Cunningham v. County Court of Wood County

• Decision Date: 25 February 1964
• Docket Number: No. 12279,12279
• Citation: 134 S.E.2d 725,148 W.Va. 303
• Court: West Virginia Supreme Court
• Parties: . Supreme Court of Appeals of West Virginia

Page 725

134 S.E.2d 725

148 W.Va. 303

Doris Postlewait CUNNINGHAM v. The COUNTY COURT OF WOOD COUNTY, etc.

No. 12279.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 4, 1964.

Decided Feb. 25, 1964.

Syllabus by the Court

1. County courts are created by Article VIII, Section 22 of the Constitution. Their powers are defined and limited by Article VIII, Section 24 of the Constitution and by laws enacted in pursuance thereof.

2. The maintenance by a governmental unit of a bridge as a part of a public street or highway system is a governmental function.

3. In the absence of statute, a county court is not liable in damages for a tort committed by its officers or agents in the performance of a governmental function.

4. By reason of the provisions of Article VIII, Section 21 of the Constitution, and the provisions of Code, 1931, 2-1-1, this Court must leave to the legislature the function of determining whether to change or not to change the common law principle pertaining to the governmental immunity of county courts.

5. A county court's immunity from tort liability is not affected by the fact that it procures and carries a policy of insurance which purports to protect it against liability.

6. A county court cannot be estopped to assert its governmental immunity from suit by reason of the legally unauthorized acts of its officers or agents.

William L. Jacobs, George E. Lantz, Parkersburg, for appellant.

McDougle, Davis, Stealey & Morris, R. E. Stealey, William R. Pfalzgraf, Pros. Atty., Parkersburg, for appellee.

CALHOUN, Judge.

Doris Postlewait Cunningham instituted in the Circuit Court of Wood County a civil action against the County Court of Wood County to recover damages for personal injuries sustained by her when she fell while she was a pedestrian on a bridge which is partly within and partly without the City of Parkersburg and which bridge spans Little Kanswha River.

The defendant filed a motion to dismiss on the ground of the failure of the plaintiff to state a claim upon which relief could be granted. Upon the joint motion of counsel for the parties, the motion to dismiss was treated as a motion for summary judgment under R.C.P. 56(b), and the following were submitted to the court for consideration in that connection: (1) the plaintiff's complaint; (2) the defendant's answer; (3) the plaintiff's addidavit which was designated as an Affidavit in Opposition to Motion to Dismiss; and (4) the deposition of the plaintiff taken on October 11, 1962, including certain exhibits filed with and made a part of the deposition. After argument of counsel, the motion was submitted to the court for decision.

By an order entered on June 18, 1963, the circuit court granted the motion for summary judgment by the use of the following language:

'And it appearing to the Court that the defendant was not charged by law with the maintenance, control and supervision of the 'Juliana Street Bridge' at the time of the accident in this case, and was not liable to respond in damages to plaintiff because of its alleged negligence in maintaining the same, and that neither the voluntary act of the defendant in publicly controlling or repairing said Bridge, nor the maintenance in force by defendant of a policy of liability insurance on said Bridge at the time of the accident, protecting and indemnifying it against the claims of third persons, are sufficient, considered separately or together, to impose liability on the defendant for its alleged negligence in maintaining said Bridge; and that there is no genuine issue as to any material fact, and that defendant is entitled to judgment as a matter of law, the Court does hereby grant said motion for summary judgment, to which the plaintiff objected and excepted.'

By the same order, the plaintiff's action was dismissed. Upon petition of the plaintiff, this Court granted a writ of error and supersedeas to that final judgment. Subsequently, the plaintiff was permitted by the Court to move to reverse pursuant to Code, 1931, 58-5-25.

It is reasonably apparent that the bridge was controlled and maintained by the county court over a long period of years under the honest belief of county officials that the county court had the legal authority and duty to do so. It must be presumed, in the absence of evidence to the contrary, that the county officials acted honestly and in good faith in this respect, and that members of the county court did not deliberatley and designedly violate the laws of this state in expending public funds in the maintenance and repair of the bridge. City of McMechen ex rel. Wiley v. Fidelity and Casualty Co. of New York, 145 W.Va. 660, 666, 116 S.E.2d 388, 392; State, etc. v. Professional Realty Company, 144 W.Va. 652, pt. 5 syl., 110 S.E.2d 616; State ex rel. Watts v. Kelly et al., 140 W.Va. 177, pt. 1 syl., 83 S.E.2d 465; State ex rel. Staley v. Wayne County Court, 137 W.Va. 431, pt. 2 syl., 73 S.E.2d 827.

