1975
Legislative sessions:
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount Awarded |
Date of Determination |
|
D-897 |
Pfizer Inc. |
Department of Public |
|
|
|
|
D-8 1 6a, b, c, d & f |
Physicians Fee Office |
Institutions Department of Public Institutions |
3,788.52 |
3,78852 |
January 15, 1975
|
|
D-8 13 |
Polis Brothers |
Department of Public Institutions |
672.80 |
672.80 |
January 15, 1975 |
|
D-845 |
Proctor & Gamble |
Department of Public |
|
|
|
|
D-832 |
Distributing Co. Rabanal, Aristotle |
Institutions Department of Public |
266.50 |
266.50 |
January 15, 1975 |
|
D-825 |
A., M.D. |
Institutions Department of Public |
15.00 |
15.00 |
January 15, 1975 |
|
D-789j |
Hospital |
Institutions Alcohol Beverage Control |
1,289.07 |
1,289.07 |
January 15, 1975 |
|
D-808 |
Ruttenberg, Oscar, |
Commission Department of Public |
850.00 |
850.00 |
January 8, 1975 |
|
D-807 |
d/b/a
Ruttenberg’s Store Schering Corporation |
Institutions |
149.61 |
149.61 |
January 15, 1975
|
|
& b D-789d |
Singleton, Mary Louise |
Institutions Alcohol Beverage Control |
40.00 |
40.00 |
January 15, 1975 |
|
D-789i |
Smith, Donal L. |
Commission Alcohol Beverage Control |
550.00 |
550.00 |
January 15, 1975 |
|
D-821 |
Southern Chemical Company, a Division of Southern Machinery Company |
Commission |
775.00 |
775.00 |
January 15, 1975
|
|
REPORT
OF THE COURT OF CLAIMS (Continued)
(6) Claims rejected by the Court but
payments made by special appropriation by the Legislature in the 1974 and 1975
Legislative sessions:
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount Awarded |
Date of |
|
D-86 1 |
Standard Brands |
Department of Public |
|
|
|
|
D-824 |
Incorporated |
Institutions |
948.00 |
948.00 |
January 15, |
1975 |
D-800 |
State Food Stores, Inc. |
Department of Public |
|
|
|
|
D-8 12 D-823 |
Storck Baking
Company, |
Instituutions |
80.00 |
80.00 |
January 15, |
1975 |
D-848 |
The Upjohn Company |
Department of Public Institutions |
79.05 |
79.05 |
January 15, |
1975 |
D-911 |
Valley Animal Clinic |
Department of Public Institutions |
89.00 |
89.00 |
January 28, |
1975 |
D-820a |
Valley Welding Supply |
Department of Public |
|
|
|
|
D-789c |
Company Ware, Aluna J. |
Institutions Alcohol Beverage Control |
98.58 |
98.58 |
January 15, |
1975 |
D-789h |
Watson, Leonard D. |
Commission Alcohol Beverage Control |
550.00 |
550.00 |
January 15, |
1975 |
D-837 D-81 la |
West Virginia
Newspaper |
Commission
Department of Public Institutions |
775.00 |
775.00 |
January 15, |
1975 |
D-838 |
Wheeling Electric Company |
Department of Public Institutions |
1,219.36 |
1,219.36 |
January 15, |
1975 |
REPORT
OF THE COURT OF ClAIMS (Continued)
(6) Claims rejected by the Court but
payments made by special appropriation by the Legislature in the 1974 and 1975
Legislative sessions:
(7) Approved claims and awards satisfied by payment by the State agency through an opinion decided by the Court under the Shortened Procedure: (None).
x
No. |
Name of Claimant |
Name of Respondent |
Amount |
Amount |
Date of |
0-801 |
Wheeling
Hospital, |
Department of
Public Institutions |
864.20 |
864.20 |
January 15, 1975
|
|
TOTALS |
|
$ 94,351.74 |
$ 94,351.74 |
|
OPINIONS
XLVI TABLE OF
CASES REPORTED
TABLE OF CASES
REPORTED
A. H. Robins Company v. Department of
Public Institutions 167
Albert B. Chandler Medical Center, University Hospital,
Physician Accounts Department, University of Kentucky v.
Board of Vocational Education, Division of Vocational
Rehabilitation (No. D-681b) — 68
Albert B. Chandler Medical Center, University Hospital, University of Kentucky
v. Board of Vocational Education,
Division of Vocational Rehabilitation (No. D-68 1 a) -— 67
Ailing & Cory v. Department of Public Institutions 167
Ambulatory Care Associates, Inc. v. Department of
Public Institutions —
167
Amburgey, F. B., Trustee for Hensley Heights Maintenance
Fund v. Adjutant General 69
American Can Company v. Department of Public Institutions 167
Bacon, John A. v. Department of Highways 26
Baltimore Contractors, Inc. v. Department of
Natural Resources (D-510, D-516,
D-528) 148
Bartz, William A. III v. Department of Highways 170
Bateman, Mildred Mitchell, M.D. v. Department
of Mental Health 182
Blackwell, Donald B. v. Department of Highways — 33
Black Rock Contracting, Inc. v. Department of Highways 12
Boehm, Clinton and Hester v. Department of Highways 110
Boehm, Clinton and Hester v. Department of Highways
(Petition for Rehearing) 140
Bradfield, Walter E., Jr. v. Department of Public Safety 130
Buckeye Union Insurance Company v. Department of Highways 71
Burch, Geneva Marie v. Rehabilitation Environmental
Action Program —
159
Calvert Fire Insurance Co., Subrogee of Cody Mullins v.
Department of Highways 100
Cantley, Robert, Jr. v. Department of Highways 85
Carney, Dana H. v. Department of Highways 103
Casdorph, L. M. v. Department of Highways 90
Casdorph, Sandra Miller v. Department of Public Safety 86
TABLE OF CASES
REPORTED XLVII
Central Investment Corporation v. Nonintoxicating
Beer Commission —
182
Chesapeake & Potomac Telephone Co. of West Virginia v.
Department of Public Institutions 167
City of Moundsville Water Department v.
Department of Public Institutions 167
City of Wheeling Sanitary Board v. Department of Highways 192
Cleveland Clinic v. Board of Vocational Education,
Division of Vocational Rehabilitation 101
Coal River Public Service District v. Department
of Highways (No. D-698) —
91
Coal River Public Service District v. Department of
Highways (No. D-699) —
92
Columbia Gas of West Virginia v. Department of
Public Institutions 167
Consolidated Midland Corporation v. Department
of Public Institutions 167
Cook Motor Lines, Inc. v. Department of Public Institutions 167
Cooper, John L. v. Department of Highways 173
Corzine, Velva K. v. Department of Highways 144
Crescent Print Shop v. Department of Public Institutions 167
Currence, Wilda F. v. Alcohol Beverage Control Commission 166
Dairyland Insurance Company, subrogee of Stanford T. Allen
v. Department of Highways —
174
Dean, E. Keith v. Board of Architects — 80
Dermatology Service, Inc. v. Department of Public Institutions 167
Dietz, David R. v. Department of Highways 98
Doctors Asaad, Inc. v. Department of Public Institutions 167
Doctors Barger and Gordon, Inc. v. Department of
Public Institutions 167
Duffy, James M. v. Department of Highways 176
DuPont, Jø Ann Rose v. Department of Public Institutions 117
Dung, Robert E., O.D. v. Department of Public Institutions 167
Eaton Laboratories v. Department of Mental Health _--- 76
Economics Laboratory, Inc. v. Department of Public Institutions 167
Edgell, James Dewey and Wilma R. v. Department of Highways 161
Elden, Henry T. v. Board of Architects 80
XLVIII TABLE IF
CASES REPORTED
Electronic Materials Corporation v. Department of
Public Institutions 167
Ellison, Clyde M. v. Department of Highways 177
Exxon Company, U.S.A. v. Department of Mental Health
(No. D-657a) 63
Exxon Company, U.S.A. v. Department of Mental Health
(No. D-657b) 63
Exxon Company, U.S.A. v. Department of Public
Institutions (Nos. D-841a & b) 167
Fairfax County Hospital v. W.Va. Racing Commission 114
Federal Insurance Company v. Department of Highways
(No. D-585a) 77
Federal Insurance Company v. Department of Highways
(No. D-585b) 71
Firestone Tire & Rubber Company, The v. Department
of Highways 1
Forney, Helen v. Department of Finance & Administration 16
Forney, Richard M., Jr. v. Department of Natural Resources 16
Franzheim, L. W., Jr. v. Board of Architects — 80
Freed, Helen L. v. Alcohol Beverage Control Commission 166
Galyean, T. A., Jr. and Ann T. Galyean, his wife, John G. Anderson, Trustee,
& Huntington Federal Savings and Loan
Association v. Department of Highways — 121
General Telephone Company of the Southeast v.
Department of Highways 22
Globe Indemnity Company v. Department of Highways 71
Goldsmit-Black, Inc. v. Department of Public Institutions 167
Greene, Clarke W. v. Department of Highways 133
Hardesty, Milford, d/b/a Hillsview Floral Co. v.
Board of Regents —
55
Harper, Louise H. v. Alcohol Beverage
Control Commission -
- - 166
Harris, H. Ronald v. Department of Highways 116
Harris, W. M. v. Alcohol Beverage Control Commission 166
Henderson, Harry C. v. Department of Highways 177
Hillandale Farms, Inc. v. Department of Public Institutions 167
Hodge, James v. Department of Highways 78
TABLE OF CASES
REPORTED XLIX
Hoffman-La Roche, Inc. v. Department
of Public Institutions
(No. D-849) 167
Hoffman-La Roche, Inc. v. Department of Mental Health
(No. D-902) —
185
Hopson, Drema Gail, Administratrix of
the Estates of
Nancy Ann and Angela Jean, deceased, and Dannie Hopson
v. Department of Natural Resources 8 House, Ronald E., Administrator of the
Estate of Edward P.
House, deceased v. Department of Mental Health 58 Hunter, G.
Cameron v. Board of Architects 80
IBM Corporation v. Department of Public Institutions 167
Independent Dressed Beef Company, Inc. v. Department of
Public Institutions —
167
Industrious Blind Enterprise v. Department of
Public Institutions 167
Joe L. Smith, Jr., Inc. d/b/a Biggs-Johnston-Withrow
v. Office of the Governor 52
John H. Brunetti Hardward &
Painting v.
Department of Mental Health 96
Kellogg Sales Company v. Department of Public Institutions 167
Kimble, Shirley Ann v. Alcohol Beverage Control Commission 166
Kirby, James F. v. Alcohol Beverage Control Commission - - 181
Kirk’s Photo-Art Center v. Department of Public Institutions - 167
Kroger Company, The v. Department of Public Institutions . 167
Lantz, James R. v. Department of Highways 145
Leonard Johnson Funeral Home, Inc. v.
Workmen’s
Compensation Fund 195
Lever Brothers Company v. Department
of Public Institutions -
167 Louis Anthony Co., Inc. v. Department
of Public Institutions -
- 167
McArthur, D. Mae v. Department of Highways 136
McGuffey, John G. v. Board of Regents 35
Mclver, William C. & Wilma L. v. Department of Highways 23
McNinch, William, d/b/a McNinch Hardware v. Department
of Public Institutions 167
M & W Distributors, Inc. v. Department of Public Institutions. 167
L TABLE OF
CASES REPORTED
Main, Wayne L. v. Alcohol Beverage
Control Commission 166
Marion Paper, Inc. v. Department of Public Institutions 167
Marshall County Co-operative, Inc. v. Department of
Public Institutions 167
Maryland Casualty Company v. Alcohol Beverage Control
Commission 126
Maryland Casualty Company v. Alcohol Beverage Control
Commission (Petition for Rehearing) 186
Medical Supply Company, Inc. v. Department of
Public Institutions 167
Merck, Sharp & Dohme v. Department of Public Institutions. 167
Midland Wholesale Grocery Company v. Department
of Public Institution —
167
Miller, Samuel v. Department of Highways 180
Monarch Insurance Company v. Department of Highways 79
Monongahela Power Company v. Department of
Highways (No. D-709) —
180
Monongahela Power Company v. Department of
Highways (No. D-645a) — — 37
Monongahela Power Company v. Department of
Highways (No. D-645b) 37
Monongahela Power Company v. Department of
Highways (No. D-645c) 38
Monongahela Power Company v. Department of
Highways (No. D-645d) 39
Monroe, Division of Litton Business Systems, Inc. v.
Department of Public Institutions — 167
Moore, John v. Adjutant General — 93
Moss, Hans Peter v. Department of Natural Resources 16
Moss, Lenwood J. v. Department of Finance &
Administration —
16
Moundsville, City of, Water Department v. Department of
Public Institutions 167
Mt. Clare Provision Company v. Department of
Public Institutions 167
Mutual Wholesalers of Wheeling, Inc. v. Department of
Public Institutions 167
Myers Drug Store, Inc. v. Department of Public Institutions 167
TABLE OF CASES
REPORTED LI
National Colloid Company, The v.
Department of
Public Institutions —
167
Nationwide Mutual Insurance Company, subrogee of Walter E.
Bradfield, Jr. v. Department of Public Safety (D-720) 130
Nationwide Mutual Insurance Company, subrogee of William
H. Wright v. Department of Highways (D-713) 82
Newcome, Bertha A. v. Civil Service System 146
Norfolk and Western Railway Company v. Department of
Highways 186
Norteman Packing Company v. Department of Public
Institutions 167
Norton, Barbara Rae v. Alcohol Beverage Control Commission 166 Ohio Valley Drug
Company v. Department of
Public Institutions 167
Ohio Valley Medical Center, Inc. v. Department of
Public Institutions 167
Osborne, Laura v. Department of Highways (Nos.
D-579 & D-634) 83
Pepsi-Cola Bottling Co. of Moundsville, Inc. v.
Department of Public Institutions — 167
Pfizer Inc. v. Department of Public Institutions 167
Physicians Fee Office v. Department of Public Institutions
(Nos. D-816a, b, c, d & f) 167
Polis Brothers v. Department of Public Institutions 167
Proctor & Gamble Distributing Co. v. Department of
Public Institutions 167
Rabanal, Aristotle A., M.D. v. Department of
Public Institutions 167
Raines Piano & Organ Center, Inc. v. Board of Regents 139
Reed, Mr. & Mrs. T. E. v. Department of Highways 99
Reynolds Memorial Hospital v. Department of Public
Institutions 167
Ruddell, Cecile H. v. Alcohol Beverage Control Commission 163
Runion, Cecil A. v. Department of Highways — 141
Russell Transfer, Inc. v. Department of Finance &
Administration 40
Ruttenberg, Oscar, d/b I
a Ruttenberg’s Store v. Department
of Public Institutions -_
167
LII TABLE OF
CASES REPORTED
Schering Corporation v. Department of
Public Institutions 167
Seung, Hong I., M.D. v. Department of Public Institutions 167
Shaw, Ray A. v. Board of Architects 80
Singleton, Mary Louise v. Alcohol Beverage Control
Commission 166
Smith, Donal L. v. Alcohol Beverage Control Commission 166
Solomon, Lena v. Rehabilitation Environmental Action Program 104
Southern Chemical Company, a Division of Southern
Machinery Company v. Department of Public Institutions 167
Standard Brands Incorporated v. Department of
Public Institutions 167
Standard Brush & Broom Company v. Department of
Public Institutions 167
Stanley, Edward H. v. Rehabilitation Environmental
Action Program —
106
State Farm Fire & Casualty Company, subrogee of Sydney C. Bias v.
Department of Highways (No. D-599) 51
State Farm Mutual Automobile Insurance Co., subrogee of Robert and Sharon Myles
v. Department of Highways
(No. D-768) 108
State Food Stores, Inc. v. Department of Public Institutions 167
Stevens, Kenneth R. v. Workmen’s Compensation Fund 88
Storck Baking Company, Inc. v. Department of Public
Institutions 167
Swartzmiller, Clair and Margaret v. Department of Highways 29
Swift & Company, Inc. v. Department of Highways 56
Thomas, Opal Baker and Elsey v. Department of Highways 187
Travelers Indemnity Co., subrogee of Catherine M. Belcastro
v. Department of Highways —
95
Tn-State Drug Company v. Department of
Public Institutions 167
Tygart Valley Telephone Company v. Department of Highways - 102
United States Fidelity & Guaranty Company v.
Department of Highways 71
Upjohn Company, The v. Department of Public Institutions 167
Valley Animal Clinic v. Department of Public Institutions 181
TABLE OF CASES
REPORTED LIII
Valley Welding Supply Company v.
Department of
Public Institutions —
167
Vance, Oather T. v. Department of Highways 189
Via, Mrs. W. G. v. Department of Highways — 165
Walker, Charles M. v. Department of Highways — 32
Ware, Aluna J. v. Alcohol Beverage Control Commission 166
Ware, Jerry W. v. Adjutant General — 190
Watson, Leonard D. v. Alcohol Beverage Control Commission 166
West Virginia Newspaper Publishing Company v. Department
of Public Institutions 167
West Virginia State Industries v. Department of
Public Institutions 167
Wheeling, City of, Sanitary Board v. Department of Highways 192
Wheeling Electric Company v. Department of Public Institutions 167
Wheeling Hospital, Inc. v. Department of Public Institutions - 167
Wheeling Wholesale Grocery Co. v. Department of Public
Institutions 167
White, Earnest R. and Jo Ann v. Department of Highways 23
Winans Sanitary Supply Company, Inc. v. Department of
Public Institutions 167
Wyeth Laboratories, Division of American Home Products
Corp. v. Department of Public Institutions 167
Young, Ruth v. Department of Highways —--- 64
Zain, Emily v. Department of Highways — 109
Cases
Submitted and Determined
in the Court of Claims in the
State of West Virginia
Opinion issued February 16, 1972
THE FIRESTONE TIRE & RUBBER
COMPANY, et al
vs.
DEPARTMENT OF HIGHWAYS
(No. D-227)
T. D. Kauffelt, Counsel for Claimant in Claim No. D-227, Louis
R. Tabit, Counsel for Claimants in Claims No. D-228 A-M, George
L. Vickers, Counsel for Claimants in Claims No. D-229 A-N, Gordon
Biliheimer, Counsel for Claimants in Claims No. D-230 A-D, Thomas
C. Sheppard, Jr., Counsel for claimants in Claim No. D-232, and
Charles E. Hurt, Counsel for Claimant in Claim No. D-233.
Thomas P. O’Brien, Jr., Assistant Attorney General, and Claude
Vencill, Attorney at Law, for the Respondent.
DUCKER, JUDGE:
*These cases are claims for damages to personal property occasioned by flooding
when water which was impounded in an old coal mine broke loose and flowed into
the business district of Montgomery, West Virginia, on October 11, 1967, and
these cases have by agreement of counsel been consolidated for hearing on the
legal question of liability.
All of the pertinent and relevant facts are stipulated by the claimants and
respondent and they are the same as those contained
* This opinion was inadvertently omitted from Volume 9
of the Court of Claims Reports.
2 REPORTS STATE
COURT OF CLAIMS [W. VA.
in the opinion of the Supreme Court of Appeals case of State ex. rel. Firestone Tire & Rubber Co. v.
William S. Ritchie, Jr., State Road Commissioner of West Virginia (W. Va.), 168 S.F. (2d) 287, and further incorporated by
reference in State ex. rel., Phoenix
Insurance Co. v. William S. Ritchie, Jr., State Road Commissioner, etc., (W.
Va.), 175 S.E. (2d) 428, and for the
convenience of the parties hereto, in more easily understanding the facts upon
which our decision is based, these stipulations are inserted totally and
verbatum herein as follows:
On December 28, 1966 the State Road Commission of West Virginia entered into a
written agreement with the Mountain State Construction Company, an independent
contractor of South Charleston, West Virginia, to do certain highway
construction described as “Montgomery-Morris Creek relocation” which involved
the relocation of a portion of West Virginia Highway No. 61 and the construction
of a ramp extending from relocated highway 61 to the new highway bridge over
the C & 0 Railroad in the City of Montgomery. The ramp was located on or
near the foot of a hillside and was part of a tract of land containing about
97.2 acres owned by Woodrow Wilson Jacobs over which portion surface easements
or rights of way were being acquired by the State Road Commission in an eminent
domain proceeding pending at that time in the Circuit Court of Fayette County.
Construction of the ramp required some excavation near the foot of the hillside
and some sloping and benching on the hillside. The contractor had completed the
work of sloping and benching the hillside and the sub-grade of the ramp when it
appeared that wet conditions or seepage of water could cause the base of the
ramp to become unstable.
Before the construction of this project was started extensive soil
investigations of the hillside and ramp approach area were conducted by the
State Road Commission and many core drillings were made. The investigation and
core drillings did not indicate any impoundment of water in the hillside in
that area and the respondent and no person in connection with this construction
had any knowledge indicating that there was any large volume of water located
in the abandoned mine entry where some of the core drillings were made.
Several weeks before October 11, 1967 when the claimants’
W. VA.]
REPORTS STATE COURT OF CLAIMS 3
property was damaged by the large flow
of water, the contractor, at the request of the State Road Commission, dug a
“test hole” in the area indicated on State Road Commission map as the most
northerly “old mine caved in.” The purpose of the test hole was to determine
where the water was coming from that was seeping into the ramp area. Old mine
timbers were found in the bottom of the test hole. Water was found also in the
test hole but there were no signs of any pressure and no unusual increase in
the amount of water was observed after it was first veiwed and apparently
accumulated from seepage through the soil. The hole eventually filled with
water but this may have been caused by heavy rains during that period.
It was decided by engineers that the seepage found in the test hole caused the
instability of the ramp sub-grade and that at least a 12 inch underdrain should
be installed from the test hole area to a drop inlet marked D-5 and located
some distance left or north of ramp centerline station 7+75 to carry
off the seepage of water and permit stability of the ramp base. A ditch in
which to place underdrain pipe was started from the drop inlet to proceed south
and across the ramp a total of about 120 feet to reach the test hole. This
ditch in the process of construction encountered an old mine entry and timbers
near the left edge of the ramp.
All of the work in connection with the excavation or ditching and the test hole
was extra work not specifically referred to in the original contract but was
taken care of under general terms of the agreement or contract by an “extra
work order.” The ditch or excavation had proceeded 75 feet to
the ramp and across it 35 feet more toward the hillside before the contractor’s
employees quit work for the day on October 11, 1967. Approximately two and
one-half hours later large volumes of water broke loose at some point inside
the mountain, came out through one or more of the mine entries and along the
ditch and overflowed certain areas of the City of Montgomery, including
claimants’ property. Claimants’ property does not abut or adjoin the Jacobs’
property or the State Road Commission’s right of way but is located several hundred
feet distant from said right of way with two or more city streets and the C
& 0 Railroad lying between the mine entry and claimants’ property.
4 REPORTS
STATE COURT OF CLAIMS 1W. VA.
No property was taken from the
claimants or claimants’ lessors for the right of way or easement in the
building of the ramp or relocation of Route 61.
Neither the respondent nor the contractor had any information or knowledge that
would indicate in any way that the abandoned mine entry or hillside contained
large volumes of water. The abandoned mine entry had been completely covered
prior to the excavation and could not be seen from the surface area. The large
volume of water that came out of the mine entry on the night of October 11,
1967 was impounded somewhere inside the mountain beyond the area of the
construction. Other mine entries were uncovered during the construction in
connection with the relocation and building of the ramp without any problems
with regard to the flow of water whatsoever. After this extraordinary flow
started, several hours of effort were required to stem it by pushing dirt into
the hole.
The respondent did not attempt to condemn the mine or minerals in connection
with this construction nor did it receive any benefit from the mine or minerals
underlying the mine in question. The title to the tract of land wherein the
mine was located was owned by Jacobs and only a right of way or easement was
obtained from him by the respondent. A right of entry on the land owned by
Jacobs had been obtained in an eminent domain proceeding instituted by the
respondent and the excavation of the ditch in question was being done by the
contractor on the right of way of the respondent.
With all such facts agreed upon, our present consideration is to pass upon the
respondent’s written motion to dismiss the claims, the points of which motion
are as follows:
1. Claimants have failed to show that respondent should in equity or good
conscience pay or discharge said claims.
2. The statutory jurisdiction of the Court of Claims is limited to claims
against the State of West Virginia and its agencies but does not extend to or
embrace claims against State officials such as respondent, William S. Ritchie,
Jr.
3. William S. Ritchie, Jr., as State Road Commissioner of West Virginia, named
as respondent in the first group of the
W. VA.]
REPORTS STATE COURT OF CLAIMS 5
above-styled claims, is not the State
of West Virginia, nor is he an agency of said State as defined in Section 3,
Article 2, Chapter 14, of the. Official Code of West Virginia, 1931, as
amended, and is not, therefore, subject to the jurisdiction of this Court.
4. The agreed statement of facts clearly shows that the State and its
independent contractor, Mountain State Construction Company, were lawfully
engaged in a public improvement and that neither was guilty of any unlawful or
wrongful acts.
5.
The evidence does not show any acts or
omissions on the part of the State Road Commissioner, the State Road
Commission, the contractor, or their agents or employees that would constitute
actionable negligence or ground for a civil action against the respondent.
6. The evidence does not show any act or omission on the part of respondent, or
their agents or employees, which a person of ordinary prudence could reasonably
foresee might naturally or probably produce an injury or damages such as
mentioned in the claims filed in this proceeding.
7. The evidence does not show any act or omission on the part of the
respondent, their predecessors, or their agents or employees, contemplated
under Code, 14-2-13. as amended.
8. The provision in Section 9, Article III, of the West Virginia Constitution,
that private property shall not be taken or damaged for public use without just
compensation, does not render the State Road Commission or the State Road
Commissioner liable for damages to property from unknown subsurface bodies of
water impounded inside a mountain in an abandoned mine entry unless such
sub-surface bodies of water are ascertainable or discoverable from surface
indications or other means without sub-surface excavations for that purpose.
9. The respondent is not liable to third persons for damages resulting from
negligent acts or omissions of an independent contractor, its servants, agents
or employees occurring while performing highway construction work, lawful in
itself and not intrinsically dangerous, according to plans and specifications
of the State Road Commission.
6 REPORTS
STATE COURT OF CLAIMS [W. VA.
10. Neither the State Road
Commissioner nor the State Road Commission of West Virginia is an insurer
against unforeseeable accidents occurring in the area of highway construction.
11. There is no procedure prescribed by general law for compensation for
personal property damaged for public use referred to in Section 9, Article III,
of the West Virginia Constitution.
12. The evidence clearly shows that the damages complained of in the
above-styled claims resulted from an intervening cause not connected in anywise
with respondent or the contractor but resulted from the wrongful acts or
omissions of the coal mine operator or the owner of the land who caused or
permitted the dangerous impoundment of large volumes of water inside said
mountain and failed to warn respondent or the contractor of said dangerous
impoundment.
Point 1 of the motion is decided by our conclusion as to the other points,
except that points 2 and 3 are not, in our opinion, of sufficient merit to be
allowed as technical objections to the claims, as it is apparent that the State
Road Commission is the real respondent, and not William S. Ritchie, Jr.,
personally, and further the amendment by claimants of their claims sufficiently
eliminates this technicality.
As to points 4 and 5 of the motion, this Court is of the opinion that neither
the State nor its independent contractor, Mountain State Construction Company,
was guilty of any act which standing alone would be considered unlawful or
wrongful, or of any act of negligence but nevertheless, their acts amounted to
a trespass which resulted in damage to the claimants and rendered the case
actionable.
The questions raised in points 6 and 7 are based upon facts which are true but
which are, in our opinion, improper conclusions as to the law.
As to point 8 of the motion, the Supreme Court of Appeals, in the two cases
first herein referred to has answered this question when it awarded a writ of
mandamus to compel the State Road Commission to institute condemnation
proceedings against the owners of the land damaged by the flooding waters from
the abandoned mine.
W. VA.]
REPORTS STATE COURT OF CLAIMS 7
Points 9 and 10 of the motion are
wholly inapplicable to the cases in hand.
Point 11 of the motion asserts that there is no statutory law in West Virginia
for compensation for personal property damaged for public use referred to in
Section 9, Article III of the West Virginia Constitution, which statement is
correct, but that does not determine the law applicable in this case. The
Supreme Court cases herein- before cited granted writs of mandamus to enforce
the initiation of condemnation suits to determine compensation for land taken
for public use but refused to make the same applicable to personal property
because the Constitution was not “self executing,” as there was no statute of
the State prescribing the procedure for such purpose. Those cases cited, and
the Firestone Rubber Company quoted, with approval, the doctrine as stated in Johnson v. City of Parkersburg, 16 W. Va. 402, to the effect that the Constitution
“forbids damage to private property and if no remedy is provided by the
Constitution or by statute, the common law which gives a remedy for every wrong
will furnish the appropriate action.” In Mason
v. Harper’s Ferry Bridge Co., 17 W.
Va. 396, 106 S.E. 644, the Court held that an injunction was permissible to
enforce the payment of damages suffered by reason of the lessening in value of
a ferry franchise. From these decisions, it seems that the questions turned
upon the nature of the relief sought, namely, a mandamus to compel the parties
to resort to the remedy of eminent domain proceedings provided by statute as to
land, but not as to damage to personal property because there was no such
statutory procedure. These decisions do not overrule the earlier decisions to
the effect that the common law in its usual procedure provides for actions of
trespass and treaspass on the case. Of course, an action of trespass against
the State cannot be maintained by the claimants herein in any other courts of
the State because of the State’s constitutional immunity, but such defense of
constitutional immunity is not available in this Court. It would seem to appear
that the Supreme Court has practically said in the majority and dissenting
opinions in the cases first cited herein that this Court is the proper place of
jurisdiction in these cases. These claims are clearly in tort, ex delicto, and
as such are within our jurisdiction. Accordingly, point 11 of the motion is not
well taken.
Point 12 of the motion to the effect that the damages resulted from the
wrongful acts or omissions of the coal mine operator or the
8 REPORTS STATE
COURT OF CLAIMS [W. VA.
owner of land who caused or permitted the dangerous impoundment of large
volumes of water inside the mountain and failed to warn respondent or the
contractor thereof could possibly under some circumstances be well taken except
for the fact that here there was no damage occasioned by the impoundment, which
was not in itself unlawful; the direct and proximate cause of the damages here
was the acts which caused the release of the water.
The real answer to all the points raised by the motion is that respondent’s
acts amounted to a trespass causing the damages alleged by the claimants, and
although there was no negligence on the part of the respondent and the
consequences were not reasonably foreseeable, the damages were done as a
consequence of the work done by the respondent, and this case is not one of
damnum absque injuria, but is one that is compensable as being the result of an
act done by the respondent and as being one which was the proximate cause of
the resulting damage.
In accordance with the foregoing, we are of the opinion to, and do hereby
overrule in its entirety the motion of the respondent, and order the above
designated claims for separate hearings upon the facts and merits of each case.
Motion to dismiss overruled.
Opinion issued August 6, 1973
DREMA GAIL HOPSON, ADMINISTRATRIX
OF THE ESTATES OF NANCY ANN HOPSON
AND ANGELA JEAN HOPSON, DECEASED,
AND DANNIE HOPSON, INDIVIDUALLY,
vs.
DEPARTMENT OF NATURAL RESOURCES
(No. D-549-a)
Glen Dial Ellis for the claimants.
Thomas P. O’Brien, Jr., and Henry C.
Bias, Jr., Assistant Attorneys
General, for the respondent.
JONES, JUDGE:
This is a claim by Drema Gail Hopson, Administratrix of the
W. VA.] REPORTS
STATE COURT OF CLAIMS 9
Estates of Nancy Ann Hopson and Angela
Jean Hopson, deceased, and Dannie Hopson, individually, against the West
Virginia Department of Natural Resources for the wrongful deaths of two infant
children, as well as for damages “in their wages, property and persons”, all in
the amount of $25,000.00. The claim arises out of the Buffalo Creek Flood
Disaster of February 26, 1972, in Logan County, West Virginia; and the
claimants contend that the deaths were the proximate result of the wanton and
willful negligence of the respondent resulting in the rupture of a water
impoundment known as the Buffalo Creek Dam. The issue before the Court for
decision was raised by a motion on behalf of the respondent to dismiss this
claim as being barred by two releases executed by the claimants.
The death claim release recites that the claimants “ * * for the sole consideration of Twenty Thousand Four
Hundred Eighty-Three Dollars and Two Cents ($20,483.02) in hand paid, the
receipt and sufficiency of which is hereby acknowledged, do * * * release, acquit and forever discharge Buffalo Mining
Company, The Pittston Company, Pardee Land Company, * * * and as well
all other persons, firms and corporations whatsoever, of and from any and all claims, demands, damages,
injuries, losses, expenses, suits, actions or causes of actions and any and
every other matter or thing related to, associated with, or in any manner
arising out of the death of said decedents as a result of that certain
happening or event which took place on or about February 26, 1972, in the
watershed of Buffalo Creek * * * generally
known and referred to as the Buffalo Creek Flood Disaster, all to the end that all claims which
the undersigned now has or have, has or have had, or may in the future have in
the premises by reason of the death of the aforesaid decedents, whether arising
under the Wrongful Death Statutes of the State of West Virginia, or otherwise, shall be, as they are hereby specifically declared to
be, extinguished now and forever. * * * The
undersigned do(es) further declare that he, she or they is or are each over the
age of twenty-one (21) years, and that
this release is executed by him, her
or them upon the express understanding
that the same shall operate to extinguish, and the undersigned hereby
declare(s) extinguished, now and forever, any and all claims which the undersigned noW has or have, have had, or may
in the future have in the premises.” (Emphasis supplied.) The other release,
which recites a consideration of $2,100.00, employs substantially the same
10 REPORTS
STATE COURT OF CLAIMS 1W. VA.
wording except that it is made to
apply to personal property.
The claimants rely first upon Section 12, Article 7, Chapter 55 of the
official Code of West Virginia of 1931, as amended, which reads as follows:
“A release to, or an accord and satisfaction with, one or more joint
trespassers, or tort feasors, shall not inure to the benefit of another such
trespasser, or tort feasor, and shall be no bar to an action or suit against
such other joint trespasser or tort feasor, for the same cause of action to
which the release or accord and satisfaction relates.”
and further, the claimants contend that the words in the release “and as well
all other persons, firms and corporations whatsoever,” do not apply in this
case for the reason that the State is not a person, firm or corporation.
There appearing to be some confusion in the minds of counsel about this Court’s
position upon an aspect of this case, it may be well at this time to point out
that where payments have been made by one or more joint tort-feasors, other
joint tort-feasors will be given credit for such payments in satisfaction of
the claim. There are a number of decisions of the Supreme Court of Appeals of
West Virginia supporting this position, the latest being the case of Rose A. Tennant, Guardian, et al. v. Craig W.Va , 195 S.E.2d 727
(1973). In that case the Court said: “As noted by the defendant, the plaintiffs
are entitled to only one satisfaction for the injuries suffered as a result of
the accident. The compromise settlement with Spitznogle is a part of such
satisfaction. This Court said in Point 2 of the Syllabus of Hardin v. New York Central Railroad Company, 145 W.Va. 676, 116 S.E.2d 697, “Where a payment is made,
and release obtained, by one joint tort-feasor, other joint tort-feasors shall
be given credit for the amount of such payment in the satisfaction of the
wrong. In other words, payment by one joint tort-feasor under a compromise
settlement is satisfaction pro tanto as to all.” (Citations omitted.) In this case, the
claimants were paid $20,483.02 for the death claims and $2,100.00 for damages
to household goods and other personal property, a total of $22,583.02, leaving
$2,416.98 of the amount claimed in controversy.
In our opinion Code 55-7-12 does not apply in this case as the writings signed
by the claimants clearly were intended to and did release the specifically
named tort-feasors and others descriptively
W. VA.]
REPORTS STATE COURT OF CLAIMS 11
named by the words “all other persons,
firms or corporations whatsoever”. In the context of this case the State of
West Virginia may either be a person or a corporation. The prime purpose of the
statute creating the Court of Claims was to permit the State to be sued as a
private person or corporation within this limited jurisdiction. Plainly it
follows that if the State may be sued as a person, it may be released as a
person. In Whitney v. State Board of
Education et a!., 8 Ct. Cl 45, this
Court said: “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 cx rel.
Cashman v. Sims, 130 W.Va. 430, 43
S.E.2d 805.”
The Supreme Court of the United States
has defined a State as a political corporate body which can act only through
agents, and can command only by laws. Poindexter
v. Greenhow, Va. 5 St.Ct. 903,
114 U.S. 27, 29 L.Ed. 185 (1884). The Supreme Court in the case of Chishoim v. Georgia, 2 DalI. 419, 447, 1 L.Ed. 440, 452 (1793),
stated “*
* * any body politic (sole or aggregate)
whether its power be restricted or transcendent, is in this sense a
‘corporation’. The King, accordingly, in England is called a corporation. 10
Co. 29 B. So also, by a very respectable author (Shepard, in his abridgment, 1
Vol. 431) is the Parliament itself. In this extensive sense, not only each
State singly, but even the United States may without impropriety be termed
‘corporations’ *
* *“• At page 455 of that
opinion the Court further described a State to be “* * * a complete body of free people united together for
their common benefit, to enjoy peacefully what is their own, and to do justice
to others. It is an ‘artificial’
person. (Emphasis added.) It has its
affairs and its interests: It has its rules: It has its rights; And it has its
obligations .
. .
In the mandamus proceeding of State cx rd. Myrtle Prince et al v. West Virginia
Department of Highways, 195 S.E.2d 160
(1972) in which three separate releases were executed and delivered to three
separate contractors releasing all claims for damages to real estate resulting
from the construction of a highway and forever discharging these defendants,
their servants, agents, successors and assignees and any and all other persons, firms, associations and
corporations from any and all actions,
causes of action, claims and demands, damages, costs, expenses and compensation
on
12 REPORTS
STATE COURT OF CLAIMS [W. VA.
account of or in any way growing out
of any injuries or property damage resulting from the construction of such
highway, the Court held that the petitioners were not entitled to a Writ of
Mandamus even though the defendant, West Virginia Department of Highways, was
not specifically named in any of said releases, for the reason that the
releases disclosed a full satisfaction of all the petitioners’ claims. While
the question was not discussed in the opinion, the Court obviously included the
West Virginia Department of Highways within the description “any and all other
persons, firms, associations and corporations”.
In view of the broad and inclusive language of the releases executed by the
claimants and the authorities cited herein, the Court is of opinion to sustain
the respondent’s motion to dismiss this claim. The releases acknowledge the
“sufficiency” of the consideration, release the named joint tort-feasors “and
as well all other persons, firms and corporations whatsoever”, recite the
express understanding that the releases “shall operate to extinguish” all
claims and include a declaration by the claimants that all claims are thereby
“extinguished, now and forever”. The language of these releases clearly shows
the intention of the parties to release all of their claims arising out of the
Buffalo Creek Flood Disaster, for all damages against all beings or entities
whatsoever, for all times, and that such releases should inure to the benefit
of the State of West Virginia.
Accordingly, the motion of the respondent to dismiss this claim is hereby
sustained, and the claim is hereby dismissed.
Judge Petroplus did not participate in the consideration or decision of this
case.
Claim dismissed.
Opinion
issued October 11, 1973
BLACK ROCK CONTRACTING, INC.
vs.
DEPARTMENT OF HIGHWAYS
(No. D-493)
Stephen A. Weber for the claimant.
Dewey B. Jones for the respondent.
JONES, JUDGE:
The claimant, Black Rock Contracting, Inc., formerly Andersons’Black Rock,
Inc., filed this claim for extra compensation in the
W. VA.]
REPORTS STATE COURT OF CLAIMS 13
amount of $48,722.46 arising out of highway construction under a contract
with the respondent, Department of Highways, formerly State Road Commission.
The project embraced the Camden Avenue approach to Interstate 77 in the City of
Parkersburg, 2.133 miles in length, with the controversy bearing mainly on the
western end of the eastbound lane for a distance of about 825 feet, which
required the removal of the old Camden Avenue pavement. The overall
construction was estimated to cost $2,196,951.80, including 333,800 cubic yards
of unclassified excavation at $1.25 per cubic yard, amounting to $417,250.00.
The prime contract was entered into on May 20, 1966, and work was to be
completed by April 1, 1968. The concrete paving, estimated to cost $759,746.88,
was subcontracted by the claimant to Chapin & Chapin, Inc.
The claim is in two parts: One for additional compensation in the amount of
$5,152.50 for unclassified excavation on a portion of the project where an
unstable condition was found under the old Camden Avenue pavement, requiring
undercutting approximately five feet below the grade shown on the original
plans; and the other for damages in the amount of $42,463.42 allegedly
resulting from delays caused by the failure of the respondent to make test
beams for the purpose of determining the readiness of the new pavement to
support traffic and the requirement of the extra undercutting.
The subcontractor, Chapin & Chapin, installed a central concrete batch
plant on the project, and started its paving operation on the westbound lane on
April 29, 1968. The claimant also was on the job but excessive rains made
practically all of the month of May unfit for either grading or paving. About
the end of May or the first of June it became apparent that the material under
old Camden Avenue was unsuitable and that undercutting would be necessary. The
parties being in agreement, the undercutting was commenced by the claimant on
June 3. Their agreement was reduced to writing under date of June 6, 1968, and
a supplemental contract was signed by the parties. Estimates set out in the
contract were for 1,900 cubic yards of unclassified excavation and 1,900 cubic
yards of borrow excavation, both at the unit price of $1.25. By letter dated
June 24, 1968, the claimant requested the respondent to cancel and not process
further the executed supplemental agreement on the ground that conditions were
much more difficult than anticipated. The respondent refused to reconsider the
matter. The undercut excavation
14 REPORTS
STATE COURT OF CLAIMS [W. VA.
was completed on June 21, 1968, but
while it is not made clear in the record, it is apparent that this part of the
project still required extensive preparation for paving as on June 20, 1968,
Chapin & Chapin poured its last central or batch mix concrete and started
removal of its batch plant. The paving subcontractor no longer had continuous
work for the equipment, the undercut area not being ready, and the equipment
was needed elsewhere. The paving was completed with ready-mix concrete
purchased from a local supplier. The project was not completed until June,
1969, more than a year beyond the completion time specified in the contract,
but no penalty was assessed against the claimant.
The claimant contends that the undercutting required by the respondent
constituted a “changed condition” sufficient to entitle the claimant to
additional compensation. Undercutting (excavation below the level specified in
the original plans, usually required because of an unstable condition not
anticipated) is not uncommon, and on this project there were a number of small
undercuts besides the substantial one in question. Under the terms of Section
1.4.2. of the Standard Specifications for Roads and Bridges, if this undercut
did not increase the quantity of unclassified excavation, a major contract
item, by 25%, the claimant was not entitled to any alteration of the contract.
In this case the additional excavation, 2061 cubic yards, slightly above the
estimate of 1,900 cubic yards, amounted to less than 1% of the total; and if
borrow material had not been required, a supplemental agreement would not have
been necessary. There was no provision for borrow material in the original
contract, so a supplemental agreement was prepared, including both excavation
and borrow, and the same was executed and remained in effect, despite protests
by the claimant.
The Court is constrained to believe that the claimant’s letter of June 24,
1968, written after completion of the undercut and asking for cancellation of
the supplemental agreement, was triggered by two things, Chapin & Chapin’s
decision on or about June 20, 1968, to disassemble and remove its batch plant,
and the break in a water line at about the same time. The water line previously
had been relocated by the claimant under the terms of the contract. The break
flooded the area and resulted in considerable expense and delay. The claimant
complains that this would not have happened if the undercut had not been
required, but the claimant knew the exact
W. VA.1
REPORTS STATE COURT OF CLAIMS 15
location of the line, and the Court
believes that the break would not have occurred but for the negligent operation
of the claimant’s equipment. The claimant complains of delay caused by other
utility lines during the undercut, but there is nothing in the record to prove
delay attributable to any utility lines except the water line and there is no
adequate proof that the claimant ever did anything more with regard to utility
lines than it was required to do under the terms of its contract.
With respect to test beams, the respondent perhaps could have been more
flexible and accommodating, but there is absolutely nothing in the contract
which would require test beams, and the respondent chose to hold the claimant
to the 14 days’ curing time provided by Section 2.36.3 (S) of the Plans and
Specifications. We find no assurance in the record that test beams would have
permitted traffic to move over the pavement within three to five days as
asserted by the claimant, nor that such a speed-up, if accomplished, would have
meant that the central batch plant would have remained on the job.
The claimant attempts to make a point of the fact that the subject undercut was
not provided for in the contract. Obviously, it was not; had the required
excavation been shown on the original plans it would not have been an undercut.
While the undercut was not contemplated at the time the contract was executed,
we learn from the record that unstable material frequently is found under old
pavement. The extra work did delay the project, but it did not result from a
“changed condition” for which the respondent was accountable. Bad weather
disrupted the claimant’s plans; and the claimant’s inability to adapt its
schedule to unavoidable delays was an important factor. The Court recognizes
that some excavation is more expensive than other and that ready-mix concrete
is more expensive than batch mix, but the State does not guarantee a profit or
the indemnification of a loss, and such additional costs do not justify
additional compensation to this claimant unless there is a breach of contract
or wrongful delay on the part of the respondent.
All complaints of any consequence in this case arise from the undercut, which
was work required to be done by the claimant and not brought about or
aggravated by anything done by the respondent. All work was paid for under the
terms of the contract documents. The burden of proof in this case is on the
claimant, and careful study
16 REPORTS STATE
COURT OF CLAIMS [W. VA.
and consideration of the evidence does not pursuade the Court that there is
sufficient proof in the record to support an award.
CLAIM DISALLOWED.
Opinion issued October 15, 1973
RICHARD M. FORNEY, JR., an infant,
who sues by Helen Forney,
and HELEN FORNEY, individually.
vs.
DEPARTMENT OF FINANCE & ADMINISTRATION
and DEPARTMENT OF NATURAL RESOURCES
(No. D-506)
HANS PETER MOSS, an infant,
who sues by Lenwood J. Moss, his parent,
and LENWOOD J. MOSS
vs.
DEPARTMENT OF FINANCE & ADMINISTRATION
and DEPARTMENT OF NATURAL RESOURCES
(No. D-507)
W. Dale Greene, Preiser & Wilson, Attorneys for the Claimants.
Henry C. Bias, Jr., Assistant Attorney General for the Respondents.
DUCKER, JUDGE:
The Claimants, Hans Peter Moss and Lenwood J. Moss, Richard Madison Forney, Jr.
and Helen Forney, all of Berkeley Springs, West Virginia, allege damages in the
amounts of $300,000, $20,000, $200,000, and $10,000, respectively, against the
Department of Finance and Administration, the Department of Natural Resources
of
W. VA.]
REPORTS STATE COURT OF CLAIMS 17
the State of West Virginia, as damages
resulting from a collision of a 1965 Honda motorcycle owned and operated by Forney, having
Moss as a passenger, with a 1967 Plymouth Sedan automobile owned by the State
of West Virginia and operated by Arthur Hadley as an agent of the Department of
Natural Resources, on September 13, 1969 at about four o’clock in the afternoon
on State Route 9, approximately two miles east of Berkeley Springs, in Morgan
County, West Virginia. The damages alleged are almost entirely for personal
injuries temporary and permanent with the amount of damages to the wrecked
motorcycle.
These claims, having arisen in the same accident and being based upon the same
facts as to liability, have been heard and considered together as consented to
by all the parties.
The accident occurred on a straight stretch of the road at a point where there
was a driveway entrance to the home and property of Thomas Maconaughey on State
Route 9, the driveway entrance being approximately 175 yards easterly from the
top of a low hill curve in the road and about the same distance from the point
where the car driven by Arthur Hadley entered Route 9 from a side road easterly
of the Maconaughey driveway, that is to say the place of the accident at the
Maconaughey driveway was practically at the middle point in a straight-away
part of Route 9 between the curve at the west and the side road at the east,
affording the riders on the motorcycle and the driver of the Plymouth
automobile about the same viewable distances on the road as they approached the
point of entrance to the Maconaughey driveway.
The testimony of Hans Peter Moss, age 21, is primarily to the effect that after
the motorcycle rounded the curve at the top of the hill and proceeded down
along the straightway of the road he noticed a car coming up the road toward
the motorcycle and then suddenly turn into the east lane of the road in which
the motorcycle was traveling, to enter the Maconaughey driveway; that Forney
“bit his brakes” and “swerved to the left to avoid the car but struck the back
part of the (Hadley) car behind the right wheel”; that he didn’t see any sign
of an intended turn by the Plymouth driver; that the speed of the motorcycle
was between 40 and 50 miles an hour; and that he was thrown from the motorcycle
to the gravel on the opposite side of the road.
REPORTS STATE
COURT OF CLAIMS [W. VA.
The testimony of Richard Forney, age
21, is substantially the same as Moss. He said he saw the Plymouth car
approaching him and the driver look to the left and then he, Forney, “left off
the gas to drift because I (he) didn’t know what he (Hadley) was going to do; I
thought maybe he might be going to make a left hand turn, so I left off and
then he looked back up the hill, so I just kept drifting; as I got down closer,
the car just made a left-hand turn in front of me”. Forney said he was “looking
right at the vehicle” and no warning signal was given or any left turn signal
light operating on the Plymouth before it turned across the road to enter the
driveway about forty feet in front of the motorcycle.
Arthur Hadley, of Berkeley Springs, West Virginia, a conservation officer in
the Department of Natural Resources for twenty years, the driver of the Plymouth
automobile involved in the accident, testified substantially as follows: that
on the date of the accident he was returning to Berkeley Springs on State Route
9 from a fire that had been reported to him, and, after having come out of
Price Ridge Road about an eighth of a mile east of the Maconaughey farm, he was
traveling about thirty miles an hour up a moderate incline westerly toward the
Maconaughey farm and put on the signal to turn left and when he got to the lane
east of the Maconaughey house he looked up the road and then back through the
car mirror but didn’t see any vehicles of any kind and made his turn to go into
the Maconaughey driveway; that when he was 300 feet away he activated his
directional signals which he said were working and made the left turn into the
driveway; that after he got into the driveway with the front part of his car he
saw a “blur and something coming to my right” and “I felt a thud”; that he was
traveling ten miles an hour when he turned toward the driveway, the car was almost
completely in the driveway when struck by the motorcycle; that three wheels
were off the driveway as the collision knocked the car sideways; that it was a
“real bright sunny day” and the sun was “right square in my eyes” and that he
was wearing sun glasses and that he saw nothing before making the turn, no
traffic in front or back; and that he didn’t move the car after it was struck.
Lt. Woodrow W. Parsons, a conservation officer whose headquarters were at
Romney, West Virginia, testified that he saw the motorcycle at Spiach’s Garage,
Berkeley Springs, the day after the accident and that he saw the needle on the
speedometer stuck at 65
W. VA.]
REPORTS STATE COURT OF CLAIMS 19
miles per hour, but he didn’t know
what could have happened to the needle as the glass of the speedometer was
intact.
Robert Workman, a cycle shop mechanic, testified that a Honda motorcycle has a
free-floating speedometer with no real accuracy because it knocks up and down
when jolted, and that the needle will break loose from its gear on an impact.
On cross examination the witness admitted that if there were something to block
the needle of the speedometer and prevent it from returning to the proper speed,
the needle may have indicated the speed at the time of impact. Except for such
weight as may be given to the evidence as to the needle of the speedometer,
there is no contradiction of the evidence of the claimants that the speed of
the motorcycle was between forty and fifty miles an hour in a 55 miles an hour
speed zone. The only witness to the collision other than the claimants and
Hadley was Thomas Leo Maconaughey, who was 13 years old at the time of the
accident and who testified that he was 30 to 35 yards away from the road in the
Maconaughey yard helping his father saw wood, and that he saw the Hadley car
turning into the driveway and the motorcycle strike the right rear end of the
car; that the motorcycle was traveling south of the center of the eastbound
lane of the road; that the car was not moved until the State Police arrived;
that the front part of the Hadley car was in the driveway, the right rear
bumper was out on the highway; and that the car “was knocked sideways”.
From the foregoing recital of the testimony and the facts ascertained or
ascertainable therefrom, we must first determine whether there is or is not
liability on the part of the respondents. Unfortunately, for the respondents,
the only substantial testimony in support of the defense is the testimony of
the driver of the Plymouth automobile and the substantiality of the evidence as
to the speedometer needle. As to the latter, we cannot consider it of
sufficient certainty to be of real value. So the real question is whether the
testimony of Hadley is sufficient to overcome or disprove the evidence of Moss
and Forney. The testimony of Moss and Forney is positive while the testimony of
Hadley opens serious questions. While Hadley testified he gave the signals
indicating that he was going to turn to the left, he said that it was “a real
bright sunny day” and “the sun was right square in my (his) eyes” even though
he had on sun glasses, and that he looked up and down the road and saw nothing
coming. He couldn’t verify
20 REPORTS
STATE COURT OF CLAIMS [W. VA.
whether the signals were working
outside the car. It must be remembered that both the motorcycle and the car
first entered the 350 yard straightaway stretch of Route 9 at about the same
distance from the place of the collision, and that with 175 yards for the
Hadley car to travel before turning into the driveway, it seems reasonable to
the Court that Hadley could have seen the motorcycle coming toward him at most
any rate of speed, certainly at a lawful rate. We do not doubt the fact that
Mr. Hadley didn’t actually see the approaching motorcycle, but the bright
sunlight must have been a major factor in preventing him from seeing the
oncoming motorcycle. The fact that he didn’t see is not sufficient to release
him of responsibility, because he was obligated, according to the law, to see
that the road was clear for a turn from his line of traffic into and across the
opposite line of traffic to enter a private driveway.
We think the law as stated in Brake v. Cerra,
145 W.Va. 76, 112 SE 2d 466, is
clearly applicable to this case where the Court said:
“Whether the plaintiff did look as he testified he did or whether he did not
look as the witness testified he did not, before he started to cross the
street, the undisputed evidence is that he did not look effectively, for
if he had he would have seen the headlights of the approaching automobile. .
