Clayton v. Roane County Court

• Decision Date: 29 April 1924
• Docket Number: (C. C. No. 297.)
• Parties: CLAYTON . v. ROANE COUNTY COURT.
• Court: West Virginia Supreme Court

123 S.E. 189

CLAYTON .

v.ROANE COUNTY COURT.

(C. C. No. 297.)

Supreme Court of Appeals of West Virginia.

April 29, 1924.

(Syllabus by the Court.)

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, both of Spencer, for plaintiff.

John W. Lance, of Spencer, for defendant.

LIVELY, J. 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, c. 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 ease 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 nighttime 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 danger.

Does the declaration state a good cause of action? That is the only question which we can consider on this certification. Smith v. Ledsome (W. Va.) 121 S. E. 484. In view of the "good roads amendment" (article 14, § 5, Constitution, as found in Barnes' Code 1923), and chapter 112, Acts 1920-21, 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 county-district road, and has asked if the declaration is good without that allegation. Prior to the constitutional amendment and the "good roads law" of 1921 (chapter 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 liable. Parsons v. County Court, 92 W. Va. 490, 115 S. E. 473. This statutory liability on the county courts for injuries received on public roads by reason of their being out of repair continued in full force until the enactment of chapter 112 of the Acts of 1920...