Clayton v. County Court Of Roane County.

• Decision Date: 29 April 1924
• Citation: 96 W.Va. 333
• Parties: Mary R. Clayton v. County Court of Roane County.
• Court: West Virginia Supreme Court

96 W.Va. 333

Mary R. Clayton

v.County Court of Roane County.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 1924.

Decidec.

April 29, 1924.

1. Appeal and Error Where General Demurrer to Declaration

Sustained, or Overruled, Only Question That May be Certified for Review is Sufficiency of Declaration.

The only question that may be properly certified to the supreme court for review where a general demurrer to a declaration has been sustained or overruled is whether the declaration states a good cause of action against the defendant. (IP. 335).

2. Highways Statute Making County Court Liable for Defective

County-District Road Repealed Statute Making it Liable for Defective Public Road.

Sec. 154, chap. 43, Barnes' Code 1918 (sec. 153, Chap. 66, Acts 1917), which imposes a liability on a county court for injuries sustained by reason of a public road being out of repair, is expressly repealed by Sec. 194, chap. 112, Acts 1920-1921; Section 167 of which chapter imposes liability on the county court for injuries occurring to pensons or property by reason of a county-district road being out of repair, (p. 336).

3. Same Rule as to County Court's Duty to Construct, Improve,

and Maintain Class A. Roads, Stated.

Under sec. 64, Chap. 112, Acts 1920-1921, it is the duty of a county court to construct, improve and maintain all roads in the county theretofore known as "Class A" roads, as countydistrict roads until such time as the state road commission shall, by order entered of record, take: such "Class A" roads over for construction or maintenance, (p. 336).

4. Same Declaration Held to State Cause of Action Against

County Court for Injuries Caused by Defective Road. In an action on the case for damages against a county court for injuries sustained by plaintiff by reason of a public road being out of repair, it is sufficient to charge in the declaration that the road at the time of the injury complained of was under the immediate care, supervision and control of the county court, and kept and maintained by it for public travel, and was charged with the duty of keeping the road in proper repair and free from obstructions dangerous to persons lawfully traveling thereon, (p. 336).

MoGinnis, Judge, absent.

Case certified from Circuit Court, Roane County.

Action by Mary R. Clayton against the County Court of Roane County. The trial court overruled a general demurrer to the declaration and certified its ruling to the Supreme Court of Appeals for review.

Ruling affirmed.

Wm. S. Ryan and Thos. P. Ryan, for plaintiff. John W. Lance, for defendant.

Lively, Judge:

The trial court overruled a general demurrer to the declaration and certified its ruling to this court for review; propounding questions to be answered which do not arise upon the pleading. The only question that may be properly certified for review under section 1, chapter 135, Code, where a demurrer to a declaration has been sustained or overruled, is whether the declaration states a good cause of action. Hence the question propounded in this case as to whether the state road commission is liable for damages for injuries sustained by a person traveling over a public road by reason of it being out of repair, which road has been taken over and maintained by the commission; and if so from what source the commission would obtain money to pay a judgment, does not arise upon demurrer to a declaration by such individual against the county court.

The declaration is in trespass on the case for damages sustained by plaintiff to her person and property by reason of an obstruction negligently and carelessly left by the county court upon a road which at the time of the accident and for many years prior thereto had been kept and maintained for public travel, and over which it had immediate care, supervision and control; into which obstruction so carelessly and negligently left standing across the road plaintiff collided in the night time while lawfully passing over the road in her automobile and without fault on her part. The declaration charges that the obstruction was a concrete spreader which was left by the defendant standing across the road from one side to the other and which was constructed of iron or like material and on which there were no lights or warnings of clanger.

Does the declaration state a good cause of action? That is the only question which we can consider on this certification. Smith v. Ledsome, 95 W. Va. 429, 121 S-E. 484. In view of the "good roads amendment" (Art. XIV, sec. 5, Constitution, as found in Barnes' Code, 1923) and chapter 112, Acts 1920-1921, the road law, the trial court seems to have been in doubt as to whether the declaration should have stated that the road on which the accident occurred was a countydistrict road; and has asked if the declaration is good without that allegation. Prior to the constitutional amendment and the "good roads law" of 1921 (chap. 112 of the acts of that session) the county courts had the control, construction, repair and superintendence generally of all public roads within the respective counties; and it was expressly provided that any person who sustained an injury to his person or property by reason of a public road being out of repair could recover for all damages sustained by reason of such injury, in an action on the case, in any court of competent jurisdiction, against the county court. The liability of the county court was purely statutory, created by the statute, and otherwise would not exist. At common law the county courts would not have been...