There is no substantial evidence that the
motorcycle was out of its proper line of traffic. While motorcycle traffic is
often undesirable and quite jeopardizing and annoying to other traffic, travel
by such means is not unlawful, and there does not appear here any substantial
evidence to suggest that the claimants were not operating their motorcycle
within legal requirements and in a reasonable manner.
The law especially applicable in such matters is contained in Chapter 17C,
Article 8, Section 8, which provides as follows:
“No person shall turn a vehicle to enter a private road or driveway or
otherwise turn a vehicle from a direct course or move right or left upon a
roadway unless and until such movement can be made with reasonable safety. No
person shall so turn any vehicle without giving an appropriate signal in the
manner hereinafter provided in the event any other traffic may be affected by such
movement.”
W. VA.]
REPORTS STATE COURT OF CLAIMS 21
From all the evidence we must conclude
that the respondents’ agent, Hadley, did not make the turn into the Maconaughey
driveway in a reasonably safe manner, and that the claimants are entitled to recover
substantial damages resulting from such negligence.
The evidence shows that the claimant, Forney, suffered severe injuries which
included a compound fragmented fracture of the right tibia and fibula, an
extensive evulsed large laceration of the thigh and right knee, and a fracture
of his right collarbone (clavicle). He spent twenty-eight days in the hospital
and four or more weeks in a wheelchair and then on crutches. While the extent
of his impairment is not entirely calculable, nevertheless it constitutes
permanent injury. His physician’s charges amount to $355.00, his
hospital expenses $1238.24, and the loss of his motorcycle $450.00, making a
total of $2,043.24. The evidence shows that the claimant, Moss, suffered severe
injuries which included a fracture of the midshift of the right femur, a
comminuted fracture of the right tibia and fibula, and multiple lacerations of
the right lower extremity, heel and scalp. Likewise the extent of his
impairment while not entirely calculable, it amounts to some permanent injury.
His physician’s charges were $1156.00, less a $25.00 unrelated charge, or
$1131.00, his hospital expenses $1489.54, $34.00, $239.69, and $614.20, making
a total of $3508.43.
Accordingly, we award Helen Forney, mother of Richard M. Forney, Jr. the amount
she incurred of the doctor’s and hospital expenses of Richard M. Forney, Jr.,
namely $1593.24; Lenwood J. Moss, father of Hans Peter Moss, the amount he
incurred of the doctor’s and hospital expenses, namely, $3508.43; Richard M.
Forney Jr., who is now of age, $14,900.00, which includes $450.00 for his
motorcycle; and Hans Peter Moss, who is now of age, $21,500.00.
Awards: Helen Forney: $1593.24
Lenwood J. Moss: $3508.43
Richard M. Forney: $14,900.00
Hans Peter Moss: $21,500.00
22 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued October 15, 1973
GENERAL TELEPHONE COMPANY
OF THE SOUTHEAST
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-616)
Michael I. Mulligan, Attorney at Law For the Claimant.
Donald L. Hall, Attorney For the Respondent.
DUCKER, JUDGE:
General Telephone Company of the Southeast, a corporation, claims damages to
its property in the amount of $235.40 against the West Virginia Department of
Highways on account of the latter’s blasting work to widen the state road at
the intersection of Routes Nos. 15 and 15/1 at Charles Town, West Virginia, on
October 30, 1972.
The facts alleged by the Claimant are admitted by the Respondent, such facts
being that the blasting necessitated the replacement of 233 feet of telephone
cable which with the labor costs incurred in placing, repairing and removal
amounted to the amount alleged.
As the admitted facts show the damages were caused by the negligence of the
respondent in the matter, we are of the opinion to and do hereby award the
claimant the sum of $235.40.
Award of $235.40
W. VA.] REPORTS
STATE COURT OF CLAIMS 23
Opinion issued October 19, 1973
WILLIAM C. McIVER and
WILMA L. McIVER
vs.
DEPARTMENT OF HIGHWAYS
(No. D-548)
EARNEST R. WHITE and
JO ANN WHITE
vs.
DEPARTMENT OF HIGHWAYS
(No. D-552)
Richard K. Swartling, Attorney at Law, Ronald
R. Hassig, Attorney at Law for the
Claimants.
Donald L. Hall, Attorney at Law, Department of Highways, for the
Respondent.
DUCKER, JUDGE:
Claimants, William C. Mclver and Wilma L. Mclver, husband and wife
respectively, and Earnest R. White and J0 Ann White, husband and wife
respectively, owners of adjoining parcels of land situate on the west side of
State Route No. 2, approximately 1½ miles south of the City limits of New
Martinsville, West Virginia, allege damages in amounts of $3000.00 to the
Mclver property, and $15,000.00 to the White property, resulting from slippage
of their properties in 1971 allegedly caused by negligence of the respondent in
the latter’s maintenance of Route No. 2 adjoining claimants’ property, in that
during prior years the respondent placed layer upon layer of asphalt and other
road materials on the highway to keep the highway in a level and passable
condition and that by so doing the weight of the road caused the land of the
claimants to slide and destroy the houses of the claimants.
The respondent moved to dismiss the claims on the grounds that condemnation
proceedings were the only proper remedy, and by its
24 REPORTS
STATE COURT OF CLAIMS [W. VA.
answer it denied any negligence on its
part and alleged that the slide was not caused by it but was due to a vein of
“gumbo” in the land.
As the same factual situation, except as to the respective amounts of damages,
existed as to both of these claims, it was agreed that they could be, and they
were, heard together by the Court.
As to the motion to dismiss on the ground that claimants have an adequate
remedy at law by way of mandamus to compel the respondent to initiate
condemnation proceedings, we are of the opinion to, and do overrule the same,
because the damages were in effect the result of a single trespass which is not
a continuing one but one which can be definitely determined as to damages and
does not amount to a “taking” of the land, as is required for condemnation.
The evidence in the cases consists of the testimony of the two male claimants
and five former employees of the respondent, namely Berner Phillips, Lester
Kennedy, Edward Loehr, Yonsell Eller and Victor Pyles. The testimony of all
five of the former employees were substantially, in varying degrees, to the
same effect, that during their employment with the Department of Highways,
there was constant need of repair of the road at the place in question, even as
much as four or five times some years, building it up with tar and gravel and
sometimes asphalt; that at one time there was at that location a street car
track; that the road would keep breaking down and in a “pretty wet season”
before the filling was put in, the road had gotten so bad there were several
accidents over it; and that several times material had to be put in two or
three times a week. The testimony as to the accumulated thickness of the
asphalt and other paving material put in from time to time varied from eleven
to twenty feet. After the slide which damaged the claimants’ houses, the
respondent drove heavy piling all along the area where the slide had occurred,
and since then there has been no further movement of the land.
The respondents’ evidence consists entirely of the testimony of George P.
Sovick who for the past eleven years has been chief engineer of the
right-of-way department of the respondent, and his opinion was that the slide
which damaged the claimants’ properties was caused by a two inch streak or seam
of gumbo underlying the lands of the claimants. He discovered the gumbo
cropping out along the ditch adjacent to the railroad track along the back side
of the property, and he concluded that with the natural drainage down
W. VA.]
REPORTS STATE COURT OF CLAIMS 25
upon and affecting the property, the
gumbo, a fine loose material, which, when it gets wet, is slick as grease and
causes most of the slides, was the proximate cause of the slide which damaged
the claimants’ premises. Mr. Sovick also testified as to the various phases of
the damages done to the building of the claimants.
On the day of the hearing of this case the Court with counsel for the parties
personally viewed the lands and houses involved in these claims, so that
evidence of the claimants and respondent could be better understood.
From the evidence of the claimants and the view taken it appears to the Court
the claimants have clearly proved that the highway at that place required most
unusually extra maintenance and repair because of its base being upon unstable
terrain and foundation, and that the cause of the cracking to the extent of ten
to twelve inches wide, disintegrating, the slipping and breaking should have
been ascertained long before the occurrence of the slide which affected
claimants’ property occurred. The testimony of Mr. Sovick is most credible and
the gumbo may have been the underlying cause of the sliding characteristic of
the land at that place and if the probability of a slide had not been
forseeable for a long time before it occurred, we could accept Mr. Sovick’s
theory and conclusion. The instability of the land embraced in the right of way
should not have been overlooked by the respondent, and it is our conclusion
that the respondent has been negligent in its maintenance of the road by
continuing to make insufficient additions to the surface of the roadway instead
of timely correcting the road structure to avoid the pressure of the hillside
down upon and against the claimants’ properties. As evidenced by the fact that
the condition was corrected by the installation of piling in 1971, the
correction should have been considered necessary and done before the damage to
claimants’ property was done. We are of the opinion that the respondent should
have forseen the probability of the result which occurred and was negligent in
not providing against such result and the claimants are entitled to recover
such reasonable damages they have suffered.
The evidence is not very satisfactory as to the values of the properties
damaged. The Mclver property damage was testified to as being $2500 to $3000
and the White property damages as being $7250 at normal market value in 1968.
These values include the
26 REPORTS STATE
COURT OF CLAIMS LW. VA.
land which may or may not retain their original values. The Court is of the
opinion that there is little left of value in the houses or improvements.
Having viewed the premises as well as considered the evidence, we can only
estimate what would be reasonable amounts to allow the claimants as their
damages.
The Court is of the opinion to and does hereby award the claimants William C.
Mclver and Wilma L. Mclver the sum of $1000, and the claimants Earnest R. White
and Jo Ann White the sum of $7500.
Award to William C. Mclver and Wilma
L. Mclver $1000.
Award to Earnest R. White and Jo Ann White $7500.
Opinion issued November 8, 1973.
JOHN A. BACON
vs.
DEPARTMENT OF HIGHWAYS
(No. D-623)
Claimant appeared in person, without counsel.
Donald L. Hall, Esq. for respondent.
PETROPOLUS, JUDGE:
The claimant, John A. Bacon, formerly employed by the State Road Commission of
the State of West Virginia, now the Department of Highways, respondent, as a
construction engineer, seeks to recover the sum of $241.83, for living expenses
incurred during the months of July and August, 1969, while he was living in
Huntington, West Virginia, and performing his duties there under an assignment
by the State Road Commission.
The following factual situation, as revealed by the record, gives rise to this
claim. On July 1, 1969, the claimant was permanently transferred from the
Wheeling Office of the State Road Commission to Huntington. His family remained
in Wheeling until some time in
W. VA.1
REPORTS STATE COURT OF CLAIMS 27
September of 1969 because of
difficulties encountered by the claimant in locating a suitable place to live
in Huntington because of a housing shortage. It had been the practice of the
State Road Commissioner to allow a transferred employee temporary living expenses
for a period of thirty days after a permanent transfer notwithstanding that
certain travel rules and regulations promulgated by the Governor’s office
stated that no expenses will be allowed which are incurred at the official
station of any official or employee of the State. The administrative practice
of allowing expenses for a period of thirty days in addition to paying the
reasonable expenses incurred by an employee in moving his household furniture,
effects, and immediate family as a result of the reassignment, apparently was
not specifically authorized by the statute providing for payment of reasonable
traveling expenses and moving expenses of transferred employees (W. Va. Code,
Chapter 17, Article 2-A, Section 4a). The legality of the payment of rent and
board by the State for a period of thirty days after reassignment has not been
raised in this case by the State and this Court has not been requested to
render an opinion thereon, both parties having tried the case on the assumption
that said payment is within the purview of the statute and advantageous to and
for the best interest of the State. In any event, it has been a long
established practice of the Department of Highways to make this allowance.
The problem arises in this case because of the difficulty of the State employee
to find a permanent home for his family in an area where there was a critical
housing shortage. The claimant seeks reimbursement in the amount of $145.83 for
a period extending from June 27, 1969, to July 18, 1969, and an additional sum
of $96.00 as reimbursement for a period extending from August 13, 1969, to
August 31, 1969. The District Engineer in Huntington, aware of the situation,
requested and recommended that the claimant’s expenses be paid through the
month of August, 1969, and approved said payment by letter. Later an additional
request was made by the District Engineer to extend the payment of temporary
expenses to September 1, 1969, at which time housing would be available to the
claimant. Notwithstanding these approvals and recommendations, the business
manager of the respondent refused payment of both requisitions, and asserted a
counterclaim against the claimant in the amount of $341.00, which the State
paid to Stone Lodge in Huntington for the claimant’s lodging during the month
of August, 1969. It was con-
28
REPORTS STATE COURT OF CLAIMS [W. VA.
tended that this payment for
lodging was made by the State in error, and that the mistake should be
rectified by treating said payment as a set-off against any amount that might
be owing to the claimant for the 30-day period of July, 1969.
James R. Campbell, the District Engineer, testified that the expenses claimed
were very reasonable, and that the claimant had made a sincere effort to keep
expenses to a minimum by depriving himself of comfortable lodging and the
ordinary charges for food.
It is the opinion of the Court that under the evidence submitted in this case
that the claimant is entitled to the reimbursement of $145.83 for expenses
incurred from June 27, 1969, until July 18, 1969, but is not entitled for
expenses incurred in August, 1969, even though the District Engineer approved
and recommended the payment of the August expenses. To make an allowance of
expenses for the month of August would be in violation of the Governor’s
regulations and also a variance from the established administrative procedure
of the Department. Since the State voluntarily paid the item of lodging at the
Stone Lodge in the amount of $341.00 incurred in the month of August, 1969,
after approval of the voucher, the contention that the voucher was paid by
mistake and constitutes a set-off to any amount owing to the claimant is
without merit particularly when no evidence was submitted on this item.
Furthermore, this Court has no jurisdiction to render a judgment against the
claimant for the amount paid on his behalf in excess of the claim. If It had
been clearly established that the payment to the Stone Lodge was an illegal
payment of State funds, for the benefit of the claimant, the set-off might be
considered for the purpose of disallowing the claim in its entirety.
An award will be made to the claimant in the amount of $145.83 for temporary
expenses incurred prior to his permanent assignment to Huntington and within
the 30-day period after his permanent assignment as a moral obligation which
the State in equity and good conscience should pay.
Claim allowed in the amount of $145.83.
W. VA.J
REPORTS STATE COURT OF CLAIMS 29
Opinion issued November 8, 1973
CLAIR SWARTZMILLER and MARGARET
SWARTZMILLER
vs.
DEPARTMENT OF HIGHWAYS
(No. D-517)
Frank A. Pietranton, Esq., for Claimants.
Donald L. Hall, Esq., for Respondent.
PETROPLUS, JUDGE:
The claimants have filed a claim for personal injuries, medical expenses, loss
of earnings and damage to an automobile resulting from an accident that took
place on November 2, 1969, at about 9:30 A.M. in the morning, on West Virginia
Route 8 about one- quarter of a mile north of the junction of said Route 8 and
State Route 2 in Hancock County, West Virginia. The claim is based on the
alleged negligence of the West Virginia Department of Highways in the paving
and maintenance of the hard-surfaced roadway of Route 8. Some time in 1967 or
1968, the travelled width of the road, which was 18 feet, was widened to
approximately 24 feet by adding a macadam strip on each side of the road. The road
improvement was made by a general contractor who added a three inch slag base
or aggregate, compacted it, and covered the extended width with a layer or
layers of bituminous coated aggregate. The old road which was a concrete road
before the improvement was also coated with bituminous. This type of road
improvement leaves a crack where the widening takes place, and because of
inadequate compaction or different methods of compaction, as time goes on
through wear and tear on the road and weather the crack or seam where the
widening takes place separates and the elevation of the old road surface varies
from the elevation of the widened portion because of settling. In the testimony
of the respondent’s maintenance engineer it was admitted that widening process creates
hazards when the separation between the old and new pavement extends to 2 or 4
inches, particularly where there may be a difference in elevation.
30 REPORTS
STATE COURT OF CLAIMS [W. VA.
At the place of the accident,
according to the testimony of the claimants, a seam or gap had developed
varying from 2 or 3 inches in width, which trapped the right front wheel of the
automobile, which Margaret Swartzmiller was driving at approximately 30 miles
per hour, causing it go out of control. The steering wheel was momentarfily
wrested out of her hands, and the car was driven into the guardrail on the side
of the road two or three times and eventually brought under control about a
block or a block and a half from the alleged road defect. Mrs. Swartzmiller suffered
personal injuries and damages to the automobile in the amount of $296.18. It
was further developed in the testimony that the respondent had been notified of
the hazard prior to the accident and had neglected to take proper measures to
repair the road so that it would be safe for ordinary travel.
Whether the road defect constituted an unreasonable hazard, or whether the
State was guilty of negligence in failing to keep the road in proper repair is
an issue that need not be decided under all the circumstances of this accident.
It appeared from the testimony that the claimant was not exercising ordinary
and reasonable care in the operation of her motor vehicle at the time of the
accident. The accident occurred in the daytime on a roadway that she had travelled
many times in the vicinity of her home over a period of five years. She must
have been thoroughly familiar with the condition of the road. It was a wet day
and the seams in the added portions of the roadway, indicating that its width
had been extended were visible, and she must have been aware that they existed.
After she lost control of her automobile by reason of the tire striking the
break in the blacktop of the pavement, according to her testimony, the car hit
and bounced off the guardrail a number of times and traveled about a block and
half before it could be brought under control and stopped. The road was
apparently slick and upon questioning by the Court Mrs. Swartzmiiier repeatedly
stated that the automobile travelled about 750 feet after she lost
control, and before it could be brought to a stop. This testimony is not
consistent with her former testimony that she was travelling at approximately
30 miles an hour. A vehicle travelling at that rate of speed, even on a wet
pavement, should be brought to a stop much sooner, allowing for reaction time
and the shock of striking the guardrail. It is the finding of the Court that
the physical facts of this case create an inescapable inference that
W. VA.]
REPORTS STATE COURT OF CLAIMS 31
the claimant was travelling at an
excessive rate of speed, taking into consideration the condition of the
highway, the existence of a crease where the road had been widened, the wet
surface and all other circumstances relating to the accident.
Having failed to exercise ordinary care for her safety in the operation of her
automobile, we are constrained to find that even if we assume that the
respondent was guilty of negligence in the maintenance of the roadway, the
contributory negligence of the driver was the proximate cause of her accident.
It is well settled law that no recovery will be allowed for injuries where it
appears that the person injured was guilty of contributory negligence, or even
where the injury was the result of the concurring negligence of the parties.
This principle has been applied in many cases involving injuries while driving
motor vehicles. Persons using the highways must be reasonably alert to perceive
any warning of danger and must exercise reasonable care for their safety
considering the surrounding hazards. Budget limitations and other exigencies
make it impossible for the State to maintain its highways in a safe condition
for high speed travel at all times under all circumstances, and many roads in
our State are unsafe for travel at speeds that are not commensurate with the
conditions of the road. To operate a motor vehicle in disregard of visible
hazards, such as potholes or breaks in the pavement, of which a driver is aware
or in the exercise of reasonable care should be aware, constitutes assumption
of a known risk which bars recovery.
Under the facts of this case it is the finding of the Court that the claimant
had knowledge of the specific defect or dangerous condition of the road and
that she failed to use the care for her own safety which an ordinary and
reasonably prudent person would have used under the circumstances.
For the reasons stated herein, the claim is disallowed.
Claim disallowed.
32 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued November 8, 1973
CHARLES M. WALKER
vs.
DEPARTMENT OF HIGHWAYS
(No. D-618)
The claimant appeared in person.
Donald L. Hall for the respondent.
JONES, JUDGE:
On February 20, 1973, Patrick Thomas, stepson of the claimant, Charles M.
Walker, was driving the claimant’s 1968 Chevrolet automobile on Greenbrier
Street in the City of Charleston about 50 yards north of Piedmont Road when a
large rock or boulder, approximately 18 inches in diameter, rolled down from
the steep cliff along the highway and struck the right side of the claimant’s
vehicle. There is nothing in the record to indicate that the accident could
have been avoided by the driver. The claim is for damages in the amount of
$211.35, which the respondent, Department of Highways, has agreed to be fair
and reasonable.
The driver of the claimant’s car had lived in the area for about ten years and
had driven over Greenbrier Street along the same cliff frequently over a long
period of time. He had seen some large rocks on the approximately 5-foot wide
berm of the thoroughfare and some smaller rocks and dirt which had washed onto
the traveled portion of the highway. There were no signs warning travelers to
beware of falling rocks, and the claimant contends that the respondent’s
failure to erect warning signs was such negligence as would create liability in
this case.
This Court has decided several “falling rock” and “falling tree” cases
involving the use and care of our highways, some adverse to the claimants and
some in favor of claimants where the Court found proof of sufficient negligence
to constitute the proximate cause of an injury. One of the adverse cases is Mullins v. Department of Highways, 9 Ct. Cl. 221, which is so similar to this case that
the Court quotes a portion of the opinion as follows:
W. VA.]
REPORTS STATE COURT OF CLAIMS 33
“The claimant says that there were no
‘Falling Rocks’ signs to warn motorists of the hazards of the roadside terrain,
and charges that the failure to erect such signs constituted negligence on the
part of the respondent. However, from the claimant’s own description and a
number of photographs made part of the record in this case it appears to the Court that a
prudent driver would not need a sign to impress upon him the possibility of
falling rocks in the area. This is especially true in light of the fact that
the claimant was well acquainted with the road and its inherent dangers.
This Court consistently has held that the State is not a guarantor of the
safety of travelers on its highways and that 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 Commission, 8 Ct. Cl.
210; and Lowe v. Department of
Highways, 8 Ct. Cl. 175. In this case
it does not appear that the failure of the respondent to provide ‘Falling
Rocks’ signs was a contributing factor in the circumstances surrounding the
accident, and in the Court’s opinion, the claimant has not proved such a
positive neglect of duty on the part of the respondent as would impose a moral
obligation upon the State to compensate him for his unfortunate loss.”
Applying the reasoning in the Mullins case, this claim is disallowed for failure to prove
negligence on the part of the respondent.
Claim disallowed.
Opinion issued December 3, 1973
DONALD E. BLACKWELL
vs.
DEPARTMENT OF HIGHWAYS
(No. D-626)
The claimant appeared in person.
Donald L. Hall for the respondent.
JONES, JUDGE:
On or about the 1st day of March, 1973, Mrs. Donald E. Black-
34 REPORTS
STATE COURT OF CLAIMS [W. VA.
well, wife of the claimant in this
case, was driving her husband’s 1971 Oldsmobile automobile at the intersection
of United States Route No. 19 and State Route No. 4 in Clendenin. Having
crossed the Clendenin bridge, Mrs. Blackwell turned towards a parking space in
front of the Ace Hardware and Furniture Store and her car struck a storm sewer
drop inlet located in the paved shoulder of the highway. Because of the slope
and right hand turn coming off of the bridge, Mrs. Blackwell could not see the
drop inlet over the hood and right front fender of the car and she could not
say whether the iron grating was in place or not. However, immediately after
the accident the grating was standing on its side and the right front wheel of
the car was thus permitted to drop into the opening. The claim for damages to
the oil pan and under portion of the vehicle in the amount of Fifty Dollars and
Eighty-three Cents ($50.83) was admitted in the answer of the respondent,
Department of Highways, to be fair and reasonable.
The deteriorated, dangerous condition of the drop inlet is not denied by the
respondent, but its defense is that it did not have notice of the condition.
However, certain photographs filed as exhibits in this case clearly show that
the pavement around the drop inlet was so broken and deteriorated that a casual
inspection would have disclosed that the iron grating was likely to fall
through the opening, that the condition had existed for a long time and that
injury to the traveling public should have been anticipated.
We hold that the negligence of the respondent was the proximate cause of this
claimant’s damages and therefore an award is hereby made to the claimant,
Donald E. Blackwell, in the amount of
$50.83.
Award: $50.83.
W. VA.]
REPORTS STATE COURT OF CLAIMS 35
Opinion issued December 3, 1973
JOHN
G. McGUFFEY
vs.
BOARD OF REGENTS (WEST VIRGINIA UNIVERSITY)
(No. D-624)
Claimant appeared in person, without counsel.
Henry C. Bias, Jr., Assistant Attorney General, for Respondent.
PETROPLUS, JUDGE:
John G. McGuffey, claimant, purchased a Ford truck, 1970 model, on November 30,
1972, from the Board of Regents, West Virginia University, as high bidder on
submission of sealed bids, for the sum of $502.02. On a purchase order dated
November 29, 1972, issued by Ben E. Rubrecht, Director of the Division of
Purchases of the Department of Finance and Administration, appears the
following language:
TO SELL
for the sale of the following vehicle:
1 Ford Truck, 1970, Weight Cap, 4000 lbs; Serial No. E16AHJ51602 Title No.
D992429, W.V.U. mv. Tag:
OA94210. $502.02
Condition of vehicle: Truck caught on fire and burned. Seat burned, dash board
and motor wiring. Windshield broken and right side glass broken, one head light
broken, front end caved in on right side, right mirror gone, and needs paint
job in front.
The above vehicle located at the State 4-H Camp, Weston, W. Va.
At the hearing it was developed by the evidence that the truck had been damaged
by a fire and was sold in its damaged condition as described in the purchase
order. The claimant made an inspection of
36 REPORTS
STATE COURT OF CLAIMS [W. VA.
the truck before purchase and accepted
it in its apparent damaged condition. The visible damage was that caused by the
fire and since the wiring in the carburator had been burned it was not possible
for him to road-test the truck because it was not in an operating condition.
After the purchase of the truck, it was taken to a shop for repairs where it
was discovered that the motor had been irreparably damaged when a broken
connecting rod had cracked the block, and it became necessary to replace the
motor at a cost of $269.00. This was a defect of a latent nature and could not
be discovered by an inspection of the truck before purchase.
The only issue in the case is whether there was an implied warranty at the time
of sale that the truck was fit for the particular purpose for which it was
sold, other than the damage that was stated on the purchase order.
There is no doubt that the seller had reason to know that the truck was
purchased for the particular purpose of being operated. Under Chapter 46,
Article 2, Section 315, Uniform Commercial Code, West Virginia Code, there is
an implied warranty that goods are fit for the particular purpose for which they
are sold. The statutory provision providing for an implied warranty of
merchantability modifies the common law of “caveat emptor,” (let the buyer
beware).
It is the finding of the Court that the truck was not sold in an “as is”
condition, as contended by the respondent. If that were the intention of the
parties, the purchase order should have so stated. The buyer’s attention was
called to the specific damages caused by the fire, and other than the damage so
stated, there was an implied warranty that the truck was in a serviceable
condition. Factually the respondent sold a truck without a motor, as the
cracked block even though concealed made the motor inoperable. The course of
dealing between the parties did not exclude or modify the implied warranty.
For the foregoing reasons, an award will be made to the claimant for the cost
of replacing the worthless motor with a used motor in the amount of $269.00.
Claim allowed in the amount of $269.00.
W. VA.] REPORTS
STATE COURT OF CLAIMS 37
Opinion issued December 3, 1973
MONONGAHELA POWER COMPANY
vs.
DEPARTMENT OF HIGHWAYS
(No. D-645a)
L. Eugene Dickinson for the claimant.
Donald L. Hall for the respondent.
JONES, JUDGE:
It appears from the notice of claim of the Monongahela Power Company, the
answer of the respondent, Department of Highways, and the statements of two of
the respondent’s employees that on December 7, 1972, the respondent’s crew from
Calhoun County cut a tree along State Route No. 16/19 at Minnora, and
carelessly and negligently permitted the tree to fall into lines of the
claimant. The claimant’s petition describes the damage as “primary and neutral
down, one span and service, and entrance pulled loose from one house”.
The claim in the amount of $200.66 is admitted by the respondent to be fair and
reasonable. Accordingly, an award hereby is made to the claimant, Monongahela
Power Company, in the amount of $200.66.
Award: $200.66.
Opinion issued December 3, 1973
MONONGAHELA POWER COMPANY
vs.
DEPARTMENT OF HIGHWAYS
(No. D-645b)
L. Eugene Dickinson for the claimant.
Donald L. Hall for the respondent.
JONES, JUDGE:
This claim was submitted upon the notice of claim of Monon
38 REPORTS
STATE COURT OF CLAIMS [W. VA.
gahela Power Company and the answer of the respondent, Department of
Highways, supported by the statement of one of the respondent’s employees. On
August 31, 1971, the employee negligently backed one of the respondent’s trucks
into a pole belonging to the claimant, located on State Route No. 5 near
Cherry, West Virginia, damaging a cross arm and causing a phase wire to fall.
Damages in the amount of $26.63 are found by the Court to be fair and
reasonable, and an award is made to the claimant, Monongahela Power Company, in
that amount.
Award: $26.63.
Opinion issued December 3, 1973
MONONGAHELA POWER COMPANY
vs.
DEPARTMENT OF HIGHWAYS
(No. D-645c)
L. Eugene Dickinson for the claimant.
Donald L. Hall for the respondent.
JONES, JUDGE:
Monongahela Power Company claims
$128.71 from the respondent, Department of Highways, for repairs to Company
property damaged by the respondents employees while blasting on State Route No.
47 near Walker. A rock was thrown about 100 feet, striking an insulator on a
pole and setting the cross arm afire. The line had to be repaired and the
insulator replaced.
Upon consideration of the petition, answer and a statement of one of the
respondent’s employees, the Court finds that the respondent is liable and
awards the claimant, Monongahela Power Company, the sum of $128.71.
Award: $128.71.
W. VA.] REPORTS
STATE COURT OF CLAIMS 39
Opinion issued December 3, 1973
MONONGAHELA POWER COMPANY
vs.
DEPARTMENT OF HIGHWAYYS
(No. D-645d)
L. Eugene Dickinson for the claimant.
Donald L. Hall for the respondent.
JONES, JUDGE:
This claim in the amount of $65.04 is for damage to property of the claimant,
Monongahela Power Company, while the respondent, Department of Highways, was
cutting right of way on March 21, 1972, at Windyville Road, State Secondary
Route No. 24/3. It appears from the statements of two of the respondent’s
employees that a tree was cut and permitted to fall into the claimant’s power
lines, resulting in a fire. A 7200 volt primary line was broken.
Having read and considered the claimant’s petition, the respondent’s answer
thereto, and statements of witnesses, the Court is of opinion that the
claimant’s damages are the result of the respondent’s negligence, and that the
amount claimed is fair and reasonable.
Award: $65.04.
40 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued December 4, 1973
RUSSELL TRANSFER, INC.
vs.
DEPARTMENT OF FINANCE AND
ADMINISTRATION
(No. D-615)
Robert G. Perry, Esq., and Robert E.
Douglas, Esq., for the claimant.
Henry C. Bias, Jr., Assistant Attorney General, for the respondents.
PETROPLUS, JUDGE:
This is a claim by Russell Transfer,
Inc., a non-resident common carrier corporation, duly authorized to do business
within the State of West Virginia, and also authorized as a carrier in
interstate commerce under the authority of the Interstate Commerce Commission,
against the Commissioner of Finance and Administration, the Director of the
Division of Purchases, and the Governor of the State of West Virginia, for
damages in the amount of $183,496.00. The issue is whether a binding contract
was executed between the claimant and the respondents obligating the State of
West Virginia, acting through its responsible officers, to pay for services for
the transportation and warehousing of all alcoholic beverages throughout the
State for a period of one year beginning July 1, 1972. The contract which was
introduced in evidence is dated May 31, 1972, and was signed by Russell
Transfer, Inc., a corporation, with the signatures of its President and
Secretary-Treasurer, with corporate seal attached, and with the signature of
the West Virginia Alcohol Beverage Control Commissioner, I. Richard Barber. The
contract was stamped approved as to its provisions and terms by signatures of
Ben E. Rubrecht, Director of the Purchasing Division, and John M. Gates,
Commissioner of Finance and Administration. The contract
W. VA.]
REPORTS STATE COURT OF CLAIMS 41
was also approved as to form by
Chauncey H. Browning, Jr., Attorney General, by T. O’Brien, Assistant Attorney
General. From all indications it is a completely executed contract complying
with all of the requirements and provisions of Chapter 5A, Article
3, of the West Virginia Code, applying to the purchase of commodities and
printing by the departments of the State government through a process of
requisition by a spending agency, solicitation of bids after publication of
notices based on specifications, submission of sealed bid proposals, and
awarding of the contract to the lowest responsible bidder, after taking into
consideration the conformity of the bids to standard and special specifications
and the requirements of the State government. The so-called “liquor hauling
contract” for the previous year (1971-1972) had been awarded to a West Virginia
carrier known as Tower Lines, Inc., by following the same bidding procedures.
After the Division of Purchases advertised for bid proposals for the
transportation of alcoholic liquors, store supplies and equipment, and the
issuance of bid forms and copies of the blank contract to eleven motor frieight
carriers, only two bids were received, one from Tower Lines, Inc., a West
Virginia corporation, offering a rate of 20.42 cents per standard case, and one
from the claimant, a non-resident corporation, at a rate of 19.6 cents per
standard case. The claimant submitted one signed copy of the contract with its
bid.
The claimant is aggrieved because the State, after submission of the claimant’s
low bid and execution of the contract as previously stated, and after the
claimant had fully complied with all the terms and conditions of its bid in
preparation for the performance of the contract, and its execution by J.
Richard Barber, ABC Commissioner, the Department of Finance and Administration
wrongfully refused to release a purchase order and permit the claimant to
perform its contract, notwithstanding the contract had been signed and approved
by Ben E. Rubrecht, Director of the Purchasing Division, John M. Gates,
Commissioner of Finance and Administration, and Chauncey H. Browning, Jr.,
Attorney General. No executed copy of the contract was ever delivered to the
claimant. It appeared that the refusal to honor the alleged contract was
attributable to the intervention of William Loy, Administrative Assistant to
Arch A. Moore, Jr., Governor of the State of West Virginia. The Governor had
previously established an administrative policy that in weighing
42
REPORTS STATE COURT OF CLAIMS [W. VA.
bids for the purchase of commodities
and services consideration should be given to the fact that West Virginia
bidders were adding to the tax base by employing West Virginia people, and
paying West Virginia income and business and occupation taxes. He had suggested
that a scale be followed in weighing the relative advantages of an in-state bid
as opposed to an out-of-state bid, although no definite formula had been
devised. Governor Moore testified that the public policy so articulated had not
been implemented by statute as it had been in other states, some of which by
law prohibited out-of-state bidders on certain types of contracts. He also
testified he had requested the legislature to adopt such a policy by statute in
the public interest affording a degree of priority to West Virginia residents
over out-of-state bidders, but the legislature had neglected to take any action
on this matter. The Governor was also of the opinion that the statute which
provided for competitive bidding and award of a contract to the lowest
responsible bidder was flexible enough to permit that some preference be given
to West Virginia vendors and that his policy was reasonably within the
framework of existing law. No rules or regulations were reduced to writing in
articulating the preferential treatment to be given to West Virginia vendors.
This policy had not been formally communicated to John M. Gates, the
Commissioner of Finance and Administration, when he took office, although his
predecessor was aware of it. The Governor’s subordinates were aware of this
policy and were given full discretion to see that the policy was carried out.
Pursuant to the aforesaid policy, the Department of Finance and Administration
on intervention after the complete execution of the contract, refused to honor
the contract, destroyed a purchase order issued and signed by the Director of
Purchases, and requested new bids to be submitted on July 6, 1972, with no
change in the specifications or the contract, with one exception, —the phrase
“All labor must be union organized” was inserted in the specifications inviting
new bids, and the contract was awarded to Tower Lines, Inc., as the only
eligible bidder. The claimant alleges that such action on the part of the State
violated the legislative intent of the bidding statutes, unreasonably
discriminating against the claimant who was not union-organized, and that the
citizens of this State were deprived of transportation at the lowest cost and
that public revenues were being expended to purchase services generated exclu
W. VA.]
REPORTS STATE COURT OF CLAIMS 43
sively by union labor. The Governor’s
office was charged with frustrating the contract and the Division of Purchases
and the Alcohol Beverage Control Commissioner have taken the position that the
performance of the contract is beyond their control. Commissioner Gates and
Director Rubrecht are charged with arbitrary refusal to release a purchase
order in clear violation of Chapter 5A, Article 3, of the West Virginia Code.
As the successful low bidder the claimant took all of the necessary steps to
qualify for vendor registration, undertook a thorough investigation of all the
services contemplated, engaged in conferences with J. Richard Barber,
Commissioner, and after the opening of the bids in reasonable anticipation of
securing the contract as the lowest responsible bidder, the claimant applied
for and received a permit from the Public Service Commission of the State of
West Virginia to operate as a contract carrier with temporary authority,
obtained insurance coverage and subscribed to the West Virginia Workmen’s
Compensation Fund, furnished a performance bond and coverage under the West
Virginia Unemployment Compensation Law and acquired ten trailers and two
tractors of specialized equipment, uniquely adapted to the performance of the
contract, and otherwise incurred expenses in the aggregate amount of
$83,496.00, as well as procured a lease for a building in Charleston to be used
as a warehouse. The total amount of damages including loss of earnings on the
contract, allegedly caused by the default on the contract, are in the amount of
$183,496.00.
A copy of the executed contract was not delivered to the claimant and although
it made numerous inquiries concerning the same, it appeared that the State’s
agents refused to furnish an executed copy for the reasons heretofore
mentioned. A blank copy of the contract was delivered to the claimant on June
5, 1972, by a letter from the Department of Finance and Administration
confirming conversations relating to a performance bond, insurance coverage,
and workmen’s compensation. The witnesses for the claimant, all State
employees, testified that as the apparent low bidder, the claimant fully
complied with all of the laws of the State of West Virginia and all the
procedures and regulations and requirements of the ABC Commission and furnished
to the appropriate State agencies all of the documents required to be furnished
in contemplation of performing the contract. They also testified that they were
satis
44 REPORTS STATE
COURT OF CLAIMS [W. VA.
fied with the capability and competence of the claimant to perform the services
contracted for. It was further brought out that in the bidding and re-bidding
procedures, notices were sent to carriers incorporated in Ohio, Pennsylvania,
and other states and that the Purchasing Division personnel were not aware of
the Governor’s policy to accord preference to West Virginia vendors and that in
handling approximately five hundred purchases for the State of West Virginia
the Division never endeavored to give the slightest preference to West Virginia
vendors or to vendors who utilized union labor. It was further developed there
was no written memoranda or directives implementing the Governor’s policy.
The State’s position reduces this claim to a simple issue, the State taking the
position that notwithstanding the claimant’s performances, the contract had
never been fully executed, and that something remained to be done before the
contract would be legally effective, namely, the issuance of a purchase order
and delivery of a copy of the executed contract to the claimant. At this point
comment will be made on the testimony of the buyer in the Division of
Purchases, namely Donald D. Kane, who testified that a purchase order had been
issued on the contract in question and had been destroyed as a piece of paper
that shouldn’t be in the file. Mr. Kane stated no one instructed him to destroy
the purchase order which had been signed by the Director of Purchasing, Ben E.
Rubrecht, the Commissioner of Finance and Administration, John Gates, and
approved by the Attorney General. It is apparent that the purchase order was
destroyed after William Loy, the Senior Administrative Assistant of Governor
Moore, interceded and requested that the contract be held up because of the
Governor’s policy favoring resident vendors over non-resident vendors, and
union labor over non-union labor. The testimony of William Loy on this matter
was quite vague and in effect indicated that mistakes had been made which were
subject to correction because the contract had not been finalized by the issuance
of a purchase order. Mr. Loy was quite hazy as to whom he contacted in the
Division of Purchases in his efforts to hold up the contract and had no
recollection who called him and complained about the contract award to a
nonresident non-union vendor. Mr. Loy had difficulty in explaining why he
undertook on his own initiative to hold up the issuance of a purchase order. He
did testify, however, that he assumed respon
W. VA.]
REPORTS STATE COURT OF CLAIMS 45
sibility to hold up the contract
because of an existing State policy as articulated by the Governor favoring
West Virginia vendors and union labor. He was not aware that the contract had
been completely executed, or even that a contract was in existence.
Donald D. Kane, an employee of the State in the Purchasing Division of the
Department of Finance and Administration, testified that at no time did he
discourage the claimant from expending substantial funds to procure equipment
required in the performance of the contract and that in his negotiations with
the claimant assumed that the contract had been awarded until he was advised by
the Director of the Department, Ben E. Rubrecht, verbally, that no purchase
order would be released at this time because the specifications were to be
changed. This notifiication came approximately a month after the sealed bids
had been opened. In searching his memory, Mr. Kane testified this was the only
contract of which he was aware that once executed by an apparent low bidder,
who had taken all of the interim steps necessary to perform, was cancelled or
held up by the refusal to issue a purchase order. On June 21, 1972, Mr. Barber,
the ABC Commissioner, requested the cancellation of the contract. The Russell
Transfer, Inc., claimant, was not notified of the cancellation and continued to
make preparations and to spend money until the notice of re-bidding on July 6,
1972.
At the re-bidding procedure, Russell Transfer, Inc., submitted a bid of 18.9
cents per standard case and Tower Lines, Inc., submitted a bid of 20.4 cents
per standard case. Tower Lines, Inc., was permitted to continue furnishing
services to the Liquor Commissioner at a higher cost without a contract for a
number of months although Russell Transfer had submitted a lower bid the second
time the State advertised for bid proposals. On the second bidding the State
solicited non-resident common carriers to bid because witness Karle had not
been advised that the original contract with Russell Transfer, Inc., had been
cancelled for the purpose of preferring West Virginia vendors.
The above explicit review of the evidence has been made because of the
importance of this case and the effect it may have on future business practices
of the State. The evidence is uncontradicted in this unusual situation and
clearly brings us to a legal conclusion that a valid contract was executed
between the parties, enforceable
46 REPORTS
STATE COURT OF CLAIMS [W. VA.
in any Court of law, signed and
approved in compliance with the statutes of the State of West Virginia and
freely admitted by witnesses for the State to have complied with the standard
purchasing practices of the State under Chapter 5A, Article 3, of the Code. The
only matter remaining for determination by the Court is whether a contract once
executed after a meeting of the minds may be cancelled by the State and re-bid
with a slight modification in order to comply with a directive from the
Governor’s office. We find under the circumstances of this case that the issue
of the purchase order is a ministerial act, and the destruction of it was
arbitrary and capricious and in no manner nullified a written and legally
enforceable contract between the parties. The evidence shows that the State
arbitrarily refused to perform a valid contract because of a directive from the
Governor’s office which has no basis of law, statutory or otherwise.
Commendable as the Governor’s policy may be to give preference to West Virginia
vendors, it appears that such a policy cannot be permitted to impair the
obligations of a valid contract and particularly when the authorized agents of
the State who negotiated the contract were not aware of such a policy. There
are many pitfalls in contracting with a governmental agency, and to permit
nullification of contracts on the ground of administrative policy would make it
unsafe for any vendor to enter into contractual arrangements with the State.
The intention of the parties under such circumstances would never be clearly
expressed in the contract and legal rights and responsibilities under the
contract could not be defined. Contracts should be administered and complied
with in good faith and once all requirements are complied with, parol and
extrinsic evidence should not be introduced to impair vested contractual
rights.
The Supreme Court of Appeals in the case of Wysong v. Walden, 120 W.Va.
122, 196 S.E. 573, 52 S.E. (2d) 392, held that where the lowest bidder is
financially and morally responsible, if his bid is rejected through fraud or
corruption by a Board of Education, such rejection constitutes a violation of
official duties, justifying the removal of officers guilty thereof. This Court
on the evidence before it, of course, is making no finding of fraud or
corruption on the part of the purchasing agents of the states, but is citing
the above case in support of its holding that the State has a limited
discretion in rejecting the bid of the lowest responsible bidder who is able to
W. VA.]
REPORTS STATE COURT OF CLAIMS 47
efficiently perform the terms of a
contract. Although financial responsibility alone may not be sufficient to meet
the qualifications of the “lowest responsible bidder,” as provided by the West
Virginia statute, the public interest requires the State agencies to accept the
lowest bid when eligibility has been established in all other respects. The
Governor’s policy of giving preferential treatment to resident vendors because
they contribute to our tax base, or to union labor in order to avoid labor
strife, may be well grounded but it is difficult for this court to hold that
such a policy will justify the cancellation of a legally executed contract or
the destruction of a purchase order duly signed and approved, without
implementation of that policy by legislative enactment. Our legislature has not
seen fit to incorporate this policy in its bidding and contract awarding
procedures, although the Governor has made recommendations along that line. We
are constrained to hold that administrative policy of the Governor cannot
override the legislative intent as it now appears in our statutes. (Chapter 5A, Article
3, Code).
Inasmuch as the claimant has no remedy against the State in a legal action
because of sovereign immunity of the State from suit, the Court of Claims was
created to enforce contracts which should be binding upon the State. The maxim
“for every wrong there is a remedy” is now applicable to the State where injury
results from the breach of a contract. The State had a moral obligation to
perform its duly executed contract when the legislature declares the existence
of a contractual obligation, incurred by following the regular purchasing
procedures set forth in the statutes. Discrimination and preferences, however
well-intentioned, cannot be permitted to nullify duly executed contracts by
taking advantage of technical defenses such as withholding the issuance of a
departmental purchase order or destroying such an order, after it has been
signed and approved, in order to get it out of the file.
In an original mandamus proceeding, State
ex rel. Bache & Co. vs. Gainer, 177
S.E.2d 10 (1970), our appellate court held in an opinion written by Judge
Haymond that Chapter 5A, Article 3, of the Code, related only to the purchase of commodities and printing of the departments of the State government, and not to
contractual services furnished by a financial advisor on a road bond issue.
This decision casts some doubt on whether the purchasing practices of the State
have application to a so-called liquor hauling contract.
48 REPORTS
STATE COURT OF CLAIMS [W. VA.
Since this Court has made a finding
that even under the regular purchasing procedures, a valid contract had been
made between the parties, it is not necessary to decide whether this type of
contract is within the purview of Chapter 5A, Article 3, of the Code that
relates to purchase of commodities and printing. If the express mention of
commodities and printing in that statute impliedly excludes contracts for the
transportation of liquor, then the approval of the Commissioner of Finance and
Administration, the Director of Purchasing, and the issuance and deliver of a
purchase order presumably would not be required in a contract of this nature.
Having resolved the liability of the State of West Virginia for damages
resulting from breach of a legal contract that had been executed and
consummated (except for delivery of an executed copy of the contract to the
claimant and the administrative issuance of a purchase order), the next
question before the Court is the award of damages proximately resulting from
the default of the State. The evidence discloses that the claimant carefully
computerized its anticipated expenses and gross revenues, based on the Liquor
Commission’s record for the preceding year, and included an anticipated profit
of 8 per cent of said revenues before taxes, said profit amounting to
$40,000.00, and thereby arrived at a price of 19.6 cents per case. The latter
figure was the amount submitted in its bid proposal. In addition thereto, ten
trailers were purchased and adapted with specialized equipment at a cost of $4,995.00 each.
One of said trailers was returned to the dealer and full credit was received,
and four additional trailers were sold without loss. The company has retained
five trailers but has been unsuccessful in its endeavors to sell the same.
Because of the alterations made in the trailers to adapt them to the particular
specifications required in making delivery of liquor to the various State
Stores, there is no ready market for the same. It was testified that eventually
approximately 50 per cent of their original cost would be recovered via sale.
In addition to the losses incurred in disposing of the equipment represented by
capital expenditures, the claimant sustained many incidental expenses in the
preparation for making deliveries beginning July 1, 1972, for painting the
trailers, titling them, license fees, registering the equipment with the Public
Service Commission, securing temporary authority as a common carrier,
performance bond, insurance premiums, installing an alarm system as required
W. VA.]
REPORTS STATE COURT OF CLAIMS 49
by the Liquor Commission on the
trucks, computer rental, personnel charges, salaries, and other miscellaneous
items which aggregate $7,825.17 insofar as they are allowable and directly
related to the breach of contract. The party who is not in default is entitled
to restitution for the losses sustained and the expenditures which it made in
its preparation for the performance of the contract. It is the finding of this
Court that an award should be made in the amount of $7,825.17 as compensation
for the expenditures made by the claimant, $12,000.00 for the loss that will be
sustained on the sale of the equipment purchased and adapted for use on the
contract, and the sum of $25,000.00 for a reasonable anticipated gain to the
claimant had the contract been performed. Although the testimony of an officer
of the claimant was to the effect that the anticipated profit would be
$40,000.00 computed on an 8 per cent return, trucking companies ordinarily make
a profit of between 5 and 8 per cent on their hauling contracts. It would
appear that an allowance of profits on the minimum percentage would be a
reasonable certainty under the facts of this case, even after allowance for
breakdowns and contingencies.
Before concluding, it is deemed advisable to respond to the able argument of
the State as presented in the Attorney General’s brief.
The argument recapitulated is as follows:
1) Any bid on a State purchasing contract may be rejected.
2) Before a contract is effective, a purchase order must be transmitted to the
Director of the Budget so that the proper account may be encumbered.
3) A contract contrary to the provisions of Chapter 5A, Article
3, of the West Virginia Code, is void and of no effect.
4) A contract executed under the authority of a statute must comply with the
statutory requirements or it is not binding upon the State.
5) Delivery is essential to the binding effects of every contract.
6) One who deals with an agent has the burden of determining the agent’s
authority; or he acts at his peril.
7) Claimant should have waited until it received the properly executed contract
and purchase order before proceeding to make
50 REPORTS
STATE COURT OF CLAIMS [W. VA.
expenditures, as the State could have
procured transportation under emergency authorization.
Unfortunately a review of the evidence does not support the State’s position
but militates against it. It discloses no rejection of the claimant’s apparent
low bid, and no communication from the State of any intent to reject. On the
contrary, claimant was kept in limbo up to the scheduled date of performance.
The State officials were aware of the claimant’s extensive preparations to
perform the contract, and the expenditures being made, and cooperated to enable
the claimant to qualify for performance.
The transmittal of a purchase order to the Director of the Budget for
encumbrance of funds is intended for protection from overspending by government
agencies. Funds in this case were appropriated and available and approval would
have followed as a matter of routine had the signed and approved purchase order
been transmitted. Instead it was removed from the file and dstroyed by Mr. Kane
who stated that he felt it should not be in the file after Mr. Loy objected
that the contract contravened executive policy. We consider the action by the
Budget Director to be a condition subsequent which voids each and every
purchase contract in excess of appropriated or available funds, and not a
condition precedent to the binding effect of a contract. It is an
administrative function that establishes a contract to be within limits and
designed to protect the State against overspending units.
The contract was executed in accordance with all provisions of Chapter 5A,
Article 3, except for the budget account encumbrance which was not essential to
its validity.
Delivery of a contract is evidentiary of the meeting of the minds, and although
necessary and often essential, may be constructive rather than actual. In this
case delivery is excused because claimant endeavored to procure a copy and was
thwarted. Eventually it did receive a copy with the last page missing (the page
containing the requisite signatures). The secretary in the Purchasing Division
was instructed to deliver the contract to the claimant but withhold the
“signature page”.
The evidence clearly showed that all of the State agents acted within the scope
of their statutory authority in the negotiation and
W. VA.] REPORTS
STATE COURT OF CLAIMS 51
signing of the contract, and but for the belated interceding of the Governor’s
Assistant the contract would have been performed rather than repudiated.
The availability of emergency transportation, it would seem, is irrelevant to
the fundamental issue in this case — whether
there was a binding and legal contract between the claimant and the State of
West Virginia.
For the reasons hereinbefore stated, an award in the aggregate amount of
$44,825.17 is made to the claimant. It is the opinion of the Court that this
amount would fairly compensate the claimant for the defaults of the State under
the special circumstances of this case and that in equity and in good
conscience the State should pay said damages as a result of its failure to
permit the claimant to perform its contract. Said award affords no compensation
to the claimant for the time and effort expended by its officers in preparing
to bid or negotiating the contract, meeting all requirements, securing the
necessary permits and otherwise preparing to perform.
Claim allowed in the amount of $44,825.17.
Opinion issued December 5, 1973
STATE FARM FIRE & CASUALTY
COMPANY,
as subrogee of SYDNEY C. BIAS, its insured
vs.
DEPARTMENT OF HIGHWAYS
(No. D-599)
Robert J. Louderback, Attorney at Law
for the Claimant.
George D. Blizzard, II, Attorney at Law for the Respondent. DUCKER, JUDGE:
State Farm Fire & Casualty Company, as subrogee of its insured, Sydney C.
Bias, claims damages in the sum of $1809.44 occasioned by blasting work done on
or about September 8, 1972, to the residence and water well of Sydney C. Bias
on Crooked Run Road
52 REPORTS STATE COURT OF CLAIMS [W. VA.
in Putnam County, West Virginia, in connection with respondent’s rock quarry
operations near the Bias property.
The damages alleged were that the dynamite and other explosive blasting caused
damages to the bricks in the kitchen wall of the Bias residence, and the
destruction of the well and water reservoir of Sydney C. Bias. The distances
from the quarry site to the kitchen wall, the well and the reservoir were 650 feet and 550 feet
respectively. By stipulation, the respondent has admitted the above facts, that
the proximate cause of the damages was the negligence of the respondent in the
blasting work and that the amount of the damages sustained by Bias was
$1500.00.
Accordingly, the claimant is hereby awarded the sum of
$1500.00.
Award of $1500.00.
Opinion issued December 6, 1973
JOE L. SMITH, JR., INC. D/B/A
BIGGS-JOHNSTON-WITHROW
vs.
OFFICE OF THE GOVERNOR
(No. D-619)
W. M. Houchins, Vice President for the claimant.
Henry C. Bias, Jr., Assistant Attorney General for the respondent.
