Price v. Sims

• Decision Date: 28 March 1950
• Docket Number: No. 10213,10213
• Court: West Virginia Supreme Court
• Parties: PRICE, v. SIMS, Auditor.

Page 657

58 S.E.2d 657

134 W.Va. 173

PRICE, v. SIMS, Auditor.

No. 10213.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1950.

Decided March 28, 1950.

Syllabus by the Court.

1. A moral obligation of the State, declared by the Legislature to exist in favor of a claimant for negligent injury to his property, will be sustained, and a legislative appropriation of public funds made for its payment will be upheld, when the conduct of agents or employees of the State which proximately caused such injury is such as would be judicially held to constitute negligence in an action for damages between private persons.

2. A claim for damages to property injured by the negligence of an agent or an employee of the State, while engaged in the discharge of a governmental function, may form the basis of a valid moral obligation of the State and justify a legislative appropriation of the public funds of the State for the payment of such claim.

Kaufman & Boiarsky, Charleston, Paul J. Kaufman, Charleston, John G. Hackney, Charleston, for petitioner.

William C. Marland, Atty. Gen., Eston B. Stephenson, Asst. Atty. Gen., Milton S. Koslow, Charleston, for defendant.

HAYMOND, Judge.

This is an original proceeding in mandamus in which the petitioner, A. S. Price, seeks a writ from this Court to compel the defendant, the Honorable Edgar B. Sims, Auditor of the State of West Virginia, to issue a warrant in due form upon the State Treasurer for the payment of a legislative appropriation in favor of the petitioner for $300.00. The claim of the petitioner against the State Road Commission, for the payment of which the appropriation was made, is for damages to his truck caused by the sudden collapse of a public bridge over a small stream known as Copen Branch of Kanawha Two Mile Creek in Kanawha County, West Virginia. Upon a hearing the State Court of Claims, on February 2, 1949, by a two to one decision, allowed the claim and awarded the petitioner the sum of $300.00.

At its regular session in 1949, by Senate Bill No. 277, passed March 12, 1949, effective July 1, 1949, and approved by the Governor, the Legislature of West Virginia, in considering a number of claims by different persons against the State and some of its agencies, including the claim of the petitioner against the State Road Commission, adopted as its own the findings of fact of the State Court of Claims, its creature and special instrumentality, as to his claim, declared it to be a moral obligation of the State, and directed the Auditor to issue a warrant for its payment from available funds appropriated for that purpose. Chapter 15, Acts of the Legislature, 1949, Regular Session. The Legisture also made an appropriation for the payment of the claim in the amount of the award. Chapter 9, Acts of the Legislature, 1949, Regular Session. Following this action of the Legislature, the petitioner was informed by a representative of the State Road Commission that it would be 'necessary for the State Auditor to pay the award sometime after the first day of July, 1949'. After that date the petitioner, by his attorney, communicated with the defendant and demanded payment of the claim. By letter to the attorney for the petitioner, dated July 18, 1949, the Auditor refused payment for the reason 'that the State cannot pay out money except for services rendered, or materials, goods or land used. This claim is based upon a tort, the negligence on the part of the State employees which I do not feel is compensable under the West Virginia Constitution.'

Payment having been refused by the Auditor, the petitioner instituted this original proceeding in this Court on September 20, 1949. The defendant filed his written demurrer to the petition and on January 11, 1950, the issues arising upon the petition and the demurrer were submitted for decision upon the briefs in behalf of the respective parties.

The facts upon which the claim is based and the findings of the court of claims with respect to them, adopted by the Legislature, are set forth in the opinion of the court of claims, are incorporated in the petition, and are shown in the evidence taken before the court of claims, which is a part of the record in this proceeding. As to all matters, except a disagreement between petitioner and representatives of the State Road Commission as to the weight of the load on the truck at the time of the accident, the facts are not disputed.