Ultimately, the county court undertook to have the state road commission and the state road commissioner assume authority and control over the bridge. They declined on the ground that they did not have any legal authority or duty to do so. In these circumstances the county court instituted a proceeding in mandamus in this Court to compel the commission and the commissioner to assume authority and control over the bridge. In State ex rel. County Court of Wood County, et al. v. The State Road Commission, et al., W.Va., 129 S.E.2d 726, the Court on March 5, 1963, awarded a writ of mandamus to compel the state road commissioner to assume jurisdiction, maintenance, supervision, repair and control of the bridge. In doing so the Court held that certain statutes enacted in 1933 'automatically' transferred the bridge to the jurisdiction of the state road commission and that the provisions of the statutes in this respect were 'mandatory.'

The plaintiff alleges that she sustained her injuries on September 22, 1960, and that her fall and consequent injuries were caused by the fact that the floor of the bridge was defective and out of repair. The plaintiff's injuries were sustained, therefore, before the decision by this Court referred to above, and while the county court was still exercising control over the bridge. The county court at that time carried an insurance policy which insured it against liability for personal injuries which might be sustained by reason of the bridge being out of repair. At the time plaintiff sustained her injuries, there was posted on the bridge a sign or notice as follows: 'GROSS WEIGHT OVER 4,500 LBS. PROHIBITED BY ORDER WOOD CO. COMMISSIONERS.' Prior to that time the bridge was closed to vehicular traffic by order of the county court but it was permitted to remain open to pedestrians. Barricades had been placed on the bridge by the county court to prohibit vehicular traffic. The county court had erected one or more signs stating: 'BRIDGE CLOSED.' In brief, there appears to be no denial of the fact that the bridge was erected by the county court in 1899 and that the county court assumed and exercised control over the bridge from the date of its erection until the date of the plaintiff's fall and consequent injuries.

The basic question presented for decision is whether the county court can be held liable to the plaintiff in view of the fact that her injuries resulted at a time when the county court was exercising control over the bridge but without legal duty or authority to do so.

County Courts are created by the Constitution of West Virginia. Their powers are therein defined and limited. Constitution, Article VIII, Sections 22 and 24; Earl T. Browder, Inc. v. County Court of Webster County, 143 W.Va. 406, 102 S.E.2d 425; Mohr v. County Court of Cabell County, 145 W.Va. 377, 115 S.E.2d 806.

Apparently counsel for the respective parties agree that the maintenance of a bridge of this character is a governmental function. 11 C.J.S. Bridges § 56, page 1092. In the performance of governmental functions, a county, or a county court, is not liable in tort for negligence of is officers or agents in the absence of statute imposing such liability. Petros v. Kellas et al., 146 W.Va. 619, pt. 3 syl., 122 S.E.2d 177; Douglass, Admr. v. County Court of Roane County, 90 W.Va. 47, pt. 1 syl., 110 S.E. 439, 22 A.L.R. 585; Watkins v. County Court, 30 W.Va. 657, pt. 1 syl., 5 S.E. 654. See also Ward v. The County Court of Raleigh County, 141 W.Va. 730, 93 S.E.2d 44; Carder, Admr. v. City of Clarksburg, 100 W.Va. 605, pt. 1 syl., 131 S.E. 349; Rader v. County Court of Roane County, 94 W.Va. 493, 119 S.E. 479; Moss Iron Works v. County Court of Jackson County, 89 W.Va. 367, 109 S.E. 343, 26 A.L.R. 319; Corrigan v. Board of Commissioners of Ohio County, 74 W.Va. 89, 81 S.E. 566; Shipley v. County Court of Jefferson County, 72 W.Va. 656, 78 S.E. 792; 5 M.J., Counties, Section 84, [148 W.Va. 308] page 152; 20 C.J.S. Counties § 215, page 1067; 14 Am.Jur., Counties, Sections 48-51, pages 215-218.

Code, 1931, 17-10-17, provides: 'Any person who sustains an injury to his person or property by reason of any road or bridge under the control of the county court * * * being out of repair may recover all damages sustained by him by reason of such injury, in an action against the county court, * * *.' This statute changes the common law. Clayton v. County Court of Roane County, 96 W.Va. 333, 335, 123 S.E. 189, 190; Parsons v. County Court of Roane County, 92 W.Va. 490, 495, 115 S.E. 473, 475. We agree with the contention of counsel for the county court that this statute cannot apply to the present situation because of the fact that, since 1933, the county court has...