DUCKER, JUDGE:
Claimant, Joe L. Smith, Jr., Inc. doing business as BiggsJohnston-Withrow,
alleges that the State of West Virginia, by negotiations with the Office of the
Governor, is indebted to the claimant in the sum of $27,180.96 for work done by
the claimant in the printing, binding and production of 2000 copies of “The
State Papers and Public Addresses of Governor Hulett C. Smith” pursuant to and
in accordance with a contract entered into on July 1,
W. VA.]
REPORTS STATE COURT OF CLAIMS 53
1968 between the claimant and the
Department of Finance and Administration and a subsequent work order dated May
15, 1969.
At the end of the 1968-69 fiscal year, the claimant pursuant to the request of
the respondent submitted an invoice for the work done prior to June 30, 1969,
in the amount of $14,255.96, which was not paid, apparently because there were
not sufficient funds remaining in the budget item which provided for such
expenditure. However, claimant continued into the next fiscal year the remaining
work to be done on the contract, and upon the conclusion of the work submitted
its bill for a total amount of $27,180.96, none of which has been paid.
The respondent admits that the contract entered into with claimant was let to
the lowest bidder on a definite item printing basis and processed in the
regular and legal manner, that the work was done without default and apparently
done correctly and satisfactorily. The time period between the work order and
the end of the fiscal year was too short for completion, and necessarily the
work had to extend over into the next fiscal year. Respondent also admits that
there was an item in the State Budget for the fiscal year 1968-1969 in the
amount of $50,000 to cover “inauguration and printing expenses”, and that
$37,881.00 of such item was expended for such or other purposes, leaving only
$12,119.00 remaining for the debt due or to become due to the claimant as
herein stated. Respondent suggests that the reason claimant’s first invoice was
not paid was because the invoice could not be paid in its entirety but there is
no evidence in the case as to actually why no part of that invoice was paid.
However, it appears that there had been made a notation on the Requisition for
Supplies dated March 7, 1969 attached to Work Order No. 39, that the cost of
the work was estimated to be $15,000, reference to which is also shown on a
note from the office of former Governor Hulett C. Smith to the office of the
present Governor. There is not only a denial by claimant of having made any
such estimate or any estimate of such cost, but also there is no evidence
showing who made such an estimate, the claimant saying that because it had no
knowledge in advance of what the contracts or the amount of work done it could
not possibly have been able to make an estimate and that it could not be bound
by what someone else may have done.
54 REPORTS
STATE COURT OF CLAIMS [W. VA.
The work of claimant was done in good
faith as was a similar work done in connection with the papers and public addresses
of former Governor, Cecil H. Underwood, and although a better plan of
processing such a contract is now in force, the processing of this contract was
done in the then existing procedure for such matters.
In view of all the facts, none of the essential ones being in dispute, there is
in reality only one legal question involved, and that is whether the lack of
sufficient funds at the end of the fiscal year justified the respondent in
refusing to pay the debt and to consider the contract as not binding upon the
State because when the State had spent for other purposes so much of the
appropriated fund that it could not pay this debt.
The claimant had no control whatsoever or any knowledge as to the expenditure
of the fund allocated. That was entirely an administrative matter. The fact
that there was a budget item in the fiscal year budget for the payment of the
contract work rendered the contract which had been properly processed a binding
contract of the State, and the claimant had the right to rely upon such facts,
it is inconceivable that the return to the general funds for the next fiscal
year the unspent portion of the budgetary amount affects the question of
legality or liability.
It was certainly without justification that the administration transferred to
the general fund for the next fiscal year the unspent $12,119.00 remaining in
the budget appropriation when the bill of the claimant for $14,255.96 for work
done prior to June 30, 1968 remained unpaid. There certainly can be no question
as to validity of that part of claim. Nor can we see any invalidity in the
claim for the balance because there is a proper contract and budgetary
provision for the payment of the whole claim.
We are of the opinion that the claimant had a legal contract with the State
which it performed properly and timely, and that it is entitled morally and
legally to payment, and, accordingly, we award the claimant the sum of
$27,180.96.
Award of $27,180.96.
W. VA.]
REPORTS STATE COURT OF CLAIMS 55
Opinion issued December 12, 1973
MILFORD HARDESTY
Doing Business as
HILLSVIEW FLORAL Co.
vs.
BOARD OF REGENTS
(WEST VIRGINIA UNIVERSITY)
(No. D-658)
Claimant —
without Counsel submitted on Stipulation.
Henry C. Bias, Jr., Assistant Attorney General for respondent.
DUCKER, JUDGE:
Claimant, Milford Hardesty, doing business as Hillsview Floral Co., at 114
Chestnut Avenue, Kingwood, West Virginia, alleges non-payment by the West
Virginia Board of Regents of rent for ten months, June 1, 1972 to April 1,
1973, of greenhouse space furnished to West Virginia University for use in
conjunction with a research grant in horticulture.
The University had obtained approval of the renting of the greenhouse space by
grant project authorities and a rental allotment was provided for in the
project budget, but no formal lease agreement was prepared or signed. However,
the premises were accepted and used by the University for such purpose. A
formal lease agreement was later to be effective April 1, 1973, but it was not
allowed to be predated or previously effective. Consequently the previous ten
months’ rent of $250 per month was not paid simply because a proper lease
had not been processed.
All of the facts alleged are admitted by the respondent and payment
recommended. As budgetary requirements were met and the University received the
full benefit and use of the property involved, we are of the opinion to, and do
hereby award the petitioner the sum of $2500.
The clerk of the Court is hereby directed to transmit a copy of
56 REPORTS STATE COURT OF CLAIMS [W. VA.
this opinion to the respondent State
agency in order that this claim may be paid under the advisory procedure of
Chapter 14, Article 2, Section 18 of the Code of West Virginia.
Award of $2500.
Opinion issued January 9, 1974
SWIFT & COMPANY, INC.
vs.
DEPARTMENT OF HIGHWAYS
(No. D-662)
Robert Irving Price, appeared for the claimant.
Dan Blizzard, Ii, Esquire, for the respondent.
PETROPLUS, JUDGE:
Swift & Company, Inc., claimant, has filed a claim in the amount of $633.30
against the Department of Highways, respondent, for damages to a motor vehicle
owned by it, which was being driven by Robert Irving Price, its salesman, on U.
S. Route 50 within the corporate limits of the City of Romney, West Virginia,
on March 4, 1973. Mr. Price was driving at a speed of approximately 20 miles
per hour through the City of Romney about 6:00 P.M. on the day of the accident,
while it was still daylight, and as he approached a large tree, situate on the
right of way to the right of the paved portion of the road, a large limb
approximately eight inches in diameter broke from the tree and fell on top of
his car, crushing the roof, windshield and trunk of the car causing damages in
the amount of $633.30 as shown by an estimate filed as an exhibit in this case.
The trunk of the tree was located between the paved portion of the road and a
paved sidewalk and its overhead branches extended almost entirely across the
width of the paved road.
The defense was based on:
(1) The claim is damnum absque injuria
W. VA.]
REPORTS STATE COURT OF CLAIMS 57
(2) The accident resulted from an Act
of God.
(3) The respondent had no notice of any hazard to the travelling public.
(4) The respondent is not an insurer of the safety of travelers on the highway.
The evidence at the hearing established that a large deteriorated tree limb
which fell upon the car and crushed it was a big and heavy dead branch without
foliage, and after it hit the car a lot of rotten wood, brown and decayed, was
observed in the roadway. There was no evidence that the appearance of the tree
gave any indication that the tree was decayed or rotting. Nor was any evidence
introduced by the State to indicate that the condition of the tree had been
inspected by the State as part of its routine maintenance service of the
highway.
It is a finding of fact of this Court that the tree with its extended branches
over the highway was in a decaying condition rendering public travel on the
highway unsafe. It is also a finding of fact that the public authority did not
have actual notice of the hazard. The State has a duty to keep its highways in
repair and reasonably safe for public travel and when injury is sustained by a
traveler coming in contact with overhanging limbs of trees growing at the side
of a road, outside the paved portion, a question arises whether the State
exercised due and ordinary care in permitting the tree to remain, or whether it
had a duty to trim and remove the tree. Liability for injury due to the
presence of a tree within the boundaries of a highway is not absolute but
depends upon negligence or whether the tree constituted a nuisance reasonably
likely to render the highway unsafe for public travel.
While the authorities are not in full accord on the liability of a public
authority for damages caused by falling trees, or limbs, the majority view is
that a decayed tree on the side of a highway constitutes a public nuisance, and
that a public authority may be held liable for injuries sustained by travelers
as a result of the fall of the tree because of natural decay.
It appeared from the evidence in this case that this tree was located in a well
traveled residential section of the City of Romney, and that even though the
State had no notice of the decay of the tree,
58 REPORTS STATE COURT OF CLAIMS [W. VA.
by the exercise of reasonable care the
condition of the tree could have been ascertained.
For the foregoing reasons it is the opinion of the Court that an award should
be made to the claimant for the full amount of its damages.
Claim allowed in the amount of $633.30.
Opinion issued January 10, 1974
RONALD E. HOUSE, Administrator of the
Estate of Edward P. House, deceased
vs.
DEPARTMENT OF MENTAL HEALTH
(No. (D-603)
John A netakis and Carl N.
Frankovitch for the claimant.
Henry C. Bias, Jr., Assistant Attorney General, for the respondent.
JONES, JUDGE:
This is a claim for damages for the
alleged wrongful death of Edward P. House, the 37-year old son of Mr. and Mrs.
Ronald E. House, residents of Hancock County. On July 1, 1972, the claimant’s
son was committed to Weston State Hospital as an inebriate by the Mental
Hygiene Commission of Hancock County upon the petition of his mother. On July
9, 1972, while a patient in Ward C, Unit 6, of said hospital, House was stabbed
to death by another patient, Curtis Renforth. The assault took place in the
bathroom and the victim was repeatedly stabbed with a kitchen knife which was
sharpened and the handle wrapped with adhesive tape. There were no witnesses in
the bathroom and the principals were first seen when House ran into the
corridor pursued by Renforth with the bloody knife in his hand. House ran from
one end of the ward to the door at the other end where he fell and died. Some
of the 25
W. VA.]
REPORTS STATE COURT OF CLAIMS 59
to 30 patients housed in the ward were
attending Chapel services in another part of the hospital at the time and one
male nurse was on duty. This was a “closed” ward, the doors being kept locked
and the patients not being free to come and go as they were in “open” wards.
Inebriates were required by Court order to be kept in the hospital for a
minimum of 30 days and that apparently accounts for the assignment of House to
a “closed” ward.
The claimant contends that the respondent was negligent in failing to exercise
ordinary and reasonable care to protect the decedent from Renforth, the
respondent well knowing Renforth to be “homicidal”, “assaultive”,
“unpredictable” and “dangerous”, with a penchant for knives. The claimant seeks
damages under Code 55-7-6 in the amount of $10,000.00, an additional award of
$100,000.00 for financial and pecuniary loss claimed to have been sustained by
dependent distributees and the sum of $2,000.00 for funeral expenses.
A recital of Renforth’s record both as a criminal and a mental patient is
necessary to a proper appraisal of this case. His first admission to Weston
State Hospital was from the Moundsville Penitentiary on April 1, 1953. The
record of his admission shows him to be “suicidal and homicidal”. He was
returned to the penitentiary on May 15, 1953.
Renforth was readmitted to Weston
State Hospital in May, 1957 and discharged therefrom in June, 1957 because his
sentence had terminated. He was readmitted in January, 1963 and discharged to
“criminal authorities” in December, 1963. In June, 1967, he was readmitted and
in October, 1967 was “returned to Court”.
On April 16, 1969, an order was entered in the Intermediate Court of Ohio
County, West Virginia by which it was ordered that “the said defendant, Curtis
0. Renforth, be confined to the Weston State Hospital in the Division for the
Criminally Insane *
* * * * until the further order of this
Court”. On May 23, 1969, Dr. M. Aviles, Staff Physician, wrote a letter to
Judge Thomas P. O’Brien, which letter also was signed by Dr. J. E. Lazaro,
Acting Superintendent, with a copy to Dr. Bateman, Director of Mental Health,
in which letter he pointed out that Renforth had a history of being very
hostile, impulsive and showing homicidal tendencies and ended his letter with
the following two paragraphs:
“Considering the above, it is the consensus of opinion of the
60 REPORTS
STATE COURT OF CLAIMS [W. VA.
staff of this hospital that at the
present time the patient is considered a threat to the security of the ward in
which he is hospialized, and he has been known to threaten escape and strong
evidence points Out the possibility of a weapon in his possession at the
present time.
Since the patient does not show any psychotic symptomatology, we strongly
recommend his transfer back to the West Virginia Penitentiary at your earliest
convenience.”
This letter was written while the hospital still had a separate security unit
for the criminally insane. On June 9, 1970, Judge O’Brien ordered that Renforth
be conveyed from Weston State Hospital to confinement at the West Virginia
Penitentiary at Moundsville under the sentence theretofore imposed.
In the early part of the year 1970 the Maximum Security Unit for the Criminally
Insane was discontinued at Weston State Hospital and thereafter all patients
were intermingled unless the hospital authorities saw fit to place certain of
them in seclusion. Despite the fact that there was no longer a separate unit
for the criminally insane, Renforth was readmitted to the hospital on May 6,
1971. There is nothing in the record to show why Renforth was readmitted to the
hospital after he had been transferred back to the penitentiary by the
Intermediate Court of Ohio County at the urgent request of the hospital
authorities and upon their insistence that he was “a threat to the security of
the ward in which he is hospitalized”. The Court independently has examined the
records of the Intermediate Court of Ohio County and the final order entered
therein was that of June 9, 1970 ordering Renforth’s transfer to the
penitentiary, so we may only conclude that the arrangement was made between the
penitentiary and the hospital.
On September 20, 1971, Dr. A. J. DeLiz, Acting Superintendent of Weston State
Hospital, wrote to the Department of Mental Health in Charleston with reference
to Curtis Renforth in part as follows:
“During his stay in the hospital, he has been housed on Unit Six. The Unit Six
team has examined this patient and on May 15, 1971, they recommended he
be returned to Moundsville; however, he still remains in the hospital. It is
the feeling of the Unit Team that the continued stay of this patient en-
W. VA.]
REPORTS STATE COURT OF CLAIMS 61
dangers the lives of the aides and
other patients and also they cannot satisfactorily program all their plans
because of his presence. The Unit Team submitted the following as evidence of
the behavior of Mr. Renforth on the ward:
“‘1. Put a blanket around a patient’s face and got his money,
2. Terrorizes other patients and because of it, the patients give him their
money, cigarettes, and have homosexual relations with him,
3. Hit a patient on the head which resulted in a fracture,
4. Has been carrying threats to our aides,
5.
Has been found receiving matches,
razor blades, in his mail,
6. Has been found with a foot-long piece of metal in his room,
7. Found to be hiding a cache of razor blades, can opener, and matches in the
bathroom.
We (Unit VI Team) feel that not enough is being done for the transfer of this
patient. We have waited too long already.’
“It is quite evident that this patient offender cannot be helped in this
hospital. It is also evident that this patient represents an imminent risk
toward everyone concerned in this team.
“May we respectfully request again, that this patient be removed from this
hospital.”
We fully realize that the charges against Renforth listed in Dr. DeLiz’s letter
have not been proved and are not evidence in this case, but the letter clearly
shows that the respondent knew or at least strongly believed that Renforth was
extremely dangerous and unfit to be housed with non-offender mental patients.
The record in this case is replete with reports of psychiatric examinations of
Renforth, taken from the hospital files, which confirm the dangerous character
of this man. It appears that sundry telephone calls were made as a result of
Dr. DeLiz’s letter but nothing was done to solve the problem. Almost fourteen
months were permitted to go by with
62 REPORTS STATE
COURT OF CLAIMS [W. VA.
a letter and a few telephone calls as
the sole effort to obtain the admittedly necessary removal of Renforth from a
State institution which was no longer equipped to take care of him and at the
same time protect others from his assaultive and homicidal tendencies. Renforth
remained in the hospital, being treated as a mental patient, and not as a felon
convicted of malicious wounding and under sentence to the penitentiary by the
Intermediate Court of Ohio County.
The Court concludes that the State of West Virginia failed to fulfill its moral
and legal obligations to protect the claimant’s decedent from a convict-patient
well-known to the hospital authorities and officials of the Department of
Mental Health to be a dangerous schizophrenia-paranoid with homicidal
tendencies, that the respondent’s acts and omissions constitute negligence, and
that such negligence was the proximate cause of the death of the claimant’s
decedent.
We cannot agree with the claimant’s contention that the decedent’s mother and
father were dependent distributees as contemplated by Code 55-7-6. There can be no doubt of the concern of the decedent’s
parents for their son during his lifetime, nor of their bereavement at his
death, but upon review of the evidence the Court is constrained to the opinion
that in this case the son was the dependent and not the parents.
Accordingly, the Court is of opinion to and does hereby award the claimant,
Ronald E. House, Administrator of the Estate of Edward P. House, deceased, the
sum of $10,000.00, together with the additional sum of $2,000.00 for funeral
expenses, a total award of $12,000.00, against the respondent, Department of
Mental Health.
Award of $12,000.00.
W. VA.]
REPORTS STATE COURT OF CLAIMS 63
Opinion issued January 14, 1974
EXXON COMPANY, U.S.A.
vs.
DEPARTMENT OF MENTAL HEALTH
(No. D-657a&b)
Paul Bowles for the claimant.
Henry C. Bias, Jr., Assistant Attorney General, for the respondent.
JONES, JUDGE:
This claim in the amount of $183.38 is for unpaid invoices of the claimant,
Exxon Company, U.S.A., against the credit card account of Cohn Anderson Center,
an institution operated by the respondent, Department of Mental Health. The
case was submitted upon the claimant’s petition, certain exhibits, the respondent’s
answer and statements of counsel.
Upon consideration of the record, it appears that two items of the claim
aggregating $48.73 involved purchases made in the fiscal year 1969-70 when
sufficient funds had not been appropriated for the payment thereof, and
therefore this portion of the claim is invalidated by this Court’s decision in Airkem Sales & Service v. Department of Mental
Health, 8 Court of Claims 180, and is
disallowed.
The remainder of the petitioner’s claim in the amount of $134.65 arose from
purchases made during the fiscal year 1970-71, when sufficient funds were
available to pay the same, but due to confusion in the handling of respondent’s
financial affairs, the invoices were not paid before the fiscal year
appropriation had expired.
The Court is of opinion that the 1970-7 1 invoices in the amount of $134.65
should be paid and, accordingly, an award in that amount is hereby made to the
claimant, Exxon Company, U.S.A.
Award: $134.65.
64 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 18, 1974
RUTH YOUNG
vs.
DEPARTMENT OF HIGHWAYS
(No. D-625)
John L. Boettner, Esq., for the claimant.
Donald L. Hall, Esq., for the respondent.
PETROPLUS, JUDGE:
Ruth Young, claimant, as the owner of
a parcel of real estate upon which two residential dwellings and several sheds
had been erected, seeks damages in the amount of $8248.00 to her property in
Lester, West Virginia, allegedly caused by the negligence of the Department of
Highways, respondent, when it designed and constructed in the year 1964 what is
known as West Virginia Route 54. The old route 54, on the side of a mountainous slope,
was raised in elevation and a number of culverts were installed providing
openings under the road for the drainage of water from the upper slope and the
paved road down the hillside towards the claimant’s property and a small creek
known as Surveyor Branch. The water so drained into Surveyor Branch passed
under a secondary road known as Delta Route 145 through two oil drums which had
never been quite adequate to carry the water during the wet seasons. Delta
Route 145 was an access road to Route 54 and was taken into the road system of
the State only for what has been termed “routine maintenance”. Claimant’s
property abutted Delta 145 about 300 feet from where it intersected and joined
Route 54. It was on the lower level of the slope, surrounded by a
swampy area, and even before the upgrading of Route 54 was frequently flooded
but never enough to cause substantial damage to the dwellings.
The new culverts under the new roadway discharged water on the upper slope
about 200 or 300 feet from the claimant’s property. The water so discharged,
seeking a lower level, eroded portions of the Delta Road and formed ditches
leading to Surveyor Branch. One of the ditches formed by the front gate of the
Young property.
W. VA.]
REPORTS STATE COURT OF CLAIMS 65
After the construction of the new road
the flooding problem, particularly in times of heavy rain, became accentuated,
and the claimant was frequently inconvenienced by large pools of water on her
property. The State was notified about the conditions but disclaimed any
responsibility for the natural flow of the water after its discharge from the
culverts. The respondent’s investigation placed the blame for the flooding on
the inadequate oil drums under the Delta Road, through which the Surveyor
Branch passed, rather than on the culverts of the new road.
On August 12, 1972, the runoff of water after a particularly hard rain damaged
the foundation of the main house, causing a bulge in the lower wall, sagging
floors, warped doors, and other incidental damage to the dwelling. Water, sand
and debris also damaged items of furniture, clothing and furnishings. Prior to
this flood damage, after a heavy rain in March, 1972, about 90% of the topsoil
on the Young property was eroded and washed away, and flooding occurred in
another building owned by Mrs. Young.
In its Answer, the respondent admitted the flood damage was caused by
inadequate drainage, but denied liability on the ground that the claimant had a
perennial flooding problem even before Route 54 had been improved and upgraded.
The respondent further takes the position that surface water is a common enemy,
and flowing naturally, does not create any responsibility on the State for
damages to lands adjacent to the flow.
At the hearing the evidence disclosed the State’s position to be untenable. The
upgrading of Route 54
increased the flow of accumulated
water substantially, throwing it towards the Young property and aggravating the
preexisting condition. Numerous complaints were made by the neighbors
concerning the inadequacy of the culverts, eventually reaching the top level of
government, the Governor. The problem was ameliorated considerably by the State
eventually installing a larger culvert under the Delta Road, which apparently
has now solved the more serious aspects of the problem.
It is a finding of fact by this Court that the evidence preponderates in favor
of the claimant and that in equity and good conscience she should be
compensated for the damages to her property. It is the further finding of the
Court that the Young property was located at a low point in a 300 acre drainage
basin, and that the Surveyor Branch
66 REPORTS
STATE COURT OF CLAIMS [W. VA.
formerly carried the natural flow of
water under the Delta Road adjacent to the Young property through two oil drums
15 and 18 inches in diameter, which served their purpose with a minimum of
flooding. After the upgrading of Route 54, and the installation of a series of culverts incidental to the
improvement, the concentrated flow of water from the hillside and the new road
increased substantially, and was directed in its flow towards the claimant’s
property.
The construction of the belated improvement, which solved the problem, should
have been foreseeable by the State Engineers when the drainage for the new
Route 54 was designed. However, it appears that the State proceeded with the
new construction in total disregard of the consequences it might have to the
Young property. This, in the Court’s opinion, constituted negligence and a
violation of the claimant’s property rights.
Appraisals were introduced as exhibits showing the market value of Mrs. Young’s
property before and after the flood damage by both parties, with wide disparity
in values.
We hold that the common enemy doctrine is not applicable to the facts of this
case. The claimant is not complaining about the natural diffusion of surface
water as the result of rainfall or melting snows. The respondent interfered
with the natural flow of surface water by diverting, channeling and
accelerating its flow with increased volume. The State in making public
improvements has no more right than an individual to collect surface water into
an artificial channel and precipitate it upon a neighbor to his substantial
injury.
After the consideration of all the evidence, the conflicts in the testimony on
the market value of the property before and after its damage, and all the
circumstances relating to the culvert construction, it is the finding of this
Court that the claimant is entitled to an award of $7300.00.
Award of $7300.00.
W. VA.)
REPORTS STATE COURT OF CLAIMS 67
Opinion issued January 24, 1974
UNIVERSITY HOSPITAL
ALBERT B. CHANDLER MEDICAL CENTER,
UNIVERSITY OF KENTUCKY
vs.
BOARD OF VOCATIONAL EDUCATION,
DIVISION OF VOCATIONAL REHABILITATION
(No. D-681a)
Bruce Lank ford, Esq., appeared for the claimant.
Henry C. Bias, Jr., appeared for the respondents.
PETROPLUS, JUDGE:
A claim was filed in the amount of $2,029.06, against the respondents for
medical services rendered by the claimant to Mrs. Loretta E. Cornwell, a
patient who was referred to the hospital by the respondents and treated therein
from November 14, 1971, until July
26, 1972.
The claim was submitted on stipulation of facts wherein it appears that the
agreement of the respondents was to pay the hospital the difference between the
charges for medical services rendered and the amount received from Mrs.
Cornwell’s insurance coverage. The difference between the total charge of
hospitalization and the amount so received from the Nationwide Insurance
Company was $2,029.06. Funds were available to pay the claim before the end of
the fiscal year ending June 30, 1972, but inasmuch as payment had not been
received from the insurance company, payment was not made from the available
funds.
The respondents admit that they authorized admission, confinement and treatment
of Mrs. Cornwell and agreed to pay the amount of her hospital and medical
treatment not covered by her insurance, and that funds were available for
payment of the claim during the fiscal year, but that payment was deferred
pending negotiations with the insurance company. Liability is admitted by the
respondents in the amount of $2,029.06 and payment is recommended.
It is the finding of the Court that a valid contract existed between
68 REPORTS STATE
COURT OF CLAIMS [W. VA.
the parties and that in equity and good conscience this claim should be paid as
a contractual obligation of the State. An award will accordingly be made in
favor of the claimant.
Claim allowed in the amount of $2,029.06.
Opinion issued January 24, 1974
PHYSICIAN ACCOUNTS DEPARTMENT,
ALBERT B. CHANDLER MEDICAL CENTER,
UNIVERS1TY HOSPITAL, UNIVERSITY OF KENTUCKY
vs.
BOARD OF VOCATIONAL EDUCATION,
DIVISION OF VOCATIONAL REHABILITATION
(No. 681b)
Bruce Lank! ord, Esq., appeared for the claimant.
Henry C. Bias, Jr., appeared for the respondents.
PETROPLUS, JUDGE:
This claim in the amount of $1,375.00, relates to medical services performed by
the physicians of the claimant on behalf of Mrs. Loretta E. Cornwell, of
Prichard, West Virginia, which were authorized by the West Virginia Division of
Rehabilitation, respondent. The claim was submitted by stipulation upon
petition and answer.
The Vocational Rehabilitation Division obligated itself to pay for all charges
not covered by the patient’s insurance coverage.
The State by stipulation has agreed that medical services were authorized by
the respondent and that the admission, confinement, and treatment of the
patient in the claimant’s hospital was approved. The respondent further agreed
to pay for all medical services not covered by the patient’s insurance. The
services were rendered from August 19, 1971, to July 16, 1972. Funds were
available for the respondent to pay for the aforementioned services but the
fees were
W. VA.]
REPORTS STATE COURT OF CLAIMS 69
not paid during the fiscal year that
ended in 1972, because of negotiations with the patient’s insurance carrier,
which extended beyond June 30, 1972. The respondent admits liability in the sum
of $1,375.00, as set forth in the claimant’s petition and recommend that the
sum be paid.
It appearing to this Court that this claim was duly authorized and that the
State incurred a contractual obligation that should in equity and good
conscience be paid for medical services rendered to a patient, referred to the
claimant for treatment, and that the contract was valid in every respect, there
being sufficient funds available for the payment of the services, it is
accordingly the opinion of the Court that an award should be made to the
claimant in the amount of
$1,375.00.
Claim allowed in the amount of $1,375.00.
Opinion issued February 7, 1974
F. B. AMBURGEY, TRUSTEE FOR
HENSLEY HEIGHTS MAINTENANCE FUND
vs.
ADJUTANT GENERAL
(No. D-633)
F. B. Amburgey, Trustee, claimant in person.
Henry C. Bias, Jr., Assistant Attorney General for the respondent.
DUCKER, JUDGE:
F. B. Amburgey. as Trustee for fifteen owners of residence lots in Hensley
Heights, an unincorporated suburb of the town of Man, West Virginia, claims
damages in the amount of $1308.47, the cost of replacing a sidewalk and sewer
line serving the residences in that subdivision. Claimant alleges that the
sidewalks and sewer line were broken by motor trucks of the West Virginia
National Guard when guardsmen moved victims and their personal effects to the
Man High School, adjacent to the subdivision, for temporary housing immed
70 REPORTS STATE
COURT OF CLAIMS [W. VA.
iately after what is known as the
“Buffalo Creek Flood” of February
26, 1972.
The evidence is to the effect that the subdivision property owners had an eight
inch terra cotta pipe sewer line under a five inch concrete surface sidewalk
along the side of the residence of John White, one of lot owners in the
subdivision; that the sewer was approximately thirty inches below the sidewalk
at the place where it was broken; and that the National Guard had at that time
parked at that location some fifty or more heavy, double dual wheel trucks,
some of them being 2½ ton trucks. Upon the question raised by the respondent as
to whether the damages alleged by claimant could have been done by the trucks,
the Court requested that the respondent have its engineers investigate the
matter and report their conclusion to the Court. This was done by the
respondent and the Court has received such report which admits that the damage
could have resulted from the weight of the trucks.
In response to a question by the Court as to the authority of the claimant as
trustee to make this claim in behalf of all the property owners in the
subdivision, the claimant has filed, and the Court accepts, a Power of
Attorney, in its original form, authorizing the claimant to act for the
property owners in bringing and maintaining this claim and to receive for them
any award which may be made herein.
As the facts as alleged by the claimant have been satisfactorily proved, and
negligence on the part of the respondent is necessarily inferred from the
consequences of its acts, we are of the opinion to, and do hereby award the
claimant the sum of $1308.47.
Award of $1308.47.
W. VA.]
REPORTS STATE COURT OF CLAIMS 71
Opinion issued February 7, 1974
BUCKEYE UNION INSURANCE COMPANY
FEDERAL INSURANCE COMPANY
GLOBE INDEMNITY COMPANY
UNITED STATES FIDELITY AND GUARANTY COMPANY
vs.
THE WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-585b)
Frank E. Jolliffe, Attorney at Law, McHale, Jolliffe & Riffe, Lewis-
burg, West Virginia for the claimants.
Donald L. Hall, Attorney at Law; Dan
Blizzard, Attorney at Law, for the respondent.
DUCKER, JUDGE:
Claimants, insurers against fire, paid
the County Court of Greenbrier County, West Virginia the sum of $88,722.00 as
the loss in a fire totally destroying on November 23, 1970 a building owned by
the County Court and known as the “old jail” building in Lewisburg, West
Virginia, such insurance loss payments having been in four separate amounts of
$22,180.50 each by the four claimants herein. Claimants now, by way of
subrogation to the rights of the County Court under the several insurance
policies, seek reimbursement from the respondent, the West Virginia Department
of Highways, alleging that the fire was caused by the negligence of the
respondent in its operation of its garage or shop building which first caught
fire, then spreading to and consuming the insured old jail building adjacent to
the garage building.
The evidence as to the cause of the fire was the testimony of two employees of
Department of Highways, namely, Henry Butler and Ghaile Shortridge, who were at
the scene of the fire when it originated. Butler was cleaning with gasoline a
“center lining machine”, a machine with which white lines are painted on roads.
The machine had been brought inside the shop or garage building to be cleaned
because it had, as the witness said, “froze up” in the then ten degree weather
and couldn’t be cleaned outside, and Shortridge was the
72
REPORTS STATE COURT OF CLAIMS [W. VA.
“night gas man and radio man”, who was
in the front part of the shop building to see if anyone was on the two-way
radio or phone when he heard a slight “poof” and looked back at the center line
machine and saw it was on fire.
Butler testified that at about six o’clock in the afternoon of the day of the
fire he proceeded to clean with gasoline the “guns” of the machine and had
cleaned two guns and had started out a little side door of the garage with the
buckets containing some of the gasoline he had used when Shortridge called and
said there was a fire there. Butler said he “dropped or throwed the buckets
down and ran back in there and at that time it was burning”, and further that
he got the machine out of the shop the best he could and “grabbed a fire
extinguisher and it wouldn’t work and grabbed another one and couldn’t get it
to work”.
Shortridge testified that the machine ws usually cleaned outside but as it was
a cold night it was brought inside to clean. He also testified that the fire
was first back of the guns on the striping machine and on the floor and the
hoses around the guns, and that there was a gas heater in the bathroom located
“between five and eight feet” from the machine, and that in his opinion
gasoline on the floor back of the machine was ignited by the bathroom hot water
heater. There was no contradiction of the testimony of Butler and Shortridge
and the Court sees no basis for any contradiction thereof.
From the evidence the Court can only conclude that the fire was the result of
the negligence of the respondent. The cleaning of the paint striper machine in
the shop or garage with the gasoline so close to a fire in the gas heater only
a short distance away, and the failure to have workable fire extinguishers
available are facts which show that reasonable care was not taken to do the
work at hand in a safe manner.
The first question raised by the respondent is that it is not liable because
the claimants as subrogees have no greater rights than their subrogor, the
County Court, has, and that the County Court as a subdivision of the State
cannot sue the respondent, an agency of the State, and therefore the claimants
have no right to maintain a suit in this Court. While it is true that a
subrogee has no greater right than
W. VA.]
REPORTS STATE COURT OF CLAIMS 73
his subrogor, the resulting question
is whether the County Court could have maintained this action.
In the case of City of Morgantown v.
Board of Governors of West Virginia University, 8 Ct. Cl. 41, this Court was required by the Supreme
Court of Appeals of West Virginia to take jurisdiction of a claim of a
municipal corporation against a State agency, and the claimant City was held
not to be such a State agency as would prevent it from suing the State in this
Court. Although a County Court may be considered in many respects as just a
geographical or political subdivision of the State with many of the functions and
sovereignty of the State, nevertheless, it lays its own levies for taxes, has
its own funds, conducts its own fiscal and contractual affairs, and as a
corporation is especially authorized to sue and be sued, to contract and be
contracted with, and to handle its own financial affairs. So we must conclude
that like cities, County Courts can maintain actions in this Court under the
statutory jurisdictional provisions relating to this Court. And thus the claim
which inured to the County Court of Greenbrier County and which passed to the
claimants is within the jurisdiction of this Court.
Inasmuch as we conclude there is liability on the part of the respondent, the
question of the amount of damages must now be determined. The claimants seek
recovery of the total amounts paid by them in their settlement of the loss,
while the respondent says the market value of the property destroyed was only
approximately
$22,370.
The claimants, insurers, base their claim upon the value fixed by appraisers
who determined in 1969 their values for blanket insurance policies issued upon
the County Court and all county buildings, of which the old jail was one, and
which valuations were based upon replacement values approved by the West
Virginia Inspection Bureau. The respondent relies on an appraisement made by D.
K. Hammond, a real estate broker and appraiser, as to the market or sale value
of the building destroyed. The Hammond appraisal was made from information
furnished him after the fire. He testified that there were three methods of
appraisal in fixing values, namely, the market appraisal to the entirety which
in this instance couldn’t be done because the entirety was not existing, the
cost appraisal which also could not be done, and the income approach which he
did. On cross
74 REPORTS
STATE COURT OF CLAIMS [W. VA.
examination Mr. Hammond admitted that
there was approximately 3800 square feet of space, but not necessarily usable
space, in the building which he had not included in the $18,000 total figure,
and that he had used $1.15 per square foot as the basis of his rental value
figure. So $4370 for the additional footage could be added to $18,000, making
total of $22,370, on an income approach basis, which he said “usually indicates
what a prudent buyer is willing to pay for an income piece of property,
regardless of what it costs to build”. The appraisers for the claimants have
based their figures on what they consider the sound value basis, that is
reproduction new at $136,946 less thirty-five percent depreciation, resulting
in the sum of $88,722.00. Claimants have in no way shown what the value was on
the basis of a sale by a willing seller to a willing buyer both free of any
compulsion. And while respondent’s evidence on the question is closer to the
rule, yet it is limited to the basis of rental value. So from the evidence the
question is left quite open and conjectural.
The fact that the building was insured on the basis of the cost of reproduction
does not determine what it could have been sold for in the market. Neither does
the rental value quite meet the rule applicable, although it more nearly
approaches the rule.
Buildings in different locations, though costing the same to build, bring
different prices upon sales. Likewise old buildings are very often not worth
rebuilding when better locations are available. Here we have an old building
which has been completely destroyed. It was not being used for the purpose for
which it was built, although after alterations and interior remodeling it had
been used by the Welfare Department. There were no comparables in sales to
furnish any help in arriving at a market value of the property. The testimony
is to the effect that appraisers for the insurance companies, the claimants
herein, determined the value of the building to be $88,720 after deducting
thirty-five percent depreciation from a valuation of $136,496.00, which they
said was a sound value. Such valuation was submitted to and approved by the
County Court, and filed with the West Virginia Inspection Bureau which promulgated
the fire insurance premium rate on such figures for policies to be written on a
special form for public institutions and property. Although there is some
testimony to the effect that sound value is not reproduction new less
depreciation, yet the witness, Phillips, stated the building had a
W. VA.]
REPORTS STATE COURT OF CLAIMS 75
placement cost of $136,496.00 and a
suggested sound value of $88,722.00”. Whatever may be the difference in
terminology as to the method of determining the value, it is immaterial as such
valuation is not according to market value.
Furthermore, the element of contractual liability enters into the consideration
in this case. Here the insured paid premiums on the basis of the valuation of
$88,722.00 agreed to by the claimants and the insured, and there was a total
loss of the property. The value of the property was fixed by the parties and
the claimants were bound by their contracts, and they honored, by payment
without question, their liability in the matter. But this fact cannot be the
basis for their recovery by way of subrogation here, as the County Court could
not have recovered on that basis against the respondent. The County Court had
no such or any contract with the respondent and it could recover only the fair
market value of the building determined on the willing seller and willing buyer
basis.
In view of the lack of evidence as to market value and the practical
impossibility of procuring any such evidence because the building was totally
destroyed, we can only attempt by way of compromise to arrive at what we
consider some fair estimate of the market value, and thus try to do justice and
render an equitable decision in the matter. Accordingly, we are, therefore, of
the opinion to and do make the following awards to:
(1) Buckeye Union Insurance Company $11,000.00
(2) Federal Insurance Company $11,000.00
(3) Globe Indemnity Company $11,000.00
(4) United States Fidelity & Guaranty Co. $11,000.00
76 REPORTS
STATE COURT OF CLAIMS 1W. VA.
Opinion issued February 7, 1974
EATON LABORATORIES
vs.
WEST VIRGINIA DEPARTMENT OF MENTAL
HEALTH
(No. D-695)
No appearance by claimant.
Henry Bias, Attorney at Law, Assistant Attorney General for the
respondent.
DUCKER, JUDGE:
Claimant, Eaton Laboratories of
Norwich, New York, sold and delivered certain medicinal supplies to the Cohn
Anderson Center of the West Virginia Department of Mental Health, in accordance
with orders therefor from the respondent, and after some payments on the
account, there remained unpaid the sum of $47.81. It appears that the budget
appropriation for the fiscal year which covered said account expired before
full payment of the account was made, and payment of the balance of the account
was not made because of oversight on the part of the respondent. Respondent
admits that the allegations are true that the claim is reasonable, and that the
account should be paid.
The Court, therefore, awards the claimant the sum of $47.81.
Award of $47.81.
W. VA.] REPORTS
STATE COURT OF CLAIMS 77
Opinion issued February 7, 1974
FEDERAL INSURANCE COMPANY
vs.
THE WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-585a)
Frank E. Jolliffe, Attorney at Law, McHale, Jolliffe & Riffe, for the
claimant.
Donald L. Hall, Attorney at Law, Dan
Blizzard, Attorney at Law, Department
of Highways for the respondent.
DUCKER, JUDGE:
Claimant, as the insurer against fire and as subrogee of John R. Dawkins who
owned property across the street from property known as the old jail in
Lewisburg, West Virginia, owned by the County Court of Greenbrier County, West
Virginia, claims damages in the sum of $302.81 resulting from a fire on
November 23, 1970, which broke a window in the front part of the Dawkins
property, the fire having totally destroyed the old jail building.
The facts as to the fire are fully set forth in an opinion of this Court in
Claim No. D585b*, and rather than repeat the same here, reference is made
to that opinion. In accordance with that opinion in which this Court held that
the fire resulted from the negligence of the respondent, we likewise hold in
this claim, and do hereby award the claimant the sum of $302.81.
Award of $302.81.
*See Buckeye Union Insurance Company et
a! V.
Department of Highways, No. D-585b in this Volume.
.78 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued February 7, 1974
JAMES HODGE
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-665)
No appearance for claimant.
Gregory W. Evers, Attorney at Law, Department of Highways for the
respondent.
DUCKER, JUDGE:
Claimant, James Hodge, a resident of Alderson, West Virginia, alleges that on
or about June 22,
1973 the respondent sprayed its right of
way in the general area of claimant’s vegetable garden with a herbicide known
as Dupont Hyvar XL and on June 28th and 29th, 1973 it sprayed that right of way
with a herbicide known as Herbicide
2-4D, and that in doing so various kinds of vegetables in claimant’s garden
wilted and died. The facts alleged by claimant are by stipulation of the
parties admitted and the damages agreed upon as amounting to $162.20.
Accordingly, the Court, finding that the loss has been caused by the acts of
the respondent and that the estimate of the loss is fair and reasonable, hereby
awards the claimant the sum of $162.20.
Award of $162.20.
W. VA.] REPORTS
STATE COURT OF CLAIMS 79
Opinion issued February 7, 1974
MONARCH INSURANCE COMPANY
vs.
THE WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-585c)
Frank E. Jolliffe, Attorney at Law, McHale, Jolliffe & Riffe, for the
claimant.
Donald L. Hall, Attorney at Law, Dan
Blizzard, Attorney at Law, Department
of Highways for the respondent.
DUCKER, JUDGE:
Claimant, as the insurer against fire and as subrogee of Greenbrier Cable
Corporation, lessee of property owned by the County Court of Greenbrier County,
West Virginia, claims damages in the sum of $146.25, resulting from a fire
on November 23, 1970, which burned a suspension and messenger wire cable used
as a television transmission cable strung on utility poles near the building
leased by claimant, the fire having totally destroyed the old jail building owned
by the Greenbrier County Court.
The facts as to the fire are fully set forth in an opinion of this Court in
Claim No. D585b*, and rather than repeat the same here, reference is made
to that opinion. In accordance with that opinion in which this Court held that
the fire resulted from the negligence of the respondent, we likewise hold in
this claim, and do hereby award the claimant the sum of $146.25.
Award of $146.25.
*See Buckeye Union Insurance Company
etal v. Department of Highways, No.
D-585b in this Volume.
80 REPORTS STATE
COURT OF CLAIMS LW. VA.
Opinion issued February 11, 1974
HENRY T. ELDEN
vs.
BOARD OF ARCHITECTS
(No. D-703)
G. CAMERON HUNTER
vs.
BOARD OF ARCHITECTS
(No. D-704)
E. KEITH DEAN
vs.
BOARD OF ARCHITECTS
(No. D-705)
RAY A. SHAW
vs.
BOARD OF ARCHITECTS
(No. D-706)
L. W. FRANZHEIM, JR.
vs.
BOARD OF ARCHITECTS
(No. D-707)
PETROPLUS, JUDGE:
The Board of Architects, a State agency, has requested that the above styled
claims be referred to this Court for an advisory determination concerning the
legal or equitable status of the claims against the State of West Virginia.
Since the facts relating to these claims are identical and relate to travelling
expenses incurred by the members of the West Virginia Board of Architects
during the fiscal year of 1972- 1973, the claims have been consolidated for the
purpose of securing
W. VA.]
REPORTS STATE COURT OF CLAIMS 81
an advisory opinion from this Court.
The claims have been filed with the Clerk with a full statement of the facts
and vouchers supporting the travel expenses of the Board members both for
in-state as well as out-of-state travel accompany the petition for an advisory
determination. The Attorney General’s Office filed an answer admitting that the
claimants under Claims Numbered D-703, D-704, and D-705 represent in part
expenditures made by members of the Board in attending a meeting of the
National Council of Architectural Boards in Atlanta, Georgia. The trip did not
end until July 1, 1973, and it was impossible for the claimants to submit
vouchers for payment of their expenses until after the 1st day of July, 1973,
although the expenditures were made during the preceding fiscal year. No effort
was made to encumber the funds of the Board during the fiscal year which ended
June 30, 1973. It is admitted by the respondents that the claims were lawfully
incurred, were reasonable and necessary and that they should be paid as
petitioned by the claimants. The portion of the claims representing travel
expense incurred within the State of West Virginia is admitted to have been
properly authorized and that funds were available in the appropriate accounts
for the payment in satisfaction of the claims. The Board has sufficient funds
representing collections of fees for the payment of these expenses and the
general revenue of the State is not involved in the payment and discharge of
the claims.
Upon an informal consideration of the claims without a hearing, the Court makes
an advisory determination that the claims are valid and enforceable obligations
of the West Virginia Board of Architects and as such should be paid.
A copy of this Opinion shall be transmitted to the officer who referred the
claim to the Court for an advisory opinion.
The Court determines that all of the claims representing both instate and
out-of-state travel are proper, and legal obligations of the West Virginia
Board of Architects.
Claim No. D-703 is allowed in the amount of $434.26.
Claim No. D-704 is allowed in the amount of $668.20.
Claim No. D-705 is allowed in the amount of $338.36.
Claim No. D-706 is allowed in the amount of $134.04.
Claim No. D-707 is allowed in the amount of $87.46.
82 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued February 11, 1974
NATIONWIDE MUTUAL INSURANCE CO.
SUBROGEE OF WILLIAM H. WRIGHT
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-713)
Charles N. Talboti for the claimant.
Gregory W. Evers, Attorney at Law, West Virginia Department of Highways
for the respondent.
DUCKER, JUDGE:
Claimant as subrogee under a policy of insurance issued by it to William H.
Wright, alleges that while the respondent was cleaning a bridge on State Route
16 which crosses over Highway L. S. Route 27 between Mt. Hope, W. Va. and Pax,
W. Va., an employee of the respondent threw a shovel full of gravel over the
side of the bridge and the gravel landed on the front part of the 1968 pickup
truck of the said William H. Wright while the truck was passing under the
bridge, damaging the windshield, hood and fenders of the truck.
The parties have stipulated that the damages in the amount of $272.99 were
caused by the act of the respondent and that the amount of damages claimed and
stipulated is reasonable.
Accordingly, the Court awards the claimant the sum of $272.99.
Award of $272.99.
W. VA.] REPORTS
STATE COURT OF CLAIMS 83
Opinion issued February 11, 1974
LAURA OSBORNE
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-579)
LAURA OSBORNE
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-634)
William Garrett, Esq., for the claimant.
Dan Blizzard, Esq., for the respondent.
PETROPLUS, JUDGE:
The above captioned claims have been consolidated and represent claims for
damages to real estate in Webster Springs, Webster County, West Virginia,
allegedly resulting from the negligence of the respondent in designing,
constructing, and maintaining the drainage system in the improvement of a State
highway described as Route 20, running from Webster Springs to Buckhannon. The
road ran through a mountainside known as Miller Mountain and the claimant’s
property consisted of two dwellings erected on the side of the road on land
that was on a lower elevation of the hillside slope than the land opposite from
the property affected. For many years the drainage of water from the
mountainside found its way through a ditch on the other side of the road, to
the lower level of the mountain eventually reaching a fork of what is known as
Elk River.
At the time the road was widened and improved the ditch on the opposite side of
the road from the claimant’s property appeared to provide adequate drainage of
surface water which emptied through a culvert under the road on to the property
of the claimant with a minimum amount of erosion as the water passed through
the claimant’s land. After the State made the improvements the ditch was
84
REPORTS STATE COURT OF CLAIMS [W. VA
removed and open drainage was provided
on the side of the road over the paved portion. A number of heavy rainf ails in
the spring and summer of 1972 caused an overflow of water from the hillside and
the road surface, to be directed in heavy volume on to the claimant’s property
with attendant debris and rocks resulting in damages.
On the evidence submitted it was established by the claimant by a preponderance
of the evidence that inadequate drainage and failure to provide culverts for
the new road was the proximate cause of the flooding of the property. Windows
were broken, the foundation was undermined, doors were twisted, and a porch on
one of the dwellings started to sag.
It is a finding of fact by this Court that the respondent failed to design and
provide adequate drainage for the road improvement, and that a reasonably
prudent contractor should have foreseen that the removal of the old ditch line
without replacing it with another form of suitable drainage would subject the
property of the claimant to overflows, carrying debris and thrusting it towards
the property.
Having made a finding of negligence and proximate cause, the next question
before the Court was proper compensation for the damages to the property. Some
of the damage was repaired and repair bills were submitted aggregating
approximately $833.00 for labor and materials that were used in the repair of
the property. A substantial part of the damage to one of the dwellings had not
been repaired at the time the claim was filed. Photographs were offered as
exhibits depicting the condition of the property. An estimate was submitted
prepared by a contractor indicating that an amount of $1,469.20 would be
required to restore the property to a tenantable condition. This Court has
repeatedly held that where damages to real estate are involved the Court will
follow the rule adopted in West Virginia for the measure of damages set forth
in various decisions of the Supreme Court of Appeals. The measure of damages is
the difference between the fair market value of the property immediately before
the mishap compared to its fair market value after the mishap. The cost of
repairing the property is admissible in order to assist the Court to evaluate
the damage and support the difference in market values which is a true measure
of damages. No appraisals of the property before and after the damage were
presented, and in order to do justice the case was kept open and the claimant
was given the op
W. VA.1
REPORTS STATE COURT OF CLAIMS 85
portunity to submit this evidence by
deposition at a later date. A deposition was filed, made by a licensed real
estate agent from Webster County. Although the deposition was not as
satisfactory as it should be, it did have sufficient probative value to be
considered by the Court on the issue of damages. Compensatory damages for the
injury to the property caused by the omission of the State will be measured by
the diminution in the market value of the property and not exclusively on the
cost of repairing or restoring the property to its former condition with new
and better materials.
On the evidence before the Court relating to damages an award in the amount of
$2,163.00 will be made to the claimant for both the repaired and unrepaired
dwellings.
Claims are allowed in the amount of $2,163.00.
Opinion issued February 13, 1974
ROBERT CANTLEY, JR.
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-664)
No appearance for claimant.
Gregory W. Evers, Attorney at Law, West Virginia Department of Highways
for the respondent.
DUCKER, JUDGE:
Claimant alleges that on or about June
22, 1973, the respondent sprayed its right of way on Route 3, Alderson, West
Virginia, adjacent to claimant’s vegetable garden, with a herbicide known as
Dupont Hyvar XL, and again on or about June 28 and 29, 1973 with a herbicide
known as Herbicide 2-4D which caused the vegetables in the garden to wilt and
die, resulting in a loss to the claimant in the amount of $250.00.
As the parties have stipulated that the alleged facts are true, that
86 REPORTS STATE
COURT OF CLAIMS [W. VA.
the amount claimed is reasonable and that the cause of the damage was the
result of negligence on the part of the respondent, the Court is of the opinion
to, and does hereby award the claimant the sum of
$250.00.
Award of $250.00.
Opinion issued May 24, 1974
SANDRA MILLER CASDORPH
vs.
DEPARTMENT OF PUBLIC SAFETY
(No. D-661)
I. Stephen Max for the claimant.
Henry C. Bias, Jr., Assistant Attorney General, for the respondent.
JONES, JUDGE:
The claimant, Sandra Miller Casdorph,
a typist for the respondent, Department of Public Safety, contends that she was
employed by the respondent to perform extra work on her own time in the
preparation of a West Virginia Uniform Reporting Guide, a project authorized
and directed by the Legislature and financed by a Federal grant of $31,500.00.
Lieutenant J. B. Hilliard was Director of the Criminal Identification Bureau to
which the project was assigned, and Sergeant 0. S. Neely was at that time the
Assistant Director of the Bureau and Project Director. Claimant says that
Lieutenant Hilliard and Sergeant 0. S. Neely asked her to do the extra work and
told her that there was an item in the project budget of $500.00 for typing. It
was her understanding that she was to be paid the $500.00 for whatever extra
work was required on a lump-sum basis. She testified that she worked a couple
nights a week and on Saturdays from about the middle of May until July 1, 1970.
She kept no record of time but approximated it to be 40 to 50 hours. She used a
typewriter furnished her by the respondent. She testified that after the work
was done, Sergeant Neely presented her a consulting contract form and asked her
to fill it out and sign it, which she did. She was
W. VA.]
REPORTS STATE COURT OF CLAIMS 87
later told that the Attorney General
would not approve the contract because it was signed after the work was done.
William David Martin, Assistant Project Director, put the Guidebook together with
the assistance of a Mr. Fannin. Typed and printed material was put in a
looseleaf book for submission to a printing firm employed to do the composition
work. Most of the material for the book was made up of photocopies of pages
taken from Reporting Guides of the States of Florida and New Jersey. Of
approximately 150 pages in the book 23 were typed, 13 by the claimant and 10 by
a Miss Giles, a typist also regularly employed by respondent. Martin said it
was possible that the claimant typed some pages over and agreed that the
language was somewhat technical and the typing more difficult than average. He
thought the retyped pages would not be more than 50% of the work. He knew that
she took some of the work home and that 13 pages of the finished work were used
in the book, but he had no knowledge of any offer of extra compensation.
Sergeant Neely testified that the claimant was furnished for home use a
typewriter and Stenorette tape recorder to catch up on her work when she got
behind by reason of illness or other causes. According to Sergeant Neely there
was considerable discussion with the claimant and others in the office
concerning the allotment of $500.00 for typing, but this was before the Florida
and New Jersey books were available and permission was obtained to copy them.
He further testified that after it was determined that only a limited amount of
typing would be required, there was no discussion or agreement with respect to
the portion of the work done by the claimant. Sergeant Neely admits that before
the work was finished a form contract was presented to the claimant for her
signature and then was submitted to the Attorney General’s Office. He does not
remember what, if any, amount of compensation was filled in on the form, but,
in any event, the Attorney General’s Office concluded that the contract was not
proper and could not be approved.