During the year 1948, the petitioner was engaged in cutting timber on lands near Whittington Hill on Copen Branch of Kanawha Two Mile Creek in Kanawha County, and in hauling the logs which he had cut to a saw mill located several miles away for the purpose of converting them into lumber for sale in nearby markets. In so doing he transported the timber by trucks which were driven over a wooden bridge located across the stream. This bridge was under the control and the supervision of the State Road Commission, an instrumentality of the State. By statute then and now in force and effect, the State Road Commissioner is required to inspect all bridges under the control of the commission and promptly to condemn, close and repair any such bridge which is found to be unsafe, and the State Road Commission is required to post and maintain, at each end of all bridges over which it has jurisdiction, clearly legible notices indicating to travelers upon the road the maximum safe load or weight that may pass over any such bridge at any one time. Section 33, Article 4, and Section 35, Article 8, Chapter 40, Acts of the Legislature, 1933, First Extraordinary Session. The bridge was out of repair but its unsafe condition was not known to the petitioner or his employees who operated his trucks upon it without mishap for some time before the accident which gave rise to his claim. On one side of the bridge a wooden cross beam or stringer which served as a support had rotted at one end. Though various residents of the neighborhood had made complaint to representatives of the commission concerning the condition of the bridge, it had not been inspected or repaired and no notices relating to the maximum safe load or weight that could pass over it had been posted for several years before the bridge collapsd and damaged the property of the petitioner.

On June 24, 1948, a truck of the petitioner, carrying a load of logs, was driven at a low speed upon the bridge by an employee of the petitioner. A stringer, sixteen feet in length which had rotted at one end, suddenly broke, causing the bridge to collapse and throwing the truck from the bridge into the stream where it overturned. As a result the truck was damaged in an amount in excess of $300.00. The truck was licensed to carry a load of three tons, but the testimony of the petitioner and a witness in his behalf is that the load on the truck at the time of the accident, consisting of sixteen logs from twelve to eighteen inches in circumference and from eight to twelve feet in length, containing 319 feet of lumber which they measured, weighed 2,233 pounds according to a standard scale of weight of seven pounds per foot. The State Road Commission contended that the truck was overloaded and that the lumber on it weighed seven or eight tons but the witnesses who gave this estimate did not measure or weigh the logs but based their statement of the weight upon their view of the logs which they saw in the water after the wreck. The testimony relating to the weight of the load shows clearly that the truck was not overloaded when the bridge collapsed. Upon the evidence the court of claims found that 'the unsafe condition of the bridge, about which claimant had no knowledge, was the proximate cause of the accident, and the State is therefore morally bound, in view of all the facts and circumstances, to compensate claimant for his loss.'

In support of his demurrer the defendant assigns, in substance, these grounds: (1) The appropriation is unconstitutional as a mere gift, amounts to a grant of the credit of the State in violation of Article X, Section 6, of the Constitution of West Virginia, and is null and void; (2) the construction and the maintenance of a state bridge are a governmental function and for that reason there can be no valid moral obligation of the State to compensate the petitioner for the damages which resulted to his property from the defective condition of such bridge; (3) the facts upon which the claim of the petitioner is based fail to disclose a moral obligation of the State to compensate the petitioner; (4) the facts upon which the claim is based show that the petitioner assumed the risk in using the bridge and that the proximate cause of its collapse was the overload on the truck; (5) no valid moral obligation exists to compensate the claimant because any recovery against the State, as a defendant in any proceeding to recover damages because of the defective construction or condition of any state road or bridge, is prohibited by Section 37, Article 4, Chapter 17 of the Code of West Virginia; and (6) no duty rests upon the State Road Commission to maintain highways and bridges under its jurisdiction 'in more than reasonably safe condition for use in the usual manner by the ordinary methods of travel', and the State does not guarantee freedom from accidents to persons who travel such highways and bridges.

The substance of the first two grounds of demurrer was urged upon, and considered and rejected by, this Court in State ex rel. Davis Trust Company v. Sims, 130 W.Va. 623, 46 S.E.2d 90, and in State ex rel. Catron v. Sims, W.Va., 57 S.E.2d 465, decided at this term of this Court. In each of those cases, the claim against the State for compensation, by reason of the existence of a moral obligation, was based upon the negligence of agents and employees of an agency of the State while engaged in the discharge of a governmental function and in both of them this Court recognized the existence of a valid...