Shackleford v. Catlett, 13996

• Decision Date: 16 May 1978
• Docket Number: No. 13996,13996
• Court: West Virginia Supreme Court
• Parties: George Glenn SHACKLEFORD v. Lyle S. CATLETT, Edmond S. Williams, John Evans Wright and Robert L. Burkhart.

Page 327

244 S.E.2d 327

161 W.Va. 568

George Glenn SHACKLEFORD v. Lyle S. CATLETT, Edmond S. Williams, John Evans Wright and Robert L. Burkhart.

No. 13996.

Supreme Court of Appeals of West Virginia.

May 16, 1978.

Syllabus by the Court

1. "In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken." Point 1, Syllabus, Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334 (1971).

2. "The constitutional requirement that a law be general does not imply that it must be uniform in its operation and effect in the full sense of its terms. If a law operates alike on all persons and property similarly situated, it is not subject to the objection of special legislation or class legislation and does not violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States." Point 7, Syllabus, State ex rel. Heck's v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965).

3. When all persons in a class created by a statute are treated equally and the classification is a rational one based on social, economic, historic or geographical factors, and the classification bears a rational relationship to a legitimate state purpose, such statute is not violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution or Article III, Section 17 of the West Virginia Constitution.

Rice, Hannis & Douglas, Charles F. Printz, Jr., Richard L. Douglas, Martinsburg, for appellant.

Patrick G. Henry III, Pros. Atty., Martinsburg, for appellees.

CAPLAN, Chief Justice:

This is an appeal from a final order of the Circuit Court of Berkeley County wherein that court granted summary judgment for the defendants and dismissed the action. The plaintiff in that action, George Glenn Shackleford, was a deputy sheriff in Berkeley County; defendant Catlett was the sheriff and defendants Williams, Wright and Burkhart were members of the County Court (now Commission) of Berkeley County.

The plaintiff instituted an action against the defendants in their official capacities seeking the recovery of damages for injuries resulting from their alleged negligence. Shackleford charged in his complaint that, in the course of his employment as a deputy sheriff, he was severely and permanently injured and that such injury was caused by the negligence of the defendants, either independently or as joint tort feasors. He alleged that while he and fellow deputy Grayson Davis were attempting to serve a felony warrant on Herbert Smith, he was shot and seriously injured by Smith. In his amended complaint he also charged deputy Davis with negligence, although he did not seek recovery from him.

The specific negligence of Davis was set out in the plaintiff's answer to the defendants' interrogatory. Therein the plaintiff related that while he was attempting to arrest Smith, Davis "neglected, failed and refused to cover and protect Plaintiff with a shotgun, in complete disregard of Plaintiff's instructions".

An "Agreed Statement of Facts" was executed by the parties and filed for the court's consideration. In addition to the foregoing, it was agreed that on May 18, 1974, the date of the injury, the County Court of Berkeley County was not a subscriber to the West Virginia Workmen's Compensation Fund; that the plaintiff received full pay during the period that he was unable to work; that there were no actual acts of negligence on the part of any defendant; and that certain medical expenses were incurred by the plaintiff as a result of the subject injuries.

By order entered December 20, 1976, the court granted summary judgment in favor of all the defendants and made the following conclusions of law: (1) that on May 18, 1974, Shackleford and Davis were fellow-servants; (2) that plaintiff's only theory as to the defendants' liability is the imputation to the defendants of the negligent acts of a fellow-servant; (3) that pursuant to W.Va.Code, 1931, 23-2-1, in effect on May 18, 1974, the defendants were not required to be subscribers to the workmen's compensation fund; and, (4) that pursuant to W.Va.Code, 1931, 23-2-8, in effect on May 18, 1974, the defense of fellow-servant was available to the defendants and was affirmatively pleaded by them in their answer. Upon this appeal we affirm the judgment of the circuit court.

Although it was not mentioned in the trial court, the appellant on this appeal raises for the first time the issue of governmental immunity. He contends that a county court is not or should not be immune from suit. Not having been raised below, we need not and do not decide that issue. See, however, Boggs v. Board of Education of Clay County et al., W.Va., --- S.E.2d ----. (# 13824 decided April 7, 1978)

In a long line of cases this Court has consistently held, as reflected in Syllabus No. 1 of Mowery v. Hitt, 155 W.Va. 103, 181 S.E.2d 334 (1971): " In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which were not considered and decided by the court from which the appeal has been taken." See Adams v. Bowens, W.Va., 230 S.E.2d 481 (1976); Tomkies v. Tomkies, W.Va., 215 S.E.2d 652 (1975); Parker v. Knowlton Construction Co., W.Va., 210 S.E.2d 918 (1975); Boury v. Hamm, 156 W.Va. 44, 190 S.E.2d 13 (1972); and Wilkinson v. Searls, 155 W.Va. 475, 184 S.E.2d 735 (1971).

It is the position of appellant Shackleford that W.Va.Code, 1931, 23-2-1, as amended, is unconstitutional as being violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution and Article III, Section 17 and Article VI, Section 39 of the West Virginia Constitution. That statute, as it read on May 18, 1974, provided that the "State of West Virginia and all governmental agencies or departments created by it, including county boards of education, are hereby required to subscribe to and pay premiums into the workmen's compensation fund . . ." It gave county courts (now county commissions) the option to subscribe or not subscribe to the fund. The statute further provided that Section 8 of said Article 2 "shall not apply to such county courts . . . (and) that the failure of such county courts . . . to elect to subscribe to and to pay premiums into the workmen's compensation fund shall not impose any liability upon them, other than such liability as would exist notwithstanding the provisions of this chapter." Section 8 provided that a county court would not be deprived of its common law defenses by not subscribing to the fund.

Contrary to the contention of the plaintiff, by permitting county courts the option to subscribe or not subscribe to the workmen's compensation fund the legislature did not deny equal protection of the law to employees of county courts electing not to subscribe to the funds, nor does this constitute objectionable special or class legislation.

In State ex rel. Piccirillo v. City of Follansbee, W.Va., 233 S.E.2d 419 (1977), this Court discussed the two tests utilized to determine whether a state classification violates the equal protection guarantee. The traditional test required the court...