The mere fact that $500.00 was budgeted in the Federal grant for typing a
manual of approximately 150 pages was not authority for anyone to pay out or
receive that sum regardless of whether the work was done or not. Considering
all of the testimony in this case, there is a strong inference that because
there was a $500.00 item in the project for typing, the respondent’s employees
agreed to make every
88 REPORTS STATE
COURT OF CLAIMS [W. VA.
effort to obtain that amount of Federal money for the claimant, even after
typing outside of regular hours was reduced to less than nine percent of the
contemplated amount.
The claimant’s theory of this case is that she and the respondent entered into
a contract under which she is entitled to $500.00 from the Federal grant for
any amount of extra typing done by her in the preparation of the Uniform
Reporting Guide. She may have been misled by statements made to her, but giving
due consideration to all of the evidence in this case, the Court is of opinion
that such a contract was not made and entered into by the parties. Furthermore,
there never was any understanding or agreement that the claimant would be paid
out of State appropriations for personal services. Neither is there any
evidence of the value of the alleged extra services on a quantum meruit basis;
and considering the fact that the claimant was a regular salaried employee of
the respondent, we choose not to speculate further in that direction.
In view of all the facts and circumstances developed in this case, the Court is
of opinion that the claimant has not proved her claim by a preponderance of
evidence, and, accordingly, her claim is disallowed.
Claim disallowed.
Opinion issued June 10, 1974
KENNETH R. STEVENS
vs.
WORKMEN’S COMPENSATION FUND
(No. D-724)
Menis E. Ketchum, Esq., for the claimant.
David L. Shuman, Esq., for the respondent.
PETROPLUS, JUDGE:
The failure of the Workmen’s Compensation Fund of West Virginia to pay the
claimant on an award made by the Fund on June 11, 1973, in the amount of
$1,455.00 is the basis of this claim.
W. VA.]
REPORTS STATE COURT OF CLAIMS 89
It appears from the pleadings that a
check was issued in this amount and mailed to the claimant on March 8, 1974, at
his last known address. The claimant’s attorney on making inquiry was advised
by the Fund that the employer had received the check but had failed to forward
it to the claimant. The employees of the Fund promised counsel after numerous
inquiries that the check would be voided and a new check would be issued. The
Fund has failed to take any action to rectify the failure of delivering a check
to the claimant.
The respondent’s answer raises a question of jurisdiction, citing Chapter 14,
Article 2, Section 14, of the West Virginia Code, as amended which states:
“The jurisdiction of the Court shall not extend to any claim...
2. For a disability or death benefit under Chapter 23 of this Code.”
Chapter 23 deals with the payment of benefits under the West Virginia Workmen’s
Compensation law.
It is quite obvious that this Court does not have jurisdiction to make an award
if a claim is against the Workmen’s Compensation Fund. If the claimant was
awarded a sum as compensation for his permanent partial disability and assuming
that neither party has taken an appeal from said award, the claimant has an
adequate remedy at law in the courts of this State. The payment of an award after
it has become final is purely a ministerial act and not judicial or
discretionary. Mandamus is the proper remedy for the claimant, if the refusal
to pay is arbitrary or capricious.
For the foregoing reasons it is the judgment of this Court that the claim
should be dismissed for want of jurisdiction.
Claim dismissed.
90 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued June 18, 1974
L. M. CASDORPH
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-752)
No appearance for the claimant.
Gregory W. Evers, Esq., for the respondent.
PETROPLUS, JUDGE:
This claim was submitted for determination on the pleadings and an agreed
statement of facts, in the amount of $61.29. On April 25, 1974,
while claimant’s truck was parked in a parking place, adjacent to a loading
dock of the respondent’s Materials, Control and Testing Laboratory on Michigan
Avenue, in Charleston, West Virginia, a trash can full of concrete was struck
by a high-lift operated by the respondent’s employee, causing the trash can to
fall off the dock and on to the claimant’s truck, damaging it in the amount of
$61.29. The State has admitted all of the material facts in its answer.
It appearing that the high-lift was operated without due care, and that the
State is responsible for the negligence of its operator, the Court is of the
opinion to make an award in the amount of the claim.
Claim allowed in the amount of $61.29.
W. VA.] REPORTS
STATE COURT OF CLAIMS 91
Opinion issued June 18, 1974
COAL RIVER PUBLIC SERVICE DISTRICT
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-698)
I. Robert Rogers, Esq., for the claimant.
Gregory W. Evers, Esq., for the respondent.
PETROPLUS, JUDGE:
On February 6, 1974, while the
respondent’s employees were operating a backhoe in Boone County, they uncovered
and damaged a drain line owned by the Coal River Public Service District. The
back- hoe was attempting to clear debris from the opening to the drain line,
splitting a joint which made emergency repairs necessary. The investigator for
the State has admitted that the line was punctured by the negligent operation
of the backhoe, and that the damages claimed in the amount of $90.00 for the
repairs of the line are reasonable.
It appears to the Court from the pleadings and stipulation of facts that the water
main was severed through the negligent operation of the State’s equipment, and
the claim is accordingly allowed in the amount of $90.00.
Claim allowed in the amount of $90.00.
92 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued June 18, 1974
COAL RIVER PUBLIC SERVICE DISTRICT
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-699)
J. Robert Rogers, Esq., for the claimant.
Gregory W. Evers, Esq., for the respondent.
PETROPLUS, JUDGE:
It appears from the pleadings and
agreed statement of facts that the respondent’s work crew was making a cut on a
public road on Lick Creek Mountain in Boone County. While engaged in making the
cut it became necessary to drill through a shelf of rock and blast. The
blasting operation broke the service line in two places making repairs
necessary in the amount of $111.00. It was admitted by the respondent that the
blasting damaged the service line while digging and shovelling in the area of
the service line.
This Court has invariably held that blasting is a dangerous operation, and if a
trespass on private property results, the respondent is absolutely liable for
the damages sustained by a complainant, regardless of the degree of care
exercised in the blasting operation.
An award is accordingly made to the claimant in the amount of $111.00, agreed
to by the parties as the cost of repairing the service line.
Claim allowed in the amount of $111.00.
W. VA.] REPORTS
STATE COURT OF CLAIMS 93
Opinion issued June 18, 1974
JOHN MOORE
vs.
ADJUTANT GENERAL
(No. D-719)
Claimant present in person.
Henry C. Bias, Jr., Assistant Attorney General for the respondent. DUCKER,
JUDGE:
John Moore, who resides on State Route 65 and conducts a used car business on
said Route, in the vicinity of his residence also located closely thereby on
said Route, as it parallels Trace Fork of Island Creek between Logan and Holden
in Logan County, West Virginia, claims damages in the amount of $416.38
allegedly caused by a West Virginia National Guard army truck operated by the
respondent forcing accumulated flood water from the highway against the doors
of the business building of the claimant, breaking the doors and glass sections
thereof.
The evidence is to the effect that on and about January 10th, 1974, the
Guyandotte River was in flood stage and the water therefrom had backed up into
Trace Fork, a tributary thereof, and had covered a distance of approximately 450 feet on
Route 65 adjacent to the business buildings of the claimant, which flooded part
of the road reached a depth of approximately three and a half feet at its
deepest part and eighteen to twenty inches at the claimant’s buildings at the
time the damage was inflicted. Between 11:00 p.m. and midnight on January 11th,
an army two and a half ton truck, which had been dispatched to the area to
evacuate some persons from the flood, was driven through that portion of Route
65 adjacent to claimant’s property forcing the flood water against the
claimant’s garage doors and the glass portions thereof. The testimony of the
son of the claimant, who was called by his father to help clean up the property
as the water was receding, was to the effect that he was there when the truck
94 REPORTS
STATE COURT OF CLAIMS [W. VA.
went through the water and that he saw
the water break the doors. and that the truck was traveling thirty to
thiry-five miles an hour, but his testimony was contradicted by Capt. Noble
Lanham who stated that he did not believe that the truck in question “would be
capable of going through three or three and a half feet of water at speeds of
thirty to thirty-five miles an hour” but “it could go through the water but not
nearly at that speed”. Reports of the investigation made by the respondent
indicated that the driver said he was traveling about two miles an hour, and that
the Department had not considered there was negligence in the matter.
The army truck was headed south on the highway and after having left a part of
the road which was not flooded entered the water covered roadway approximately
one hundred fifty to one hundred seventy-five feet before reaching a point
adjacent to the claimant’s property, which makes it seem reasonable for the
son’s testimony as to speed that some greater speed could have been developed
before reaching the water, thereby effecting an increased impact with the water
and the resulting water impact with the doors of claimant’s buildings. Here we
have the testimony of claimant’s son who was on the scene and saw the damage
inflicted, and his testimony is not contradicted by any other witness, but only
in a department report to the effect that the truck was traveling at a rate of
two miles an hour, which at that rate of speed could not have caused an impact
on the water sufficient to cause the damage alleged. Such reported statement is
not sufficient to overcome the claimant’s evidence in that regard.
We are of the opinion that the respondent’s truck was negligently operated and
the damages suffered by claimant are the result of such negligence, and we,
therefore, award the claimant the sum of
$416.38.
Award of $416.38.
W. VA.] REPORTS
STATE COURT OF CLAIMS 95
Opinion issued June 18, 1974
TRAVELERS INDEMNITY CO., as subrogee of
CATHERINE M. BELCASTRO
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-747)
R. F. Hart, Jr., Claims Supervisor, for the claimant.
Gregory W. Evers, Esq., for the respondent.
PETROPLUS, JUDGE:
The claim in the amount of $122.06,
was submitted upon the pleadings and agreed stipulation of facts, which briefly
are as follows:
Catherine M. Belcastro on August 21, 1972, while driving her automobile over a
public highway in a work area, where employees of the respondent were engaged
in road work, was directed by an employee of the West Virginia Department of
Highways to pass. The respondent was engaged in paving a public road near
Morgan- town, West Virginia, and a dump truck loaded with asphalt was parked
off the left side of the road. A flagman directed the claimant to proceed, and
as she started forward respondent’s agent threw a shovel full of asphalt
against her car striking the hood, windows, and left side thereof. The damage
was repaired by a body shop in Clarksburg, West Virginia, at a cost of $122.06.
The Monongalia County Maintenance Superintendent in his report admitted that
the asphalt of hot mix was accordingly thrown against the claimant’s
automobile.
It is the finding of the Court from the pleadings and stipulations that the
respondent failed to exercise ordinary care under the circumstances, and an
award is made to the claimant in the amount of
$122.06.
Claim allowed in the amount of $122.06.
96 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued June 26, 1974
JOHN H. BRUNETTI HARDWARE &
PAINTING
vs.
WEST VIRGINIA DEPARTMENT OF MENTAL HEALTH
(No. D-676)
Hobby Spaulding, Attorney at Law, and John McCuskey, Attorney at
Law, for the claimant.
Henry C. Bias, Jr., Assistant Attorney General for the respondent.
DUCKER, JUDGE:
Claimant, John H. Brunetti, a painting contractor, of Clarksburg, West
Virginia, became a subcontractor to Paul Mullins doing business as Security
Products, who had been awarded a contract by the West Virginia Department of
Mental Health for the painting of the clock tower of the Weston State Hospital
at Weston, West Virginia, at the contract price of $6300.00. The claimant’s
contract with Mullins was at the price of $5000.00 to be paid $2500.00 when the
work was half done, which was so paid, and $2500.00 when the work was done,
which was not paid though Mullins was paid the full amount of $6300.00 by the
State. As no bond was required by the State, claimant was not protected against
Mullin’s debt to claimant. Shortly after claimant undertook the work, he
discovered that the steel in the cornice of the tower was “completely eaten
out”, that the windows were loose and needed glazing, that the screens which
were in storage needed repair and painting, that caulking was necessary to hold
the windows in place, and that other incidental repair work was necessary
before a satisfactory painting job could be performed. The evidence was that
such repair work could not be considered as a part of the work described in or
contemplated by either the original or subcontract. Claimant alleges that when
he discovered the need for all the extra work he notified the business manager
of the hospital, W. J. Murphy, of such facts, and that Murphy told claimant to
go ahead with such special work and to send him the bill. An itemized statement
of the charges for the materials and labor furnished by the claimant for the
alleged extra work shows a total
W. VA.1
REPORTS STATE COURT OF CLAIMS 97
amount of $2264.43, which is the sum
now alleged by claimant as due him from the State in this action.
The respondent in denying liability on the part of the State relies chiefly on
the regulations issued pursuant to the provisions of Chapter 5A, Article 3 of
the Code of West Virginia relating to the purchasing procedures of the State,
and it says that the law was not complied with and that consequently no valid
contract was made with claimant in that the acts of W. 3. Murphy which were not in accordance with the provisions
of the Code were not binding on the State. However, respondent did question,
but without satisfactory contradiction or proof, the accuracy of the rates and
hours of labor charged by claimant. It is admitted that the statutory
provisions requiring the publication of notice and the submission of three bids
before the awarding of any contract were not complied with. The complainant,
who testified that during the forty-nine years he has engaged in business he
had not previously done any business with the State and did not know of any
statutory or other legal provisions relating to business with the State.
The claimant makes no claim against the State for the $2500.00 which he failed
to collect from Mullins under the contract, although the respondent failed in
its duty to obtain a bond from Mullins which may have protected claimant as to
that part of the debt. Here the claim is for extra work not embraced in his
subcontract with Mullins, but which was ordered by Murphy as the State’s agent
at the Weston State Hospital. That the extra work was performed and that th
amount claimed is reasonable have been satisfactorily proven. Nor has there
been any evidence to the effect that there was no sufficient budgetary
appropriations to cover the expenditure. The only question for determination is
whether despite the statutory regulations referred to, claimant should be paid
for the work he performed in good faith and in reliance upon the action of the
agent of the respondent. The failure of the respondent in the matter of the
bond demonstrates to some degree how loosely regulatory rules are applied by
the State’s agents who should know better than the ordinary citizen as to such
statutory provisions.
The jurisdiction of this Court is created primarily to waive the constitutional
immunity of the State, and the law specifically provides for awards in claims
which “in equity and good conscience” the State should pay.
98 REPORTS STATE
COURT OF CLAIMS [W. VA.
We are of the opinion that where the application of the provisions of such a
statute as is here involved is not necessary to protect the State against
unjust and otherwise illegal claims, the provision should not be strictly
applied to deprive a citizen of the State of his just and equitable rights,
that it would be unjust enrichment on the part of the State if the claim was
not paid, and that the doctrine of quantum meruit is applicable. Accordingly,
being of the opinion that the claimant has established an equitable and just
claim, we hereby award the claimant the sum of $2264.43.
Award of $2264.43.
Opinion issued June 26, 1974
DAVID R. DIETZ
vs.
DEPARTMENT OF HIGHWAYS
(No. D-682)
No appearance for the claimant.
Gregory W. Evers for the respondent.
JONES, JUDGE:
The claimant, David R. Dietz, alleges
in his petition that on April 25, 1973, while his 1967 Volkswagen automobile was parked
in the driveway of his home in Berkeley County, West Virginia, the respondent,
Department of Highways, through its employees, set off a dynamite blast in the
public road right of way about 400 feet from the claimant’s property, throwing
a rock upon and against the top of the claimant’s vehicle and causing damage
thereto in the amount of $82.40.
Based upon the report of investigation by the Berkeley County Maintenance
Supervisor, the answer of the respondent admits the allegations of the
claimant’s petition and says that the amount of the claim is reasonable.
This claim was submitted upon the pleadings; and in line with prior holdings in
similar blasting cases, the Court is of opinion that the respondent is liable
for the trespass upon the claimant’s
W. VA.] REPORTS
STATE COURT OF CLAIMS 99
property, and therefore awards the claimant, David R. Dietz, the sum of $82.40.
Award of $82.40.
Opinion issued June 26, 1974
MR. AND MRS. T. E. REED
vs.
DEPARTMENT OF HIGHWAYS
(No. D-677)
No appearance for the claimants.
Gregory W. Evers for the respondent.
JONES, JUDGE:
The claimants, Mr. and Mrs. T. E. Reed, and the respondent, Department of
Highways, have filed a stipulation in the case substantially as follows: That
in late May or early June, 1973, the respondent’s employees sprayed a herbicide
known as Dupont Hy-Var XL in the area of a highway sign near the claimants’
property in Nitro, West Virginia; that immediately after the spraying operation
and as a result thereof, a healthy, 20-year old, yellow transparent apple tree,
theretofore producing 20 to 25 bushels of apples each year, started to wilt and
eventually died; and that the fair and reasonable value of the tree was $600.00
(the original claim was for
$800.00).
It appears to the Court that this claim has been carefully investigated by the
respondent and that the facts have been fairly stipulated by the parties. The
Court finds that the respondent was negligent in its spraying operation,
proximately causing injury to the claimants’ property, and that the respondent
is liable to the claimants for damages in the amount stipulated. Accordingly,
an award is made to the claimants, Mr. and Mrs. T. E. Reed, in the amount of
$600.00.
Award of $600.00.
100 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued August 14, 1974
CAL VERT FIRE INSURANCE COMPANY,
AS SUBROGEE OF CODY MULLINS
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-741)
No appearance for the claimant.
Gregory W. Evers and Emerson
Salisbury for the respondent.
DUCKER, JUDGE:
The facts as stipulated by and agreed to by the parties are that on September
12, 1973 in the widening of the State Highway Route No. 7 in McDowell County by
the crew of the West Virginia Department of Highways, it was necessary where a
slip had occurred to drill into solid rock and “shoot it off’ to widen the
road, and in doing so a rock about three inches in diameter flew loose and went
down over the bank and through the roof of the trailer home of the claimant’s
insured, Cody Mullins. The resulting damage in the amount of $89.87 is admitted
by respondent as having been so caused by it as well as being fair and reasonable.
As the claim is based on respondent’s negligence, the Court awards the claimant
the amount alleged.
Award of $89.87.
W. VA.]
REPORTS STATE COURT OF CLAIMS 101
Opinion issued August 14, 1974
CLEVELAND CLINIC
vs.
BOARD OF VOCATIONAL EDUCATION,
DIVISION OF VOCATIONAL REHABILITATION
(No. D-731)
No appearance for the claimant.
Henry C. Bias, Jr., Assistant Attorney General, for the respondent. JONES, JUDGE:
In September, 1971, the respondent,
Board of Vocational Education, Division of Vocational Rehabilitation, sent a
client from the Mullens District to Cleveland Clinic, the claimant in this
case, for physical restoration services because of a cardiac condition. The
services were performed but the claimant erroneously billed the patient instead
of the respondent. As the confusion in billing continued, the fiscal year
1971-72 ended, and when the bill in the amount of $805.88 was properly
submitted to the respondent, funds which were available during said fiscal year
wherein the obligation arose had expired and payment legally could not be made.
By its answer the respondent admits that the services were performed upon its
request and in its behalf, that the charges are reasonable and that the claim
should be paid.
It appearing that the amount of the claim is due and owing and in good
conscience should be paid, an award in the amount of $805.88 is hereby made to
the claimant, Cleveland Clinic.
Award of $805.88.
102 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued September 24, 1974
TYGART VALLEY TELEPHONE COMPANY
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-779)
No appearance for the claimant.
Emerson Salisbury for the respondent.
GARDEN, JUDGE:
The respondent has presented and filed a stipulation, approved by John L.
Sutton, President of Tygart Valley Telephone Company, the claimant herein,
establishing the facts in this claim as follows:
1. That on or about the 9th day of May, 1974, members of a work crew under the
supervision and control of the West Virginia Department of Highways personnel,
while engaged in the blasting of a ditch line on County Route 15/3, being
commonly known as the Brady Gate Road, located in Monterville, Randolph County,
West Virginia, did damage to cables belonging to the claimant in the amount of
$109.79.
2. That a statement of Henry N. Hannah, foreman of the above mentioned crew,
and filed with the stipulation, establishes that the cables were damaged as a
result of the dynamiting of a ditch by one Donald Shaffer, a member of the
crew.
3. That the claimant was free from any fault or negligence in the matter.
4. That the Department of Highways is of the opinion that the claimed damages
of $109.79 are just and equitable.
Based on the foregoing stipulation, as presented by respondent, this Court is
of opinion to and does allow an award of $109.79.
Award of $109.79.
W. VA.]
REPORTS STATE COURT OF CLAIMS 103
Opinion issued October 9, 1974
DANA H. CARNEY
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-761)
Dana H. Carney, claimant by stipulation.
Emerson Salisbury for the respondent.
DUCKER, JUDGE:
The stipulated facts are that on May 15,
1974, the claimant while driving her
1967 Chevrolet automobile across the St. Albans-Nitro Bridge across the Kanawha
River sustained damages to the automobile when the car struck a piece of iron
approximately three-fourths of an inch thick, two inches wide and ten inches
long which had come loose from the center section of the bridge and was lying
in the pathway of claimant’s automobile, the iron bar having bounced against
the gas tank of the automobile, puncturing the tank, and necessitating repair
at a cost of $67.61. The respondent admits in the stipulation that the damage
done was the result of its negligence, and that there was no negligence on the
part of the claimant.
Accordingly, we are of the opinion to, and do hereby award the claimant the sum
of $67.61.
Award of $67.61.
104 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued October 9, 1974
LENA SOLOMON
vs.
REHABILITATION ENVIRONMENTAL ACTION PROGRAM
(No. D-734)
Brent Beveridge for the claimant.
Edgar E. Bibb III and William D.
Highland, Assistant Attorneys General,
for the respondent.
JONES, JUDGE:
The claim of Lena Solomon arose when the respondent, Rehabilitation
Environmental Action Program, also popularly known as REAP, a State agency
created under the executive authority of the Governor of West Virginia and
acting under a contract with the Appalachian Regional Commission, destroyed a
building, formerly a residence, owned by the claimant. The property upon which
the building was located, being 4.88 acres in Clinton District, Monongalia
County, West Virginia, was purchased by the claimant from the Sheriff of
Monongalia County in the month of October, 1970 for taxes delinquent thereon
for the year 1969, in the name of California Hobbies, Inc., for the sum of $85.00.
In the summer of 1973, a section of
Interstate 79 was opened and a ceremony was held near the Monongalia-Marion
County line. The subject structure was in plain view of the dignitaries and
others attending the ceremony and the “eyesore” was so offensive to the view of
A. James Manchin, State Director of the respondent, that he vowed he would
remove it as a part of the program of the agency. Some effort was made to
locate the owner but no search was made in the Monongalia County Clerk’s office
where the claimant’s deed had been recorded on May 15, 1972.
While there was considerable publicity, probably in excess of what a legal
notice would have engendered, no official notice of any kind was given to the
claimant. In August, 1973, a foreman and three boys of high school age, all
W. VA.]
REPORTS STATE COURT OF CLAIMS 105
employees of the respondent, went upon
the claimant’s land and with sledge-hammers and crowbars proceeded to tear down
the structure. The work continued into the third day when an attempt was made
to burn out a bumblebee’s nest, resulting in the remaining walls being burned
to the ground. After the fire, the crew left the site and did not return.
Photographs taken after their departure showed a basement, a brick chimney, and
many loose boards strewn about the area.
While the Court approves the purpose of the respondent’s program and its
salutary accomplishments, we cannot condone the violation of the claimant’s
rights in the ownership of her property. Photographs exhibited in evidence
depict a dilapidated, unsightly structure, and testimony described the roof as
falling in, no floor in the living room, walls deteriorated and damaged, and
the weight of the evidence indicates rather strongly that elimination of the
structure might be considered a worthy goal. However, the end may not justify
the means, and in this case, the actions of the respondent were not justified.
The evidence in this case reveals a wide divergence of views as to the amount
of damages sustained by the claimant. The notice of claim sets a value on the
building prior to its destruction of $3,000.00 and claims damages to trees in
the amount of $500.00. The respondent considers the structure to have been a
worthless nuisance and damage to trees to have been negligible. The Court takes
the view that the building had some value and that at least one large tree was
injured by fire resulting from the respondent’s carelessness. The Court is of
opinion that the claimant is entitled to recover a portion of the damages
claimed and that a fair appraisal of the claimant’s loss, including clean-up,
is the sum of $500.00.
Accordingly, an award is hereby made to the claimant, Lena Solomon, in the
amount of $500.00.
Award of $500.00.
106 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued October 9, 1974
EDWARD H. STANLEY
vs.
REHABILITATION ENVIRONMENTAL ACTION PROGRAM
(No. D-730)
James A. McMillion, Attorney at Law for the claimant.
William D. Highland and Edgar
Bibb, Assistant Attorneys General for
the respondent.
DUCKER, JUDGE:
Claimant, Edward H. Stanley, a former resident of Glade District, Webster
County, West Virginia, alleges damages in the amount of $1045.00 against the
respondent, Rehabilitation Environmental Action Program, popularly known as
REAP, a State agency created under the Executive authority of the Governor of
West Virginia and acting under a contract with the Appalachian Regional
Commission. The claim is based upon the respondent’s taking from claimant’s
property near Cowen, West Virginia and destroying a 1963 Dodge automobile and a
1964 Plymouth automobile without legal notice of the respondent’s intention so
to do, as well as several items of personal property claimed to have been left by
claimant in the Plymouth car.
The evidence is to the effect that claimant, who had previously lived in a
trailer on the premises owned by him, had sold the trailer in 1972 and moved to
Cumberland, Maryland on account of his health, and that he left the two
automobiles in question on the lot in the care of the trailer purchaser who
apparently failed to do so, and when he came back in July, 1973, the two cars
were gone and claimant then learned that the respondent had taken the cars and
had them crushed. That no notice had been given to claimant by the respondent
is admitted by the respondent. The driver of the truck of the respondent
testified that he had received numerous complaints by people in Cowen to the
effect that the automobiles were a nuisance, that a young boy who had been
drinking had been sleeping in one of the cars and that children on their way to
school were afraid to go by the cars. The driver further stated that after such
complaints he was
W. VA.]
REPORTS STATE COURT OF CLAIMS 107
directed by the Mayor of Cowen to pick
up the cars for delivery to a crusher for their destruction, but that although
he was an employee of the respondent he had had no instructions in the matter.
Besides the cars, claimant said he lost articles of personal property which he
had left in the Plymouth car, namely, a leathe rsuitcase worth $35.00, an
electric razor worth $20.00, clothing worth $20.00, tools and tool box worth
$75.00, a foot locker worth $5.00, and a set of dentures worth $300.00.
Respondent’s witness testified that he didn’t see the items of personal
property in the car when the car was taken although he didn’t look in the glove
compartment or in the back end, but that both cars had been stripped. Claimant,
who had left in September, 1972 did not discover his loss until he returned in
July, 1973 with a mechanic to help him start the Plymouth.
Without quoting the sections of Chapter 17, Article 24 of the Code, pertaining
to abandoned vehicles, Section 6 of that article expressly provides that when an
abandoned vehicle is taken by a law enforcement agency it must give notice to
the owner within fourteen days after the taking so that the owner may within
ten days reclaim the property. The respondent’s action without such notice was
not legal and without question created liability in the matter.
The claimant says he paid $100.00 for the Dodge and $500.00 for the Plymouth,
but there is no evidence as to what they were worth when taken by the
respondent; the driver of the respondent’s truck said they were junk. The fact
that there had been no protection of the automobiles against thievery or other
destruction for nine or ten months certainly leads us to believe that the
condition of the cars was not good and their value greatly depreciated. Nor is
there any evidence that the personal property was in the Plymouth car at the
time respondent took it.
The testimony that people in the neighborhood classified the cars as nuisances
enhances the belief that the cars were of little value, if any, but this is
counteracted by the testimony that the claimant believed the cars were still
valuable as he came back to his property with a mechanic to start the Plymouth
car for which the previous year he had paid $500.00 and as to which he had
arranged custody thereof with the trailer purchaser.
Although we are of the opinion that the respondent is liable for its unlawful
act in taking and destroying the claimant’s property, we
108 REPORTS STATE
COURT OF CLAIMS [W. VA.
find it extremely difficult to accurately assess damages because of the lack of
evidence as to the real value of the property. The property was destroyed and
evidence as to what it was worth at the time of its destruction is not
satisfactory. Respondent says it didn’t have the funds with which to pay mileage
and fees to witnesses who could testify in its behalf but wouldn’t do so
without such payment. Claimant cannot be penalized for such a situation. So
this Court, in order to do justice as best it can, must reach, similarly to a
jury finding, some reasonably fair amount, by estimation or conjecture, which
will compensate claimant for his loss. In doing so, the Court awards the
claimant the sum of $200.00.
Award of $200.00.
Opinion issued October 9, 1974
STATE FARM MUTUAL AUTOMOBILE INSURANCE
COMPANY, AS SUBROGEE OF
ROBERT MYLES AND SHARON MYLES
vs.
DEPARTMENT OF HIGHWAYS
(No. D-768)
Robert J. Louderback for the claimant.
Emerson Salisbury for the respondent.
JONES, JUDGE:
The respondent, Department of Highways, has presented a stipulation, approved
by counsel for the claimant, State Farm Mutual Automobile Insurance Company, as
subrogee of Robert Myles and Sharon Myles, its insureds, confirming the facts
and circumstances giving rise to this claim, based upon an investigation and
report by the respondent’s Chief of Claims, substantially as follows:
That on July 21, 1972, on a public street known as Pennsylvania Avenue, in the
City of St. Albans, in Kanawha County, West Virginia, Sharon Myles was driving
a 1974 Oldsmobile automobile, owned by her and her husband, Robert Myles, and
in passing a
W. VA.] REPORTS
STATE COURT OF CLAIMS 109
vehicle owned by the respondent and operated by respondent’s employees who were
preparing the street for the painting of a centerline by dropping sports of
paint as the vehicle progressed, one of the employees of the respondent
carelessly and negligently splashed paint on the left side of the Myles
automobile; that the said Sharon Myles was free from fault or negligence; and
that the repainting of said automobile was necessary, and the cost thereof in
the amount of $105.06 was reasonable.
The Court approves said stipulation and awards the claimant, State Farm Mutual
Automobile Insurance Company, the sum of
$105.06.
Award of $105.06.
Opinion
issued October 9, 1974
EMILY ZA1N
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-727)
Claimant appears in person.
Gregory W. Evers, Attorney at Law for the respondent.
DUCKER, JUDGE:
Claimant, Emily Zain, a resident of
Charleston, West Virginia, alleges that at about 6:15 o’clock in the evening of
September 25, 1973, she suffered injuries in the nature of a fracture of her
left foot when in alighting from a bus on Washington and Thompson Streets,
Charleston, she tripped and fell in the street when her foot struck a manhole
which with the paving around was left with a small ridge around it. She claims
damages in the amount of $350.00.
The only evidence for the claimant was her own testimony and a photograph of
the manhole. The respondent alleges contributory negligence on the part of the
claimant as well as non-liability otherwise.
From the evidence it clearly appears that the manhole was a regu
110 REPORTS STATE
COURT OF CLAIMS [W. VA.
lar metal covering apparently level with the surface of the highway, with only
a slightly rising ring of tar or asphalt filling between the circular metal
plate and the surrounding surface of the highway, and there was nothing else
which could be considered as a dangerous or hazardous condition existing in
connection with the construction or maintenance of the highway at that place.
The evidence further shows that the claimant used the bus every day and that
she alighted at the same place, except that on the day of her accident the bus
stopped several feet from the curb because of a car parked at that point. The
accident occurred in full daylight with no other witnesses present.
From the description of the manhole and the photograph of it, we are of the
opinion that it was not a dangerous hazard but was one that was easily
discernible and should have been seen by the claimant had she exercised
reasonable care in leaving the bus to go to the sidewalk, and that she was
guilty of contributory negligence in her resulting fall.
Accordingly, we are of the opinion to, and do deny the claim.
No award.
Opinion issued October 21, 1974
CLINTON BOEHM and HESTER BOEHM
vs.
DEPARTMENT OF HIGHWAYS*
(No. D-613)
John Troelstrup, Esq., for the claimants.
Donald L. Hall, Esq., for the respondent.
PETROPLUS, JUDGE:
This claim arose as a result of the displacement and relocation of the
claimants with the assistance of Dale Thomas, a right-of-way agent of the West
Virginia Department of Highways.
*See also Boehm v. Highways, 10 Ct. Cl. 140 for petition for rehearing.
W. VA.] REPORTS
STATE COURT OF CLAIMS 111
The Boehms formerly lived in a rented
house along a State highway in Boone County, West Virginia, designated Corridor
G. It was necessary for them to secure other living quarters because of the
improvement and relocation of the highway undertaken by the West Virginia
Department of Highways. With the assistance of the right-of-way agent, they
inspected several other properties in the area and eventually decided to
purchase a dwelling house situate on a parcel of land which also bordered on
the highway, and a portion of which had been taken by eminent domain
proceedings for the improvement of the highway. On January 29, 1971, upon the
recommendation of the right-of-way agent, the claimants made the purchase and
received a deed from Jenny Opal Drake for a consideration of $5,000.00. Mrs.
Drake received a payment of $2,000.00 and a note secured by a deed of trust on
the property for the deferred balance, payable in monthly installments of
$50.00 each until the purchase price had been paid in full. The Boehms were
paid approximately $4,550.00 by the West Virginia Department of Highways for
dislocation allowance, moving costs, and damages. This payment was applied to
the purchase and improvement of the property. Being aware that the property
they were purchasing was land-locked and that Corridor G was a controlled
access highway, a provision was made in the deed for a right of way over an
adjoining parcel of thirty acres, allegedly owned by one Oza M. Drake who
conveyed said right of way to Jenny Opal Drake by deed dated September 14,
1970.
The Boehms were not represented by counsel during the negotiations for the
purchase of Mrs. Drake’s property, and the deed and deed of trust were prepared
by an attorney named P. W. Hendricks who was representing Mrs. Drake. No title
search was made to determine the validity of title to the land and other right
of way appurtenant thereto.
Upon the death of Oza M. Drake who had conveyed the right of way over his land
to Jenny Opal Drake, who in turn had included the right of way in the deed to
the Boehms, it was determined that Oza M. Drake had only a life estate in the
property and that Edward L. Burton, who lived in Charleston, West Virginia, was
the owner of the fee. Mr. Burton testified as a witness and stated that he was
not aware that Oza M. Drake, the life tenant, had made the conveyance of the
right of way to Jenny Opal Drake.
112 REPORTS
STATE COURT OF CLAIMS LW. VA.
Having taken title to a right of way
from a grantor who had a terminable interest, the Boehms found themselves with
a land-locked parcel of ground after the death of Mr. Drake and in a position
of having no access to the highway either through their property or over the
property of Mr. Burton.
The theory of the claimants’ case is that the right-of-way agent had promised
the claimants a direct access to the road and induced them to purchase the
Drake parcel by representations that access to the road would be furnished by
the State. The testimony of the right-of- way agent was in direct conflict with
that of the Boehms, although he did admit that he had recommended the purchase
of the property and that it was his function to assist in relocating persons
displaced by the highway and explain to them the benefits that they were eligible
to receive by reason of the displacement. The agent’s participation in
negotiating the sale was minimal, and other than furnishing Mrs. Boehm with
transportation to the attorney’s office, he took no part in the transaction.
Further testimony was introduced that at one time stakes were placed on the
Boehm property by the road contractor indicating a proposed access road to the
highway.
The deed of trust executed by the Boehms to P. W. Hendricks, Trustee, after
describing the parcels conveyed, refers to the right of way over the Oza M.
Drake adjoining parcel, and excepts two tracts which were conveyed to the
Department of Highways prior to the time Jenny Opal Drake sold the residue of
her property to the Boehms.
A search of the title, of course, would have disclosed the terminable nature of
the right-of-way over the Burton parcel, but unfortunately the Boehms were not
aware of the necessity of a title search and relied entirely on the assurances
of Mrs. Drake that they did have ingress and egress to their property over the
Burton parcel.
It is incredible that a right-of-way agent would promise a property owner
access to a road that he knew was a controlled access highway, and even if he
did so, such promises were clearly beyond the scope of his authority and in
direct violation of the regulations and plans of the West Virginia Department
of Highways. If he made such representations in his zeal to relocate the
Boehms, it would be the perpetration of a fraud for which the Boehms would have
a civil remedy against him personally. Such representation, so clearly out
W. VA.1
REPORTS STATE COURT OF CLAIMS 113
of the scope of his authority, actual
and apparent, would not be binding upon the State of West Virginia.
It is the factual finding of the Court that the respondent has incurred no
liability in this matter, contractual or otherwise. The right- of-way agent was
not aware that the right of way in the Boehm deed had been granted by a life
tenant, and consequently neither he nor the State could be responsible for any
assurances that he may have made to the Boehms that they had a means of ingress
and egress over an adjoining parcel. Promises and representations of a
right-of-way agent which exceed the scope of his limited authority do not
create a contractual obligation on behalf of the State. The State is not bound
by the unauthorized or illegal acts of its officers, and all persons who deal
with such officers do so at their peril in all matters wherein such officers
exceed their legitimate powers. Armstrong
Products Corp. v. Martin, 119 W.Va. 50, 192 S.E. 125. Neither
would any promises or assurances given by the road contractor or his employees
that an access road would be provided create any obligation binding on the
State.
The Court is not without sympathy for the position in which the claimants now
find themselves, but a ruling cannot be made in their favor solely on the basis
of sympathy, when the law is so well established on the principles hereinbefore
set forth. Even with their limited knowledge and education, we must hold that
the Boehms were negligent in purchasing property without making some inquiry as
to the soundness of the title and the appurtenant right of way to their
property, which was of importance to them, when they knew full well that a controlled
access highway did not provide ingress and egress to every parcel of land
adjoining the highway.
For the foregoing reasons, the claim is disallowed.
Claim disallowed.
114 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued October 21, 1974
FAIRFAX COUNTY HOSPITAL
vs.
WEST VIRGINIA RACING COMMISSION
(No. D-617)
Gala Tolliver, Financial Secretary, appeared on behalf of the
claimant, without counsel.
Henry C. Bias, Jr., Assistant Attorney General, for the respondent.
PETROPLUS, JUDGE:
The facts of this claim are as follows:
On April 20, 1968, Lewis R. Ramey, a licensed horse trainer at the Charles Town
Race Track, fell from a horse and sustained a fracture of his neck. He was
hospitalized at the Fairfax County Hospital in Fairfax, Virginia, and incurred
expenses in the amount of $4,539.64 for hospitalization and medical services. Although he
had a hospitalization policy with the Horsemen’s Mutual Insurance Company, it
was disclosed by the evidence that no benefits were payable under said policy.
The payment of the bill was recommended by the West Virginia Racing Commission
in July, 1970, from a Special Fund established by the West Virginia racing law.
The State Auditor refused to approve the bill for payment as it exceeded the
limit imposed by the budget law, and an effort to collect the bill was again
refused for the subsequent fiscal year for the same reason. The Special Fund
represents license fees and fines collected under the racing laws of the State
of West Virginia, and the funds available for payment are included in the
budget bills passed by the Legislature and are treated as an appropriation. It
appeared from a letter, dated March 1, 1972, signed by Harry L. Buch, Chairman
of the West Virginia Racing Commission, that the Special Fund for the year in
which the bill was incurred was transferred to the General Revenue Fund of the
State, and
W. VA.)
REPORTS STATE COURT OF CLAIMS 115
had the bill been submitted in a
timely manner, funds would have been available for its payment.
The respondent has filed an answer joining in the prayer of the claimant for
the allowance of the claim.
At the hearing it developed that under the State law any amount over $5,000.00
remaining in the Fund for any fiscal year was to be transferred to the State
Treasury.
The West Virginia racing law, Chapter 19, Article 23, Section 1, et seq.,
requires permits and licenses for race track employees and creates a Special
Fund consisting of permit fees, registration fees, and fines imposed by the
racing officials. Section 14 of the Act designates said Fund as a relief fund
which shall be disbursed on the order of the Racing Commission for
hospitalization, medical care and funeral expenses occasioned by injuries or
death resulting from accidents sustained by any permit holder while in the
discharge of his duties under the jurisdiction of the Racing Commission. No
payment from the Fund shall be made if the permit holder is covered under
Workmen’s Compensation or any insurance policy. Any balance remaining in the relief
fund in excess of $5,000.00 shall be transferred by the Racing Commission to
the State Treasurer for deposit to the General Revenue Fund of the State.
Since the State has received the benefit of the excess relief funds, which
should have been applied to the payment of this claim, and the Special Fund is
pledged for the payment of hospitalization for the relief of race track
personnel, it is the conclusion of this Court that the State has a moral
obligation to make payment to the claimant in this case. In legal effect, the
claim is not paid from State funds but from fees paid into the Fund by the
horsemen themselves, although the Fund is under the supervision of the State
Auditor and the State Treasurer.
The claim is approved for payment under the advisory determination procedure of
the Claims Act (Code, Chapter 14), or as a claim against the State of West
Virginia to be paid from the next appropriation of funds by the Legislature for
payment of moral obligations of the State.
Claim allowed in the amount of $4,539.64.
116 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued October 21, 1974
H. RONALD HARRIS
vs.
DEPARTMENT OF HIGHWAYS
(No. D-655)
Claimant appeared in person without counsel.
Gregory W. Evers, Esq., for the respondent.
PETROPLUS, JUDGE:
The claimant’s wife, while driving and parking his 1968 Buick Skylark
automobile on Seventh Avenue, a designated State route in the City of
Charleston, West Virginia, on June 25, 1973, without noticing that a storm sewer drain had sunk or settled
approximately eighteen inches, dropped the front right wheel in the
above-mentioned drain, causing damage to the wheel and tire in the amount of
$78.92. The accident was reported to the respondent, and on the evening of that
date, the drain was covered by a metal sheet and has since been repaired.
At the hearing, the only witness, claimant’s wife, testified that she did not
observe the drain opening as her attention was directed to traffic and the
parking of her automobile. The drain was alongside the curb and was not visible
to her. The respondent offered no evidence to controvert the facts as related
by the driver.
The only issue before the Court is whether the driver of the vehicle was guilty
of contributory negligence, in failing to observe the drain while parking her
car. It is the finding of the Court from the evidence that she was not guilty
of contributory negligence, and that it was impossible for her to observe the
sunken drain while engaged in the parking of her car. The road being out of
repair in a congested traffic area of the City of Charleston constitutes
negligence, and although no evidence was offered as to the length of time this
condition existed, it is inferred from the evidence that the drain had been out
of repair
W. VA.] REPORTS
STATE COURT OF CLAIMS 117
for a sufficient length of time to make the respondent aware of the hazard.
For the foregoing reasons, the claim is allowed and an award is made to the
claimant in the amount of $78.92.
Claim allowed in the amount of $78.92.
Opinion issued October 22, 1974
JOANN ROSE DUPONT
vs.
WEST VIRGINIA DEPARTMENT OF PUBLIC INSTITUTIONS
(No. D-628)
Clark Frame and Darwin Johnson, Attorney at Law, for the claimant.
Gene Hal Williams and Edgar E.
Bibb III, Deputy and Assistant Attorneys
General for the Respondent.
DUCKER, JUDGE:
Claimant, Joann Rose DuPont, an employee of Hopemont State Hospital, formerly
known as Hopemont Sanitarium, a hospital operated at Hopemont, West Virginia,
by the respondent, a State agency, claims damages in the amount of $50,000 for
injuries to her left eye resulting in the loss thereof and injuries to her face
as the result of her face falling against a hot radiator pipe when she suffered
an epileptic seizure in her room in Morgan Hall of the hospital, at about nine
o’clock in the evening of March 10, 1972.
The claimant was employed as a food service helper at the hospital in September
1968 upon her employment application which indicated she had no physical
defects, but later in order to qualify under the civil service system she filed
an application indicating she had “seizures but not frequent”. The testimony
was to the effect that she had epileptic seizures three or four times a month,
and although claimant was not required to live on the hospital premises, she
was
118 REPORTS
STATE COURT OF CLAIMS 1W. VA.
permitted to do so, and when she
requested to be assigned to a room with other women on the second floor, she
was given a room on the first floor to avoid the possibility, in the event of a
seizure, of her falling down any steps. The room to which she was assigned was
twelve by twelve feet in size with a walk-in closet, lavatory, night stand, big
chair and bed. Also, there was a four foot long heat radiator, three feet high
with a control knob a short distance up on the heat pipe from the floor.
Claimant testified that it was very warm in the room that night but not hotter
than ordinary and that she had turned the heat down.
On the evening of the accident, claimant had gone to her room and while there,
had an epileptic seizure, fell to floor and remained unconscious for a short
period. Alma Fretwell, the occupant of the room adjoining that of claimant
heard a “thud”, the sound of claimant falling to floor, and, knowing that the
claimant was subject to such seizures, the witness Fretwell rushed into
claimant’s room to help her. She found her unconscious lying on her back on the
floor with her arms outstretched and with her face “just sort of rolled over
and touched that pipe”, which was that part of the heat pipe extending from the
floor to the control knob of the radiator. Another girl was called and they
called a doctor and put claimant to bed. Doctor Hsang Lee and a nurse were
called and a salve was prescribed and applied to claimant’s eye and surrounding
face area, and two pain pills given and they advised claimant to see her own
doctor. Claimant didn’t call for any help that night and said she felt “pretty
good” the next morning, but her eye was closed on Sunday and she sought medical
advice and finally received medical services at West Virginia University
Hospital and in Pittsburgh, but lost the sight in her left eye with severe face
scarring in that area.
Claimant alleges liability on the part of the respondent primarily on the basis
of alleged negligence on the part of respondent in not providing a safe place
for the claimant to live in view of the respondent’s knowledge of the
claimant’s epileptic condition and necessity of extra requirements for her
safety. Respondent denies liability on the basis that the circumstances did not
require it to provide any safer place than was furnished and that the accident
could not reasonably have been foreseen or anticipated. The case has been heard
solely on the question of liability subject to the right of the claimant to
W. VA.]
REPORTS STATE COURT OF CLAIMS 119
later prove damages, if the Court
decided that here is liability on the part of the respondent.
Counsel for the parties have submitted excellent and helpful briefs of the law
which they consider pertinent to the issues of the case. Many cases are cited
as authority for the well settled doctrine that an employer must furnish an
employee with a reasonably safe place in which to work and that such obligation
was increased where a person with a handicap is the employee. However, such
rule of a safe place to work does not extend to a safe place to live, unless
the employee is required to live on the work premises. Here the claimant was
not required to live at the hospital, but was afforded such accommodations for
her own convenience. In our opinion the safe place to work is not the issue,
but there is applicable the principle that the employee who was known to be
subject to epileptic seizures was entitled to such protection against danger on
the premises of the hospital as could be reasonably foreseen or anticipated. In
order for the claimant to be entitled to recover, her case must be based on
what amounted to negligence on the part of the respondent, and in this
connection the rule is set forth in the cases of Puffer v. Hub Cigar Store, Inc., 140 W. Va. 327, 84 S.E. 2d 145, and Griffin v. Baltimore & 0. RR., 98 W.Va. 168, 126 S.E. 571, 40 ALR
1326, and the Court in the Griffin case stated such rule in the following
language:
“The master is not compelled to foresee and guarantee against an accident which
reasonable and prudent men would not expect to happen, nor to warn his servants
of dangers not reasonably to be anticipated.”
The primary question, if not the sole question, in this case is whether the
failure of the hospital authorities to provide complete protection for the
claimant against injuries she might sustain in regard to the radiator and the
pipe leading to the radiator control from the floor, constituted actionable
negligence on the part of the respondent.
In reaching a conclusion in this matter, it is well to consider several facts
relating to the situation, namely: Claimant is 37 years of age, a high school
graduate, a victim of epileptic seizures since she was eleven years of age, and
an employee of the hospital for approximately four years; she was employed by
the hospital through some assistance by the Sheriff of her county, denying on
her first employment application having any physical disability, although
almost two years later
120 REPORTS
STATE COURT OF CLAIMS [W. VA.
on her second application, she
specified such fact; her work was not hazardous but only in regard to the
kitchen preparation of food service trays; she was given a private room on the
first floor so that she would have no danger on steps, and she was given
immediate aid when she fell in her room the night of the accident; the radiator
had been turned off and apparently only the small pipe extending from the floor
to the radiator control knob remained hot; there was only the usual and minimum
amount of furniture in the room; claimant had occupied the room for about four
years; and there has been no evidence to show that the medical aid furnished
her was insufficient or improper at the time according to the circumstances and
conditions then existing.
The claimant’s case is based upon alleged negligence, and particularly upon the
assertion that the respondent should have had the radiator and pipe adequately
covered or protected so that the claimant would have been protected against
injury from the heated radiator and pipe in the event of a fall against it by
claimant in one of her epileptic seizures. As has been shown the claimant was
furnished a room adequate for her purpose with nothing therein which could be
considered dangerous to her, unless it was the radiator. There is no evidence
to indicate that the room was not satisfactory to her who is an adult fully
capable of judging such fact and of complaining if justified. She is 37 years
of age, had been subject to seizures since she was eleven years of age, had
occupied the room for four years, and on this occasion had turned off the
radiator prior to her fall. The law only required the employer respondent to
foresee and anticipate what might be reasonably expected to happen, not
guarantee an employee safety against all possible hazards. A further reason for
concluding there is no liability is the fact that the place of the accident was
not in her work but in her room, which she was not required to occupy as a part
of her employment.
The evidence in the case does not support the theory that an injury such as is
involved here was one which could have been reasonably foreseen or anticipated
by anyone. That the claimant would have fallen, even in an epileptic seizure,
where her face would come in contact with a small section of pipe extending
from the floor only a short distance to the radiator control knob, can hardly
be considered probable.
W. VA.]
REPORTS STATE COURT OF CLAIMS 121
While it is not an aspect affecting the
question of liability, the Court is not unmindful of the kindness of its
officials in eliminating unemployment by the employment of a handicapped person
as in this case, and feels there is a certain amount of lack of gratitude when
such handicapped person so employed seeks recompense for such an unusual
accident as is here involved. Although this Court naturally has the greatest
sympathy for the claimant in this matter, it must follow the law as it
interprets it and conclude that what happened in this case was not a reasonably
or anticipatively foreseeable result of the lack of safety precautions required
of the respondent. Accordingly, the Court is of the opinion to, and so holds
that the respondent is not liable and makes no award to the claimant herein.
No award.
Opinion issued October 22, 1974
T. A. GALYEAN, JR., AND ANN T.
GALYEAN, HIS WIFE,
JOHN G. ANDERSON, TRUSTEE, AND HUNTINGTON
FEDERAL SAVINGS AND LOAN ASSOCIATION
vs.
DEPARTMENT OF HIGHWAYS
(No. D-575)
George S. Sharp for the claimants.
Gregory W. Evers and Emerson
Salisbury for the respondent.
JONES, JUDGE:
The claimants, T. A. Galyean, Jr., and
Ann T. Galyean, are the owners of property located on Crooked Creek Road, Scott
Depot, in Putnam County, West Virginia. Mr. Galyean is a licensed architect
practicing his profession in the Charleston area. The claimant, John G.
Anderson, is the Trustee and Huntington Federal Savings and Loan Association is
the Beneficiary of a certain deed of trust securing a loan against said
property. For the purposes of this opinion, reference to the claimants, unless
otherwise apparent, will apply only to Mr. and Mrs. Galyean. At the time this
claim arose, the
122 REPORTS
STATE COURT OF CLAIMS [W. VA.
respondent, Department of Highways,
was operating a rock quarry in the vicinity of the claimants’ property.
In June, 1970, the claimants purchased the subject property, being 72 acres of
land with a dwelling house and barn, from Otis Wells, a building contractor,
for $114,000.00. Mr. Wells built the single family three bedroom dwelling
house, of masonry veneer construction with approximately 2,000 square feet of
finished living area, in 1964, and lived there until he sold the property to
the claimants. He described the house at that time as being “in top shape, just
near perfect condition”. As of the time this claim arose, Mr. Galyean described
the house as “in immaculate condition and had been recently very well cleaned
and painted”. He testified further that between the time he acquired the house
and April 27, 1971, there never was any visible damage or cracks in the
plaster, foundation, brick work, bathroom tile or any other parts of the
structure. The house is located approximately 1,000 feet in a northwesterly
direction from the respondent’s quarry at about the same elevation above sea
level.
During the early afternoon of April 27, 1971, the respondent’s employees set
off a heavy blast at the quarry, vibrations from which severely shook the
claimants’ house. Mrs. Galyean was so alarmed that she took her two small
children and drove her automobile to the foot of the hill in the direction of
the quarry, where she met employees of the respondent who assured her that no
further blasts would be set off that day. She was further told that there would
be a blast on the following day, but with the charge reduced by one-half the
force of that day’s blast. An attempt was made by the claimants to delay
further blasting until an investigation could be made, and on the following day
while it was thought that a moratorium was in effect and Mr. Galyean was
talking on the telephone with the Commissioner of the Department of Highways
about having representatives of the respondent on hand as observers during the
next blast, another large blast was detonated and the claimants’ home again was
shaken. Blasting continued through the summer and fall, but without noticeable
effect until December, 1971, when the claimants felt vibrations in the house
which they attributed to respondent’s operations.
Mrs, Elaine Bias, whose residence was approximately 600 feet northeast of the
respondent’s quarry, testified that in the early after-
W. VA.]
REPORTS STATE COURT OF CLAIMS 123
noon of April 27, 1971, a worker at
the quarry came to her home and told her that she should leave because a blast
was about to be set off. When she refused to leave, the employee said, “Well,
go inside and get in a safe place, sit by a middle partition, * * s”. She obeyed instructions and testified that when the
blast went off it “shook pictures off the wall, knocked things off the table
and some dishes out of the china, off the top of the china, and whatnots off
the T.V.”. Mrs. Bias further testified that other than cracks in ceramic tile,
no serious damage was sustained until the quarry workings moved nearer to her
home in September, 1971, when her water well caved in and the concrete water
reservoir was cracked in two places. She was compensated by the respondent for
a new well and other damages.
Mr. Galyean outlined the major items of damage to his property as follows:
Cracks in exterior brick veneer, crack between the fire box and the walls in
the chimney structure, crack above window in the living room, crack in concrete
sill at the living room window, break in the garage ceiling, cracks in concrete
wall in the garage, tile joint fractures in children’s and master bathroom, and
other finer and less noticeable cracks in the interior dry wall. An inspection
of the damage on behalf of the respondent was made by E. T. Jarrett, II, and
Harold Wolfe on April 28, 1971, and Mr. Jarrett’s report to the respondent
described the property damage as “small cracks in walls, ceilings and floors on
the inside of the house and cracks in the mortar on the outside of the house”.
The Court undertook a view of the premises on June 25, 1974, and
a number of items of damage were pointed out. Other alleged damage was no
longer subject to view for the reason that certain patching, papering and
painting had been done as well as tile in the bathroom replaced.
Mr. Otis Wells, a building contractor for twenty-five years, who built this
house and sold it to the claimants, made an inspection of the premises on April
29, 1971, and testified that at that time the cost of replacement of the
damaged house was $16,570.00. Mr. Granville Samuel Elliott, a building
contractor for twenty-two years, accompanied the Court on its view during the
hearing of this case and thereafter prepared estimates and testified concerning
the damages. He used the listing of damages on Mr. Wells’ estimate and
countered with a cost of replacement of each item, arriving at a total damage
of $3,600.00. The greatest disparity in their estimates
124
REPORTS STATE COURT OF CLAIMS [W. VA.
had to do with the removing and
rebuilding the chimney and the installation of new exterior brick veneer.
The respondent does not deny that the blasting took place and did not produce
any evidence directly refuting the claimants’ allegations that the blasting was
the proximate cause of at least a portion of the damages complained of. Except
for a witness who testified regarding insurance coverage, a matter of little,
if any, relevance which will be referred to later in this opinion, the
respondent presented only one witness, Mr. Elliott, who testified that most of
the alleged damages were minor in nature and that the cracks in brick, ceramic
tile, cinder block and dry wall construction which he observed were similar in
appearance to those which in his experience he knew to have been caused by
natural settlement of a building. Investigators and other employees of the
respondent who observed conditions at the claimants’ residence after the
blasting were not produced as witnesses.
In the case of Whitney v. Ralph Myers
Contracting Corporation, 146 W.Va.
130, 118 S.E. 2d 130, the Supreme Court of Appeals of West Virginia established
the rule of absolute liability in blasting cases involving damage by vibrations
as well as by casting rocks or other debris. In that case, the Court further
approved the language of a Connecticut decision wherein the Court said, “i’ * * The finding that the blast in question was followed
immediately by a marked and noticeable shaking of the plaintiff’s buildings and
that cracks then appeared in the exterior and interior plaster is ample under
the circumstances to justify the conclusion that the cracks resulted from the
blast.” This Court is satisfied that the blasts occurring on April 27 and 28,
1971, and probably subsequent blasts, proximately caused damage to the
claimants’ property.
The Court is concerned about the state of the record as regards proof of
damages. The law of this State is summarized in Syllabus 3 of the opinion in
the case of Joe Konchesky, et al., v.
S. J. Groves and Sons Co., Inc., 148
W.Va. 411, 135 S.E. 2d 299, as follows:
“The general rule in determining the amount of damages for injury to real
property in a case of this kind is to allow the difference between the market
value of the plaintiff’s premises before the injury happened and the market
value immdiately after the injury, taking into account only the damage which
has re
W. VA.]
REPORTS STATE COURT OF CLAIMS 125
suited from the defendant’s acts. The
reasonable cost of repairs, if properly proved, can be considered as evidence
in determining the market value of property after it has been damaged.”
While evidence of damages in this case falls short of that strict requirement,
no objection was made during the hearing nor has the point been raised in the
respondent’s brief. Realizing the difficulty of strict proof in this case, the
Court is inclined to be liberal, and based on its own view of the premises and
testimony of construction experts for both the claimants and the respondent
with regard to the cost of restoring the property to its value immediately
prior to blasting, it is our judgement that the difference in value immediately
before and immediately after the blasting occurred may be determined by the
Court.
We have considered the respondent’s argument that a compromise settlement
between the claimants and their insurance company should reduce or bar recovery
in this case. Whatever was done between the claimants and their insurance
company was based upon the contract between them. The insurance company is not
a joint tort-feasor in this case, and we see no connection between the
claimants’ right to recover for injuries inflicted by the respondent and any
claim that the claimants may have against a third party by virtue of a contract
between them.
The Court has given particular attention to the claimants’ contention that the
condition of the chimney is so dangerous as to require removal and rebuilding
thereof at a total cost of $4,135.00, and the further claim that it is
necessary to remove all exterior brick veneer and replace it with new brick
veneer at a total cost of $6,260.00. The respondent’s witness, Mr. Elliott,
estimated the cost of the chimney work at $1,600.00, and the brick work at
$600.00. The Court is of opinion that the claimants did not prove by a
preponderance of the evidence that the complete replacement of the chimney and
the exterior brick veneer were necessary to restore the claimants’ property to
a reasonably comparable condition existing immediately before the injury.
The Court has given careful consideration to the rights of both parties in this
difficult case, and in its opinion, the claimants are entitled to recover the
fair amount of their damages. As to the amount, the Court has arrived at a
figure which it believes to be
126 REPORTS STATE
COURT OF CLAIMS [W. VA.
fair and equitable; and the Court does hereby award to the claimants, T. A.
Galyean, Jr. and Ann T. Galyean, John G. Anderson, Trustee, and Huntington
Federal Savings and Loan Association the sum of
$7,500.00.
Judge Petroplus participated in the decision of this case, but his resignation
from the Court was effective before this opinion was prepared and approved.
Judge Garden did not participate in the decision of this case.
Award of $7,500.00.
Opinion issued October 22, 1974
MARYLAND CASUALTY COMPANY
vs.
ALCOHOL BEVERAGE CONTROL COMMISSION
(No. D-656)
John F. Wood, Jr., Attorney at Law, for claimant.
Henry C. Bias, Jr., Assistant Attorney General for respondents.
GARDEN, JUDGE:
* This claim was submitted for decision on the basis of
the pleadings, two exhibits introduced by the claimant and nine exhibits
introduced jointly by the claimant and respondent. From the pleadings and the
exhibits it would appear that the controlling facts are as follows:
On July 1, 1971 the Alcohol Beverage Control Commissioner issued a Class C
license to 314 Club, Incorporated, 314 Bridge Street, Guyandotte, Cabell County
for the fiscal year commencing July 1, 1971. This license was issued pursuant
to Code 60-7-40 and as required by said section, 314 Club, Incorporated
furnished a bond
*See also Maryland Casualty Company vs.
Alcohol Beverage Control Comm n., Claim
No. D-656, 10 Ct. Cl. 186 wherein this decision is reversed on rehearing
W. VA.]
REPORTS STATE COURT OF CLAIMS 127
in the penal amount of $2,500.00
conditioned on the payment of all fees and on the faithful performance of and
compliance with the provisions of Chapter 60, Article 7. The bond was dated
July 1, 1971 and was executed on behalf of 314 Club, Incorporated by David
Poston, as principal, and by the claimant, as corporate surety (Joint Exhibit
9).
While it is not clear from the exhibits, it would appear that on either January
22, 1972 or January 25, 1972, Sgt. Don Norris of the Huntington Police Department arrested
David Poston for permitting a gaming table (a blackjack table) to be kept on
his premises at the 314 Club in violation of Code 61-10-6. David Poston was taken
before Justice of the Peace James S. McNeill where an appearance bond was
posted. Thereafter on January 27, 1972 he appeared and entered a plea of guilty
to the charge and was fined $50.00 and costs (claimant’s Exhibit 2).
The transcript of the docket further reflects that on March 28, 1972 James E.
Chambers, Attorney at Law, appeared and moved to set aside the guilty plea and
to enter a plea of nob contendre on the ground that the said David Poston was
not fully informed as to the consequences of his plea of guilty. The transcript
reflects that the motion was taken under advisement and further that on May 19,
1972 on Court Order from Judge Conaty, Judge of the Common Pleas Court of
Cabell County, West Virginia, a new trial was held at which the said David
Poston was found not guilty. While there was filed as part of Joint Exhibit 6
an unsigned copy of a petition praying for the issuance of a writ of mandamus
from the Common Pleas Court of Cabell County, counsel for the claimant advised
this Court that he could find no evidence in the Clerk’s office of the Common
Pleas Court that such a proceeding had actually been instituted.
On February 4, 1972 the Alcohol Beverage Control Commissioner, as required by
Code 60-7-13, revoked the Private Club Liquor License issued to 314 Club,
Incorporated (Joint Exhibit 2). Code 60-7-13 provides in part:
“...Upon final conviction of a licensee, or any employee thereof acting within
the scope of his employment, of any violation of any municipal ordinance or
statute of the State of West Virginia relating to the regulation and control of
alcoholic
128 REPORTS
STATE COURT OF CLAIMS [W. VA.
liquors, gambling, prostitution, or
the sale, possession or distribution of narcotics or dangerous drugs, before
any justice of the peace, municipal court or court of record, the commissioner
shall forthwith revoke the licensee’s license . .
The Commissioner, also as required by law,
wrote to claimant under date of February 4, 1972 (Joint Exhibit 2) and advised
the claimant of the revocation, declared a forfeiture of the bond and requested
payment of the face amount of the bond. This action was taken pursuant to Code
60-7-14 which reads as follows:
“On conviction of a violation of any provision of this article or upon the
revocation of a license in accordance with section thirteen [ 60-7-13] of this article, which conviction or revocation has become
final, the licensee or former licensee, as the case may be, shall forfeit his
bond required by section four [60-7-4] of this article. The penal sum of said
bond shall forthwith be paid to the State treasurer to be credited to the
general revenue fund of this State. Such sum may be collected by an actoin at
law or other appropriate remedy.”
After an interchange of correspondence the claimant by check dated May 8, 1972
paid the face amount of the bond to the State of West Virginia, (Joint Exhibit
7). Claimant is now seeking a return or repayment of the $3,500.00, and in its
Notice of Claim and Complaint alleges that the Commissioner wrongfully, unlawfully
and without reason forfeited the bond of 314 Club, Incorporated on February 4,
1972. Claimant contends that the plea of guilty entered by its principal, David
Poston, on January 27, 1972, did not constitute a “final conviction” within the
meaning of Code 60-7-13 in view of the later finding of not guilty on May 19,
1972.
While we have been unable to find a decision from our Supreme Court of Appeals
precisely defining the term “final conviction”, we are of the opinion that a
conviction becomes final when a defendant has exhausted all of his appellate
remedies. Support for this conclusion can be found in the following decisions
from other jurisdictions:
“‘Final conviction’, as used in statutes dealing with revocation of driver’s
license following second conviction on charge of drunk driving within 24-month
period, is judgment of conviction
W. VA.] REPORTS
STATE COURT OF CLAIMS 129
from which a motorist has exhausted his right to appeal.”
Campbell v. Superior Court In and For
Maricopa County, 462
P2d 801, 804, 105 Ariz. 252.
“Term ‘final conviction’, when used in relation to doctrine of retrospective
application of a judicial ruling, means a conviction in which the accused has
exhausted all his appellate remedies or as to which the time for appeal as of
right has expired.” State v. Lynn, 214 N.E.2d 226, 229.5 Ohio St2d 108.
“Under statute directing that license of operator, commercial operator or
chauffeur, shall be automatically suspended for certain period of time upon
final conviction under statute prohibiting driving motor vehicle while
intoxicated, ‘final conviction’ is judgment of conviction from which motorist
has exhausted right to appeal.” Allen
v. Texas Dept. of Public Safety, Tex.
Civ. App., 411 S.W.2d 644, 646.
“Issue of whether a new rule should be applied retroactively arises only when a
conviction has become final, and ‘final conviction’ means a conviction in which
the accused has exhausted all his appellate remedies.” State v. Evans, 291 N.E.2d 466, 469, 32 Ohio St.2d 185.
No formal appeal was perfected from the guilty plea entered on January 27,
1972, and ordinarily in West Virginia an appeal does not lie in a criminal case
from a judgment of conviction rendered upon a plea of guilty. Nicely v. Butcher, 81 W.Va. 247, 94 S.E. 147 (1917). Nicely
did hold, however, that if a plea of
guilty is entered by a defendant and that it later appears that the plea was
not entered freely and voluntarily and that the defendant did not fully
understand the nature and effect of the plea, that an appeal will be allowed if
perfected within a reasonable time. No appeal was perfected within a reasonable
time in the instant case.
Consequently, we are of opinion that when the claimant’s principal, David
Poston, entered his plea of guilty on January 27, 1972 before Justice of the
Peace James S. McNeill, and there being no attempt to perfect an appeal within
a reasonable time thereafter, that a final conviction resulted and justified
the bond forfeiture.
For the foregoing reasons the claim is denied.
No award.
130 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued November 8, 1974
WALTER E. BRADFIELD, JR., AND
NATIONWIDE MUTUAL INSURANCE COMPANY
vs.
DEPARTMENT OF PUBLIC SAFETY
(No. D-720)
Claimant, Walter E. Brad field, Jr., appeared in person.
William D. Highland and Edgar
Bibb, Assistant Attorneys General, for
the respondent.
JONES, JUDGE:
The claimant, Walter E. Bradfield, Jr., is a resident of Sistersville, in Tyler
County, West Virginia, and is employed in the Security Department of Mobay
Chemical Company near Moundsville, in Marshall County, West Virginia. He also
is a ,Constable for Tyler County and a part-time policeman in Sistersville. The
claimant is interested in police work and has kept in touch with the City and
County police through a short-wave radio installed in his automobile, a 1973
four door Plymouth Fury. Before leaving for work on the evening of Sunday,
August 26, 1973, he called the Sistersville police department and was informed
that there had been an armed robbery in the Wheeling area and possibly a
kidnapping and stolen car. On his way to work the claimant heard on the radio
that the kidnappers were being pursued south on State Route No. 2, south of
Moundsville. When he arrived at Mobay, he telephoned the Marshall County
Sheriff’s office and was informed that a family had been kidnapped and their
car stolen. He further learned that a roadblock was being set up at New
Martinsville and that all possible help, including his, was needed. Being about
one-half hour before his shift began at midnight, the claimant went to the site
of the roadblock and his car was positioned along with others by a State
Policeman, Corporal B. E. Kirtley. At the hearing Corporal Kirtley testified
that he was glad to have the claimant’s help and so told him at the time.
Earlier the same evening two escapees from the Junction City Treatment Center
in Ohio had taken hostage George Dunn, his wife
W. VA.]
REPORTS STATE COURT OF CLAIMS 131
and four small children, of Valley
Grove, West Virginia. One of them held a knife at the side of Mr. Dunn while he
was made to drive his Pontiac automobile; the wife and children were crouched
on the back seat and floor; and the second escapee flourished a revolver as he
watched out the rear window. Fearing for his life and the lives of his family,
Mr. Dunn obeyed instructions during the harrowing experience which followed.
When the kidnappers’ vehicle neared the New Martinsville roadblock, it suddenly
turned and headed back north. All police cars joined in the chase, and Trooper
W. M. Fox, who was off duty and arrived at the roadblock in civilian clothes
and on foot, got into the claimant’s car and they took off in pursuit. Trooper
Fox manned the radio, and while he could not communicate with other State
Policemen, whose radio was on another frequency, he was able to keep in touch
with County and City police. Another roadblock was set up at the Mobay Chemical
Plant, but the fleeing car was able to swerve onto the Mobay property and
around the roadblock in the center of the intersection. At a third roadblock
south of Moundsville, the Dunn’s Pontiac car left the highway, crossed the
median strip and proceeded the wrong way on the south-bound lanes. At this
point the claimant’s car was right behind the Dunn car, and he and Trooper Fox
had seen the brandished gun in the back window. The claimant had tried several
times to pass the Dunn car, but it would go to the center of the highway and he
could not pass. When the Dunn car crossed the median strip, the claimant took the
same course and continued to stay close as the speeding cars came into
Moundsville. At this time State Police Car No. 166, driven by Corporal J. K.
Gabbert, passed the claimant’s car, and on a bridge near Eleventh Street in
Moundsville it was able to force the Dunn car into the right-hand curb, ramming
into the left front of the car and just cutting it off from turning right into
Eleventh Street. Almost simultaneously the claimant’s car rammed into the rear
of the Dunn car. A moment later the car of Vincent A. Church, a New
Martinsville police officer, slammed into the rear of the claimant’s car. This
sudden blow caused the claimant’s pistol to accidentally discharge, shattering
the windshield. Corporal Taylor’s Vehicle No. 151 was struck in the rear. Officer
Church sustained a bullet wound in the left ankle, and a bullet grazed the left
arm of George Dunn.
Trooper Fox testified that during much of the chase the claimant
132 REPORTS
STATE COURT OF CLAIMS [W. VA.
was driving at speeds between 80 and
90 miles per hour. Shots were fired at each of the roadblocks, and tension and
excitement had risen to a high pitch as the end of the chase came with
considerable suddenness. The pursuers were dealing with armed and dangerous men
and the final confrontation was no place for studied deliberation. The claimant
testified that as they approached the bridge and Eleventh Street, Trooper Fox
said, “Ram him, Skip. That’s the only way we’re going to get him. Go ahead and
ram him now.” Officer Church confirms this testimony, testifying that he heard
over the radio somebody say, “Ram him, Skip.” When asked whether he had used
those words, Trooper Fox testified, “The only thing I might have said was,
‘He’s going to ram him, Skip,’ when 166 come around and hit him from the front.”
That answer was followed by this:
0. “Do you think Constable Bradfield could have stopped his car without hitting
the suspect?”
A. “Not really. He was too close on him.”
Counsel for the respondent takes the position that the claimant was a volunteer
and not acting under the direction or command of anyone in the Department of
Public Safety. The powers of a State Police Officer as set out in Section 11,
Article 2, Chapter 15 of the Code of West Virginia, including the right to
command the assistance of any able-bodied citizen of the United States, appear
not strictly to apply to this situation. However, there appears to be a great
weight of authority that a police officer may summon to his assistance any
person where he deems it necessary to effect an arrest. 70 Am. Jur. 2d 152.
Quoting from the same page of that text:
“Instead of organizing a formal posse comitatus, any police officer may summon
to his assistance any bystander, or any number of bystanders, when he deems it
necessary to effect an arrest or to recapture an escaped prisoner, and such
summons invests those called upon with full authority to render him all needed
assistance.” Regardless of Officer Fox’s intention or belief as to his
authority or the claimant’s duty to obey, the Court believes that there was
such a strong appearance of authority in the commandeering and direction of the
claimant and his automobile that the claimant was justified in believing that
he was legally required to render assistance to the extent of his ability. In
other words, the Court believes that the claimant should not be required to
judge the legality of his rendering assistance, and then act upon his own
responsibility.
W. VA.] REPORTS
STATE COURT OF CLAIMS 133
The Court further finds that the claimant’s damages proximately resulted from
the helpful and hazardous assistance which he rendered to the respondent’s
officers in effecting capture of the fugitives. The original estimate of
repairs to the claimant’s vehicle was Eight Hundred Eighty Dollars Forty Cents
($880.40). The final repair bill was Seven Hundred Five Dollars Fifty-nine
Cents ($705.59), which appears to the Court to be fair and reasonable. This
claim was assigned by claimant Bradfield to claimant Insurance Company,
reserving the $100.00 deductible portion of the claim, by a release and
subrogation agreement between the parties dated October 9, 1973, which
assignment is a part of the record in this case.
Based on its findings and its understanding of the law as set out hereinabove,
the Court is of opinion that the claimants are entitled to recover, and awards
are hereby made as follows: To the claimant, Walter E. Bradfield, Jr., $100.00;
and to the claimant, Nationwide Mutual Insurance Company, $605.59.
Judge Petroplus participated in the decision of this case, but his resignation
from the Court was effective before this opinion was prepared and approved.
Judge Garden did not participate in the decision of this case.
Awards: Walter E. Bradfield, Jr. — $100.00.
Nationwide Mutual Insurance Company — $605.59.
Opinion issued November 14, 1974
CLARKE W. GREENE
vs.
DEPARTMENT OF HIGHWAYS
(No. D-687)
Paul Zakaib, Jr., for the claimant.
Emerson Salisbury for the respondent.
JONES, JUDGE:
On October 6, 1973, in the daytime, the claimant, Clarke W. Greene, was driving
his 1969 Chevrolet pick-up truck on MacCorkie
134 REPORTS
STATE COURT OF CLAIMS [W. VA.
Avenue in South Charleston. He was
traveling east on the 4-lane State highway as he reached a point where
Jefferson Road joins the highway from the south, and an extra traffic lane is
provided for those desiring to turn south on Jefferson Road. The Owens Motel
and parking lot is located on the north side of MacCorkie Avenue, with a
driveway into the parking lot approximately 30 feet wide, about 10 feet of
which lies west of an extension of the western line of Jefferson Road. Traffic
at the junction is controlled by traffic lights, and as the claimant pulled
into the right-turn lane, east and west-bound traffic on MacCorkle Avenue was
stopped by red signal lights, with a green arrow indicating “go” for the
right-turn lane. A van-type truck was stopped in the east-bound lane nearest
the claimant, waiting for the red light to change, and unknown to the claimant,
a green light was signaling “go” from the motel parking lot. As the claimant
had about half turned the Jefferson Road corner, his car and a car driven by M.
W. Kirk, of Hopewell, Virginia, collided, causing damage to the front end of
both vehicles. The view of both drivers was obstructed by the van-type truck
heading east, as it appears that the Kirk car was crossing MacCorkle Avenue on
a slanting course from a part of the motel driveway west of the front end of
the truck. Neither driver saw the other in time to avoid the accident. The
claimant contends that the respondent was negligent in permitting and
maintaining traffic control devices so timed as to allow vehicles both with
green lights in their favor to proceed to collision.
An engineer employed by the respondent and with special knowledge of traffic
control devices, testified that the lights were properly installed and
maintained under regulations laid down by the United States Department of
Commerce and adopted by the State Road Commissioner, and that they were
functioning properly at the time of the accident.
The traffic-control signal legend applicable to the drivers of vehicles is
promulgated in West Virginia Code 1 7C-3-5. Subsections thereof read as
follows:
“(d) Red and green arrow:
(1) Vehicular traffic facing such signal may cautiously enter the intersection
only to make the movement indicated by such
W. VA1 REPORTS
STATE COURT OF CLAIMS 135
arrow but shall yield the right-of-way to pedestrians lawfully within a
crosswalk and to other traffic lawfully using the intersection.
(2) *
* *
(e) In the event an official
traffic-control signal is erected and maintained at a place other than an
intersection, the provisions of this section shall be applicable except as to
those provisions which by their nature can have no application. * *
in Boiling
v. Clay, 150 W.Va. 249, 144 S.E.2d
682, a case involving a collision at the intersection of Sixteenth Street and
Fifth Avenue in the City of Huntington, with a factual situation very similar
to this case, except that the Huntington streets make a true intersection by
crossing each other, the Court termed the collision “an unavoidable accident”.
Syllabus 3 of that case is as follows:
“There can be no recovery of damages for personal injuries or property damage
resulting from a collision of two motor vehicles upon a public highway if it
appears that both drivers of such vehicles, in the circumstances leading to the
collision, exercised the care which a reasonably prudent person would have
exercised in the same or a like situation and that neither driver, therefore,
was guilty of negligence which proximately caused, or which concurred
proximately with the negligence of the other to cause, the collision.”
In view of the Court’s decision in the Boiling
v. Clay case and the similarity of
facts and circumstances involved, this Court perceives that the collision in
this case was an unavoidable accident insofar as the two drivers are concerned,
wherein neither party could recover against the other. As to the respondent’s
responsibility for this accident, we are inclined not to strictly apply Code
17C-3-5. This is not a true intersection, but, mistakenly, we believe, was
regulated as such by the respondent. The American College Dictionary defines an
intersection as a “place of intersecting”, and intersect as meaning “to cut or
divide by passing through or lying across: one road intersects another.” Aside
from the general observation of the respondent’s engineer, the correctness of
the installation was not further verified or explained. Assuming the
installation was in accordance with Federal and State specifications, the fact
remains that the attempt to control
136 REPORTS STATE
COURT OF CLAIMS [W. VA.
traffic as if this were an ordinary intersection did create a dangerous
condition which was not likely to be foreseen or recognized by the traveling
public. We recognize the difficulty in the attainment of a foolproof traffic
control system under the circumstances, but we feel that the respondent must
accept responsibility for the plaintiff’s damages in this case.
The amount of the claimant’s damages was not questioned by the respondent, and
the Court finds that the amount claimed is fair and reasonable. Accordingly, an
award hereby is made to the claimant, Clarke W. Greene. in the amount of
$183.95.
Award of $183.95.
Opinion issued November 14, 1974
D. MAE McARTHUR
vs.
DEPARTMENT OF HIGHWAYS
(No. D-666)
Guy R. Bucci, Attorney at Law, for the claimant.
Greg Evers, Attorney at Law, for the respondent.
GARDEN, JUDGE:
On March 8, 1973, the respondent was
conducting a ditch lining operation on the east side of State Route 214 near
South Charleston in Kanawha County, West Virginia. In the instant case, ditch
lining consisted of removing mud and debris from the ditch along the east side
of the road and pushing the same with a road grader across the highway for
disposition. It was admitted by respondent that during this operation a certain
amount of the mud and debris was left on the surface of the road creating a
slippery condition. This ditch lining operation was being conducted over a
300-foot section of the highway. While State Route 214 runs in a general north-south
direction, the accident occurred in a rather sweeping curve to the right for a
motorist proceeding in a northerly direction. The roadway
W. VA.]
REPORTS STATE COURT OF CLAIMS 137
in the area of the accident was level, the
weather was good and visibility clear. Respondent had positioned a flagman at
each end of the ditch lining operation to control traffic, and respondent’s
foreman, Lewis Caruthers, had positioned himself in the curve where he could
observe and control the activities of the two flagmen and thus the flow of
traffic.
The claimant testified that she was driving her 1968 Dodge Polara automobile in
a northerly direction on State Route 214 and was proceeding to her place of
employment in Charleston from her home in Alum Creek, a distance of some 17
miles; that as she approached the ditch lining operation she was the middle car
of three cars that were directed by the flagman to proceed through the work
area; that while she may have come to a rolling stop, none of the three
vehicles were actually stopped by the flagman; that after she had proceeded
some 25 to 30 yards over the road covered by debris, the driver of the car in
front of her, a red medium sized compact car, applied his brakes and started
skidding; that claimant was some two to three car lengths behind this car, and
upon observing it skidding, she applied her brakes and likewise went into a
skid and ultimately skidded off the road into the ditch and hillside on the
east side of the road damaging the front end of her car; that before applying
her brakes she was traveling between 10 to 15 miles per hour, although on cross
examination she indicated that her speed could have been between 15 to 20 miles
per hour.
The respondent’s foreman, Lewis Caruthers, and its road grader operator, Harold
E. Songer, Jr., testified on behalf of the Department of Highways. Their
testimony was in sharp conflict with that of the claimant. Caruthers testified
that he observed the flagman stationed at the south end of the operation cause
the claimant to bring her automobile to a complete stop, and that he,
Caruthers, motioned to the flagman to allow traffic to come through; that the
claimant’s vehicle was the lead car of two that proceeded north through the
work area. Witness Songer, who was operating the grader either in the south
bound lane or on the berm of the west side of the road in the immediate area of
the accident, testified that as claimant proceeded through the work area there
were no cars in front of her. In respect to the speed of the claimant’s car,
both of these witnesses, although being unable to express an opinion as to
speed in miles per
138 REPORTS
STATE COURT OF CLAIMS [W. VA.
hour, did opine that claimant was
going too fast for the prevailing road conditions and faster than the 15 miles
per hour limit which was posted on signs at each end of the work area.
Counsel for claimant contends that the respondent was negligent in causing the
road at the point of the accident to become slippery and in failing to remove
the mud and debris from the same. On the other side of the coin, the
respondent, while admitting the slippery condition of the road, contends that
it was conducting its ditch lining operation in a reasonable manner and was
taking all necessary steps to warn and safeguard motorists passing through the
work area. Respondent further contends that claimant was negligent in operating
her automobile too fast through the work area and that this negligence was the
proximate cause of the accident.
While this Court agrees that respondent is under a legal duty to keep the
highways of this State in a reasonably safe condition for the use of the
traveling public, it is also aware that in fulfilling this duty it becomes
necessary, during ditch lining operations and in other instances, for the
respondent to create temporarily hazardous conditions. When this occurs, it
then becomes respondent’s duty to fully and adequately warn the traveling
public of these temporary conditions.
We believe, as triers of fact, that the preponderance of the evidence clearly
demonstrates that respondent fully met and complied with this legal duty. We
are of the further opinion that the weight of the evidence establishes that the
claimant was operating her automobile at a speed that was too fast for the
prevailing road conditions, and that the accident and damage to her car
resulted from her own negligence. We are thus of the opinion to make no award.
No award.
W. VA.]
REPORTS STATE COURT OF CLAIMS 139
Opinion issued November 14, 1974
RAINES PIANO & ORGAN CENTER, INC.
vs.
BOARD OF REGENTS
(No. D-743)
Fred Raines, President of the claimant Company, appeared in person.
Henry C. Bias, Jr., for the respondent.
JONES, JUDGE:
On December 8, 1973, the Division of Music of Bluefield State College borrowed
a public address system from the claimant, Raines Piano & Organ Center,
Inc., for a public performance of the Blue- field State College Jazz Ensemble.
When the claimant requested return of the equipment, it was informed that it
had been stolen sometime later in the same month during the Christmas recess.
The claimant has asked that it be reimbursed for its damages in the amount of $399.50, being
the wholesale price of the equipment at the time of the loss.
In its answer the respondent admitted all of the allegations of the claimant’s
petition except as to the amount of damages. At the hearing of this case and
after adequate proof of value, the respondent further admitted that the amount
claimed was fair and reasonable and recommended that the same be paid.
The Court believes that the respondent did not take proper precautions to care
for and protect the claimant’s property, so generously made available without
charge, and therefore an award hereby is made to the claimant, Raines Piano
& Organ Center, Inc., in the amount of $399.50.
Award of $399.50.
140 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion
issued November 20, 1974
CLINTON BOEHM and HESTER BOEHM
vs.
DEPARTMENT OF HIGHWAYS
(No. D-613)
John Troelstrup, Esq., Attorney at Law, for the claimants.
Donald L. Hall, Esq., Attorney at Law, for the respondent.
PER CURIAM:
*The claimants have filed a petition for a rehearing and a reconsideration of
the Court’s decision denying this claim.
Granting that the testimony of the petitioners was uncontrodicted with
reference to the actions, inducements and assurances of the right-of-way agent,
which promised the petitioners a roadway to a controlled access highway
definitively established by the plans and specifications of the West Virginia
Department of Highways, which plans required the approval of the agencies of
the Federal Government and were not subject to change by minor officials of the
Department of Highways, the promises made by the right-of-way agent, if true,
were tantamount to fraud and misconduct and beyond the scope of his limited
authority as a right-of-way agent. Assuming these promises to be true, the
Court is unable to find any law that holds the State responsible for the fraud
or misconduct of its agent. The agent undoubtedly incurred a personal liability
for exceeding the scope of his authority and making promises that he knew or
should have known were clearly impossible to fulfill. Torts committed by a
Government official in the performance of his duties are not binding upon a
Governmental agency. If the petitioners can cite any law to the Court to the
contrary, by brief or otherwise, this Court will gladly give further
consideration to its opinion. The compelling sympathy for the position in which
the claimants find themselves cannot
*See Boehm v. Highways, 10 Ct. Cl. 110 for first opinion.
W. VA.]
REPORTS STATE COURT OF CLAIMS 141
control the decision of this Court,
which is required to decide cases on legal principles that would be applied in
a Court of record.
Petitioners’ contention that the Court’s opinion gives insufficient weight to
the placement of stakes on the petitioners’ property, indicating a proposed
access road to the highway, even if we assume that the contractor placed those
stakes under the supervision of the respondent, is without merit, for the same
reasons heretofore assigned. The unauthorized conduct of an independent road
contractor, even if approved by the supervisory personnel of the respondent,
does not create a binding contractual obligation upon the State.
Respondent’s contract, plans and specifications for the building of a highway
cannot be modified or changed by the agents in the field who deviate from the
contract, plans and specifications on their own initiative and without the
approval of the chief engineer and commissioner of the Department of Highways.
Even though the petitioners were too unsophisticated and inexperienced to
understand the meaning of a limited access controlled highway, a contrary
opinion by this Court would open a Pandora’s Box of litigation for the State
where employees of the Department of Highways exceed the scope of their
authority in making representations to persons affected by highway
construction.
The petition for rehearing is denied.
Petition for rehearing denied.
Opinion issued November 20, 1974
CECIL A. RUNION
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-660)
John S. Sibray, Attorney at Law, for the claimant.
Gregory W. Evers, Attorney at Law, for the respondent. DUCKER, JUDGE:
Claimant, Cecil A. Runion, of
Charleston, West Virginia, suffered
142 REPORTS
STATE COURT OF CLAIMS [W. VA.
personal injuries to his knee and legs
and sustained damages to his automobile resulting from a fall into a creek from
over a wingwall of a bridge at the intersection of what is known as John Bryan
Run and Secondary State Route 16/2 which is known as Otter Lick Road, in Otter
District of Clay County, West Virginia, on September 27th, 1971, at
approximately 3:00 o’clock in the morning, alleging damages on account thereof
in a total amount of $75,000.00.
The evidence is to the effect that claimant on the evening before the accident
went from his home in Charleston to visit and aid his uncle, who lived on Otter
Lick Road north of and beyond the place of the accident, and upon his
proceeding to return home and seeing a light in his cousin’s home located just
a short distance up John Bryan Run, he turned up that road a distance of about
110 feet to a small bridge located close to his cousin’s house without
proceeding any farther in his car. After his latter visit with his cousin, he
proceeded to back his car down the John Bryan Run road toward the Otter Lick
Road. Upon reaching a point near the intersection of the public road and the
private road, his car “came to a stall and met resistance” as claimant
described it, and claimant stepped out placing one foot on something solid
described as either concrete or hard ground, and when he brought his other foot
out of the car and put it down he found nothing to stand on and so fell into
the adjacent creek. There appears to be no question but that the left rear
wheel of his automobile was upon part of the wingwall of the bridge on Route
16/2 over John Bryan Run and that when the claimant stepped out of his car his
first step was on the wingwall of Otter Lick Road bridge, because he then fell
into the creek below. The weather at the time of the accident was described as
“raining and wet and sloppy”, “dark and raining”, with “visibility obscured”.
In backing his car down the John Bryan Run Road, claimant stated he had “the
door open looking back and what visibility I (he) had there was just from my
(his) tail lights” with no back-up lights.
There is specific evidence as to the roads, bridge and wingwall involved. The
only substantial testimony is that of George P. Sovick, Chief Engineer of the
Right-of-Way Department of the West Virginia Department of Highways, whose
testimony was in no way substantially contradicted. He stated that the John
Bryan Run Road was a private road and was not a part of the State system of
highways, and accordingly it was not entitled to State maintenance, that six
feet of the wingwall of the bridge over John Bryan Run was on private prop-
W. VA.]
REPORTS STATE COURT OF CLAIMS 143
erty, that the construction and use of
John Bryan Run Road was permitted by the adjoining land owners for both the
benefit of the State and such owners, and that from the photographic exhibits
and the other evidence in the case the claimant’s car was not, at the place of
the accident within the right of way of Route 16/2 when claimant stepped from
it into the creek. The photographs show quite a wide level space at the
intersection of the public road and the private road involved in the case.
While there were rather high weeds adjoining the wingwall and the paved or hard
surface of the roads, the weeds were not in the hard surface part of the roads.
The State route had a 30-foot right of way for a two lane road, but the private
road was one lane only.
Claimant submitted medical and hospital bills amounting to over fifteen hundred
dollars together with a claim of substantial amount for loss of wages for
thirty days while disabled from the accident, the amount of such claims being
uncontested except the respondent reserved the right to have claimant examined
by a physician of respondent’s choice, but no such examination is necessary in
the light of our decision herein.
In order to recover in this case it was incumbent upon the claimant to prove
that the accident occurred on a road which the State was required to maintain
and that the State had failed to properly maintain it, and that such failure
was the proximate cause of the accident without contributory negligence on the
part of the claimant.
Even if the John Bryan Run Road was to be considered as one entitled to
maintenance by the State, that road was fully traversible for one-way traffic
in the traveled part thereof despite weeds along the sides of it, but the
claimant backed his car down the road at night in rainy bad weather with only
tail lights and no back-up lights on his car, depending entirely on the car
tail lights and what he could see by the car with his door open. That cannot be
considered reasonably careful conduct on the part of the claimant.
In the light of all the evidence, we must conclude that claimant’s failure to
take proper precautionary steps to avoid the accident amounted to contributory
negligence, and that such failure was the sole cause of the accident, and
accordingly we hold that the respondent is not liable, and so deny the
claimant’s claim and make no award to him herein.
Claim disallowed.
144 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued December 9, 1974
VELVA K. CORZINE
vs.
DEPARTMENT OF HIGHWAYS
(No. D-778)
No appearance for the claimant.
Emerson W. Salisbury, Esq., for the respondent.
GARDEN, JUDGE:
The facts of this claim were stipulated by the parties as follows:
“1. That on or about the day of August, 1973, the claimant was the owner of a
certain house and lot located in the Village of Kenna, Jackson County, West
Virginia; that on said date there was a water well located on said property
which provided a good and sufficient amount of water for the tenants living in
said property.
2. Respondent further says that on or about the day of August, 1973, employees
of the respondent, acting under terms of an agreement of lease dated August 26,
1973, blasted sandstone rock and other rock from a quarry on said property and
that as a proximate result of said blasting, said well on the property caved in
and was completely destroyed; that it was impossible to repair said well and
that the claimant was compelled to have another well drilled which cost
claimant the amount of $221.98 and respondent further says that said amount of
money was reasonable and just.
3. Respondent further says that the claimant was free from any fault or
negligence in the premises.”
It appearing from the foregoing stipulation that the claimant was damaged in
the amount of $221.98 as the result of respondent’s blasting activities, it is
the opinion of this Court that an award should be made to the claimant.
Award of $221.98.
W. VA.] REPORTS
STATE COURT OF CLAIMS 145
Opinion issued December 9, 1974
JAMES
R. LANTZ
vs.
DEPARTMENT OF HIGHWAYS
(No. D-647)
Claimant appeared in person.
Gregory W. Evers, Esq., for the respondent.
GARDEN, JUDGE:
This claim has been submitted on a written stipulation of the claimant and
respondent, said stipulation being as follows:
“1. On or about May 22,
1973, at approximately 7:50 A.M., the claimant was lawfully operating his 1969
Chevrolet in a westerly direction on and over the Fort Henry Bridge, designated
as Interstate 70 Bridge, which said bridge spans the Ohio River at Wheeling,
West Virginia, connecting the States of West Virginia and Ohio.
2. That the Fort Henry Bridge is owned and maintained by the State of West
Virginia.
3. The claimant’s automobile, while being operated in the left most lane
provided for westerly traffic, was suddenly and without warning struck by a
section of non-glare metal fence which was situated between the east and west
bound lanes, said fencing also being owned and maintained by the respondent.
4. That said section of non-glare metal fencing was in a state of disrepair in
that it was loose.
5. That as a direct and proximate result of said fencing being in a loose
condition the same swung out and into claimant’s automobile damaging the same.
6. The parties hereto stipulate that the sum of Forty-three and
30/100 Dollars ($43.30) is a fair and equitable estimate of the damages
sustained by claimant.
7. That the parties hereto agree that the amount stipulated as damages is a
settlement of all losses and damages arising from or grow-
146 REPORTS STATE
COURT OF CLAIMS [W. VA.
ing out of the incident as mentioned or referred to in claimant’s Notice of
Claim filed herein.”
The Court has reviewed the notice of claim, the respondent’s answer and, of
course, the foregoing stipulation which contains an admission of liability, and
the Court being of opinion that the damages are reasonable, an award is hereby
made to the claimant, James R. Lantz, in the amount of $43.30.
Award of $43.30.
Opinion issued December 9, 1974
BERTHA A. NEWCOME
vs.
CIVIL SERVICE SYSTEM
(No. D-754)
Laverne Sweeney, Esq., for the claimant.
Henry C. Bias, Jr., Deputy Attorney General for the respondent.
GARDEN, JUDGE:
The claimant prior to December 31,
1972, had been an employee of the West Virginia Industrial School for Boys at
Pruntytown, West Virginia. On the aforementioned date, she retired. In her
notice of claim she alleges that she was not paid annual leave for the years
1970 and 1971 in a total amount of $819.00, and that she failed to receive a
merit increase of $50.00 per month on July 1, 1972, and that as a result, the
sum of $300.00 is due her for the six-month period preceding her retirement on
December 31, 1972. Her testimony at the hearing conformed substantially to the
allegations contained in her notice of claim.
From the testimony and the exhibits introduced into evidence at the hearing, it
appeared that the claimant was first employed at the school on May 21, 1962, as
a temporary employee (relief cook). Thereafter, she was designated as either
extra help, cook, or janitor, but she continued at all times to be classified
as a temporary em-
W. VA.1
REPORTS STATE COURT OF CLAIMS 147
ployee except during the period from
May 1, 1968 to September 15, 1968, when she was classified as a permanent
employee (cottage parent).
Pursuant to statute a State agency can become subject to the Civil Service
System either by Act of the Legislature or by Executive Order. On January 11,
1969, then Governor Hullett Smith issued such an order in respect to the
Industrial School for Boys of Grafton. On that date the claimant was classified
as a temporary employee (extra help) and was being paid on a per diem basis of
$11.00. As required by law, she, as did all employees at the school, took the
civil service qualifying examination and passed the same with a score on the
cook examination of 72.50. The claimant resigned on August 20, 1969, but was
re-employed as a temporary employee (cook) at a wage rate of $12.00 per day on
December 17, 1969. Her wages were increased to $13.00 per day on July 1, 1971,
and then to $13.65 per day on July 1, 1972.
In respect to claimant’s contention that she was not paid a merit increase of
$50.00 per month beginning July 1, 1972, we are of the opinion that there is no
merit in such contention. It is true that raises were extended on July 1, 1972,
but the testimony of the claimant’s own witness, Betty Hayhurst, the school’s
audit clerk, established that the raises were of a cost-of-living nature and
not of merit. The audit clerk’s testimony further reflected that the claimant
did in fact receive this cost-of-living raise on July 1, 1972, when her daily
wage rate was increased five per cent from $13.00 to $13.65.
A considerable amount of testimony was introduced in establishing the number of
days that claimant worked during the years 1969, 1970, 1971 and 1972, and, in
particular, during the usual vacation summer months. While the claimant’s work
records do reflect that she worked on an almost regular basis during the summer
months, the testimony and exhibits clearly reflect that she was always
classified during her last four years of employment as a temporary employee.
More importantly, the Rules & Regulations of the Civil Service System, a
copy of which was introduced by respondent as an exhibit, and, in particular,
Section 3(2) of Appendix A relating to annual leave provides as follows:
“2. Annual leave shall not be accorded energency,
hourly, or
148 REPORTS
STATE COURT OF CLAIMS [W. VA.
per diem employees, and irregular part-time employees.”
During the years 1970 and 1971, the claimant was being paid a daily wage of
either $12.00 or $13.00 per day or per diem. Consequently, it is this Court’s
opinion that any payment of annual leave to her for those years would have been
illegal pursuant to the above- quoted section of the Rules & Regulations.
For the reasons expressed, this Court is of the opinion to make no award.
No award.
Opinion issued January 8, 1975
BALTIMORE CONTRACTORS, iNC.
vs.
DEPARTMENT OF NATURAL RESOURCES
(Nos. D-510, D-516, D-528)
Steptoe & Johnson, Stanley C.
Morris, Jr. and James V. Dolan for
the claimant.
Chauncey H. Browning, Jr., Attorney General, Henry C. Bias, Jr., Deputy
Attorney General, and Arden J. Curry, Special Assistant Attorney General, for the respondent.
JONES, JUDGE:
Sometime in the early 1960’s the Economic Development Administration (EDA) of
the United States Department of Commerce announced the availability of federal
funds for the construction of recreational facilities in the State of West
Virginia. The State’s responsibility for this program was assigned to the
respondent, Department of Natural Resources (DNR), and DNR retained the
services of The Architects Collaborative (TAC), a well-known and highly
regarded architectural firm of Cambridge, Massachusetts, for purposes of
preliminary studies of the feasibility of several proposed State Park projects.
It was finally determined that the State would build what now have become
widely known and popular State Parks, namely, Hawks Nest State Park, Canaan
Valley State Park, Pipestem State Park and Twin Falls State Park. TAC was
employed by DNR
W. VA.]
REPORTS STATE COURT OF CLAIMS 149
to serve as architect engineer for all
of the projects. TAC sub-contracted the detailed design work and construction
supervision to Irving Bowman & Associates (IBA), an architectural and
engineering firm in Charleston, West Virginia. The claim of Baltimore
Contractors, Inc., hereinafter referred to as Baltimore, involves only the
Pipestem and Twin Falls projects.
In an effort to help West Virginia contractors, the two projects were divided
into numerous smaller projects and individual plans and specifications were
prepared by TAC. A satisfactory bidder was found for the golf courses, but
otherwise the multi-package plan proved unproductive. Then, with encouragement
from Baltimore and other large contractors, the Pipestem and Twin Falls
projects, minus golf courses, were consolidated. This was done by modification
of the bid proposal and by eight addenda, tying the numerous contracts together
into one large contract, upon which bids were asked and received. While there
was tacit approval of this procedure by all bidders, who presumably knew what
they were bidding on, the language employed in the consolidation did result in
troublesome questions of interpretation, particularly as regards Addendum No. 4
pertaining to the Pipestem project, which will be alluded to further herein.
A site inspection was held at Pipestem sometime in August, 1967. The meeting
was attended by representatives of TAC, DNR, two contractors who later bid on
the contract and a road contractor interested in the separate contract for
construction of a road into Pipe- stem. While a notice of the meeting was sent
to Baltimore, it did not attend. The group inspected the site on foot and by
automobile, and also examined models of both Pipestem and Twin Falls. Jay
Henry, Chief Engineer for State Parks of DNR, testified that bidders at the
pre-bid inspection were told that they took the roads “as is”. With specific
reference to Twin Falls, Mr. Henry further testified as follows: “I told them
there was the road at one end that was temporary and a road at the other end
which was going to be re-built, but that’s about the only extent that I can
recall on the discussion at Twin Falls.”
A site inspection was made by Dale Willey, an employee in the Estimating
Department of Baltimore. On September 6, 1967, he met with Sam Flournoy, an
employee of DNR, in Charleston and was
150 REPORTS
STATE COURT OF CLAIMS [W. VA.
driven by Mr. Flournoy to Pipestem
and, according to Mr. Willey’s testimony, on to Twin Falls and back to
Charleston. Mr. Flourney has no recollection of taking Mr. Willey to Twin Falls
but instead recalls stopping at Hawks Nest. In any event, Mr. Willey kept no
records and made no written reports of his inspection; and subsequent events
would indicate that nothing he saw or learned posed any problem or required any
explanation or action so far as Baltimore was concerned.
On October 20, 1967, Baltimore submitted a bid for the construction of certain
buildings and related structures and facilities at Pipe- stem State Park,
Summers County, West Virginia, and Twin Falls State Park, Wyoming County, West
Virginia. The bid was accepted and the contract in the total amount of
$11,576,300 was awarded to Baltimore, and entered into by the parties on
February 19, 1968. On February 27, 1968, a Notice to Proceed directed Baltimore
to commence work on April 1, 1968. The contract called for completion within
460 calendar days, and provided for the assessment of liquidated damages in the
amount of $150 “for each consecutive calendar day after the above established
completion date that the work remains incomplete”.
Early in April, 1968, DNR, having become disenchanted with TAC by reason of a
lack of communication and cooperation in the correction of design errors and
other disagreements, canceled its contract with TAC, thereby also terminating
the services of IBA, and employed Zando, Martin & Milstead (ZM-M),
Architects and Engineers, of Charleston, West Virginia.
Baltimore has filed three separate claims, aggregating $1,191,- 944.54, arising
out of its contract with DNR, as follows:
1. For failure to provide and maintain access roads for the Pipe- stem and Twin
Falls projects, Baltimore’s petition claims damages for direct expenses of
providing access, additional overhead expenses due to delay, additional heating
expense due to delay, and loss of efficiency at Pipestem, in the amount of
$506,353.08, and for labor and truck rental expense for transporting workers
from highway to job site, labor, equipment, utilities attributable to delay and
other additional expenses at Twin Falls in the amount of $98,151.67, a total of
$681,733.82. Baltimore now claims a larger sum “as adjusted in accordance with
the testimony introduced at trial” in the new total amount of $712,105.36.
W. VA.]
REPORTS STATE COURT OF CLAIMS 151
2. For delays resulting from errors in
design of window walls and failure to timely approve window wall shop drawings,
Baltimore’s petition alleges damages in the amount of $313,697.57. Eliminating
the overall delay expense in connection with the alleged failure of DNR to
furnish road access to both projects, and further eliminating certain items
which were withdrawn during the course of the hearings, this claim has been
reduced by Baltimore to $45,778.86.
3. For additional unanticipated expenses in drilling jack holes for the two
main lodge passenger elevators at Pipestem, Baltimore’s petition claims damages
in the amount of $54,061.75, and indirect expense due to delay in the amount of
$142,451.40, a total of $196,513.15. Counsel for Baltimore have withdrawn the
claim for delay, leaving an alleged loss of $54,061.75.
Baltimore’s claim in this case, as modified, is for damages in the total amount
of $811,945.97.
Much testimony was heard and many of Baltimore’s exhibits were admitted over
objections of DNR, subject to later determination by the Court as to relevance
and materiality. All testimony and exhibits pertaining to design errors and
inaccuracies in surveys noted prior to bidding but not confirmed thereafter,
are considered by the Court not to be material to the issues and will have no
bearing on the Court’s decision in this case.
This case is complicated by a number of “errors and omissions” attributable in
considerable degree to both the claimant and the respondent. It is clear that
Baltimore hurried into this contract, bidding with knowledge of uncertainties
and apparently counting on change orders to make up for any substantial
misunderstandings. Anyone knowing anything about the weather and winter road
conditions in the Pipestem and Twin Falls areas should have been put on notice
by even a casual site inspection that questions should be asked and answers obtained
regarding the relative silence of the contract documents so far as access was
concerned. Both parks were located in isolated, hard-to-reach areas, Pipestem
alone covering 4,000 acres. Delays in April and May, 1968, were almost entirely
attributable to harsh winter weather. Attendance at the pre-bid site inspection
arranged by TAC was not a requirement, but the failure of Baltimore to attend
was nonetheless a mistake. The “Country Access Roads” shown on the maps
furnished by DNR were never intended to carry
152 REPORTS
STATE COURT OF CLAIMS [W. VA.
the loads in wintertime to which they
were subjected. The burdensome and expensive efforts to haul materials to the
sites in the bad winter weather could better have been avoided by shutting down
the job temporarily or by improvement of the roads by Baltimore in mitigation
of its losses. If Baltimore had been more careful in its site investigation,
and had given more attention to the study and interpretation of the road access
provisions in the contract documents, obvious and pressing inquiries would have
been prompted and later trials and tribulations may have been avoided.
“Information For Bidders”, which was one of the bid documents furnished
Baltimore, contains these two pertinent paragraphs:
“11. Addenda and Interpretations. No interpretation of the meaning of the plans,
specifications or other pre-bid documents will be made to any bidder orally.
Every request for such interpretation should be in writing, addressed to:
Irving Bowman and Associates at 910 Quarrier
Street, Charleston, West Virginia, and
to be given consideration must be received at least five (5) days
prior to the date fixed for the opening of bids. Any and all such
interpretations and any supplemental instructions will be in the form of
written addenda to the specifications which, if issued, will be mailed by
certified mail with return receipt requested to all prospective bidders (at the
respective addresses furnished for such purposes), not later than three days
prior to the date fixed for the opening of bids. Failure of any bidder to
receive any such addendum or interpretation shall not relieve such bidder from
any obligation under his bid as submitted. All addenda so issued shall become
part of the contract documents.
“17. Obligation of Bidder. At the time of the opening of bids, each bidder will be
presumed to have inspected the site and to have read and to be thoroughly
familiar with the plans and contract documents (including all addenda). The
failure or omission of any bidder to examine any form, instrument or document
shall in no way relieve any bidder from any obligation in respect of his bid.”
Where maps furnished Baltimore by DNR showed State highways leading to and
through the Parks, such as 18/2 at Pipestem and
W. VA.] REPORTS
STATE COURT OF CLAIMS 153
10/15 at Twin Falls, Baltimore had
reason to believe that some maintenance by the State of West Virginia would be
provided. This premise is not changed by the fact that after DNR took over the
Park areas, the Department of Highways abandoned all roads within the Parks and
thereby divested itself of any responsibility for maintaining these roads. With
DNR’s superior knowledge of the problem and with the basic necessity of road
access to the work sites, DNR should have been more concerned that a clear
understanding of the road access problem could be had through examination and
study of the bid proposal. The aerial surveys furnished Baltimore by DNR,
through TAC, were deemed unsatisfactory by both DNR and Baltimore, and when survey
stakes locating the road through Pipestem could not be found, Baltimore was
forced to employ Ted Ponds, the engineer who had laid out the road. It was
Baltimore’s responsibility to “stake out” the buildings but the necessary
starting points were not there. Baltimore’s request for a ground survey should
have been granted. In several instances DNR refused additional compensation or
change orders where it appears it would have been more amenable if sufficient
funds had been available. DNR’s judgment necessarily was influenced by the
control of funds by the federal agencies. In our opinion, both parties erred in
“stonewalling” the road access problem; but the Court is constrained to say
that it cannot accept the charges of fraud, bad faith, concealment, entrapment,
deceit, conspiracy of silence, etc. appearing in Baltimore’s brief. DNR may
have been short on money, but never in its desire to get the job done with all
the cooperation it could muster from its limited personnel. DNR’s Chief
Engineer, Jay Henry, throughout the construction period and on the stand as a
witness for both parties, displayed a very high degree of fairness and
cooperation.
Addendum No. 4, relating to Specifications for the Pipestem project, is a good
example of contract language which needed interpretation before the bid
letting. The original contract for the construction of the river lodge at
Pipestem contained a Stated Allowance of $10,000 for “Improvement of the access
road leading to river lodge for Contract Package No. 12”. Addendum No. 4
provided in part the following:
“1) Stated allowances listed in this paragraph shall apply to base bids.
References to stated allowance in individual contracts, technical specification
volumes, shall be ignored.
154 REPORTS
STATE COURT OF CLAIMS [W. VA.
2) * * *
3) Allowance for improvement of access
roads is for repairing existing roads as required to provide access for
construction purposes. Bidders are informed that an additional suitable access
road, requiring some improvement, exists, connecting construction areas of the
park with river facilities, intersecting river road at Mountain Creek.”
DNR contends that the purpose of this provision was to inform prospective
bidders that the $10,000 stated allowance appearing in the original Supplemental
General Conditions applicable to River Lodge could be used either for
improvement of the road leading to the River Lodge from the town of Dunns or
for improvement of the newly discovered road leading down the mountain from the
main lodge area to the river lodge facility. On its fact this addendum applies
only to “Pipestem State Park Project Contract Nos. 5, 7, 10, 11, 12, 13 and
14”, but Baltimore strongly contends that it applies not only to the entire
Pipestem project, but to Twin Falls as well. Baltimore further points out that
DNR personnel gave pre-bid assurances to contractors that the rock base of the
permanent road at Twin Falls would be completed prior to or soon after
commencement of the building construction work, later promising that it would
be completed by October, 1968. While these “assurances” were never reduced to
writing, they clearly were intended to be and were relied upon by Baltimore.
However, the road was not ready for use during the winter of 1968-69, and
Baltimore was put to large extraordinary expense in transporting both labor and
materials. Interference in the use of the main access road into Pipestem by the
independent construction of a new road, which involved tearing up portions of
the old road while Baltimore was trying to use it, was a factor in delaying
Baltimore and in causing it to have to construct temporary access roads to
construction areas. The road under construction passed in front of every
building on the job, and, according to one witness, “The only way we could get
there was to interfere with and be interfered by the road contractor”.
The original contract completion date was July 4, 1969, and the extension of
142 days, allowed by change order, expired November 23, 1969. Beneficial
occupancy of the parks was delayed until December 31, 1969, and the project was
finally accepted in June, 1970.
W. VA.]
REPORTS STATE COURT OF CLAIMS 155
There is no indication that any
liquidated damages were charged against Baltimore. Acceptance of the change
order extending the time for completion of the project did not waive nor
prejudice Baltimore’s claims for damages due to delays attributable to DNR.
Recommending approval of change order 25A,
extending for 142 days the time for
completion of the contract, DNR’s Chief Engineer wrote department memoranda
attributing delays in construction to a number of factors. At Pipestem as
follows: (1) DNR’s unsuccessful efforts to work out a change order deleting the
Visitors’ Center, Upper Tram Station, Aerial Tram, Lower Tram Station, River
Lodges (30 rooms), Stable and Corral, and required facilities; (2) Indecision
of DNR concerning plans to construct the access road to the Blue- stone River
Complex; (3) Unsuitable foundations and excess water encountered by Baltimore
in excavating for the “core” of the Earth Dam; (4) TAC error in design of
window walls; (5) Redesign of Upper and Lower Tram Stations; and (6) Revisions
in design of Cabins, Golf Clubhouse and Recreational Building. At Twin Falls as
follows: (1) Road access, complicated by the bankruptcy of the original road
contractor; (2) State Road Commission’s imposition of a 15 ton maximum load
limit on the Maben-Saulsville Road, necessitating unloading from “over the road
trucks” to smaller trucks; (3) Redesigning window walls; (4) Failure of TAC
as-built drawings to show accurate location of irrigation cable, resulting in
same being cut by pile driver; and (5) Inaccurate information for location of
Cabins and Archery Course. Referring to both Parks, one of the memoranda avers
that “certain delays were the result of inadequate plan information, site
surveys, etc., all of which delayed the construction program of the entire work
at Pipestem and Twin Falls”, and that, “The change of architect/engineer from
TAC to ZMM in 1968 resulted in delays in the progress of the work”. By its own
memoranda, DNR accepted responsibility for the delay factors therein mentioned,
and agreed that Baltimore was entitled to 142 additional days to complete its
contract.
A brief summary of Baltimore’s claim for damages resulting from road access and
other general delays is as follows:
1. Pipestem direct costs $
9,390.33
2. Pipestem extended overhead (142 days) 108,423.31
3. Pipestem winter heating (1969-70) 124,927.61
156 REPORTS
STATE COURT OF CLAIMS [W. VA.
4. Twin Falls costs 56,760.60
5. Twin Falls winter heating (1969-70)
68,762.63
6. Extra engineering cost (Ted Ponds) 11,200.00
7. Loss of labor efficiency 255,596.00
Total $635,420.48
Less duplications 16,198.42
$619,222.06
Home office overhead (7.4%) 45,822.43
Profit (15% — 7.4%) 47,060.87
Grand Total $712,105.36
The Court hereinabove has said that Baltimore is entitled to the Ted Ponds cost
for extra engineering in the amount of $11,200.00; and the Court now further
finds that Baltimore is entitled to recover damages for unwarranted delays
brought about by the actions and omissions of DNR and its architects. However,
the Court will make no allowance for damages beyond the contract extension of
142 days, including alleged damages for 1969-70 winter heating. As triers of
the facts and arbiters of the amount of damages, the Court has weighed all of
the evidence (14 volumes of testimony and 305 exhibits), and has
endeavored to assess damages in a fair and just manner, considering all of the
facts and circumstances, ambiguous and otherwise. Accordingly, it is the
Court’s opinion that Baltimore has sustained damages by reason of delays
effectively caused by DNR, and proved by a preponderance of the evidence, in
the amount of $200,000.00.
Baltimore submitted its first window wall drawing for approval of ZMM on June
24, 1968. Thereafter it became apparent that there was a design error by TAC in
that the design called for exposed glass areas in excess of 50 square feet,
which exceeded standard wind load and thermal requirements. Two types of window
units, aluminum frame windows and wooden frame windows, were required by the
specifications. Final shop drawings were not approved by ZMM until October 3,
1968. While some delay was occasioned by the necessity of re-designing the
window walls, the Court does not believe that this de’ay was critical to
Baltimore’s schedule. The substitution of
W. VA.]
REPORTS STATE COURT OF CLAIMS 157
Polarpane for Anderson windows,
requested by Baltimore, consumed considerable time, probably more than it
should have, but with that fault about equally divided. The use of standard
wood windows and standard hardware, both requested by Baltimore, in the place
of custom windows and custom hardware as shown on the drawings took additional
time. The latter substitution was reluctantly agreed to by DNR for the express
purpose of saving time, which it undoubtedly did. Two other questions having to
do with warranties and a rather flimsy difference of opinion about what was or
was not a proper acceptable color of the glass, involved much correspondence
and seemingly unnecessary delay, which Baltimore did little or nothing
effectively to prevent. Moreover, in view of the status of Baltimore’s work
schedule at both Pipestem and Twin Falls, the Court cannot say that Baltimore
could have gained any advantage in time or otherwise if an earlier approval of
the drawings had been obtained. On the contrary, it appears to the Court that
before they finally were ordered and delivered to the sites, Baltimore was not
ready to install the window walls. The Court is of opinion not to allow
Baltimore’s claim for direct cost allegedly incurred as a result of TAC’s
design error, and delayed approval of shop drawings by ZMM; and as compensation
for general delays is covered in the road access allowance, no award will be
made to Baltimore for its separate window wall claim.
Baltimore has dropped the delay portion of its jack hole claim, but urges that
under Section 21 of the Contract’s General Conditions (“Subsurface Conditions
Found Different”), it is entitled to compensation for additional and reasonably
unanticipated expenses incurred in drilling jack holes for the two main lodge
elevators at Pipestem. The contract section referred to reads as follows:
“Should the Contractor encounter subsurface and/or latent conditions at the
site materially differing from those shown on the Plans or indicated in the
Specifications, he shall immediately give notice to the Architect/Engineer of
such conditions before they are disturbed. The Architect/Engineer will
thereupon promptly investigate the conditions, and if he finds that they
materially differ from those shown on the Plans or indicated in the
Specifications, he will at once make such changes in the Plans and/or
Specifications as he may find necessary, and any increase or decrease of cost
resulting from such changes to be
158 REPORTS
STATE COURT OF CLAIMS [W. VA.
adjusted in the manner provided in
Paragraph 17 of the General Conditions.”
Baltimore, through its drilling subcontractor, Keyser Drilling Company, had
successfully drilled four jack holes, 25 to 40 feet in depth, when it ran into difficulty in the drilling of the
north passenger elevator jack hole at the main lodge. At about 40 feet there
was a deflection of the drill bit, causing improper shaft alignment.
Corrections were made but again at a depth of about 55 feet the same thing occurred. Failing to correct the
deflection of the bit, this hole was filled to approximately 30 feet with
concrete, and while the concrete was allowed to cure, drilling was started on
the north jack hole. Again at approximately 40 feet a similar deflection of the
bit was encountered. Going back to the north hole, drilling was resumed through
the concrete, but alignment again was lost at about 40 feet. Samples taken from
the holes indicated that an extremely hard conglomerate, slanting rock stratum
was causing the drilling bit to bounce or slip off, departing from a true
vertical line and the required true alignment. At this point another drilling
contractor was brought to the job and although he tried other drilling
techniques he, too, was unsuccessful. In January, 1969, Baltimore employed an
expert drilling consultant, Dunbar Drilling of Dayton, Ohio, and in February,
approximately a month later, the drilling of both jack holes had been
successfully completed. It appears that Dunbar cut out one side of a steel pipe
and then inserted it as a casing for the hole, so that the drill bit would be
confined on the sloping side of the rock stratum and free to drill in the
direction of the hole in the pipe, thereby retaining alignment.
While Baltimore undoubtedly encountered an unexpected condition in the drilling
of these jack holes, it was not a subsurface condition materially differing
from those shown on the Plans or indicated in the Specifications, as there was
no reference anywhere in the contract documents to depths of 40 feet or more.
The only pertinent reference to subsurface conditions is found in information
for bidders under the heading “Test Borings”. Bidders are informed that a
report of test borings is available, that the information is furnished for the
convenience of the bidder and is not a part of the contract documents nor is
the information guaranteed, and that any bid submitted must be based on the
bidders own risk. In any event these test borings were only to a depth of about
20 feet and would not have been helpful in solving this problem. The Court is
of opinion that the extra expense
W. VA.] REPORTS
STATE COURT OF CLAIMS 159
incurred by Baltimore in this connection was not attributable to any act or
omission of DNR, but on the contrary, was the probable and direct result of the
failure of Baltimore to utilize a known, practical and correct drilling
procedure which would have nullified the excessive costs which did occur.
In consideration of its findings, hereinbefore set out, the Court awards to the
claimant, Baltimore Contractors, Inc., the sum of
$200,000.00.
Judge Petroplus participated in the decision of this case, but his resignation
from the Court was effective before this opinion was prepared and approved.
Judge Garden did not participate in the decision of this case. Award of
$200,000.00.
Opinion issued January 8, 1975
GENEVA MARIE BURCH
vs.
REHABILITATION ENVIRONMENTAL ACTION PROGRAM
(No. D-679)
Claimant appeared in person.
Henry C. Bias, Jr., Assistant Attorney General, for respondent.
GARDEN, JUDGE:
On September 17, 1973, agents or employees of the Rehabilitation Environmental
Action Program, commonly referred to as REAP, removed and confiscated a 1963
Ford Galaxie automobile from private property in the Town of Glendale, Marshall
County, West Virginia. This automobile was owned by the claimant, Geneva Marie
Burch, having been purchased by her on January 11, 1972, for the sum of
$400.00. The automobile had been damaged in an accident sometime prior to
September of 1973, and pending repairs, it had been parked on property owned by
Mr. and Mrs. William Kinkes and with their permission. Mrs. Kinkes, who
testified on behalf of the
160 REPORTS
STATE COURT OF CLAIMS [W. VA.
claimant, indicated that it had been
parked there for some eight or nine months before its removal.
REAP is a State agency created by the executive authority of the Governor of
West Virginia pursuant to a contract with the Appalachian Regional Commission,
a Federal Agency. The accomplishments of this agency since its inception in
improving the environment in this State have been most noteworthy. However, we
are constrained to point out that these noteworthy objectives must not and
cannot be accomplished by taking private property without due process of law.
If this automobile was an abandoned vehicle and was creating an environmental
eyesore, REAP should have brought the matter to the attention of the law
enforcement officials of the Town of Glendale or Marshall County, who, in turn,
could have effected the automobile’s removal by following the provisions of
Article 24, Chapter 17 of the Code-Disposal of Junk and Abandoned Vehicles. No
representative of REAP appeared at the hearing to explain or justify the
agency’s action in respect to this automobile, and we are of the opinion that
an award should be made to the claimant.
The real problem presented in this claim is the determination of the proper
amount of the award. No testimony was presented as to the fair market value of
the automobile on the date of its conversion. However, under our Rules of
Practice and Procedure, claimants are permitted to appear in this Court without
counsel, and as a consequence, we have been liberal as to requiring proper
proof of damages. The claimant in her Notice of Claim requested damages in the
amount of $550.00 even though she paid only $400.00 for the automobile in
January of 1972. Thereafter, she drove the automobile for about a year at which
time it was damaged when the claimant lost control of the automobile, and it
struck a retaining wall. It was thereafter removed to the Kinkes property where
it remained for some eight or nine months until its demise on September 17,
1973. In further support of her damage claim, the claimant testified that
certain parts for the repair of the automobile were in its trunk when the
conversion took place, and that these parts had been purchased at a cost of
$43.00.
After reviewing all of the evidence and the exhibits introduced at the hearing,
we are of the opinion that an award of $150.00 will
W. VA.] REPORTS
STATE COURT OF CLAIMS 161
adequately compensate the claimant for her loss.
Award of $150.00.
Opinion issued January 8, 1975
JAMES DEWEY EDGELL
vs.
DEPARTMENT OF HIGHWAYS
(No. D-630a)
WILMA R. EDGELL
vs.
DEPARTMENT OF HIGHWAYS
(No. D-630b)
Edward A. Zagula and Leonard Z. Alpert, Attorneys at Law, for the claimants.
Gregory W. Evers, Attorney at Law, for the respondent.
JONES, JUDGE:
The claims of James Dewey Edgell (No. D-630a) and Wilma R. Edgell (No. D-630b)
against the respondent, Department of Highways, were consolidated for hearing
and decision.
On February 26, 1973, the claimant, James Dewey Edgell, then temporarily
unemployed, had driven his father to work at Weirton Steel Company in Weirton,
West Virginia, and was returning to their home in New Cumberland, West
Virginia, when he became involved in an accident. He was driving a 1965 Buick
station wagon, owned by his mother, the claimant, Wilma R. Edgell, on West
Virginia Route No. 2, in the right-hand or curb lane of two north-bound lanes.
At 6:00 o’clock a.m. it was still near-dark and the station wagon lights were
on. Mr. Edgell estimated that he was travelling at a speed of about 30 m.p.h.
when he heard a loud “rumble” and a large boulder weighing approximately four
tons fell on the front bumper and
162 REPORTS
STATE COURT OF CLAIMS [W. VA.
hood of the station wagon, bringing it
to a sudden stop and throwing Mr. Edgell against the rear view mirror and the
steering wheel. Mrs. Edgell’s car was badly damaged, and Mr. Edgell sustained
injuries resulting in the loss of all of his teeth, as well as painful and
persistent injuries to his mouth and chest.
This accident occurred in a “falling rocks” area similar to hundreds of others
along the highways of West Virginia. “Falling Rocks” signs were in place both
north and south of the scene of the accident. Slides have occurred with some
frequency between the signs, and there was testimony relating to slides in the
immediate area of “two or three” and “three or four” times a year. In 1966 or
1967 the highway at this location was widened by the respondent to accomodate
an additional lane of traffic, but there is no direct satisfactory evidence as
to how much, if any, the hillside was displaced or disturbed. Counsel for the
claimants contend that the widening of the highway created a more dangerous
condition, thus requiring a higher degree of care on the part of the
respondent. However, there is nothing in the record to show that the hillside
was either more or less susceptible to slides before and after the highway was
widened.
In many similar cases this Court has cited and followed the case of Adkins v. Sims, 130 W.Va. 645, 46 S.E. (2d) 81, which 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. Parsons v. State
Road Commission, 8 Ct. Cl. 35; Criss v. Department of Highways, 8 Ct. Cl. 210; Lowe
v. Department of Highways, 8 Ct. Cl.
175; and Mullins v. Department of
Highways, 9 Ct. Cl. 221.
The Court is unable to distinguish this case from the cases heretofore decided
by the Court and cited herein; and the Court is of opinion that the claimants
have not proved by a preponderance of the evidence that the respondent has been
guilty of negligence. Therefore, it is the judgment of the Court that the
claims of James Dewey Edgell and Wilma R. Edgell be and they are hereby disallowed.
Claims disallowed.
W. VA.] REPORTS
STATE COURT OF CLAIMS 163
Opinion issued January 8, 1975
CECILE H. RUDDELL
vs.
ALCOHOL BEVERAGE CONTROL COMMISSION
(No. D-789J)
Grover Jones, Jr., Esq., for claimant.
Henry C. Bias, Jr., Assistant Attorney General, for respondent.
GARDEN, JUDGE:
In January of 1973 the Alcohol
Beverage Control Commission, hereinafter referred to as ABC, opened an agency
in the Town of Union, West Virginia, and employed the claimant, Cecile H.
Ruddell, to operate and manage the same. At the time of her employment,
managers of agencies were paid on the basis of the number of bottles of
alcoholic beverages that were sold during a given month, but not in excess of
$300 per month or $3,600 per year. Legislation was introduced and passed during
the 1973 session which increased the $3,- 600 per year maximum to $6,000. With
the discretion vested in him by the Legislature, the Commissioner of the ABC,
J. Richard Barber, in July of 1973 revised the manner of compensating agency
managers from the per bottle formula to a dollar volume of sales formula.
During the months of May and June, 1974, the volume of sales at the Union
agency was sufficient to entitle the claimant to a salary of $425 per month.
Her salary was not paid to her for these months, and she thus presents her
claim in the total amount of $850.
Commissioner Barber testified at the hearing, not for the purpose of resisting
the claim, but in order to explain its non-payment. While the 1973 Legislature,
as explained by the Commissioner, authorized the increases in salary for the
agency managers, it failed to appropriate any funds to meet these increases in
the 1973-74 fiscal budget. Realizing that this had occurred, an attempt was
made to pass a special appropriation during the 1974 Legislative Session but
this, likewise, was not accomplished.
As a result of the foregoing, the Commissioner on May 1, 1974, did not have
sufficient funds in his personal services account to pay the salaries of the
thirteen (13) agency managers for the last two
164 REPORTS
STATE COURT OF CLAIMS [W. VA.
months of the fiscal year. The
Commissioner testified that while he ended the year with an overall surplus of
some $74,000.00, he was prohibited by law from transferring a portion of that
surplus to his personal services account in order to pay the agency managers,
and this Court agrees with this conclusion. Commissioner Barber did testify
that he did have $2,538.52 in his personal services account at the close of the
fiscal year 1973-74, but because this amount was insufficient to pay all agency
managers in full for the last two months of the fiscal year, he included the
same in his $74,000.00 surplus and returned it to the State Treasury.
We believe that the case of Ajrkem
Sales & Service vs. Department of Mental Health, 8 Ct. Cl. 180, is controlling here. In Airkem, the
Department of Mental Health had purchased or contracted for supplies,
expendable commodities or services in excess of the amount appropriated for
such purposes by the Legislature. While this Court in that case felt that there
was a moral obligation on the part of the State to pay these obligations, it
also felt that it could not authorize an award of an illegal claim in view of
the fact that the spending unit had violated Code 12-3-17 in incurring
liabilities in excess of the then current appropriation.
We feel that the facts of this claim present a similar situation. When the 1973
Legislature failed to appropriate sufficient funds to effect the salary
increases authorized by them, it was probably unwise for Commissioner Barber to
place the raises into effect on July 1, 1973, but his action can be justified
for as he indicated in his testimony, the Speaker of the House advised him that
additional funds would be forthcoming from the 1974 Legislature in the form of
a supplemental appropriation. As indicated earlier, these funds were not
forthcoming and, consequently, when Commissioner Barber retained the services
of this claimant and the other agency managers during May and June of 1974,
when funds were not available, his action in that respect was unlawful as set
forth in Code 12-3-17.
This decision to make no award shall be binding and control the disposition of
the additional claims filed by other agency managers and those that may be
filed in the future involving unpaid salaries for the months of May and June,
1974.
No award.
W. VA.]
REPORTS STATE COURT OF CLAIMS 165
Opinion issued January 8, 1975
MRS. W. G. VIA
vs.
DEPARTMENT OF HIGHWAYS
(No. D-822)
No appearance for the claimant.
Emerson Salisbury, Esq., for the respondent.
GARDEN, JUDGE:
No testimony was taken in this claim, but in lieu thereof a written stipulation
executed by the claimant and respondent was submitted, said stipulation being
as follows:
“1. That employees of the respondent negligently placed a large piece of steel
on the travelled portion of a bridge across Coal River near the village of Alum
Creek in Kanawha County, State of West Virginia.
2. That claimant, in driving her 1973 model Pontiac across said bridge, struck
said piece of steel with her car causing damage thereto in the amount of
$55.10.
3. That claimant was free from any fault or negligence in the premises.
4. That r’espondent feels that the sum of $55.10 claimed is fair and equitable.”
In view of respondent’s admitted negligence, the claimant’s freedom from
negligence and the reasonable amount of the damages, an award is hereby made to
the claimant, Mrs. W. G. Via, in an amount of $55.10.
Award of $55.10.
166 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion
issued January 15, 1975
HELEN L. FREED, No. D-775
W. M. HARRIS, No. D-776
WILDA F. CURRENCE, No. D-789 A
BARBARA RAE NORTON, No. D-789 B
ALUNA J. WARE, No. D-789 C
MARY LOUISE SINGLETON, No. D-789 D
WAYNE L. MAIN, No. D-789 E
LOUISE H. HARPER, No. D-789 F
SHIRLEY ANN KIMBLE, No. D-789 G
LEONARD D. WATSON, No. D-789 H
DONAL L. SMITH, No. D-789 I
vs.
ALCOHOL BEVERAGE CONTROL COMMISSION PER CURIAM:
The foregoing claims are disallowed for the reasons set forth in the Opinion of
this Court heretofore filed in deciding the claim of Cecile
H. Ruddell, Claimant v. ABC Commission*, Respondent, Claim No. D-789j, the
factual situations and the law applicable thereto being the same as that
involved in the foregoing decision of this Court.
Claims disallowed.
* 10 Ct. Cl. 163.
W. VA.] REPORTS
STATE COURT OF CLAIMS 167
Opinion issued January 15, 1975
MIDLAND WHOLESALE GROCERY COMPANY, No.
D-799
STATE FOOD STORES, INC., No. D-800
WHEELING HOSPITAL, INC., No. D-801
MEDICAL SUPPLY COMPANY, INC., No. D-802
INDEPENDENT DRESSED BEEF COMPANY, INC., No. D-803
NORTEMAN PACKING CO., No. D-804
COOK MOTOR LINES, INC., No. D-805
ELECTRONIC MATERIALS CORPORATION, No. D-806
SCHERING CORPORATION, No. D-807
OSCAR RUTTENBERG, D/B/A RUTTENBERG’S STORE,
No. D-808
WEST VIRGINIA STATE INDUSTRIES, No. D-811 A
STORCK BAKING COMPANY, INC., No. D-812
POLlS BROTHERS, No. D-813
MT. CLARE PROVISION COMPANY, No. D-814
LEVER BROTHERS COMPANY, No. D-815
PHYSICIANS FEE OFFICE, No. D-816 A, B, C, D &F
INDUSTRIOUS BLIND ENTERPRISE, No. D-817
PEPSI-COLA BOTTLING CO. OF MOUNDSVILLE, INC.,
No. D-818
M & W DISTRIBUTORS, INC., No. D-819
VALLEY WELDING SUPPLY COMPANY, No. D-820 A
SOUTHERN CHEMICAL COMPANY, A DIVISION OF
SOUTHERN MACHINERY COMPANY, No. D-821
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS
168 REPORTS STATE
COURT OF CLAIMS [W. VA.
TRI-STATE DRUG COMPANY, No. D-823
STANDARD BRUSH & BROOM COMPANY, No. D-824
REYNOLDS MEMORIAL HOSPITAL, No. D-825
DERMATOLOGY SERVICE, INC., No. D-826
A. H. ROBINS COMPANY, No. D-827
MCNINCH HARDWARE, No. D-828
THE NATIONAL COLLOID COMPANY, No. D-829
COLUMBIA GAS OF WEST VIRGINIA, INC., No. D-830
ARISTOTLE A. RABANAL, M.D., No. D-832
LOUIS ANTHONY CO., INC., No. D-833
AMERICAN CAN COMPANY, No. D-834
MERCK, SHARP & DOHME, No. D-835
MUTUAL WHOLESALERS OF WHEELING, INC., No. D-836
WEST VIRGINIA NEWSPAPER PUBLISHING COMPANY,
No. D-837
WHEELING ELECTRIC COMPANY, No. D-838
KELLOGG SALES COMPANY, No. D-839
MARION PAPER, INC., No. D-840
EXXON COMPANY, U.S.A., No. D-841 A&B
WHEELING WHOLESALE GROCERY CO., No. D-844
PROCTOR & GAMBLE DISTRIBUTING CO., No. D-845
KIRK’S PHOTO ART CENTER, No. D-846
MONROE, DIVISION OF LITTON BUSINESS SYSTEMS, INC.,
No. D-847
THE UPJOHN COMPANY, No. D-848
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS
W. VA.] REPORTS
STATE COURT OF CLAIMS 169
HOFFMAN-LA ROCHE, INC., No. D-849
C & P TELEPHONE CO. OF W. VA., No. D-850
MYERS DRUG STORE, INC., No. D-854
ALLING & CORY, No. D-855
HONG I. SEUNG, M.D., No. D-856 A&B
MARSHALL COUNTY CO-OPERATIVE, INC., No. D-857
THE KROGER COMPANY, No. D-858
OHIO VALLEY MEDICAL CENTER, INC., No. D-860
STANDARD BRANDS INCORPORATED, No. D-861
ECONOMICS LABORATORY, INC., No. D-863
WYETH LABORATORIES, DIVISiON OF AMERICAN HOME
PRODUCTS CORPORATION, No. D-867
HILLANDALE FARMS, INC., No. D-869
WINANS SANITARY SUPPLY COMPANY, INC., NQ. D-870
CONSOLIDATED MIDLAND CORPORATION, No. D-871
ROBERT E. DURIG, O.D., No. D-872
DOCTORS ASAAD, INC., No. D-873
DOCTORS BARGER AND GORDON, INC., No. D-877
AMBULATORY CARE ASSOCIATES, INC., No. D-878 A&B
OHIO VALLEY DRUG COMPANY, No. D-886
IBM CORPORATION, No. D-887
THE CITY OF MOUNDSVILLE WATER DEPARTMENT,
No. D-889
GOLDSMIT-BLACK, INC., No. D-890
CRESCENT PRINT SHOP, No. D-894
PFIZER INC., No. D-897
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS
170 REPORTS STATE
COURT OF CLAIMS [W. VA.
PER CURIAM:
The foregoing claims are disallowed for the reason set forth in the Opinion of
this Court heretofore filed in deciding the claims of Air- kern Sales and Service, et al v. Department of Mental
Health, 8 Ct. Cl. 180, the factual
situations and the law applicable thereto being the same as that involved in
the foregoing decision of this Court.
Claims disallowed.
Opinion issued January 16, 1975
WILLIAM A. BARTZ III
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-722)
John W. Cooper, Attorney at Law and Frank Cuomo, Jr., Attorney at
Law, for the claimant.
Gregory W. Evers, Attorney at Law for the respondent.
DUCKER, JUDGE:
William A. Bartz III of Windsor Heights, Brooke County, West Virginia, suffered
serious back and other injuries on May 26, 1973 as the result of an accident in
which he was thrown from a motorcycle he was riding on the Windsor Heights
Road, County Route 30, south of Wellsburg in Brooke County, West Virginia. He
alleges that the road was in a bad state of repair and when the wheels of the
motorcycle struck rocks, dirt, mud clods and other debris approaching a blind
curve, he lost control of the motorcycle and was thrown over an embankment at
the side of the road curve, suffering damages in the amount of $65,000.00.
There were no witnesses to the accident except the claimant himself. The case
rests upon the question of negligence of the respondent in failure to properly
maintain the road and negligence of the claimant, either wholly or as
contributory. A determination of the
W. VA.]
REPORTS STATE COURT OF CLAIMS 171
extent of the injuries and the medical
expenses is not necessary in view of our decision herein of the question of liability.
According to the testimony of the claimant, he had gone to the Windsor Heights
Firemen’s Club the afternoon of the day of the accident, and upon meeting his
brother-in-law, he was asked if he wanted to go for a ride on the bike, meaning
the “66 DSA” motorcycle which was in joint ownership between them but which had
been ridden by the claimant “only a couple of times”. He had previously owned a
lighter “350 Yamaha” motorcycle, which he stated that when he had his bike “he
rode across that road all the time”. He left the Firemen’s Club and rode the 66
DSA motorcycle to a field a mile and a half away from the Club, turned to head
back to the Club and when he came to a point forty to fifty feet before the
curve he began gearing it down from 30 miles an hour to second gear at 25 and
20 miles respectively and holding to the right hand lane of the road because of
the curve. He said he struck several potholes, swung around to miss one, hit
some clods of dirt and then lost control of the motorcycle and was thrown from
it and injured. In his trip from the Club to the field which was a mile and a
half from the Club and about 800 to 1000 feet from the place of the accident,
he passed the site of the accident. He admitted seeing potholes, ridges, slag
and rocks in the road on both sides of the road, “but more so on the right hand
side”. He couldn’t use the left hand lane because of the curve. The accident
happened in good daylight, sunshiny weather.
The witnecs, John Dado, Deputy Sheriff of Brooke County, testified to the
effect that the Windsor Heights Road was a macadam road with no berm and which
was bad and had lots of chuckholes and ruts and had poor drainage with no
guardrails, arrows or signs as to condition. He said he traveled the road
frequently. Another witness testified to the same effect but admitted that a
lot of people traveled that way but he hadn’t seen any accidents on it.
The respondent relied chiefly on the testimony of John Chuchiak, Jr., the
maintenance superintendent of the respondent in Brooke County, who frequently
traveled the portion of the road in question and who was in charge of the
road’s maintenance. He stated that there had been no special maintenance of
this road since the accident, as it had been resurfaced twice in the past ten
years, that the ditch
172 REPORTS
STATE COURT OF CLAIMS [W. VA.
along the inner lane at the curve
carries the water off as the road slanted toward the ditch, that he did not
consider a depression of one and a half to two inches a pothole, and that there
were no potholes in the road in the area of the place of the accident. In
support f his testimony the respondent introduced seven photograph exhibits
portraying the road in the immediate area and of the place of the accident.
These exhibits are very clear, and to the Court they support fully the
testimony of the witness to the effect that there are no depressions which
really amount to potholes, although there is one depression which appears
slightly deeper than some of the rougher places of the road but not of the size
testified to by claimant as the one he apparently thought he struck causing him
to lose control of his motorcycle.
Much stress was laid by counsel as to the testimony of the witness, Chuchiak,
as to the repair and maintenance work done by the respondent on the road, as
not being proven by the records of the respondent, which would have been the
best evidence. As the witness testified according to his own personal
knowledge, we have considered that as admissible such evidence to such extent,
omitting all that was not so proven. Certainly the photographs were not so
subject to objection or exception.
The Windsor Heights Road is a secondary road which was apparently of the same
construction and maintenance requirements as all secondary roads in the State.
It was an average local service road and had to be accepted as such with the
usual maintenance requirements of such class of road, and not the maintenance
of a first class highway. So far as the record shows there had been no previous
accidents, although the road was constantly used by the claimant himself. The
road was reasonably safe for ordinary vehicular traffic. Furthermore, the
accident occurred in daylight and good weather, and with previous and present
full knowledge on the part of the claimant of the condition of the road, as he
had just shortly before the accident ridden the motorcycle over it at the very
place of the accident. We don’t know whether or not claimant’s knowledge or a
lack of the operation of the motorcycle he was riding contributed to his loss
of control of it, and it is not necessary for us to consider such possibility
in our decision.
We are of the opinion that the respondent has not failed in its
W. VA.] REPORTS
STATE COURT OF CLAIMS 173
duty to properly maintain this road, as there appear to be no defects or
obstructions of such magnitude as to have been the proximate cause of the
accident. A motorcycle with only two wheels is a more hazardous vehicle to
operate than an ordinary automobile with four wheels, and when a motorcycle is
ridden on a secondary road more care on the part of the rider is required. It
appears to us that the claimant knowing the condition of the road, which he
said contained lots of potholes, did not exercise due care or caution for his
own safety, and his accident was the result of his own negligence, and if there
was any negligence on the part of the respondent, then the claimant was guilty
of contributory negligence.
Accordingly, we are of the opinion to, and do hereby, make no award to claimant
in this matter.
No award.
Opinion issued January 16, 1975
JOHN L. COOPER
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-787)
No appearance for claimant.
Emerson W. Salisbury, Attorney at Law for the respondent.
DUCKER, JUDGE:
Claimant, John L. Cooper, of Rock,
West Virginia, and respondent stipulate that on or about May 7, 1972 claimant’s
truck was sprayed with red lead paint by agents of the respondent while the
latter were engaged in the painting of the respondent’s shed located at the laboratory
of Mercer County District Headquarters, and that the reasonable cost of
removing the paint was $25.00.
Accordingly, we award the claimant the sum of $25.00.
Award of $25.00.
174 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 16, 1975
DAIRYLAND INSURANCE COMPANY,
SUBROGEE OF STANFORD T. ALLEN
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-714)
Andrew I. Goodwin, Attorney at Law for the claimant.
Gregory W. Evers, Attorney at Law for the respondent.
DUCKER, JUDGE:
Dairyland Insurance Company, as subrogee of Stanford T. Allen, alleges that it
is entitled to recover damages in the amount of $1151.03, the cost of repairs
to the automobile of said Allen as the result of a collision with a loaded coal
truck owned by one Harry M. Morehead and operated by Edward Lee Morehead on
Secondary State Road No. 15/1 near that road’s intersection with State Route
102, at Skydusty, in McDowell County, West Virginia on June 22, 1972.
Claimant’s witness, State Trooper H. C. Ryan, investigated the accident after
it was reported to the office. He did not see it. According to his report and
testimony of James B. Jackson, a State Road employee who witnessed the
accident, the collision occurred on a practically level, two lane highway,
twenty feet three inches where some road work was in progress. There was no
machinery on the road except a tractor which extended some 14 to 16 inches on
the highway on the side of the south bound traffic lane, a short distance south
of the place of the collision. There was a curve bearing to the left as one
proceeded south, the direction in which Allen was proceeding, and the accident
occurred a comparatively short distance north of northerly end of the curve
which the truck traveling north had negotiated prior to colliding with the car.
The witness’ report and his testimony confirmed the fact that both the truck
and car were in the north bound lane of the road, the one in which the truck
had the right of way.
The only witness who saw the accident was the said James B. Jack-
W. VA.]
REPORTS STATE COURT OF CLAIMS 175
son, who had been working with a
grader filling in a hole in the road about three tenths of a mile south of the
place of the accident. He testified that he had removed the grader from the
road except for 14 to 16 inches of it remaining on the road, that there were
caution signs at both ends of the construction area, that Allen had already
passed the immediate area of construction and stopped and asked for some road
directions which witness said he could not give Allen, whereupon witness called
for the road flagman to come over to the south bound lane. When the flagman
didn’t come, “Allen pulled across the center line” into the south bound lane
and then talked to the flagman on that side of the road, the flagman then being
on the south end of the construction area where there was a “men working” sign.
When Allen saw the coal truck coming he tried to back over into the south bound
lane but there was not enough time to avoid the collision. The witness stated
that as the road had been cleared of the tractor there was no need for the
flagman for traffic in the south bound lane.
The testimony given by the State Trooper, who could only report what he could
see and learn after the accident, does not only refute to a substantial degree
the testimony of Jackson, who saw the collision, but it substantially confirms
the latter’s testimony. There was no obstruction of any consequence in the road
as the grader did not extend into the road enough to create a hazard and there
was no need of the flagman by Allen. There is no fact upon which negligence on
the part of the respondent can be based.
We are of the opinion, therefore, that the accident was caused solely by the
fault of Allen in driving over from the south bound lane of traffic to the
north bound lane and stopping there too long for clearance by the coal truck,
which was properly proceeding in the north bound traffic lane and consequently
we make no award herein.
No award.
176 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued January 16, 1975
JAMES M. DUFFY
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-738)
No appearance for claimant.
Emerson W. Salisbury, Attorney at Law for the respondent.
DUCKER, JUDGE:
The facts as stipulated by claimant,
James M. Duffy, of Greenland Circle, South Charleston, West Virginia, and
respondent are that on November 29th, 1973 the claimant was driving his
automobile in an easterly direction on old U. S. Route 60 in South Charleston,
West Virginia, a short distance east of the junction of Jefferson Road, when
the front end of his car fell into a hole in the travelled portion of the road,
damaging one tire and the wheel rim. The stipulation admits that the claimant
was driving at a lawful rate of speed and at that speed he could not see the
hole in time to avoid striking it; and furthermore there were no warning signs
to warn motorists of the defective condition of the street. Claimant claims
damages in the amount of $50.00, but the parties agreed that the sum of $25.00 is the
reasonable cost of repairs. Accordingly, we award the claimant the sum of
$25.00.
Award of $25.00.
W. VA.] REPORTS
STATE COURT OF CLAIMS 177
Opinion issued January 16, 1975
CLYDE M. ELLISON
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-788)
No appearance by claimant.
Emerson W. Salisbury, Attorney at Law for the respondent.
DUCKER, JUDGE:
Claimant, Clyde M. Ellison, of Princeton, West Virginia, and respondent have
stipulated the claimant’s 1972 Pinto automobile was sprayed with paint by
respondent’s workmen while the latter were painting a department shed located
at the laboratory of Mercer County District Headquarters on or about May 7,
1974, and that the sum of $25.00 is a fair and reasonable cost of necessary
repair. Accordingly, we award the claimant $25.00.
Award of $25.00.
Opinion issued January 16, 1975
HARRY C. HENDERSON
vs.
DEPARTMENT OF HIGHWAYS
(No. D-332)
William I. Oates, Esquire, for claimant.
Gregory W. Evers, Esquire, for respondent.
PETROPLUS, JUDGE:
This case was formerly tried before the Court as Claim No. D_332.* The claimant
alleged in the former hearing that applications of calcium chloride, sodium
chloride, rock sale, and other chemical solutions to U.S. Route 50 on the
Allegheny Front, near the intersection of Route 50 and Route 5 in Mineral
County, West Virginia, over
* See Henderson
v. Department of Highways, 9 Ct. Cl.
183.
178 REPORTS
STATE COURT OF CLAIMS 1W. VA.
a period of time destroyed his water
supply, which came from a well, making the water unusable for human consumption
and other domestic uses. The claimant also contended that the pollution of his
well destroyed his tourist stop business as well as his health and that of his
wife, resulting from the drinking of contaminated water from the well. The
respondent denied all of the allegations except that calcium chloride and other
chemicals were applied to the road surface in reasonable amounts to impede
freezing and make travel safe in the mountainous area of the Allegheny Front.
The case was tried on the claim of negligence and excessive and unreasonable
use of chemicals on the roadway surface. The Court concluded in the former
hearing that the claimant had not sustained the burden of proof required of him
by law and had not established that his property rights and the reasonable
enjoyment of his property had been invaded by any wrongful act of the
respondent. The Court also ruled that the claimant had made little or no effort
to mitigate damages but continued to use the contaminated water until he was
forced to suspend his business and seek medical treatment for the health
problems.
Admitting that it was well settled law that adjoining property owners have
correlative rights and must use their property in a reasonable manner so as not
to injure the property of their neighbors, the Court made a finding that in
balancing the conflicting interests of the traveling public and the protection
of adjacent private property, the interest of the traveling public should
prevail in this case, and further that a reasonable use of deicing chemicals on
a public road is not actionable. The Court further found that the damages for
loss of business, illness and medical expenses were consequential and not
proximately caused by the deicing procedures.
The claim was kept open for additional proof on whether the contamination and
pollution of the claimant’s water supply came from the improper and haphazard
storage of chemicals in open bins on a higher elevation of about 600 feet from
the claimant’s property.
On May 20, 1974, a rehearing was held and the plaintiff proceeded on the theory
that the pollution of his water supply was directly and proximately caused by
the improper storage of chemicals in open bins in the proximity of the
claimant’s property.
Sufficient and persuasive evidence was introduced that large quan
W. VA.]
REPORTS STATE COURT OF CLAIMS 179
tities of salt were stored on the
respondent’s land in such a manner that the action of rain and melting snows
would cause the salt to impregnate the surrounding land, and that the improper
storage methods of the State were responsible for the pollution of the
claimant’s well. Photographs were introduced by the claimant depicting a most
haphazard storage of chemicals in bins exposed to the weather and showing a
spreading of the salt solution over a wide area surrounding the bins. As the
record now stands, the method of storage depicted in said photographs does
establish a causal connection with the claimant’s damages.
A neighbor of the claimant who had a similar pollution problem was able to
rectify it by purchasing water purification equipment for the sum of
approximately $1900.00. The equipment improved the quality of the water but not
its taste.
The claimant testified that he drilled a new well on the property which gave an
unsatisfactory quantity and quality of water unfit for use, and that water was
hauled to the site of his property in order to keep the business operating. The
cost of drilling the new well was $621.00 and the water, although not
palatable, was sufficient for the restrooms and other purposes.
After considering all of the evidence on damages, the cost of purification
equipment which might have remedied the situation, and the expense incurred in
efforts to secure another water supply, it is the opinion of the Court that an
award of $6,600.00 should fairly compensate the claimant for the damages
incurred as the result of the State’s negligence. The Court finds it most
difficult to treat the property as a total loss for business and dwelling
purposes, and the claim for loss of business during a period of four years is
disallowed as consequential damage. The claims for sickness and medical
expenses incurred as a result of drinking polluted water are also disallowed as
consequential, and proof adduced that this sickness resulted from drinking the
polluted and contaminated water is unsatisfactory. Further, being aware of the
bad condition of the water, the claimant assumed the risk of physical
consequences that would result from drinking the unpalatable water.
For the foregoing reasons, the Court recommends an award in the amount
heretofore stated.
Award of $6,600.00.
180 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued January 16, 1975
SAMUEL MILLER
vs.
DEPARTMENT OF HIGHWAYS
(No. D-888)
PER CURIAM:
Claimant’s automobile, parked in driveway at his residence, was damaged by
blasting operations of respondent. Liability and damages are stipulated.
Award of $123.60.
Opinion issued January 16, 1975
MONONGAHELA POWER COMPANY
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-709)
L. Eugene Dickinson, Attorney at Law for the claimant.
Gregory W. Evers, Attorney at Law for the respondent.
DUCKER, JUDGE:
Claimant, Monongahela Power Company, alleges damages caused by respondent’s
blasting on April 6, 1973 at a rock quarry along State Route 15 between Valley
Head and Monterville, in Randolph County, West Virginia, rocks from which
damaged 12 KV conductors, the cost of repairing which amounted to $82.94.
The facts are stipulated to the effect that the damages were caused by the
conduct of the respondent and that the amount of the cost of repairs is fair
and reasonable. Accordingly the Court finds liability on the part of the
respondent and awards the claimant the sum of
$82.94.
Award of $82.94.
W. VA.] REPORTS
STATE COURT OF CLAIMS 181
Opinion issued January 21, 1975
JAMES F. KIRBY
vs.
ALCOHOL BEVERAGE CONTROL COMMISSION
(No. D-789k)
PER CURIAM:
The foregoing claim is disallowed for the reasons set forth in the Opinion of
this Court heretofore filed in deciding the claim of Cecile
H. Ruddell v. ABC Commission, Claim
No. D-789j, the factual situations and the law applicable thereto being the
same as that involved in the foregoing decision of this Court.
Claim disallowed.
Opinion issued January 28, 1975
VALLEY ANIMAL CLINIC
vs.
DEPARTMENT OF PUBLIC INSTITUTIONS
(No. D-911)
PER CURIAM:
The foregoing claim is disallowed for the reasons set forth in the Opinion of
this Court heretofore filed in deciding the claims of Airkern Sales and Service, et at v. Department of
Mental Health, 8 Ct. CI. 180, the
factual situations and the law applicable thereto being the same as that
involved in the foregoing decision of this Court.
Claim disallowed.
182 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued February 6, 1975
MILDRED MITCHELL-BATEMAN, M.D.
vs.
WEST VIRGINIA DEPARTMENT OF MENTAL HEALTH
(No. D-907)
PER CURIAM:
Claimant, Mildred Mitchell-Bateman, M.D., Director of the West Virginia
Department of Mental Health, alleges that she is entitled to receive the sum of
$2500.00 by reason of an increase of her salary from $22,500 to $25,000 a year
for her services as Director for the fiscal year July 1, 1973 to June 30, 1974,
pursuant to the amendment of Chapter 6, Article 7, Section 2a by the 1973
Legislature, effective July 1, 1973.
As the facts alleged and the amount claimed are stipulated as true and correct
by both claimant and counsel for the respondent, the claimant is hereby awarded
the sum of $2500.00.
Award of $2500.00.
Opinion issued February 6, 1975
CENTRAL INVESTMENT CORPORATION
Successor in business to BURGER BREWING COMPANY
vs.
NONINTOXICATING BEER COMMISSION
(No. D-740)
Dennis R. Vaughan, Jr., Attorney at Law for the claimant.
Henry C. Bias, Jr., Assistant Attorney General for the respondent.
DUCKER, JUDGE:
Burger Brewing Company, during the period from February, 1971, to January,
1973, purchased various tax paid crowns, lids and half
W. VA.]
REPORTS STATE COURT OF CLAIMS 183
barrel stamps from the respondent for
use by the brewery in future distribution of and sales of “out of state
manufactured” beer within the State of West Virginia, and before all of the
crowns, lids and half barrel stamps could be used by the Burger Brewing Company
a sale of the brewery was consummated with the Hudepohl Brewing Company of
Cincinnati, Ohio, whereby the latter company took over all the inventory of the
Burger Brewing Company except the unused crowns, lids and half barrel stamps
which, according to Regulation No. 9 of the Beer Commission, were not
transferable or usable by anyone other than Burger Brewing Company. Claimant
herein, Central Investment Company, as successor in business to the Burger
Brewing Company, but not as an operator of the brewery, retained title to. the
Burger Brewing Company real estate and the unused crowns, lids and half barrel
stamps, amounting to a total sum of $7,777.37. Claimant applied to the
Nonintoxicating Beer Commissioner for a refund but its claim was denied.
Claimant now seeks a refund in that amount, basing its claim upon the fact that
Burger Brewing Company has ceased to do business, cannot use the crowns, lids
and stamps and cannot under the law or regulations transfer the same to anyone
else. The factual circumstances involved in the matter are uncontroverted, and
the crowns, lids and half barrel stamps have been cancelled or destroyed and
the value thereof has been fixed by a stipulation of counsel for both claimant
and respondent.
The brewery company was required by Article 16 of Chapter 11 of the Code to pay
the tax evidenced by the crowns, etc. before it could sell or distribute in
West Virginia beer manufactured out of the State and necessarily it had to
purchase in advance and possess the tax stamps, etc. at the time of the
bottling and barreling of the beer. Because of the higher cost of buying the
crowns, etc. in small quantities, the brewing company purchased and paid the
tax on larger quantities of them, evidently being of the opinion that it would
be able to use the larger quantities.
In this case, we must consider the validity and application of Regulation No. 9
of the respondent, which reads as follows:
“Tax paid crowns and lids shall not be transferable from one purchaser to
another or reused without the consent, in writing, of the Commissioner.”
Counsel for claimant cite the case in this Court of General Foods
184 REPORTS
STATE COURT OF CLAIMS [W. VA.
Corporation v. Charles H. Haden
II, State Tax
Commissioner, Claim D-540, wherein the claimant was awarded the value
of soft drink tax stamps which claimant was unable to use because of a later
adopted Federal Regulation prohibiting the use of them. In that case the use of
the tax paid stamps was prevented by a law enacted after the stamps were
purchased. In the case at bar the use of the stamps was occasioned by the
economic or financial status or position of the purchaser which rendered the
purchaser unable to use the stamps which it had purchased.
The payment of the tax in advance was entirely anticipatory and somewhat
conjectural as to the needs of the brewing company for its future business.
While it may be argued that this case is similar to other license taxes which
are not refundable as to the amount of the unexpired portion of the time for
which the tax was paid, those cases in some instances permit assignment so that
an assignee can use the remaining portion of the period covered by the tax.
The Regulation quoted above, while quite positive in form, does not close the
door completely in the matter, in that it states the crowns, etc., are not
transferable to another “without the consent, in writing, of the Commissioner”.
Evidently there was some discretion in such matters left to the Commissioner as
to when he could or should consent to a transfer or reuse. Ordinarily where a
matter is left to the discretion of an officer all that can be enforced legally
is that he exercise his discretion. But where a purely equitable right is
involved we feel constrained to consider the fairness of the Commissioner’s exercise
of discretion. We are not aware of any statute under which claimant can demand
a refund. The regulation pertains only to transfer which might be construed as
prohibiting, by inference only, any refund.
Here, the State has required and received the payment in advance of its license
taxes in an amount which the taxpayer considered would be the amount of beer
which it would manufacture for sale and sell and distribute in West Virginia
within some reasonable period in the near future. There was convenience to the
State in such procedure in the advance collection of the tax from an
administrative standpoint, but it was also advantageous moneywise by the
receipt of the money in advance. The wisdom of the consent provision of the
Regulation cannot be seriously questioned, because there could be possible
fraud
W. VA.]
REPORTS STATE COURT OF CLAIMS 185
or other difficulty in such matters.
However, to consider the Regulation as mandatory in all cases, regardless of
possible or probable equity in some, is not, we think, a just and equitable
interpretation of the rights of some persons who because of special
circumstances the Regulation should not apply. Whether a person has been
prevented from using the tax paid crowns, etc. by reason of some subsequently
enacted law or regulation, or by reason of some financial condition rendering
him unable to use the stamps, it seems unfair for the taxpayer to suffer the
loss of the value of what is really just a tax overpayment. Each case of this
nature must be determined by its own particular facts. Here the State has not
been damaged, and the retention by the State of the amount of the overpayment
amounts to an unjust enrichment on the part of the State; and pursuant to our
authority to consider and decide claims in which, as the statute provides, “the
State should in equity and good conscience discharge and pay”, we are of the
opinion that the facts in this case justify the refund sought, and we do hereby
award the claimant the sum of
$7,777.37.
Award of $7,777.37.
Opinion issued February 6, 1975
HOFFMAN-LA ROCHE, INC.
vs.
WEST VIRGINIA DEPARTMENT OF MENTAL HEALTH
(No. D-902)
PER CURIAM:
Claimant sold and delivered to respondent at Barboursville State Hospital
valium tablets for use by respondent in said hospital pursuant to orders
therefor, and within budgetary provisions for the incurring of said expenditure
at the price of $275.94. The facts relating thereto and the amount thereof
being stipulated by claimant and respondent, the claimant is hereby awarded the
sum of $275.94.
Award of $275.94.
186 REPORTS STATE
COURT OF CLAIMS [W. VA.
Opinion issued February 6, 1975
NORFOLK & WESTERN RAILWAY COMPANY
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-739)
PER CURIAM:
Claimant’s slide fence and railroad track between Rock and Matoaka, West
Virginia, were damaged by blasting operations of respondent, and the damages
are stipulated.
Award of $1,258.29.
Opinion issued March 26, 1975
MARYLAND CASUALTY COMPANY
vs.
ALCOHOL BEVERAGE CONTROL COMMISSION
(No. D-656)
John F. Wood, Jr., Attorney at Law for claimant.
Henry C. Bias, Jr., Assistant Attorney General for respondents. GARDEN,
JUDGE:
By decision of this Court issued on October 22, 1974*, the claim of Maryland
Casualty Company for refund of its forfeited liquor license bond was denied. A
Class C license issued by the Alcohol Beverage Control Commission had been
revoked by reason of the conviction of the licensee before a justice of the
peace for violation of Code 61-10-6, permitting gaming on tavern premises. The
statutory bond upon which claimant was surety was thereafter declared forfeited
and upon demand of the Commissioner claimant paid over the penal sum.
The claim for refund was denied by this Court on the ground that the attempted
appeal by the licensee was untimely and the conviction had become final.
* See Maryland
Casualty Company v. Alcohol Beverage Control Commission, 10 Ct. Cl. 126.
W. VA.1 REPORTS
STATE COURT OF CLAIMS 187
Claimant, upon rehearing, now contends that the conviction was void for want of
jurisdiction and that the bond forfetiture should be set aside.
We concur. Justices of the peace can exercise no criminal jurisdiction other
than that conferred by statute. State
v. McKain, 56 W.Va. 128, 49 S.E. 20.
The general jurisdiction of justices over misdemeanors is found in Code
50-18-1. Many other offenses are brought within the jurisdiction of justices by
specific statutes. See footnote to Code 50-18-1. We find no statute giving a
justice of the peace jurisdiction over the offense of gaming with which the
licensee was charged under Code 61-10-6. Lacking jurisdiction, the judgment of
conviction was void.
A void judgment is a mere nullity and “. . . it may be, at any time and in any court having jurisdiction, attacked
directly or collaterally.” State ex
rel. Valley v. Oakley, 153 W.Va. 94,
100, 168 S.E.2d 532 (1969).
It is regrettable that counsel for claimant failed to raise the jurisdictional
issue at the original hearing. However, in the interests of justice the
decision of October 22, 1974 denying the award is hereby vacated and the award
is now granted in the sum of $2500.00.
Award of $2500.00.
Opinion issued March 26, 1975
OPAL BAKER THOMAS and ELSEY THOMAS
vs.
DEPARTMENT OF HIGHWAYS
(No. D-307)
A. Dana Kahie, Esq., for claimants.
Gregory W. Evers, Esq., for respondent.
GARDEN, JUDGE:
On May 24, 1968, the claimants resided
in Ruby Trees Addition of the City of Moundsville, Marshall County, West
Virginia. Prior to
188 REPORTS
STATE COURT OF CLAIMS [W. VA.
that date, the respondent, through an
independent contractor, erected a temporary bridge or causeway over Middle
Grave Creek and used the same to haul heavy construction equipment in
connection with the erection of a bridge across said Creek. After the
completion of the bridge, the claimants requested respondent to remove the
temporary bridge or causeway because of a danger of flooding their property.
This was not done and on May 24, 1968, a flooding occurred which completely
inundated the home of claimants destroying and damaging items of personal
property of a total value of $5,999.55,
according to the Notice of Claim.
The liability in this claim was not contested, counsel for respondent in his
opening statement admitting the same. The problem that confronts this Court is
that of making a proper award and one that will make the claimants “whole”. The
items of personal property that were destroyed ranged from three used
automobiles, a freezer, and a hot water tank to the contents of the freezer
consisting of beef, poultry, and frozen foods. As a matter of fact, 18 separate
items of personal property were alleged to have been destroyed. The testimony at
the hearing by the claimants was far from satisfactory and certainly did not in
any way meet the degree of proof necessary to establish a proper measure of
damages.
There was introduced at the hearing as a joint exhibit an affidavit of
claimant, Opal Baker Thomas, setting forth the various items of personal
property alleged to have been destroyed. In this affidavit she places a fair
market value for each item immediately before they were destroyed, and with the
exception of a salvage value of $10.00 for each of the automobiles, she asserts
that remaining items of personal property had no value after the flood. In her
opinion, according to the affidavit, these items, less salvage, had a total
value of $3,759.00. The problem with her estimates as contained in the
affidavit is in the fact that her valuations immediately prior to their
destruction equals the amount that the claimants paid for such items, with the
exception of the $10.00 salvage for each of the three automobiles. This would
not disturb the Court, except that the affidavit further reflects that most of
the items were purchased some time prior to their destruction and some as early
as three years before the loss on May 24, 1968.
Mere speculation or conjecture is not proper proof of damages and the law in
this State is clear that damages must be proved with rea
W. VA.]
REPORTS STATE COURT OF CLAIMS 189
sonable certainty. We have scrutinized
each item of personal property destroyed and have attempted to place a
reasonable fair market value on each item considering its cost and the date of
purchase, and we have attempted to be fair to both the claimants and the State
and have arrived at a total valuation of $1,920.00.
Award of $1,920.00.
Opinion issued March 26, 1975
OATHER T. VANCE
vs.
DEPARTMENT OF HIGHWAYS
(No. D-723)
Claimant present in person.
Emerson Salisbury, Esq., for respondent.
GARDEN, JUDGE:
The claimant, 71 years of age, on a day in January of 1974 was walking on the
sidewalk in a westerly direction on the north side of 7th Avenue near its
intersection with Rebecca Street in Charleston, West Virginia. He had been to a
neighborhood grocery store for his daughter and was proceeding back to her home
with a bag of groceries in one arm and a carton of soft drinks in the other. According
to his testimony, he was looking down, observing where he was walking.
Apparently, a week or so before this incident, the Department of Highways had
constructed a route direction sign in the sidewalk on the north side of 7th
Avenue.
The sign itself was erected on a standard approximately 61” above the sidewalk
and the standard itself was approximately 39½” north of the edge of the
sidewalk on the north side of 7th Avenue.
The claimant testified that he had been in this area on other occasions, but not
very often. While he did not so testify, it must be assumed from the record
that he never saw the sign and simply walked into it, receiving a laceration on
his forehead. The day following the incident, he visited his family doctor who
bandaged the
190 REPORTS
STATE COURT OF CLAIMS [W. VA.
lacerated area and rendered a bill in
the amount of $10.00. This was his only visit to his doctor, and the above
mentioned doctor bill was his only item of special damage.
The respondent, by counsel, indicated on the record that in his opinion the
sign should not have been erected in this particular location. However,
assuming negligence on the part of the respondent, it is this Court’s opinion
that as a matter of law, the claimant was guilty of contributory negligence.
Pedestrians are bound to use ordinary and reasonable care to avoid danger and
are not entitled to recover for injuries inflicted by coming in contact with
obstructions which are obvious to the most casual observer. 17 M.J., Streets
and Highways, § 145. Accordingly, this Court is inclined to and makes no
award.
No award.
Opinion issued March 26, 1975
JERRY W. WARE
vs.
ADJUTANT GENERAL
(No. D-774)
Thomas 0. Mucklow, Esq., for the claimant.
Henry C. Bias, Jr., Assistant Attorney General for the respondent. GARDEN, JUDGE:
On July 15, 1972, PFC Paul A. Keamy was operating a 1¼ ton truck
and trailer loaded with camp equipment owned by the Adjutant General and which
was part of a National Guard convoy enroute from Morgantown to Elkins, West
Virginia. In attempting to negotiate a curve in the Town of Junior,
Barbour County, West Virginia, Kearny lost control of the truck and trailer and
as a result, it left the roadway and struck a residence owned by the
claimant. The testimony revealed that this property had been purchased by the
claimant
W. VA.]
REPORTS STATE COURT OF CLAIMS 191
in 1970 for the sum of $2,500.00. The
impact caused extensive damage to the front room or living room of the
residence knocking out all five windows and destroying all the floor joists in
the room (being 12 in number).
While the answer filed by the respondent denied negligence, there was no
dispute at the hearing concerning the same. The principal issue in this claim
is the amount of damages that should be awarded to claimant. Subsequent to the
hearing, and by agreement of counsel, a deposition of one, Ken Auvil, was taken
on behalf of the claimant. This witness testified that he had been in the home
building business since 1962 and was familiar with the cost of repairs in the
Upshur County area and was, in addition, familiar with real estate values in
that County. Auvil estimated the cost of repairing the house to be in the
amount of $2,400.00, but more importantly to this Court, he indicated that the
value of the residence was reduced between $1,500.00 and $2,000.00 as a result
of the accident.
In addition to the actual damage to the residence, the claimant testified that
it became necessary for him to seek other living accommodations, and that he,
since the date of the damage to the residence, had been living with a friend
and was contributing $20.00 per month towards the rental of his friend’s
property. In his complaint, the claimant contends that he should recover this
rental expense in the amount of $600.00, or for a period of 30 months.
While the case of Cline v. Paramount
Pacific, Inc., (W. Va.) 196 SE 2d 87
(1973), would seem to indicate that the proper measure of damages for temporary
damage to real estate is the cost of repairs, we feel that the better view and
the one followed by this Court in prior decisions, is the diminution of the
market value, and consequently, an award of $2,000.00 for the damage to the
residence is hereby made. We further believe that the claimant has failed to
comply with his legal duty of minimizing damages in respect to the rent claim,
but we do feel that an award of $60.00 covering his rental expense for a
three-month period is justified and reasonable.
Award of $2,060.00.
192 REPORTS
STATE COURT OF CLAIMS [W. VA.
Opinion issued April 2, 1975
THE SANITARY BOARD OF THE CITY OF
WHEELING
vs.
WEST VIRGINIA DEPARTMENT OF HIGHWAYS
(No. D-735)
John L. Allen, Attorney at Law for the claimant.
Dewey B. Jones, Attorney at Law for the respondent.
DUCKER, JUDGE:
The Sanitary Board of the City of Wheeling seeks reimbursement in the amount of
$8,544.52 expended by claimant in the restoration of the easterly river bank of
the back channel of the Ohio River in Wheeling and the replacement of a part of
the interceptor sewer of the City of Wheeling near and adjacent to the said
river bank. Claimant alleges the river bank had eroded and the sewer had been
broken by erosion of the land under the sewer resulting from eddies in the flow
of the river water around the bridge piers constructed by the respondent for
the Interstate 70 bridge crossing the Ohio River at that place. The amount of
damage was stipulated to be the amount claimed.
The interceptor sewer was constructed in 1958 and the bridge on Interstate 70
in 1965, and the failure of the sewer was discovered and repaired in 1973. A
resident of Wheeling Island reported that there was a leak from the sewer,
which was both a sanitary and a storm sewer, polluting the river and creating a
nuisance, whereupon an investigation was made and it was discovered that the
sewer had actually failed and that there had been a washout and all the waste
water from the north end of Wheeling Island was discharging into the back
channel of the Ohio River.
The testimony is that a two foot rise in the pool stage of the river impedes
the flow of the water around the bridge piers and causes it to go arourd the
pier, backs up its flow on the other side and creates eddy currents which erode
the bank and remove the ground support
W. VA.]
REPORTS STATE COURT OF CLAIMS 193
of the sewer, causing the sewer to
break. The slope of the bank at the point of the sewer breakage was 40 feet
high with an approximately two to one foot slope, and the soil was of a sandy,
silty texture. The reparation of the sewer and the eroded area involved
thirty-eight feet of the sewer line. When the river was at a 620 foot above sea
level elevation, the water would be on the foot of the bridge pier, and for 132
days a year when it was at that stage and elevation the eddy currents occurred.
There was a distance of 30 feet between the bridge piers, and the sewer
breakage was about 40 feet south of the southerly pier. There was no other
noticeable erosion of the river bank in the area of the piers and the sewer,
except where the sewer failed, but there was installed south of the pier a
headwall structure with a top elevation of 625 feet, which did create some
erosion.
The respondent’s evidence is to the effect that there was a two foot depth of
water “working on the toe of the slope” of the river bank at the place of the
sewer failure and that such flow of water could have caused the bank to slide.
This assertion is alleged to be negated by the fact that the uppermost pier is
struck by water at five feet and the lower pier by two feet. Claimant says the
drop of three feet between the piers was due to the scouring and washing over
the stone that had been placed on the bank between the piers causing the ground
to be three feet lower in that area. No leak in the sewer had been discovered
before its complete failure.
The respondent’s testimony was to the effect that while there are always eddy
currents wherever you have a flow against immovable objects, there were no
large or major eddy currents at the piers and there was nothing unusual caused
by the stems of the piers. Water from Wheeling Creek came in partly above the
1-70 bridge and caused some turbulence in the water, mixing under the bridge
and down below. The sewer line runs about seven feet east of the easterly line
of the piers and at an elevation of 630 feet above sea level or about twelve
feet above normal pool stage of the river. The principal witness for the
respondent testified that in his opinion the following things possibly could
have caused the failure of the sewer, namely:
an increased flow of Wheeling Creek caused by Interstate construction
increasing the runoff and an undermining of the bank and a consequent slip; a
leak in the sewer which would soften the material and increase the weight of
the sewer, which being both sanitary and
194 REPORTS
STATE COURT OF CLAIMS [W. VA.
storm, could have caused the failure
with a slide; and that there had been erected in 1967 after the piers were
constructed a major sign structure, a hundred feet high, 30 feet above the
water, up the bank from the sewer, with major concrete footers. The wind load
of the sign would cause vibration which would be transmitted to the ground, and
affect the area of the sewer failure.
George Alan Hall, an expert soils engineer, testified that the eddy currents
were evidently created by the entrance flow of Wheeling Creek from Ohio just
north of the 1-70 west bound bridge. He said it is virtually impossible to
reconstruct exactly what happened, but that based on the evidence which he had
examined, he would say that it’s quite possible, in his opinion, that erosion
not of the river bank but of the river bottom and the extension of scouring
downstream undercut the river bank and permitted a landslide. He further
testified that from the contours of the map of the river there was a concavity
in the contours of the bank, which implies that surface water has been running
off toward the river bank at the part involved, and that as such surface water
runs over the granule soil, it seeps into the ground and toward the river bank creating
forces which tend to force the soil downward and outward, and that, probably
with other factors, resulted, he believes, in a landslide causing the sewer to
break. He further stated that he thought there was a good possibility that the
failure of the sewer would have occurred even if the bridge had never been
built.
Neither the claimant nor respondent has proved by factual evidence the cause of
the sewer failure; they have had to rely almost entirely on circumstantial and
opinion evidence. This, of course, leaves much to conjecture, which is not
usually a basis for judgment. To allow a recovery for the claimant against the
respondent, negligence on the part of the latter should be proved by a
preponderance of the evidence. We cannot conclude that either the construction
of the bridge piers was so done in the river as to cause the flow of the water
to form eddies which would undermine the land under the sewer and destroy the
sewer, or that the slide of the bank and the undermining of the ground under the
sewer line was caused by other water pressures than the bridge construction.
From the evidence we cannot with any reasonable degree of certainty determine
what the real cause of the sewer failure was. Accordingly, inasmuch as we are
of the opin
W. VA.] REPORTS
STATE COURT OF CLAIMS 195
ion that the claimant has not shown by a preponderance of the evidence that the
damages suffered were the result of actionable negligence on the part of the
respondent, we can make no award herein to the claimant.
Judge Garden did not participate in the consideration or decision of this
claim.
Claim disallowed.
Opinion issued May 28, 1975
LEONARD JOHNSON FUNERAL HOME, INC.
vs.
WORKMEN’S COMPENSATION FUND
(No. D-797)
Milton S. Koslow, Attorney at Law, for the claimant.
Henry C. Bias, Jr., Assistant Attorney General, and Michael Crane, Attorney
at Law, for the respondent.
JONES, JUDGE:
The claimant, Leonard Johnson Funeral Home, Inc., seeks payment of the sum of
$1,200.00 for the Paul Guy Moore funeral services performed in September, 1973,
and compensable in that amount under an award by the respondent, Workmen’s
Compensation Fund. The respondent admits liability in the amount of $1,200.00
under West Virginia Code 23-4-4, but says it is entitled to an offset of $500.00
by reason of an erroneous payment in that amount to the claimant for funeral
services rendered in an earlier, unrelated claim.
In 1969, the State Compensation Commissioner determined that the claim of Opal
Kirk for the death of her husband, Harold A. Kirk, was compensable and on July
7 of that year the then allowable award of $500.00 was paid by the respondent
to the claimant. Thereafter, on October 10, 1972, pursuant to a Workmen’s
Compensation
196 REPORTS
STATE COURT OF CLAIMS LW. VA.
Appeals Board ruling, the original
order was set aside and the claim rejected on the ground that Kirk’s death was
not a result of an injury received in the course of his employment. Under date
of April 16, 1973, the respondent demanded that the claimant refund the
erroneous payment. The claimant did not comply, and on or about January 10,
1974, after deducting the $500.00 paid on the Kirk account, a State warrant for
$700.00 was issued and delivered to the claimant as payment in full of the Paul
Guy Moore account, which payment was refused and the warrant was returned to
the respondent. The respondent contends that in cases involving payments to
doctors, hospitals and funeral homes, it is the customary practice of the
respondent to correct erroneous payments on account by offsetting obligations
later incurred.
It is the Court’s view of this matter that the estate of Harold A. Kirk and his
widow, Opal Kirk, were primarily liable for the payment of the funeral
expenses; that as permitted by statute, the respondent elected to pay the
funeral expense award directly to the claimant rather than to the estate or to
Mrs. Kirk; that the services were rendered to the estate and the widow and not
to the respondent; that the charges made by the claimant were just and
reasonable; that the claimant is not indebted to the respondent, and, therefore, the
respondent is not entitled to an offset; and that the respondent’s recourse, if
any, is against the estate of Harold A. Kirk, deceased, or his widow, Opal
Kirk. Accordingly, an award is hereby made to the claimant, Leonard Johnson
Funeral Home, Inc., in the amount of
$1,200.00.
Award of $1,200.00.
REFER EN C ES
Abandoned Property Moving Expenses
Advisory Opinions National Guard
Adjoining Landowners Negligence—See also Blasting; Falling
Blasting Rocks; Landslides; Motor Vehicles;
Board of Regents Streets and Highways
Bridges Notice
Building Contracts Nuisance
Civil Service Parks and Playgrounds
Colleges and Universities—See Board Physicians and Surgeons—See
of Regents; W. Va. University Hospitals
Condemnation—See Eminent Domain Poisons
Contracts—See also Building Police
Contracts Printing
Damages Public Officers
Deeds Rehearing
Drains and Sewers—See also Waters Releases
and Watercourses Relocation Assistance
Easements Sidewalks—See also Negligence
Electricity State
Eminent Domain Statutes
Expenditures Stipulation and Agreement
Falling Rocks—See also Landslides; Streets and Highways—See also Fall-
Negligence ing Rocks; Landslides; Motor Ve Fire and Fire Protection hides;
Negligence
Flooding Taxation
Horse Racing Commission Travel Expenses
Hospitals Trees and Timber
Independent Contractors Trespass
Joint Tortfeasors Wages
Judgments and Decrees Warranty
Jurisdiction Waters and Watercourses—See also
Drains and Sewers; Wells
Landlord and Tenant
Wells
Landslides
W. Va. University-See also Board
Mandamus of Regents
Mines and Minerals Workmen’s Compensation Fund
Motor Vehicles
[197]
198 REPORTS STATE
COURT OF CLAIMS [W. VA.
ABANDONED PROPERTY
A claimant is entitled to an award of
damages for the taking and destruction of two automobiles where no notice had
been given to the claimant by the respondent in compliance with Chapter 17,
Article 24, Section 6 of the W. Va. Code pertaining to abandoned
vehicles. Stanley v. REAP (No. D-730) 106
ADVISORY OPINIONS
The Court advised the Board of
Architects to pay travel expenses of certain members where the Board had
sufficient funds and general revenue of the State was not involved. Elden,
Et al v.
Board of Architects (No. D-703—D-707) 80
The Court advised the respondent to pay the claimant for ten months rent even
though no formal lease agreement was prepared or signed, but the premises were
accepted and used by the respondent University and a formal lease was later
entered into for the premises.
Hardesty v. Board of Regents (No. D-658) — —--- 55
ADJOINING PROPERTY OWNERS
Claimants were made an award for damage to real property where the Court found
that the damage was proximately caused by a blast from a blasting operation
being operated by employees of the respondent in a quarry not far from the
claimants’ property.
Galyean v. Department of Highways (No. D-575) 121
Claimant was entitled to damages to compensate him for pollution to his well
where the respondent stored salt on his land in such a manner that the action
of rain and snow would cause the salt to impregnate the surrounding land and
pollute the well. Henderson v.
Department of Highways (No. D-332) — 177
BLASTING
Claimant was entitled to an award for
damage to a water service line while employees were engaged in a blasting
operation which caused the damages. Coal River Pub. Svc. Dist. v. Department
of Highways
(No. D-699) 92
Claimant was awarded for the cost of having a well drilled when the well was
destroyed as the proximate result of blasting by employees of the respondent. Corzine
v. Department of Highways
(No. D-778) 144
Where claimant’s automobile was damaged by a dynamite blast set off by
employees of the respondent, the respondent will be liable for the trespass
upon the claimant’s property. Dietz v. Department of
Highways (No. D-682) 98
Claimants are entitled to an award for damage to real property where the Court
determined that the damage was proximately caused by a blast from a blasting
operation being operated by employees of the respondent in a quarry not far
from the claimants’ property.
Galyean v. Department of Highways (No. D-575) 121
W. VA.] REPORTS
STATE COURT OF CLAIMS 199
The Court determined the difference in value of the property immediately before
and immediately after blasting occurred which caused damage to the property
based upon the Court’s view of the premises and the testimony of construction
experts for both the claimants and the respondent with regard to the cost of
restoring the property to its value immediately prior to the blasting, Galyean
v. Department of Highways (No. D-575) 121
An award of $235.40 was made to the claimant for damages to its telephone
cable, which damages occurred when respondent’s employees were engaged in a
blasting operation to widen a State road. General Telephone Company of the
Southeast v. Department
of Highways (No. D-616) — 22
See also Miller v. Department of Highways (No. D-888) 180
See also Monongahela Power Co. v. Department of Highways
(No. D-645c) 38
See also Monongahela Power Co. v. Department of Highways
(No. D-709) 180
See also Norfolk and Western Railway Co. v. Department of High way (No.
D-739) 186
Claimant is entitled to an award for damages to his residence and well when
such damages are the result of blasting by the respondent. State Farm Fire
& Casualty Ca. vs. Department of High way (No. D-599) 51
The claimant telephone company was awarded damages where employees of the
respondent, engaged in the blasting of a ditch line, damaged claimant’s
telephone wires. Tygart Valley Telephone Co.
v. Department of Highways (No. D-779) 102
BOARD OF REGENTS
An advisory opinion of the Court was
issuable within the jurisdiction of the Court of Claims, advising the
respondent to pay the claimant for ten months rent even though no formal lease
agreement was prepared or signed, but the, premises were accepted and used by
the respondent University and a formal lease was later entered
into for the premises. Hardesty v. Board of Regents (No. D-658) . 55
Claimant was made an award of $269.00 which constituted the cost of replacing a
worthless motor with a serviceable motor when a truck purchased by the claimant
from the respondent upon submission of a sealed bid was sold in an “as is”
condition from fire damage and not as a truck without a motor, which is what
claimant discovered after the purchase. McGuffey v. Board of Regents (No.
D-624) 35
Claimant was made an award for property owned by it which was stolen when the
respondent did not take the proper precautions to care for and protect
claimant’s property while it was being used by the respondent. Raines Piano
& Organ Center, Inc. v. Board of
Regents (No. D-743) 139
BRIDGES
The claimant is entitled to an award
for damages to his automobile which had struck a piece of iron which had come
loose from the
200 REPORTS STATE
COURT OF CLAIMS [W. VA.
center section of a bridge as the result of respondent’s negligence.
Carney v. Department of Highways (No. D-761) 103
Claimant is entitled to an award for damages sustained by his automobile while
crossing a bridge and the automobile was struck by a section of non-glare metal
fence owned and maintained by the respondent where the respondent admitted
liability and stipulated the amount of damages due the claimant. Lantz v.
Department of
Highways (No. D-647) 145
Damages are awardable to a claimant whose insured’s truck was struck when
employees of respondent negligently threw gravel over the side of a bridge and
the gravel landed on the truck. Nationwide
Mut. ins. Co. v. Department of Highways (No. D-713) 82
Claimant cannot recover damage for injuries sustained in an accident which
occurred while the claimant was backing his automobile towards a bridge and
struck the wingwall of the bridge, as it was necessary for the claimant to
prove that the accident occurred on a road which the State was required to
maintain and that the State had failed to properly maintain such road and that
such failure was the proximate cause of the accident without any contributory
negligence on the part of the claimant. Runion v. Department of Highways (No.
D-660) —
141
Claimants were made an award for the loss of personal property when the
respondent failed to remove a temporary bridge which resulted in flooding to
the claimant’s property. Thomas v. Depart men of Highways (No. D-307)
187
Claimant was awarded damages when her automobile was damaged
when the respondent negligently placed a large piece of steel on a
traveled portion of the bridge and claimant’s automobile struck said
piece of steel. Via v. Department of Highways (No. D-822) 165
BUILDING CONTRACTORS
Where the contractor relied upon
pre-bid assurances as to an access road to the construction project which was
to be completed prior to or soon after the commencement of construction work,
the claimant was made an award for the delays which resulted to him Baltimore
Contractors, Inc. v. Department of Natural Resources
(Nos. D-5l0, D-516, & D-528) 148
The claimant contractor should have mitigated its damages by shutting down the
job temporarily or through improvement of the roads where “country access
roads” never intended to carry loads in wintertime were used to haul materials
to the job sites resulting in great expense to the contractor. Baltimore
Contractors, Inc. v.
Department of Natural Resources (Nos. D-510, D-5l6 & D-528). 148
Where the contractor was required to “stake out” the buildings of the
construction project, but the necessary starting points were not there due to
unsatisfactory aerial surveys furnished by the respondent, the Court made an
award to reimburse claimant for having to hire the engineer who had originally
laid out the road for the respondent.
Baltimore
Contractors, inc. v. Department of Natural Resources
(Nos. D-SlO, D-516 & D-528) 148
W. VA:] REPORTS
STATE COURT OF CLAIMS 201
The acceptance of a change order extending the time for completion of a project
does not waive or prejudice the contractor’s claims for damages due to delays
attributable to the respondent. Baltimore Contractors, Inc. v. Department of
Natural Resources
(Nos. D-510, D-516, & •D-528) 148
A contractor’s claim for direct costs allegedly incurred as the result of an
architect’s redesign and delayed approval of shop drawings for window walls,
the Court denied such claim as it appeared that the contractor would not have
gained any advantage in time or otherwise if the drawings had been approved
earlier and the windows ordered. Baltimore Contractors, Inc. v. Department
of
Natural Resources (Nos. D-510, D-516 & D-528) 148
The extra expense incurred by the contractor in drilling jack holes for two
elevator shafts was denied by the Court as this was not attributable to any act
or omission of the respondent, but was the probable and direct result of the
failure of the contractor to utilize a known and correct drilling procedure
which would have nullified the excessive costs. Baltimore Contractors, Inc.
v. Department of
Natural Resources (Nos. D-5l0, D-516 & D-528) 148
A contractor’s claim for unanticipated expenses incurred in drilling jack holes
for two elevators was denied where the Court found that this was not a
subsurface condition materially differing from those shown on the plans for the
project. Baltimore Contractors, Inc. v. Department of Natural Resources (Nos.
D-510, D-516, & D-528).
Unless there is a breach of contract or wrongful delay on the
part of the respondent, additional costs to the contractor do not
justify additional compensation as the State does not guarantee a
profit or the indemnification of a loss when it contracts for a
construction project. Black Rock Contracting, Inc. v. Department of
Highways (No. D-493) 12
A contractor’s claim for delay was denied by the Court where the contract made
no provision for test beams of concrete and the respondent chose to hold the
contractor to the 14 days curing time provided by Section 2.36.3 (5) of the
Standard Specifications for Roads and Bridges. Black Rock Contracting, Inc.
v. Department
of Highways (No. D-493) 12
Even though extra work may delay a project, if the work was not the result of a
changed condition for which the respondent is accountable, the contractor is
not entitled to additional compensation. Black Rock Contracting, inc. v.
Department of Highways (No.
D-493) 12
The Court did not find a “changed condition” sufficient to entitle the claimant
to additional compensation where additional excavation was performed even
though a supplemental agreement was necessitated to provide for payment to the
contractor for borrow excavation not contemplated in the original contract. Black
Rock Contracting, inc. v. Department of Highway (No. D-493) 12
Claimant’s request for additional compensation for unclassified excavation was
denied by the Court where the quantity of unclassified excavation did not
increase by 25% as required by one of the sections of the Standard
Specifications for Roads and Bridges. Black Rock Contracting, Inc. v.
Department of Highways (No.
D-493). 12
202 REPORTS STATE
COURT OF CLAIMS LW. VA.
CIVIL SERVICE
The claimant was denied recovery for
annual leave where the Court found from the evidence that the claimant was a
per diem employee and therefore, under the rules and regulations of the Civil
Service System was not entitled to payment for annual leave, and such payment
would have been illegal. Newcome v. Civil Service
System (No. D-754) 146
COlLEGES AND UNIVERSITIES—See
Board of Regents; W.Va. University
CONDEMNATION—See Eminent Domain
CONTRACTS—See also Building Contracts
Claimant was made an award for hospital
charges where a contractual obligation existed, and there were sufficient funds
to pay the charges but payment was deferred pending negotiations by the
respondent with an insurance company during which time the fiscal year ended. Albert
B. Chandler Medical Center, University of Kentucky v. Department of Voc. Ed.,
Div. of Voc. Rehab. (No. D-68la). See also Physician Accounts Dept.
Albert B. Chandler Medical Center, Univ. of Kentucky v. Dept. of Voc. Ed., Div.
of
Voc. Rehab. (No. D-681b) 67
Promises or assurances given by a road contractor or his employees that an
access road would be provided the claimants do not create any obligation
binding upon the State, the road contractor and its employees not being agents
of the State. Boehm v. Department of
Highways (No. D-613) 110
Promises and representations of a right of way agent employed by the
respondent, which exceed the scope of the agent’s limited or apparent
authority, do not create a contractual obligation on behalf
of the State. Boehm v. Department of Highways (No. D-613) 110
Promises or assurances given by a road contractor or his employees that an access
road would be provided the claimants do not create any obligation binding upon
the State. Boehm v. Department of
Highways (No. D-6 13). (Petition for rehearing) 140
The unauthorized conduct of an independent road contractor, even if approved by
the supervising personnel of the respondent, does not create a binding
contractual obligation upon the State. Boehm
v. Department of Highways (No. D-613). (Petition for rehearing). 140
Where the claimant performed extra work which could not be considered as part
of the work contemplated by either the original contract or subcontract, and
the claimant did such work under authority of the business manager, it was
unjust enrichment on the part of the State if the claimant was not reimbursed
for such work. Brunetti Hardware & Painting v. Department of Mental
Health
(No. D-676) 96
Where the claimant performed extra work in good faith and in reliance upon the
action of the respondent’s agent, the requirements and procedure under Chapter 5a,
Article 3 of the Code of W. Va. relating to the purchasing procedures of
the State should not be strictly applied when to do so would deprive a citizen
of the State of his just and equitable rights. Brunetti Hardware &
Painting v.
Department of Mental Health (No. D-676) 96
W. VA.] REPORTS
STATE COURT OF CLAIMS 203
The Court disallowed claimant’s claim for extra work done under an alleged
contract which claimant entered into with the respondent as the facts did not
disclose evidence of a contract nor evidence of value of extra services on a
quantum meruit basis. Casdorph v.
Department of Pub. Safety (No. D-661) 86
A compromise settlement between the claimants and their insurance company will
not reduce or bar recovery by the claimants for injuries inflicted by the
respondent. Galyean v. Department of High way (No. D-575) 121
Claimant was entitled to an award of $27,180.96 for the printing of a book
under a contract entered into with the respondent when the funds for payment of
the contract were expended by the respondent for other purposes, and the
claimant had the right to rely upon the availability of the funds. Joe L.
Smith, Jr., Inc. v.
Office of the Governor
(No. D-619) 52
Claimant was awarded $44,825.17 of which $25,000 was for a reasonable
anticipated gain to the claimant, had claimant been able to perform the
contract which was breached by the respondent. Russell Transfer, Inc. v.
Dept. of Finance and Administration (No.
D-615) 40
Claimant was awarded $44,825.17 based upon the finding of the Court that
a valid contract was executed between claimant and respondent even though
respondent contended that a purchase order required by statute had not been
completed. Russell Transfer, Inc.
v. Dept. of Finance and Administration (No. D-615) 40
The claimant was awarded $44,825.17 upon a contract held to be legally
enforceable by the Court, which held that administrative policy of the Governor
cannot override the legislative intent. Russell Transfer, Inc. v. Dept. of
Finance and Administration (No.
D-615) 40
The Court held that the issuance of purchase order is a ministerial act and the
destruction of same did not nullify a written and legally enforceable contract
between the parties. The claimant was made an award for the breach of the
contract. Russell Transfer, inc. v. Dept. of Finance and Administration (No.
D-615) 40
The Court made an award to the claimant upon a contract upheld by the Court
where public interest requires State agencies to accept the lowest bid, and the
State has a limited discretion in rejecting the bid of the lowest responsible
bidder. Russell Transfer, Inc. v.
Dept. of Finance and Administration (No. D-615) 40
Claimant was made an award for a breach of contract wherein the Court held that
the State had a moral obligation to perform its duly executed contract when the
existence of a contractual obligation was created by following regular
statutory purchasing procedures enacted by the legislature. Russell
Transfer, Inc. v. Dept. of Finance
and Administration (No. D-615) 40
DAMAGES
Claimant was awarded the sum of
$145.83 for temporary expenses incurred prior to his permanent assignment to
another location and within the 30-day period after his permanent assignment in
accordance with a long-established practice of the respondent to make this
allowance when an employee is transferred from one district to
another. Bacon v. Department of Highways (No. D-623) 26
204 REPORTS STATE
COURT OF CLAIMS [W. VA.
Rental value of a building is not the same as fair market value in establishing
the amount of damages, which will be allowed for the destruction of a building.
Buckeye
Union ins. Co., Et al v. Depart men
of Highways (No. D-585b) 71
The fact that a building was insured on the basis of cost of reproduction does
not determine its fair market value. Buckeye
Union ins. Co., Et al v. Department of Highways (No. D-585b) 71
Where a claim is not one of damnum absque injuria, but is one that, as the
result of an act done by the respondent, creates the proximate cause of the
resulting damage to the claimant, the Court made an award as the claimant is
entitled to recover its damages to personal property. The Firestone Tire & Rubber Co., Et al v.
Department of Highways (No. D-227 Et
al) ---—---
A compromise settlement between the
claimants and their insurance company will not reduce or bar recovery by the
claimants for injuries inflicted by the respondent. Galyean v. Department of Highways (No. D-575) — 121
The Court determined the difference in value of the property immediately before
and immediately after blasting occurred which caused damage to the property
based upon the Court’s view of the premises and the testimony of construction
experts for both the claimants and the respondent with regard to the cost of
restoring the property to its value immediately prior to the blasting. Galyean
v. Department of Highways (No. D-575)
121
The reasonable cost of repairs properly proved may be considered as evidence in
determining the market value of property after it has
been damaged. Galyean v. Department of
Highways (No. D-575) . 121
The general rule for determining the amount of damages for injury to real
property is to allow the difference between the maket value of the property
immediately before the injury happened and the market value immediately after
the injury taking into account only the damage which was the result of the acts
of the respondent.
Galyean v. Department of Highways (No. D-575) 121
Claimant was denied recovery for alleged sickness resulting from drinking
polluted and contaminated water as the claimant assumed the risk of physical
consequences that would result from drinking the unpalatable water where he was
aware of the bad condition.
Henderson v. Department of Highways (No. D-332) 177
Where the evidence failed to prove that claimants were dependent distributees
of the decedent, the claimants were awarded only the sums of $10.000 for
wrongful death and $2,000 for funeral expenses.
House v. Department of Mental Health (No. D-603) 58
The respondent was denied an off-set
to the claim of the claimant where the respondent’s recourse if any was against
a third party. Leonard Johnson Funeral
Home, inc. v. Workmen’s Comp. Fund
(No. D-797) 195
The cost of repairing real estate
which has been damaged assists the Court in evaluating the damage and supports
the difference in market values but is not of itself sufficient to establish
the amount of damages. Osborne v.
Department of Highways (No. D-579 and
D-634) 83
W. VA.] REPORTS
STATE COURT OF CLAIMS 205
Where damages to real estate are involved, the measure of damages is the
difference in fair market value of the property immediately before the mishap
compared to its fair market value after the mishap. Osborne v. Department of
Highways (No. D-579
and D-634) —
83
Compensatory damages for injury to real estate caused by the State will be
measured by the diminution in market value and not exclusively on cost of
repair or restoration of the property to its former condition. Osborne i’. Department of Highways (No. D-579
and D-634) 83
Where the claimant’s tree died as a result of herbicide being sprayed upon it
negligently by employees of the respondent who were spraying the herbicide upon
the State’s right of way, the claimants were reimbursed for the reasonable
value of the tree.
Reed v. Department of Highways (No. D-677) 99
Claimant was awarded $44,825.17 of which $25,000 was for a reasonable
anticipated gain to the claimant, had claimant been able to perform the
contract which was breached by the respondent. Russell Transfer, inc. v.
Dept. of Finance and Administration (No.
D-615) 40
Mere speculation or conjecture is not the proper proof of damages as the law in
this State is clear that damages must be proved with reasonable certainty. Thomas
v. Department of Highways (No.
D-307) 187
This Court follows the view that the diminution of market value rather than the
cost of repairs is the proper measure of damages for temporary damage to real
estate. Ware v. Adjutant General
(No. D-774) —
190
DEEDS
Where the right of way agent was not
aware that the deed granted to the claimant had been granted by a life tenant
leaving the grantees without a way of ingress or egress over an adjoining
parcel, neither he nor the State could be responsible for any assurances that
he may have made to the claimants concerning such access. Boehm v.
Department of Highways (No. D-613). 110
Claimants were held to be negligent when they purchased property without making
an inquiry as to the soundness of the title and the appurtenant right of way to
their property when they were aware that a controlled access highway did not
provide the ingress and egress to parcels of land adjoining the highway. Boehm
v. Depart men of Highways (No. D-613) 110
Where the right of way agent was not aware that the deed conveying title to the
claimant granted a life tenancy leaving the grantees without a way of ingress
or egress over an adjoining parcel, neither he nor the State could be
responsible for any assurances that he may have made to the claimants
concerning such access.
Boehm v. Department of Highway (No. D-6l3) 110
DRAINS AND SEWERS—See also Waters and
Watercourses
Claimant is entitled to an award for
damages to his sidewalk and sewer line where motor vehicles owned by the
respondent and parked on the property caused the damages. Amburgey v.
Adjutant
General (No. D-633) —
69
206 REPORTS STATE
COURT OF CLAIMS [W. VA.
Claimant was made an award for damages to its water main due to the negligent
operation of a backhoe by respondent’s employee.
Coal River Pub. Svc. Dist. v. Department of Highways (No. D-698). 91
Claimant was made an award for damage to a water service line while employees
were engaged in a blasting operation which caused the damages. Coal River
Pub. Svc. Dist. v. Department of Highways
(No. D-699) 92
Claimant was made an award of $78.92 for damages to her auto- bile where in
parking her car it was impossible for her to observe a sunken drain alongside
of the curb, and the respondent should have been aware of the hazard. Harris
v. Department of Highways
(No. D-655) 166
Where an open ditch which served as adequate drainage for a road was removed in
widening the road and caused flooding of claimant’s property, the inadequate
drainage provisions were the proximate cause of damage to claimant’s property. Osborne
v.
Department of Highway (No. D-579 and D-634) 83
Where the negligent design, construction and maintenance of a drainage system
constructed to improve a State highway, resulted in damages to the property of
the claimant, this negligence constituted the proximate cause of said damages. Osborne
v. Department of
Highways (Nos. D-579 & D-634) 83
Where the claimant is not able to show by a preponderance of the evidence that
the damages suffered were the result of actionable negligence on the part of
the respondent, the claimant is not entitled to an award. The Sanitary Bd.
of the City of Wheeling v. Depart men of Highways (No. D-735) 192 Claimant
was not entitled to recover for damages to a sewer where
both the claimant and respondent had to rely almost entirely on circumstantial
and opinion evidence leaving much to conjecture, which cannot be a basis for
judgment. The Sanitary Bd. of the City
of Wheeling v. Department of Highways (No. D-735) 192
Claimant was awarded $7,300 for damages to property when the respondent
installed a series of culverts in the redesign of a State road, which resulted
in a concentration of water upon claimant’s property, which not only was a
violation of claimant’s property rights, but also a negligent act. Young v.
Department of Highways
(No. D-625) 64
EASEMENTS
Claimants were held to be negligent when they purchased property without making
an inquiry as to the soundness of the title and the
appurtenant right of way to their property when they were aware that a
controlled access highway did not provide the ingress and egress to parcels of
land adjoining the highway. Boehm v. Depart men of Highways (No. D-613)
110
ELECTRICITY
An award of $235.40 was made to
the claimant for damages to its telephone cable, which damages occurred when
respondent’s employees were engaged in a blasting operation to widen a State
road. General Telephone Company of the Southeast v. Department
of Highways (No. D-616) 22
W. VA.] REPORTS
STATE COURT OF CLAIMS 207
Claimant was awarded $200.66 for damage to telephone lines when employees of
the respondent negligently permitted a tree to fall into the lines. Monongahela Power Co. v. Department of High way (No. D-645a) — —--- 37
Claimant was awarded $26.23 for damage to a pole when respondent’s employee
negligently backed one of respondent’s trucks into the pole. Monongahela Power Co. v. Department of Highways (No.
D-645b) —
37
Claimant was awarded $65.04 for damage to power lines when a tree was cut and
negligently permitted to fall upon claimant’s power lines. Monongahela Power Co. v. Department of Highways (No.
D-645d) 39
The claimant telephone company was made an award for damages to its cables
where employees of the respondent were engaged in the blasting of a ditch line,
and the cables were damaged as a result of this blasting. Tygart Valley Telephone Co. v. Department of High way (No. D-779) 102
EMINENT DOMAIN
Claimants were entitled to $1000 for damages to real property where the damages
were the result of a single trespass, which was not a continuing one, but one
which could be definitely determined as to damages. Mclver and White v. Department of Highways
(Nos. D-548 and D-552) 23
Where the claimants do not have an adequate remedy at law by way of mandamus to
compel the respondent to initiate condemnation proceedings, the Court of Claims
will entertain jurisdiction of the claim. Mclver and White v. Department of Highways (Nos. D-548
and D-552) 23
EXPENDITURES
Claimant was made an award for
hospital charges where a contractual obligation existed, and there were
sufficient funds to pay the charges but payment was deferred pending
negotiations by the respondent with an insurance company during which time the
fiscal year ended. Albert B. Chandler
Medical Center, University of Kentucky v. Department of Voc. Ed., Div. of Voc.
Rehab. (No. D681a). See also Physician Accounts Dept. Albert B. Chandler Medical
Center, Univ. of Kentucky v. Dept. of Voc. Ed., Div. of
Voc. Rehab. (No. D-681b) 68
Where the claimant performed extra work in good faith and in reliance upon the
action of the respondent’s agent, the requirements and procedure under Chapter 5a, Article 3
of the Code of W. Va. relating to the purchasing procedures of the State should
not be strictly applied when to do so would deprive a citizen of the State of
his just and equitable rights. Brunetti
Hardware &
Painting v. Department of Mental Health (No.
D-676) 96
An award was made to the claimant hospital where it performed services, but due
to a confusion in billing, the bill was submitted to the respondent after the
proper fiscal year had ended and funds were available during the fiscal year to
legally pay this bill. Cleveland Clinic
v. Bd.
of Voc. Ed., Div. of Voc. Rehab. (No.
D-731) 101
208 REPORTS STATE
COURT OF CLAIMS [W. VA.
Where respondent failed to pay claimant for supplies sold and delivered and
there were sufficient funds to pay for the same, but the fiscal year expired,
this Court has authority to make an award to the claimant. Eaton Laboratories v. Department of Mental Health
(No. D-695) 76
Over-expenditure by a State agency invalidates unpaid invoices.
Exxon Company, U.S.A. v. Department of
Mental Health (No.
D-657). See also Airkem Sales and Service v. Department of
Mental Health, 8 Ct. Cl. 180 63
Due to confusion on the part of the respondent, certain invoices of the
claimant were not paid within the proper fiscal year when funds were available
to pay the same; therefore, the Court held the respondent liable for the same. Exxon Company, U.S.A. v. Department of Mental Health (No. D-657) — 63
The Court advised the Horse Racing Commission to pay the claim of a hospital
which rendered services to a member of the Horsemen’s Mutual Insurance Company
where in legal affect the claim would not be paid from State funds but from
fees paid into the fund by the horsemen themselves even though the fund is
under the supervision of the State Auditor and the State Treasurer. Fairfax County
Hospital v. W. Va. Racing Commission (No.
D-617) 114
See also Freed et al v. Alcohol
Beverage Control Comm’n. (Nos.
D-775, D-776, D-789a-i) 166
Claimant was awarded the amount of its billing for products sold and delivered
for which the respondent failed to pay the claimant within the proper fiscal
year when funds were available for such purpose. Hoffman-La Roche Inc. v. Department of Mental Health
(No. D-902) 185
Claimant was entitled to an award of $27,180.96 for the printing of a book under
a contract entered into with the respondent when the funds for payment of the
contract were expended by the respondent for other purposes, and the claimant
had the right to rely upon the availability of the funds. Joe L. Smith, Jr., Inc. v. Office of the
Governor (No. D-619) 52
See also Kirby v. Alcohol Beverage
Control Comm’n. (No.
D-789k) 181
The Court will disallow claims where the facts of Airkem Sales and
Service Et al v. Department of Mental Health, 8 Ct. Cl. 180, are
identical to the facts in the present claims. Midland Wholesale
Grocery Co., Et al v. Department of Pub. institutions (No. D-799
Et al.) 167
Where an agency of the State incurrs liabilities in excess of the then current
appropriation, the agency has violated Chapter 12, Article 3, Section 17, of
the W.Va. Lode. The Court is in a position where it must deny the claim as an
illegal over-expenditure. Ruddell
v. Alcohol Beverage Control Comm’n. (No.
D-789j) 163
See also Valley Animal Clinic v.
Department of Public institu tion (No.
D-911) 181
W. VA.] REPORTS
STATE COURT OF CLAIMS 209
FALLING ROCKS—See also Landslides; Negligence
Claimant was denied recovery for damages sustained when a boulder fell off of a
hillside striking claimant’s automobile driven by her son, as the accident
occurred in a falling rocks area similar to many others, and the Court’s
holding in similar cases that the user of the highway travels at his own risk
and that the State does not and cannot assure him a safe journey applied to the
claimant herein.
Edgell v. Department of Highways (No. D-630 a&b). -- 161
Claimant’s claim for damages to his automobile was denied by the Court where it
appeared that the claim of Mullins v. Department of Highways, 9 Ct. Cl.
221 was controlling in this rock slide
claim. Walker v. Department of Highways (No. D-618) 32
The Court has consistently held that the State is not a guarantor of the safety
of travelers on its highways. This principal established in Parsons v. State
Road Commission, 8 Ct. Cl. 210 was applied to the claim of a claimant whose
automobile was damaged in a
rockslide. Walker v Department of Highways (No. D-61 8) —- 32
FIRES AND FIRE PROTECTION
Negligence on the part of respondent’s
employees is established when they cleaned a paint striper machine with
gasoline close to a gas heater, as the failure to have workable fire
extinguishers nearby shows that reasonable care was not taken. Buckeye
Unions Ins.
Co., Et at v. Department of Highways (No. D-585b) 71
Where a fire which destroyed a building was caused by the negligence of the
respondent, the insurer of a nearby property owner who suffered damages as a
direct result, is also entitled to an award.
Federal Ins. Co. v. Department of Highways (No. D-585a) 77
Where a fire which destroyed a building was caused by the negligence of the
respondent, the insurer of a nearby ‘property owner who suffered damages as a
direct result, is also entitled to an award.
Monarch Ins. Co. v. Department of Highways (No. D-585c) —- 79
FLOODING
Where the respondent’s contractor while working on a highway caused the release
of water from an abandoned mine shaft to flood a community, the respondent’s
acts amounted to a trespass causing the damages alleged and claimant is
entitled to an award for damage to personal property. The Firestone Tire
& Rubber Co., Et at v. Department of Highways (No. D-227 Et al)
Claimants were entitled to awards for damages to personal property where water
from an impounded coal mine was released and flooded the community, as the
impoundment itself was not unlawful, but the direct and proximate cause of the
damages was the act which caused the release of the water. The Firestone
Tire & Rubber Co., Et at v. Department of Highways (No. D-227 Et. al)
Where respondent’s employee drove a W.Va. National Guard army truck through
accumulated flood water on a highway and the water was forced against the doors
of a business building owned by the claimant breaking the doors and glass
thereof, the respondent’s agent was guilty of negligence in the operation of
the truck, and
210 REPORTS STATE
COURT OF CLAIMS [W. VA.
the claimant was entitled to damages. Moore
v. Adjutant General
(No. D-719) 93
Where an open ditch which served as adequate drainage for a road was removed in
widening the road and caused flooding of claimant S property, the inadequate drainage provisions were the
proximate cause of damage to claimant’s property. Osborne v. Department of
Highways (No. D-579 and D-634) — 83
Claimants were made an award for the loss of personal property when the
respondent failed to remove a temporary bridge which resulted in flooding to
the claimants’ property. Thomas v.
Department
of Highways (No. D-307) — — 187
HORSE RACING COMMISSION
The Court advised the Horse Racing Commission to pay the claim of a hospital
which rendered services to a member of the Horsemen’s Mutual Insurance Company
where in legal affect the claim would not be paid from State funds but from
fees paid into the fund by the horsemen themselves even though the fund is
under the supervision of the State Auditor and the State Treasurer. Fairfax County Hospital
v. W.Va. Racing Commission (No. D-617)
114
HOSPITALS
Claimant was made an award for hospital charges where a contractual obligation
existed, and there were sufficient funds to pay the charges but payment was
deferred pending negotiations by the respondent with an insurance company
during which time the fiscal year ended. Albert
B. Chandler Medical Center, University of Kentucky v. Department of Voc. Ed.,
Div. of Voc. Rehab. (No. D-681a). See
also Physician Accounts Dept. Albert B.
Chandler Medical Center, Univ. of Kentucky v. Dept. of Voc. Ed., Div. of Voc.
Rehab. (No. D-681b) 68
An award was made to the claimant hospital where it performed services, but due
to a confusion in billing, the bill was submitted to the respondent after the
proper fiscal year had ended and funds were available during that fiscal year
to legally pay this bill. Cleveland
Clinic v. Bd .of Voc. Ed., Div. of Voc. Rehab. (No.
D-731) 101
Where the claimant suffered injury in a fall which occurred while the claimant
was having an epileptic seizure, and such fall occurred in claimant’s own room
which was furnished by the employer hospital, there was no liability upon the
employer, as the accident was one which could not have been reasonably forseen
or
anticipated. DuPont v. Department of
Pub, institutions (No. D-628). 117
Claimant was not entitled to an award for personal injury where the law
applicable only requires an employer of respondent to forsee and anticipate
what might be reasonably expected to happen, not guarantee an employee’s safety
against all possible hazards.
DuPont v. Department of Pub.
institutions (No. D-628) 117
Claimant was awarded $12,000 for the wrongful death of his decedent, who was
killed by a fellow inmate in a mental institution, where hospital officials
failed to fulfill its moral and legal obligations to protect the decedent from
a convict patient well known to be dangerous, and such failure constituted
negligence. House v.
Department of Mental Health (No.
D-603) 58
W. VA.] REPORTS
STATE COURT OF CLAIMS 211
Where claimant’s decedent was stabbed to death by a fellow inmate in a public
institution, the negligence of hospital officials in failing to protect the
decedent from a dangerous convict-patient was the proximate cause of the death.
House v. Department of
Mental Health (No. D-603) 58
INDEPENDENT CONTRACTORS
Interference by an independent
contractor of a new road to the construction site caused delay to the claimant
contractor and also caused it to have to construct temporary access roads to
the construction areas, all of which caused additional expenses to the contractor
for which the Court made an award. Baltimore Contractors, Inc. v. Department
of Natural Resources (Nos. D-510,
D-516, & D-528) 148
The unauthorized conduct of an independent road contractor, even if approved by
the supervising personnel of the respondent, does not create a binding
contractual obligation upon the State. Boehm
v. Department of Highways (No. D-613). (Petition for rehearing). 140
JOINT TORTFEASORS
“Where payments have been made by one
or more joint tortfeasors, other joint tort-feasors will be given credit for
such payments in satisfaction of the claim.” Hopson v. Department of Natural
Resources (No. D-549a) 8
JUDGMENTS AND DECREES
A set-off might have been considered for the purpose of disallowing claimant’s
claim for moving expenses in its entirety if it had been clearly established by
the respondent that the payment made was an illegal use of State funds. Bacon
v. Department of
Highways (No. D-623) 26
Where the respondent contended that a voucher for lodging was paid by mistake
and constituted a set-off to the claimant, the Court held that it had no
jurisdiction to render a personal judgment against the claimant for the amount
paid on his behalf in excess of the
claim. Bacon v. Dept. of Highways (No. D-623 ) 26
The respondent was denied an off-set to the claim of the claimant where the
respondent’s recourse if any was against a third party. Leonard Johnson
Funeral Home, Inc. v. Workmen’s Comp. Fund
(No. D-797) 195
Where the respondent revoked the license of claimant’s licensee by reason
of a conviction before a justice of the peace, which conviction was void, the
bond forfeiture was set aside by the Court. Maryland Cas. Co. v. Alcohol
Berevarge Control Comm’n. (No.
D-656). (Petition for rehearing) 186
Claimant was not entitled to recover for damages to a sewer where both the
claimant and respondent had to rely almost entirely on circumstantial and
opinion evidence leaving much to conjecture, which cannot be a basis for
judgment. The Sanitary Bd. of the City
of Wheeling v. Department of Highways (No. D-735) 192
212 REPORTS STATE
COURT OF CLAIMS [W. VA.
JURISDICTION
Where the respondent contended that a
voucher for lodging was paid by mistake and constituted a set-off to the
claimant, the Court held that it had no jurisdictio’i to render a personal
judgment against the claimant for the amount paid on his behalf in excess of
the claim.
Bacon v. Dept. of Highways (No. D-623) 26
Claimant, an insurer of a building owned by a county court, is entitled to sue
in the Court of Claims, as a county court is a corporation and would be able to
sue; therefore, a claim by the county court would inure to the benefit of its
insurer and would be within the jurisdiction of the Court. Buckeye Union
Ins. Co., Et al v. Department of Highways (No. D-585b) —- - 71
Naming the Commissioner of the State Road Commission as the respondent rather
than the Department, State Road Commission, is not of sufficient merit to be
allowed as a technical objection to the claims. The Firestone Tire &
Rubber Co., Et al v. Department of Highways (No. D-227 Et al.) — Claims for damage to personal property resulting from
an act of
trespass by the State are clearly in tort, ex delicto, and as such are within
the jurisdiction of the Court of Claims. The Firestone Tire & Rubber
Co., Et al v. Department of Highways (No. D-227
Et al) —--
Even though there is no statutory law in
W.Va. for compensation for personal property damage for public use as referred
to in Article 3, Section 9 of the West Virginia Constitution, the common law
provides for actions of trespass on the case, therefore a claim of trespass is
maintainable in the Court of Claims. The Firestone Tire & Rubber Co., Et
al v. Department of Highways (No. D-227 Etal)
Where the respondent revoked the license of claimant’s licensee by reason of a
conviction before a justice of the peace, which conviction was void, the bond
forfeiture was set aside by the Court. Maryland
Cay. Co. v. Alcohol Beverage Control Comm’n. (No. D-656) 186
A justice of the peace may exercise no criminal jurisdiction other than that
conferred by statute; therefore, a justice has no jurisdiction over the offense
of gaming. Maryland Cas. Co. v. Alcohol Beverage
Control Comm’n. (No. D-656). (Petition for rehearing) 186
An advisory opinion of the Court was issuable within the jurisdiction of the
Court of Claims, advising the respondent to pay the claimant for ten months
rent even though no formal lease agreement was prepared or signed, but the
premises were accepted and used by the respondent University and a formal lease
was later entered into for the premises. Hardesty v. Board of Regents (No.
D-658) 55
The Court of Claims lacks jurisdiction to make an award where
a claim is against the Workmen’s Compensation Fund under Chapter
14, Article 2, Section 14 of the W.Va. Code. Stevens v. Workmen’s
Comp. Fund (No. D-724) 88
W. VA.] REPORTS
STATE COURT OF CLAIMS 213
LANDLORD AND TENANT
An advisory opinion of the Court was issuable within the jurisdiction of the
Court of Claims, advising the respondent to pay the claimant for ten months
rent even though no formal lease agreement was prepared or signed, but the
premises were accepted and used by the respondent University and a formal lease
was later entered into for the premises. Hardesty v. Board of Regents (No.
D-658) 55
LANDSLIDES
Claimants were entitled to $1000 for
damages to real property where the damages were the result of a single
trespass, which was not a continuing one, but one which could be definitely
determined as to damages. Mclver and White v. Department of Highways (Nos.
D-548 and D-552) 23
Claimants are entitled to damages to real property sustained when the
respondent was negligent in its maintenance of the road by continuing to make
insufficient additions to the surface of the roadway instead of timely
correcting the road structure to avoid pressure against claimants’ property. Mclver
and White v. Department of
Highways (Nos. D-548 and D-552) 23
Claimants are entitled to $1000 for damages to real property where the
respondent should have forseen the probability of the result of the slipping of
the roadway onto the claimants’ property causing damages. Mclver and White
v. Department of Highways
(Nos. D-548 and D-552) 23
MANDAMUS
Where the claimants do not have an adequate remedy at law by way of mandamus to
compel the respondent to initiate condemnation proceedings, the Court of Claims
will entertain jurisdiction of the claim. Mclver and White v. Department of
Highways (Nos. D-548
and D-552) 23
MINES AND MINERALS
Claimants were entitled to awards for damages to personal property where water
from an impounded coal mine was released and flooded the community, as the
impoundment itself was not unlawful, but the direct and proximate cause of the
damages was the act which caused the release of the water. The Firestone
Tire & Rubber Co., Et al v. Department of Highways (No. D-227 Et al)
Where the respondent’s contractor while working on a highway caused the release
of water from an abandoned mine shaft to flood a community, the respondent’s
acts amounted to a trespass causing the damages alleged and claimant is
entitled to an award for damage to personal property. The Firestone Tire
& Rubber Co., Et. al v. Department of Highways (No. D-227 Eta!)
Claimants were made an award for damage to real property where the Court found
that the damage was proximately caused by a blast from a blasting operation
being operated by employees of the respondent in a quarry not far from the
claimants’ property.
Galyean v. Department of Highways (No. D-575) 121
214 REPORTS STATE
COURT OF CLAIMS [W. VA.
MOTOR VEHICLES
A motorcycle with only two wheels is a
more hazardous vehicle to operate than an ordinary automobile, and when a
motorcycle is ridden on a secondary road more care on the part of the rider is
required. Bartz v. Department of Highways (No. D-722) 170
The claimant is entitled to an award for damages to his automobile which had
struck a piece of iron which had come loose from the center section of a bridge
as the result of respondent’s negligence.
Carney v. Department of Highways (No. D-761) — 103
An award to the claimant will be made when the claimant and respondent
stipulated that claimant’s truck was sprayed with red lead paint by agents of
the respondent who were engaged in painting a building belonging to the
respondent. Cooper v. Department of Highways (No. D-787). See also Ellison
v. Department
of Highways (No. D-788) 173
Claimant is not entitled to recover damages to the automobile of its insured
where the evidence revealed that there was no obstruction of any consequence in
the road by a grader being operated by the respondent’s agent. Dairyland
Ins. Co. v. Department of High way (No. D-714) 174
Claimant is not entitled to recover damages where claimant’s insured caused the
accident himself by driving over from the southbound lane of traffic to the
northbound lane and stopping there too long for clearance by a coal truck which
was properly proceeding in the northbound lane. Dairyland Ins. Co. v.
Department of High way (No. D-714) 174
Claimant is entitled to recover damages to his automobile where he was driving
at a lawful rate of speed and was not able to see a defective condition in the
street wherein no warning signs were there to warn motorists of the condition. Dully
v. Department of
Highways (No. D-738) 176
Claimants were entitled to an award of damages for in juries resulting from a
collision of a motorcycle operated by claimants with an automobile driven by
respondent’s agent who in making a left turn in the highway failed to see the
claimants approaching on the motorcycle, where such failure to see was not
sufficient to release the driver of responsibility imposed upon such driver
under the law to ascertain that the road was clear before making a turn from
his lane of traffic into and across the opposite line of traffic to enter a
private driveway. Forney and Moss v. Dept. of Finance and Administration and
Dept. of Natural Resources (Nos. D-506
& D-507) 16
Claimant was entitled to an award for damages to his automobile where the Court
found that the accident was unavoidable insofar as the two drivers were
concerned, and that the respondent was liable by reason of its attempt to
control traffic at a junction which was not a true intersection as though it
was a true intersection, thereby creating a dangerous condition which was not
likely to be forseen or recognized by the traveling public. Greene v.
Department of Highways (No. D-687) 133
W. VA.] REPORTS
STATE COURT OF CLAIMS 215
Claimant was awarded damages sustained by his automobile while crossing a
bridge and the automobile was struck by a section of non-glare metal fence
owned and maintained by the respondent where the respondent admitted liability
and stipulated the amount of damages due the claimant. Lantz v. Department
of Highways (No.
D-647) 145
Claimant was denied an award for damages to her automobile where the weight of
the evidence established that the claimant was operating her automobile at a
speed that was too fast for the prevailing road conditions and that the
accident resulted from her own
negligence. McArthur v. Department of Highways (No. D-666). 136
Claimant was made an award of $269.00 which constituted the cost of replacing a
worthless motor with a serviceable motor when a truck purchased by the claimant
from the respondent upon submission of a sealed bid was sold in an “as is”
condition from fire damage, and not as a truck without a motor, which is what
claimant
discovered after the purchase. McGuffey v. Board of Regents
(No. D-624). —
— — 35
Where respondent’s employee drove a W.Va. National Guard army truck through
accumulated flood water on a highway and the water was forced against the doors
of a business building owned by the claimant breaking the doors and glass
thereof, the respondent’s agent was guilty of negligence in the operation of
the truck, and the claimant was entitled to damages. Moore v. Adjutant
General
(No. D-719) 93
Damages are awardable to a claimant whose insured’s truck was struck when
employees of respondent negligently threw gravel over the side of a birdge and
the gravel landed on the truck. Nationwide
Mut. Ins. Co. v. Department of Highways (No. D-713) 82
Where the claimant backed his automobile down a road at night in rainy, bad
weather, with only tail lights and no back-up lights on his car, his failure to
take proper precautionary steps to avoid an accident amounted to contributory
negligence. Runion v. Department of Highways (No. D-660) — 141
Claimant cannot recover damage for injuries sustained in an accident which
occurred while the claimant was backing his automobile towards a bridge and
struck the wingwall of the bridge, as it was necessary for the claimant to
prove that the accident occurred on a road which the State was required to
maintain and that the State had failed to properly maintain such road and that
such failure was the proximate cause of the accident without any contributory
negligence on the part of the claimant. Runion v. Department of High way (No.
D-660) 141
A claimant is entitled to an award of damages for the taking and destruction of
two automobiles where no notice had been given to the claimant by the
respondent in compliance with Chapter 17, Article 24, Section 6 of the W. Va.
Code pertaining to abandoned
vehicles. Stanley v. REAP (No. D-730) 106 Claimant was denied recovery
for injuries suffered in a highway
accident as it is well settled law that no recovery will be allowed for
injuries where it appears that the person injured was guilty of contributory
negligence, that proximately contributed to his injuries, or even where the
injury was the proximate result of the concurring negligence of the parties. Swartzmiller
v. Department of Highways
(No.D-517)._ 29
216 REPORTS STATE
COURT OF CLAIMS [W. VA.
A claim was disallowed where it appeared from the testimony that the claimant
had not exercised ordinary and reasonable care in the operation of her motor
vehicle, which contributory negligence was the proximate cause of the accident.
Swartzmiller v. Department
of Highways (No. D-517) — 29
Claimant was made an award for damages to his automobile when a branch fell
from a decayed tree which fact could have been ascertained by the exercise of
reasonable inspection and care and therefor constituted a public nuisance. Swift & Company, inc. v. Department
of Highways (No. D-662) — 56
Claimant was made an award for damages
to her automobile
when the respondent negligently placed a large piece of steel on a
traveled portion of the bridge and claimant’s automobile struck said
piece of steel. Via v. Department of
Highways (No. D-822) 165
MOVING EXPENSES
Claimant was awarded the sum of $145.83 for
temporary expenses incurred prior to his permanent assignment to another
location and within the 30-day period after his permanent assignment in accordance
with a long-established practice of the respondent to make this allowance when
an employee is transferred from one district to
another. Bacon v. Department of
Highways (No. D-623) 26
A set-off might have been considered for the purpose of disallowing claimant’s
claim for moving expenses in its entirety if it had been clearly established by
the respondent that the payment made was an illegal use of State funds. Bacon v. Department of
Highways (No. D-623) 26
Where the respondent contended that a voucher for lodging was paid by mistake
and constituted a set-off to the claimant, the Court held that it had no
jurisdiction to render a personal judgment against the claimant for the amount
paid on his behalf in excess of the claim.
Bacon v. Dept. of Highways (No. D-623) 26
NATIONAL GUARD
Where respondent’s employee drove a W. Va.
National Guard army truck through accumulated flood water on a highway and the
water was forced against the doors of a business building owned by the claimant
breaking the doors and glass thereof, the respondent’s agent was guilty of
negligence in the operation of the truck, and the claimant was entitled to
damages. Moore v. Adjutant General
(No. D-719) 93
Claimant was awarded damages for the loss he sustained when a National Guard
vehicle operated by an employee of the National Guard left the highway and
struck claimant’s property. Ware v. Ad
jutan General (No. D-774) -_ 190
W. VA.]
REPORTS STATE COURT OF CLAIMS 217
NEGLIGENCE—See also
Blasting; Falling Rocks; Landslides; Motor Vehidew,
Streets and Highways
Where the claimant was operating a motorcycle on a secondary road knowing the
condition of the road and did not exercise due care or caution for his own
safety, he was guilty of contributory negligence. Bartz v. Department of Highways (No. D-722) 170
Claimant was awarded $50.80 for damage to his automobile on a drop inlet
negligently allowed to deteriorate by the respondent, which negligence
constituted the proximate cause of the claimant’s damages. Blackwell v.
Department of Highways (No. D-626) 33
Negligence on the part of respondent’s employees is established when they
cleaned a paint striper machine with gasoline close to a gas heater, as the
failure to have workable fire extinguishers nearby shows that reasonable care
was not taken. Buckeye Union ins. Ca.,
Et al v. Department of Highways (No. D-585b). 71
An award will be made to the claimant when the mobile home of its insured was
damaged as the result of a drilling operation negligently performed by
employees of the respondent. Calvert Fire ins.
Co. v. Department of Highways (No. D-741) 100
The claimant was entitled to an award for loss of produce in a garden when
respondent employees, while s,raying the right of way with herbicide,
negligently sprayed claimants property also. Cantley
v. Department of Highways (No. D-664) 85
The claimant is entitled to an award for damages to his automobile which had
struck a piece of iron which had come loose from the center section of a bridge
as the result of respondent’s negligence.
Carney v. Department of Highways (No. D-761) 105
Respondent was held to be negligent where claimant’s truck was damaged by a can
of concrete which was pushed off a loading dock by a high lift operated by
respondent’s employee. Casdorph v. Department of Highways (No. D-752) — 90
Claimant was made an award for damages to its water main due to the negligent
operation of a backhoe by respondent’s employee. Coal River Pub. Svc. Dist.
v. Department of Highways (No. D-698). 91
An award to the claimant will be made when the claimant and respondent
stipulated that claimant’s truck was sprayed with red lead paint by agents of
the respondent who were engaged in painting a building belonging to the
respondent. Cooper v. Department of Highways (No. D-787). See also Ellison
v. Department of Highways
(No. D-788) 173
Claimant is not entitled to recovery for damages to the automobile of its
insured where the evidence revealed that there was no obstruction of any
consequence in the road by a grader being operated by the respondent’s agent. Dairyland
Ins. Co. v. Department of High way (No. D-714) 174
Claimant was not entitled to an award for personal injury where the law
applicable only requires an employer of respondent to foresee and anticipate
what might be reasonably expected to happen, not guarantee an employee’s safety
against all possible hazards. DuPont
v. Department of Pub, Institutions (No. D-628) 117
218 REPORTS STATE
COURT OF CLAIMS [W. VA.
Where the claimant suffered injury in a fall which occurred while the claimant
was having an epileptic seizure, and such fall occurred in claimant’s own room
which was furnished by the employer hospital, there was no liability upon the
employer, as the accident was one which could not have been reasonably forseen or
anticipated.
DuPont v. Department of Pub, institutions (No. D-628) 117
Where a fire which destroyed a building was caused by the negligence of the
respondent, the insurer of a nearby property owner who suffered damages as a
direct result, is also entitled to an award.
Federal ins. Co. v. Department of Highways (No. D-585a) 77
Even though there was no negligence on the part of the respondent and the
consequences were not reasonably forseeable, the damages done were a
consequence of the work done by the respondent’s contractor and is therefore
compensable. The Firestone Tire & Rubber Co., Et al v. Department of
Highways (No. D-227 Et al)
Claimants were entitled to an award of damages for injuries resulting from a
collision of a motorcycle operated by claimants with an automobile driven by
respondent’s agent who in making a left turn in the highway failed to see the
claimants approaching on the motorcycle, where such failure to see was not
sufficient to release the driver of responsibility imposed upon such driver
under the law to ascertain that the road was clear before making a turn from
his lane of traffic into and across the opposite line of traffic to enter a
private driveway. Forney and Moss v. Dept. of Finance and Administration
and Dept of Natural Resources (Nos. D-506 & D-507) 16
The law applicable to a case in which the claimants while riding on a
motorcycle struck an automobile driven by respondent’s agent who was making a
left turn across the highway to enter a private driveway is that applied in Brake
v. Cerra, 145 W.Va. 76, wherein the plaintiff was held to have not looked effectively.
Forney and Moss v. Department of Fin, and Admin. and Department of Natural Re
source (Nos. D-506 and D-507) 16
Claimants were made an award for damage to real property where the Court found
that the damage was proximately caused by a blast from a blasting operation
being operated by employees of the respondent in a quarry not far from the
claimants’ property. Galyean
v. Department of Highways (No. D-575) 121
An award of $235.40 was made to the claimant for damages to its
telephone cable, which damages occurred when respondent’s employees were
engaged in a blasting operation to widen a State road. General Telephone
Company of the Southeast v. Department of
Highways (No. D-616) —
22
Claimant was made an award of $78.92 for damages to her automobile where in
parking her car it was impossible for her to observe a sunken drain alongside
of the curb, and the respondent should have been aware of the hazard. Harris
v. Department of Highways (No.
D-655) —
— — 116
The claimant was entitled to an award for loss of produce in a garden when
respondent employees, while spraying the right of way with herbicide,
negligently sprayed claimant’s property. Hodge v.
Department of Highways (No. D-665) 78
W. VA.] REPORTS
STATE COURT OF CLAIMS 219
Claimant was awarded $12,000 for the wrongful death of his decedent, who was
killed by a fellow inmate in a mental institution, where hospital officials
failed to fulfill its moral and legal obhgations to protect the decedent from a
convict patient well known to be dangerous, and such failure constituted
negligence. House v. Department of Mental Health (No. D-603) 58
Where claimant’s decedent was stabbed to death by a fellow inmate in a
public institution, the negligence of hospital officials in failing to protect
the decedent from a dangerous convict-patient was the proximate cause of the
death. House v. Department of Mental Health
(No. D-603) 58
Claimant was denied an award for damages to her automobile where the weight
of the evidence established that the claimant was operating her automobile at a
speed that was too fast for the prevailing road conditions and that the
accident resulted from her own
negligence. McArthur v. Department of Highways (No. D-666) 136
Claimants are entitled to damages to real property sustained when the
respondent was negligent in its maintenance of the road by continuing to make
insufficient additions to the surface of the roadway instead of timely
correcting the road structure to avoid pressure against claimants’ property. Mciver
and White v. Department of
Highways (Nos. D-548 and D-552) — 23
Claimants are entitled to damages to real property where the respondent should
have forseen the probability of the result of the slipping of the roadway Onto
the claimants’ property causing damage. Mclver and White v. Department of
Highways (Nos. D-548
and D-552) 23
Where a fire which destroyed a building was caused by the negligence of the
respondent, the insurer of a nearby property owner who suffered damages as a
direct result, is also entitled to an award.
Monarch ins. Co. v. Department of Highways (No. D-585c) 79
Claimant was awarded $200.66 for damage to telephone lines when employees of
the respondent negligently permitted a tree to fall into the lines. Monongahela
Power Co. v. Department of High way (No. D-645a) 37
Claimant was awarded $26.23 for damage to a pole when respon dent’ employee
negligently backed one of respondent’s trucks into
the pole. Monongahela Power Co. v. Department of Highways (No.
D-645-b) —
37
Claimant was awarded $65.04 for damage to power lines when a
tree was cut and negligently permitted to fall upon claimant’s power
lines. Monongahela Power Co. v. Department of Highways (No.
D-645d) —
39
Where respondent’s employee drove a W. Va. National Guard army truck through
accumulated flood water on a highway and the water was forced against the doors
of a business building owned by the claimant breaking the doors and glass
thereof, the respondent’s agent was guilty of negligence in the operation of
the truck, and the claimant was entitled to damages. Moore v. Adjutant
General (No.
D-719) 93
Damages are awardable to a claimant whose insured’s truck was struck when employees
of respondent negligently threw gravel over the side of a bridge and the gravel
landed on the truck. Nationwide
Mut. ins. Co. v. Department of Highways (No. D-713). 82
220 REPORTS STATE
COURT OF CLAIMS [W. VA.
Where the negligent design, construction and maintenance of a drainage system
constructed to improve a State highway, resulted in damages to the property of
the claimant, this negligence constituted the proximate cause of said damages. Osborne v. Department of
Highways (Nos. D-579 & D-634) 83
Where an open ditch which served as adequate drainage for a road was removed in
widening the road and caused flooding of claimant s property, the inadequate
drainage provisions were the proximate cause of damage to claimant’s property. Osborne v. Department of
Highways (Nos. D-579 and D-634) 83
Claimant was made an award for property owned by it which was stolen when the
respondent did not take the proper precautions to care for and protect
claimant’s property while it was being used by the respondent. Raines Piano & Organ Center, Inc. v. Board of
Regents (No. D-743) 139
Where the claimant’s tree died as a result of herbicide being sprayed upon it
negligently by employees of the respondent who were spraying the herbicide upon
the State’s right of way, the claimants were reimbursed for the reasonable
value of the tree. Reed v. Department
of Highways (No. D-677) — 99
Where the claimant backed his automobile down a road at night in rainy, bad
weather, with only tail lights and no back-up lights on his car, his failure to
take proper precautionary steps to avoid an accident amounted to contributory
negligence. Runion v. Department
of Highways (No. D-660) 141
Claimant cannot recover damage for injuries sustained in an accident which
occurred while the claimant was backing his automobile towards a bridge and
struck the wingwall of the bridge, as it was necessary for the claimant to
prove that the accident occurred on a road which the State was required to
maintain and that the State had failed to properly maintain such road and that
such failure was the proximate cause of the accident without any contributory
negligence on the part of the claimant. Runion
v. Department of Highways
(No. D-660) — 141
Where the claimant is not able to show by a preponderance of the evidence that
the damages suffered were the result of actionable negligence on the part of
the respondent, the claimant is not entitled to an award. The Sanitary Bd. of the City of Wheeling v. Department
of
Highways (No. D-735) — 192
An award was made to the claimant where an automobile belonging to its insured
had to be repainted as the result of paint being splashed upon the side of the
automobile by employees of the respondent. State Farm Mutual Automobile Ins. Co. v. Department of
Highways (No. D-768) 108
Claimant was denied recovery for injuries suffered in a highway accident as it
is well settled law that no recovery will be allowed for injuries where it
appears that the person injured was guilty of contributory negligence, that
proximately contributed to his injuries, or even where the injury was the
proximate result of the concurring negligence of the parties. S’wartzmiller v. Department of Highways
(No. D-5l7) 29
The claim was disallowed where it appeared from the testimony
that the claimant had not exercised ordinary and reasonable care in
the operation of her motor vehicle, which contributory negligence was
the proximate cause of the accident. Swartzmiller
v. Department of
Highways (No. D-517) 29
W. VA.] REPORTS
STATE COURT OF CLAIMS 221
Claim was disallowed where the Court found that the claimant had knowledge of
the specific defect or dangerous condition of the road and failed to use the
care which an ordinary and reasonable prudent person would have used under the
circumstances. Swartzmiller v.
Department of Highways (No. D-517) 29
Claimants were made an award for the loss of personal property when the
respondent failed to remove a temporary bridge which resulted in flooding to
the claimant’s property. Thomas v. Department
of Highways (No. D-307)
187
Claimant was made an award for damages to
her automobile where an employee of the respondent threw a shovel full of hot
asphalt mix against her automobile in a work area where the claimant was
directed by an employee to pass around the work area.
Travelers Indemnity Co. v. Department of Highways (No. D-747). - 95
Claimant was denied recovery for
physical injury when he walked into a sign erected by the respondent by reason
of claimant’s contributory negligence. Vance v. Department of Highways (No.
D-723). 189
Claimant was made an award for damages to her automobile when respondent
negligently placed a large piece of steel on a traveled portion of the bridge
and claimant’s automobile struck
said piece of steel. Via v. Department of Highways (No. D-822) 165
The Court has consistently held that the State is not a guarantor of the
safety of travelers on its highways. This principal established in Parsons
v. State Road Commission, 8 Ct. Cl. 210 was applied to the claim of a
claimant whose automobile was damaged in
a rockslide. Walker v. Department of Highways (No. D-618) 32
Claimant was awarded damages for the loss he sustained when a
National Guard vehicle operated by an employee of the National
Guard left the highway and struck claimant’s property. Ware v.
Adjutant General (No. D-774) 190
Claimant was awarded $7,300 for damages to property when the respondent
installed a series of culverts in the redesign of a State road, which resulted
in a concentration of water upon claimant’s property, which not only was a
violation of claimant’s property rights, but also a wilful act. Young v.
Department of Highways
(No. D-625) 64
NOTICE
The claimant was awarded $150.00 for
the loss of her automobile when a State agency, REAP (Rehabilitation
Environmental Action Program), took her automobile without due process of law. Burch
v. REAP (No. D-679) 159
Claimant was entitled to an award for the value of a building which was
deliberately destroyed by the respondent State agency without any showing of
legal right or authority to do so. Solomon
v. REAP (No. D-734) 104
A claimant is entitled to an award of damages for the taking and destruction of
two automobiles where no notice had been given to the claimant by the respondent
in compliance with Chapter 17, Article 24, Section 6 of the W. Va. Code
pertaining to abandoned vehicles.
Stanley v. REAP (No. D-730) 106
222 REPORTS STATE
COURT OF CLAIMS [W. VA.
NUISANCE
Claimant was awarded damages to his
automobile when a branch fell from a decayed tree which fact could have been
ascertained by the exercise of reasonable inspection and care and therefor
constituted a public nuisance. Swift & Company, Inc. v. Department of
Highways (D-662) -
__ 56
PARKS AND PLAYGROUNDS
Where the contractor relied upon
pre-bid assurances as to an access road to the construction projects which was
to be completed prior to or soon after the commencement of construction work,
the claimant was made an award for the delays which resulted to him. Baltimore
Contractors, Inc. v. Department of Natural Resources (Nos. D-510,
D-516 & D-528) 148
Interference by an independent contractor of a new road to the construction
site caused delay to the claimant contractor and also caused it to have to
construct temporary access roads to the construction areas, all of which caused
additional expenses to the contractor for which the Court made an award. Baltimore
Contractors, Inc. v. Department of Natural Resources (Nos. D-510, D-516
&
D-528) 148
Where the contractor was required to “stake out” the buildings of the
construction project, but the necessary starting points were not there due to
unsatisfactory aerial surveys furnished by the respondent, the Court made an
award to reimburse claimant for having to hire the engineer who had originally
laid out the road for the respondent. Baltimore Contractors, Inc. v.
Department of Natural Resources (Nos. D-510, D-516 & D-528) 148
Where the respondent, Department of Natural Resources, by its own memoranda
accepted the responsibility for factors which resulted in the delay to the
contractor and agreed that the contractor was entitled to 142 additional days
to complete its contract, the Court made an award to the contractor for the
unwarranted delays. Baltimore Contractors, inc. v. Department of Natural
Resources
(Nos. D-5lO, D-516 & D-528) — 148
The acceptance of a change order extending the time for completion of a project
does not waive or prejudice the contractor’s claims for damages due to delays
attributable to the respondent. Baltimore Contractors, Inc. v. Department of
Natural Resources
(Nos. D-510, D-516 & D-528) — 148
The claimant contractor should have mitigated its damages by shutting down the
job temporarily or through improvement of the roads where “country access
roads” never intended to carry loads in wintertime were used to haul materials
to the job sites resulting in great expense to the contractor. Baltimore
Contractors, Inc. v. Department of Natural Resources (Nos. D-510, D-516 &
D-528) 148
A contractor’s claim for direct costs allegedly incurred as the result of an
architect’s redesign and delayed approval of shop drawings for window walls,
the Court denied such claim as it appeared that the contractor would not have
gained any advantage in time or otherwise if the drawings had been approved
earlier and the windows ordered. Baltimore Contractors, Inc. v. Department
of Natural Resources (Nos. D-510, D-516 & D-528) 148
W. VA.] REPORTS
STATE COURT OF CLAIMS 223
The extra expense incurred by the contractor in drilling jack holes for two
elevator shafts was denied by the Court as this was not attributable to any act
or omission of the respondent, but wasP the probable and direct result of the
failure of the contractor to utilize a known and correct drilling procedure
which would have nullified the excessive costs. Baltimore Contractors, Inc.
v. Department of
Natural Resources (Nos. D-510, D-516 & D-528) — 148
A contractor’s claim for unanticipated expenses incurred in drilling jack holes
for two elevators was denied where the Court found that this was not a
subsurface condition materially differing from those shown on the plans for the
project. Baltimore Contractors, Inc.
v. Department of Natural Resources (Nos. D-510, D-516 & D-528) 148
PHYSICIANS AND SURGEONS—See Hospitals
POISONS
The claimant was entitled to an award
for loss of produce in a garden when respondent employees, while spraying the
right of way with herbicide, negligently sprayed claimant’s property also. Cantley
v. Department of Highways (No. D-664). See also Hodge v. Depart men of
Highways (No. D-665) 85
Where the claimant’s tree died as a result of herbicide being sprayed upon it
negligently by employees of the respondent who were spraying the herbicide upon
the State’s right of way, the claimants were reimbursed for the reasonable
value of the tree.
Reed v. Department of Highways (No. D-677) 99
POLICE
The Court found that there was such a
strong appearance of authority in the commandeering and direction of the
claimant in his automobile that the claimant was justified in believing that he
was legally required to render assistance where an officer of the respondent
was attempting to capture fugitives and in so doing the claimant’s automobile
was damaged. Bradfield v. Department of
Pub. Safety (No. D-720) 130
Claimant was entitled to an award for damages to his automobile where the
damages proximately resulted from the helpful and hazardous assistance which
the claimant rendered to officers of the respondent in effecting the capture of
fugitives. Bradfield v. Department
of Public Safety (No. D-720) 130
PRINTING
Claimant was entitled to an award of $27,180.96 for the printing of a book
under a contract entered into with the respondent when the funds for payment of
the contract were expended by the respondent for other purposes, and the
claimant had the right to rely upon the availability of the funds, Joe L.
Smith, Jr., Inc. v. Office of
the Governor (No. D-619) 52
224 REPORTS STATE
COURT OF CLAIMS [W. VA.
PUBLIC OFFICERS
Claimant, Director of the Department of
Mental Health, was made an award of $2,500 by reason of a statutory increase in
her salary for the fiscal year July 1, 1973 to June 30, 1974 pursuant to
Chapter 6, Article 7, Section 2a of the W.Va. Code. Bateman V.
Department of Mental Health (No. D-907) — 182
Claimant was entitled to an award for damages to his automobile where the
damages proximately resulted from the helpful and hazardous assistance which
the claimant rendered to officers of the respondent in effecting the capture of
fugitives. Bradfield v. Department of
Public Safety (No. D-720) — 130
The Court found that there was such a strong appearance of authority in the
commandeering and direction of the claimant in his automobile that the claimant
was justified in believing that he was legally required to render assistance
where an officer of the respondent was attempting to capture fugitives and in
so doing the claimant’s automobile was damaged. Bradfield v. Department of
Pub. Safety (No. D-720) 130
The claimant was awarded $44,825.17 upon a contract held to be legally enforceable
by the Court, which held that administrative policy of the Governor cannot
override the legislative intent. Russell
Transfer, Inc. v. Dept. of Finance and Administration (No. D-615). 40
REHEARING
The unauthorized conduct of an independent
road contractor, even if approved by the supervising personnel of the
respondent, does not create a binding contractual obligation upon the State. Boehm v.
Department of Highways (No. D-613).
(Petition for rehearing.) 140
Where the claimants alleged that promises made by a right of way agent were
tantamount to fraud and misconduct and beyond the scope of the limited
authority of the right of way agent, the Court found that the State is not
responsible for torts committed by the official in the performance of his duties.
Boehm v. Department of
Highways (No. D-613). (Petition for
rehearing) -
140
RELEASES
Where the language in the release recites the release of joint tortfeasors “as
well as all other persons, firms and corporations whatsoever”, and the express
understanding that the release “shall operate to extinguish” all claims, and
includes a declaration by the claimants that all claims are “extinguished, now
and forever”, the Court held that the release should inure to the benefit of
the State of West
Virginia. Hopson v. Department of
Natural Resources (No. D-549a). 8
If the State may be sued as a person, it may be released as a person; and in
that context the Court held that the words “all other persons, firms or
corporations”, contained in a release, included the State of West Virginia. Hopson v. Department of Natural Re source (No. D-549a) 8
W. VA.] REPORTS
STATE COURT OF CLAIMS 225
RELOCATION ASSISTANCE
Promises and representations of a
right of way agent employed by the respondent which exceed the scope of the
agent’s limited or apparent authority, do- not create a contractual obligation
on behalf of the State. Boehm v. Department of Highways (No. D-613). 110
Where the right of way agent was not aware that the deed conveying title to the
claimant granted a life tenantcy leaving the grantees without a way of ingress
or egress over an adjoining parcel, neither he nor the State could be
responsible for any assurances that he may have made to the claimants
concerning such access. Boehm v.
Department of Highways (No. D-613) 110
Claimants were held to be negligent when they purchased property without making
an inquiry as to the soundness of the title and the appurtenant right of way to
their property when they were aware that a controlled access highway did not
provide the ingress and egress to parcels of land adjoining the highway. Boehm
v. Department of
Highways (No. D-613) 110
SIDEWALKS—See also
Negligence
Claimant is entitled to an award for damages to his sidewalk and sewer line
where motor vehicles owned by the respondent and parked on the property caused
the damages. Amburgey v. Adjutant General
(No. D-633) —
69
Claimant was denied recovery for physical injury when he walked into a sign
erected by the respondent by reason of claimant’s contributory negligence. Vance
v. Department of Highways (No.
D-723) 189
Pedestrians are bound to use ordinary and reasonable care to avoid danger and
are not entitled to recover for injuries inflicted by coming in contact with
obstructions which are obvious to the most
casual observer. Vance v. Department of Highways (No. D-723 ) 189
STATE
Promises or assurances given by a road contractor or his employees that an
access road would be provided the claimants do not create any obligation
binding upon the State, the road contractor and its employees not being agents
of the State. Boehm v. Department of
Highways (No. D-613) 110
Where the claimants alleged that promises made by a right of way agent were
tantamount to fraud and misconduct and beyond the scope of the limited
authority of the right of way agent, the Court found that the State is not
responsible for torts committed by the official in the performance of his
duties. Boehm v. Department of
Highways (No. D-613). (Petition for rehearing) 140
Where the claimant performed extra work which could not be considered as part
of the work contemplated by either the original contract or subcontract, and
the claimant did such work under authority of the business manager, it was
unjust enrichment on the part of the State if the claimant was not reimbursed
for such work. Brunetti Hardware & Painting v. Department of Mental
Health
(No. D-676). 96
226 REPORTS STATE
COURT OF CLAIMS [W. VA.
Compensatory damages for injury to real estate caused by the State will be
measured by the diminution in market value and not exclusively on cost of
repair or restoration of the property to its former condition. Osborne v.
Department of Highways (Nos. D-579
& D-634) 83
The Court made an award to the claimant upon a contract upheld by the Court
where public interest requires State agencies to accept the lowest bid, and the
State has a limited discretion in rejecting the bid of the lowest responsible
bidder. Russell Transfer, inc. v.
Dept. of Finance and Administration (No. D-615) 40
The Court held that the issuance of purchase order is a ministerial act and the
destruction of same did not nullify a written and legally enforceable contract
between the parties. The claimant was made an award for the breach of the
contract. Russell Transfer, Inc.
v. Dept. of Finance and Administration (No. D-615) 40
Claimant was awarded $44,825.17 based upon the finding of the Court that a
valid contract was executed between claimant and respondent even though
respondent contended that a purchase order required by statute had not been
completed. Russell Transfer, Inc.
v. Dept. of Finance and Administration (No. D-615) — —--- 40
STATUTES
Claimant, Director of the Department
of Mental Health, was made an award of $2,500 by reason of a statutory increase
in her salary for the fiscal year July 1, 1973 to June 30, 1974 pursuant to
Chapter 6, Article 7, Section 2a of the W.Va. Code. Bateman v.
Department of Mental Health (No. D-907). 182
To consider a regulation on taxes as mandatory in all cases is not a Just and
equitable interpretation of the rights of certain persons who, because of
special circumstances, are entitled to exemption from the regulation. Central
investment Corp. v. Nonintoxicating
Beer Comm’n. (No. D-740) 182
Claimant was entitled to an award for a funeral performed for the respondent,
Workmen’s Compensation Comm’n. for which the respondent admits liability under
Chapter 23, Article 4, Section 4 of the W.Va. Code. Leonard Johnson Funeral
Home, Inc. v.
Workmen’s Comp. Fund (No. D-797) 195
A justice of the peace may exercise no criminal jurisdiction other than
that conferred by statute; therefore, a justice has no jurisdiction over the
offense of gaming. Maryland Cas. Co. v. Alcohol Beverage
Control Comm’n. (No. D-656) (Petition for rehearing) 186
Where an agency of the State incurrs liabilities in excess of the then current
appropriation, the agency has violated Chapter 12, Article 3, Section 17, of
the W.Va. Code. The Court is in a position where it must deny the claim as an
illegal over-expenditure. Ruddell
v. Alcohol Beverage Control Comm’n. (No. D-789j) 163
Claimant was made an award for a breach of contract wherein the Court held that
the State had a moral obligation to perform its duly executed contract when the
existence of a contractual obligation was created by following regular
statutory purchasing procedures enacted by the legislature. Russell
Transfer, Inc. v. Dept. of Finance
and Administration (No. D-615) 40
W. VA.] REPORTS STATE COURT OF CLAIMS 227
A claimant is entitled to an award of damages for the taking and destruction of
two automobiles where no notice had been given to the claimant by the
respondent in compliance with Chapter 17, Article 24, Section 6 of the W. Va.
Code pertaining to abandoned
vehicles. Stanley v. REAP (No. D-730) 106
STIPULATION AND AGREEMENT
An award to the claimant will be made
when the claimant and respondent stipulated that claimant’s truck was sprayed
with red lead paint by agents of the respondent who were engaged in painting a
building belonging to the respondent. Cooper v. Department of Highways (No.
D-787). See also Ellison v. Department of Highways
(No. D-788) 173
STREETS AND HIGHWAYS—See also Fafling Rocks; Landslides; Motor Velücles; Negligence
Where it appeared that there were no defects or obstruction of such magnitude
as to have been the proximate cause of claimant’s accident, the claimant is not
entitled to recover damages therefor.
Bartz v. Department of Highways (No. D-722) 170
Where the claimant was operating a motorcycle on a secondary road knowing the
condition of the road and did not exercise due care or caution for his own
safety, he was guilty of contributory negligence. Bartz v. Department of
Highways (No. D-722) 170
A secondary road must be accepted as such with the usual maintenance
requirements of such class of road and not the maintenance of a first-class
highway. Bartz v. Department of Highways (No.
D-722) 170
Claimant was awarded $50.80 for damage to his automobile on a drop inlet
negligently allowed to deteriorate by the respondent, which negligence
constituted the proximate cause of the claimant’s
damages. Blackwell v. Department of Highways (No. D-626) 33
Claimants were held to be negligent when they purchased property without making
an inquiry as to the soundness of the title and the appurtenant right of way to
their property when they were aware that a controlled access highway did not
provide the ingress and egress to parcels of land adjoining the highway. Boehm
v. Department of Highways (No. D-613) — 110
Promises or assurances given by a road contractor or his employees that an
access road would be provided the claimants do not create any obligation
binding upon the State, the road contractor and its employees not being agents
of the State. Boehm v. Department of
Highways (No. D-6l3) 110
Where the right of way agent was not aware that the deed conveying title to the
claimant granted a life tenancy leaving the grantees without a way of ingress
or egress over an adjoining parcel, neither he nor the State could be
responsible for any assurances that he may have made to the claimants
concerning such access. Boehm
v. Department of Highways (No. D-613) 110
Claimant is not entitled to recover for damages to the automobile of its
insured where the evidence revealed that there was no obstruction of any
consequence in the road by a grader being operated by the respondent’s agent. Dairyland
Ins. Co. v. Department of High way (No. D-714) 174
228 REPORTS STATE
COURT OF CLAIMS [W. VA.
Claimant is not entitled to recover damages where claimant’s insured caused the
accident himself by driving over from the southbound lane of traffic to the
northbound lane and stopping there too long for clearance by a coal truck which
was properly proceeding in the northbound lane. Dairyland ins. Co. v. Department of High way (No. D-714) — 174
Claimant is entitled to recover for damages to his automobile where he was
driving at a lawful rate of speed and was not able to see a defective condition
in the street wherein no warning signs were there to warn motorists of the
condition. Dully v. Department
of Highways (No. D-738) — 176
Claimant was denied recovery for damages sustained when a boulder fell off of a
hillside striking claimant’s automobile driven by her son, as the accident
occurred in a falling rocks area similar to many others, and the Court’s
holding in similar cases that the user of the highway travels at his own risk
and that the State does not and cannot assure him a safe journey applied to the
claimant
herein. Edgell v. Department of
Highways (No. D-630 a&b) 161
Claimant was entitled to an award for damages to his automobile where the Court
found that the accident was unavoidable insofar as the two drivers were
concerned, and that the respondent was liable by reason of its attempt to
control traffic at a junction which was not a true intersection as though it
was a true intersection, thereby creating a dangerous condition which was not
likely to be forseen or
recognized by the traveling public. Greene
v. Department of
Highways (No. D-687) — — 133
Claimant was made an award for damages to his automobile which occurred when
claimant collided with an automobile while he was making a right hand turn and
the other automobile was passing through an area which was not a true
intersection, but the attempt by respondent to control traffic as if this were
an ordinary intersection did create a dangerous condition which was not likely
to be forseen or recognized by the traveling public. Greene v. Department
of Highways (No. D-687) -. 133
Claimant was made an award of $78.92 for damages to her automobile where in
parking her car it was impossible for her to observe a sunken drain alongside
of the curb, and the respondent should have been aware of the hazard. Harris v. Department of Highways
(No. D-655) 116
Claimant was denied an award for damages to her automobile where the weight of
the evidence established that the claimant was operating her automobile at a
speed that was too fast for the prevailing road conditions and that the
accident resulted from her own
negligence. McArthur v. Department of
Highways (No. D-666) 136
In fulfilling a legal duty to keep the highways of this State in a reasonably
safe condition, it may become necessary for the respondent to create
temporarily hazardous conditions, and when this occurs it becomes the
respondent’s duty to fully and adequately warn the traveling public of these
temporary conditions. McArthur v.
Department of Highways (No. D-666) — 136
Claimants are entitled to damages to real property where the respondent should
have forseen the probability of the result of the slipping of the roadway onto
the claimants’ property causing damage. McIver
and White v. Department of Highways (Nos.
D-548 and
D-552) 23
W. VA.] REPORTS
STATE COURT OF CLAIMS 229
Claimants are entitled to damages to real property sustained when the
respondent was negligent in its maintenance of the road by continuing to make
insufficient additions to the surface of the roadway instead of timely correcting
the road structure to avoid pressure against claimants’ property. Mclver and White v. Department of
Highways (Nos. D-548 and D-552) 23
Where respondent’s employee drove a W.Va. National Guard army truck through
accumulated flood water on a highway which water was forced against the doors
of a business building owned by the claimant breaking the doors and glass
thereof, the Court held that the operation of the truck was negligent and the
claimant was awarded damages in the amount of $416.38. Moore v. Adjutant
General (No. D-719) 93
Where an open ditch which served as adequate drainage for a road was removed in
widening the road and caused flooding of claimant’s property, the inadequate
drainage provisions were the proximate cause of damage to claimant’s property. Osborne v. Department of
Highways (Nos. D-579 and D-634) 83
Claim was disallowed where the Court found that the claimant had knowledge of
the specific defect or dangerous condition of the road and failed to use the
care which an ordinary and reasonably prudent person would have used under the
circumstances. Swartzmiller v. Department of Highways (No.
D-517) 29
Claimant was denied recovery for injuries suffered in a highway accident as it
is well settled law that no recovery will be allowed for injuries where it
appears that the person injured was guilty of contributory negligence, that
proximately contributed to his injuries, or even where the injury was the
proximate result of the concurring negligence of the parties. Swartzmiller v. Department of Highways
(No. D-517) 29
Claimant was made an award for damages to his automobile when a branch fell
from a decayed tree which fact could have been ascertained by the exercise of
reasonable inspection and care and therefor constituted a public nuisance. Swift & Company, Inc. v.
Department
of Highways (No. D-662) 56
Claimant was made an award for damages to her automobile where an employee of
the respondent threw a shovel full of hot asphalt mix against her automobile in
a work area where the claimant was directed by an employee to pass around the
work area. Travelers Indemnity Co. v.
Department of Highways (No. D-747) — 95
The Court has consistently held that
the State is not a guarantor of the safety of travelers on its highways. This
principal established in Parsons v.
State Road Commission, 8 Ct. Cl. 210
was applied to the claim of a claimant whose automobile was damaged in
a rockslide. Walker v. Department of
Highways (No. D-618). 32
Claimant was awarded $7,300 for damages to property when the respondent
installed a series of culverts in the redesign of a State road, which resulted
in a concentration of water upon claimant’s property, which not only was a
violation of claimant’s property rights, but also a wilful act. Young v. Department of Highways
(No. D-625) — 64
A claimant was guilty of contributory negligence in her resulting fall over a
manhole where nothing was shown to indicate that the manhole could have been
considered in a dangerous or hazardous
condition. Zain v. Department of
Highways (No. D-727) 109
230 REPORTS STATE
COURT OF CLAIMS [W. VA.
TAXATION
Where a tax regulation leaves the
application of the regulation to the discretion of the commissioner the
fairness of the commissioner’s exercise of discretion may be considered by the
Court. Central
investment Corp. v. Nonintoxicaling Beer Comm’n. (No. D-740) 182
To consider a regulation on taxes as mandatory in all cases is not just and
equitable interpretation of the rights of certain persons who, because of
special circumstances, are entitled to exemption from the regulation. Central
investment Corp. V.
Nonintoxicating Beer
Comm’n. (No. D-740) — 182
Where a regulation of the respondent does not permit transfer or use by anyone
other than the original purchaser of tax paid crowns lids and half barrel
stamps, the successor company is justified in seeking and obtaining a refund. Central
investment Corp. v.
Nonintoxicating Beer Comm’n. (No. D-740) 182
Where a tax overpayment has not damaged the respondent, a retention by the
respondent of the amount of the overpayment amounts to unjust enrichment. Central
Investment Corp. V.
Nonintoxicating Beer Comm’n. (No. D-740) - 182
TRAVEL EXPENSES
The Court advised the Board of Architects to pay travel expenses of certain
members where the Board had sufficient funds and general revenue of the State
was not involved. Elden, Et aI v. Board of
Architects (No. D-703 -
D-707) 80
TREES AND TIMBER
Claimant was awarded $65.04 for damage to power lines when a tree was
cut and negligently permitted to fall upon claimant’s power lines. Monongahela
Power Co. v. Department of Highways
(No. D-645d) 39
Where the claimant’s tree died as a result of herbicide being sprayed upon it
negligently by employees of the respondent who were spraying the heribicide
upon the State’s right of way, the claimants were reimbursed for the reasonable
value of the tree.
Reed v. Department of Highways (No. D-677) —-- 99
Claimant was awarded $200.66 for damages to telephone lines when employees of
the respondent negligently permitted a tree to fall into the lines. Monongahela
Power Co. v. Department of
Highways (No. D-645a) —
37
TRESPASS
Where claimant’s automobile was damaged by a dynamite blast set off by
employees of the respondent, the respondent will be liable for the trespass
upon the claimant’s property. Dietz v. Department
of Highways (No. D-682) 98
Even though there is no statutory law in W.Va. for compensation for personal
property damage for public use as referred to in Article 3, Section 9 of the
West Virginia Constitution, the common law provides for actions of trespass on
the case, therefore a claim of trespass is maintainable in the Court of Claims.
The Firestone Tire & Rubber Co., Et al v. Department of Highways (No.
D-227 Et al). __-_
W. VA.] REPORTS
STATE COURT OF CLAIMS 231
Claims for damage to personal property resulting from an act of trespass by the
State are clearly in tort, ex delicto, and as such are within the jurisdiction
of the Court of Claims. The Firestone
Tire & Rubber Co., Et a! v. Department of Highways (No. D-227 Et al)
Even though there was no negligence on the part of the respondent and the
consequences were not reasonably forseeable, the damages done were a
consequence of the work done by the respondent’s contractor and is therefore
compensable. The Firestone Tire &
Rubber Co., Et al v. Department of Highways (No. D-227 Et al)
Where the respondent’s contractor while working on a highway caused the release
of water from an abandoned mine shaft to flood a community, the respondent’s
acts amounted to a trespass causing the damages alleged and claimant is
entitled to an award for damage to personal property. The Firestone Tire & Rubber Co., Et al v.
Department of Highways (No. D-227 Et
al)
Claimants were entitled to $1000 for damages to real property where the damages
were the result of a single trespass, which was not a continuing one, but one
which could be definitely determined as to damages. Mclver and White v. Department of Highways (Nos.
D548andD-552) —
23
WAGES
Claimant, Director of the Department
of Mental Health, was made an award of $2,500 by reason of a statutory increase
in her salary for the fiscal year July 1, 1973 to June 30, 1974 pursuant to
Chapter 6, Article 7, Section 2a of the W.Va. Code. Bateman v. Department
of Mental Health (No. D-907) 182
Where an agency of the State incurrs liabilities in excess of the then current
appropriation, the agency has violated Chapter 12, Article 3, Section 17, of
the W.Va. Code. The Court is in a position where it must deny the claim as an
illegal over-expenditure. Ruddell
v. Alcohol Beverage Control Comm’n. (No.
D-789j) 163
A claim for two months salary by an agency employee of the respondent was
denied because such payment would have been an illegal over-expenditure by the
respondent State agency. Ruddell v.
Alcohol Beverage Control Comm’n. (No.
D-789j) —---
163
WARRANTY
Claimant was made an award of $269.00 for a used motor upon the theory that
there is an implied warranty that goods are fit for the particular purpose for
which they are sold. McGuffey V.
Board of Regents (No. D-624) 35
Claimant was made an award of $269.00 which constituted the cost of replacing a
worthless motor with a serviceable motor when a truck purchased by the claimant
from the respondent upon submission of a sealed bid was sold in an “as is”
condition from fire damage and not as a truck without a motor, which is what claimant
discovered after the purchase. McGuffey
v. Board of Regents (No.
D-624) 35
232 REPORTS STATE
COURT OF CLAIMS [W. VA.
WATERS AND WATERCOURSES—See also Drains and Sewers; Wells
Claimant was made an award for damages to its water main due to the negligent
operation of a backhoe by respondent’s employee.
Coal River Pub. Svc. Dist. v. Department of Highways (No. D-698). 91
Claimants were entitled to awards for damages to personal property where water
from an impounded coal mine was released and flooded the community, as the
impoundment itself was not unlawful, but the direct and proximate cause of the
damages was the act which caused the release of the water. The Firestone
Tire & Rubber Co., Et a! v. Department of Highways (No. D-227 Et al)
Claimant was entitled to damages to compensate him for pollution to his well
where the respondent stored salt on its land in such a manner that the action
of rain and snow would cause the salt to impregnate the surrounding land and
pollute his well. Henderson
v. Department of Highways (No. D-332) 177
Where the negligent design, construction and maintenance of a drainage system
constructed to improve a State highway, resulted in damages to the property of
the claimant, this negligence constituted the proximate cause of said damages. Osborne
v. Department of
Highways (Nos. D-579 & D-634) — _- 83
Where the claimant is not able to show by a preponderance of the evidence that
the damages suffered were the result of actionable negligence on the part of
the respondent, the claimant is not entitled to an award. The Sanitary Bd.
of the City of Wheeling v. Department of Highways (No. D-735) — — __192
Claimant was not entitled to recover for damages to a sewer where both the
claimant and respondent had to rely almost entirely on circumstantial and
opinion evidence leaving much to conjecture, which cannot be a basis for
judgment. The Sanitary Bd. of the
City of Wheeling v. Department of Highways (No. D-735) 192
The common enemy doctrine is not applicable where the respondent interfered
with the natural flow of surface water by diverting and accelerating its flow
with increased volume causing damage to claimant’s property, for which claimant
was awarded $7,300.00.
Young v. Department of Highways (No. D-625) 64
WELLS
Claimant was awarded for the cost of
having a well drilled when the well was destroyed as the proximate result of
blasting by employees of the respondent. Corzine v. Department of Highways (No.
D-778) 144
Claimant was entitled to damages to compensate him for pollution to his well
where the respondent stored salt on its land in such a manner that the action
of rain and snow would cause the salt to impregnate the surrounding land and
pollute his well. Henderson
v. Department of Highways (No. D-332) 177
Claimant was denied recovery for alleged sickness resulting from drinking
polluted and contaminated water as the claimant assumed the risk of physical
consequences that would result from drinking the unpalatable water where he was
aware of the bad condition.
Henderson v. Department of Highways (No. D-332) 177
W. VA.] REPORTS
STATE COURT OF CLAIMS 233
Claimant is entitled to an award for damages to his residence and well when
such damages are the result of blasting by the respondent. State Farm Fire
& Casualty Co. v. Department of
Highways (No. D-599) 51
W. VA. UNIVERSITY—See also Board of Regents
An advisory opinion of the Court was issuable within the jurisdiction of the
Court of Claims, advising the respondent to pay the claimant for ten months
rent even though no formal lease agreement was prepared or signed, but the
premises were accepted and used by the respondent University and a formal lease
was later entered into for the premises. Hardesty v. Board of Regents
(No. D-658) 55
WORKMEN’S COMPENSATION FUND
Claimant was entitled to an award for a
funeral performed for the respondent, Workmen’s Compensation Fund, for which
the respondent admits liability under Chapter 23, Article 4, Section 4 of the
W.Va. Code. Leonard Johnson Funeral Home, Inc. v. Workmen’s
Comp. Fund (No. D-797) 195