State ex rel. Bumgarner v. Sims

• Decision Date: 15 December 1953
• Docket Number: No. 10623,10623
• Citation: 79 S.E.2d 277,139 W.Va. 92
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. BUMGARNER, v. SIMS, Auditor.

Page 277

79 S.E.2d 277

139 W.Va. 92

STATE ex rel. BUMGARNER, v. SIMS, Auditor.

No. 10623.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 6, 1953.

Decided Dec. 15, 1953.

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.' Pt. 1 Syl., Price v. Sims, 134 W.Va. 173 .

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.' Pt. 2 Syl., Price v. Sims, 134 W.Va. 173 .

3. 'A finding by the Legislature of the existence of a moral obligation of the State, based upon facts which give rise to a juristic condition, is subject to investigation and consideration by the courts; and the determination of the existence of such obligation is a judicial, not a legislative, function.' Pt. 3 Syl., State ex rel. Cashman v. Sims, 130 W.Va. 430 [43 S.E.2d 805, 172 A.L.R. 1389].

4. The declaration by the Legislature of a moral obligation on the part of the State to pay a claimant allegedly injured as the result of the negligence of an employee of the State, and the finding of fact by the Legislature that such employee was negligent, present a judicial question. Such finding and declaration of the Legislature, however, are entitled to respect, but the final determination of that question being juristic in character is for the courts.

5. The State Board of Control is a direct agency of the State and an integral part thereof, and one employed as a captain of the guards at West Virginia Penitentiary by the State Board of Control is to be regarded as an employee of the State for the purpose of the assertion of a claim against the State to recover for injuries caused by such employee's negligence, while acting within the scope of his employment.

6. Under the common-law rule, which obtains in this State, a public officer charged with the duty of apprehending a fleeing felon may wound, and even kill, the escapee if such action is necessary for the apprehension of the fleeing felon, and the officer is presumed to act in good faith in the exercise of such force. Such officer, however, does not have the ultimate authority to judge of the necessity of the force which he uses; and if such public officer employed by the State and charged with the duty of apprehending an escaped felon, and while acting within the scope of his employment, does not exercise reasonable care in identifying a person suspected of being a fleeing felon, and without warning mistakenly shoots and injures such suspected person, who is not the escapee, the actions of the officer in that regard will ground a claim by the injured person against the State based upon the moral obligation of the State to pay the claim.

7. Though the doctrine of respondeat superior, because of the State's immunity from suit under Article VI, Section 35, West Virginia Constitution, is not applicable to the State, the rationale of that doctrine is applicable to a claim against the State arising from the negligence of the State's officers, agents, or employees, acting within the scope of their employment, in the exercise of a governmental function, and will ground a declaration by the Legislature of the State's moral obligation to pay for injuries incurred by one as the result of such negligence on the part of the State's officers, agents or employees.

8. Subject to the rule that an acquittal by a jury of the servant in an action instituted against the master and servant to establish liability based solely on the servant's negligence, will release the master, the relation between the master and servant, the latter acting within the scope of his employment, is joint and several in the sense that both master and servant are liable for injuries caused by the negligent wrongdoing of the servant, acting within the scope of his employment, and liability for such injuries may be asserted in an action at law against the master and servant jointly or against each of them in a separate action at law.

9. Under the common law, as it existed in this State prior to the enactment of Section 7, Chapter 136, West Virginia Code of 1868, now Code, 55-7-12, and under the present statute contained in Code, 55-7-12, a judgment obtained by a person injured through the negligence of the employee of another, while the employee was acting within the scope of his employment, which has not been satisfied in whole or in part under execution or executions issued thereon, or in a proceeding in bankruptcy, in which the employee is the bankrupt, will not bar a recovery against the employer for the same injury in a separate action at law; and by the same token will not bar a claim against the State by the injured person to recover compensation for injuries inflicted, based upon the moral obligation of the State to pay.

10. Because a discharge in bankruptcy is personal to the bankrupt himself, the provision in the Bankruptcy Act, 11 U.S.C.A. § 34, that 'The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt', should be interpreted to mean that a person who has been injured by the servant or employee of another, while such servant or employee was acting within the scope of his employment, and has obtained a judgment in a separate action against the servant or employee for the recovery of damages for the alleged injuries, which judgment is not satisfied in whole or in part, is not barred by the discharge in bankruptcy of the servant or employee from recovering against the employer in a separate action damages for the same injury; and where the judgment debtor is an employee of the State, the employee's discharge in bankruptcy will not bar a claim by the injured person against the State based on the State's moral obligation to pay the claim.

Wm. S. Ryan, Spencer, for relator.

John G. Fox, Atty. Gen., Fred H. Caplan, Asst. Atty. Gen., for respondent.

RILEY, Judge.

Wallace Bumgarner, invoking the original jurisdiction of this Court, instituted this proceeding in mandamus against Edgar B. Sims, Auditor of the State of West Virginia, for the purpose of commanding the auditor to honor the requisition of the State Board of Control for two thousand dollars, the amount awarded to petitioner by the State Court of Claims and appropriated by the Budget Act for the ensuing biennium of 1953-55, contained in Chapter 1, Acts of the Legislature, First Extraordinary Session, 1953.

The Court of Claims found that petitioner's claim in the amount of two thousand dollars was based upon a moral obligation, and by Chapter 29, Acts of the Legislature, Regular Session, 1953, the Legislature, inter alia, adopted the findings of fact of the Court of Claims, declared petitioner's claim to be a moral obligation of the State, and directed the auditor to issue a warrant for the payment thereof 'out of any fund appropriated and available for the purpose.'

This case was heard in this Court upon the original petition (hereinafter designated as the 'petition') of the claimant, Wallace Bumgarner; upon respondent's demurrer filed to the petition; upon respondent's answer to the petition; upon petitioner's demurrer and replication to respondent's answer; upon the amended petition filed by the claimant; upon the transcript of the evidence bearing on the instant claim, introduced before the State Court of Claims, and the transcript of the evidence in the law action of Wallace Bumgarner against I. M. Coiner in the Circuit Court of Roane County, which transcripts were made a part of the record in this proceeding by the written stipulation of counsel for petitioner and counsel for the respondent.

The petition alleges that the respondent, Edgar B. Sims, is the duly elected and qualified Auditor of the State of West Virginia, having the legal duty to order by payment all valid obligation of the State of West Virginia, or its duly constituted agencies, including the State Board of Control, when payment of the same have been approved by specific appropriations made available to the State Auditor.

The petition alleges that on or about May 20, 1950, the petitioner was walking along a public road from Reedy, in Roane County, to his home near Palestine, in Wirt County; and that I. M. Coiner, who was employed by the State Board of Control as a captain of the guards at West Virginia Penitentiary in charge of a prison road camp, located in Roane County, while driving along the road in search of an escaped convict, overtook the petitioner, and without warning shot him through the thigh with a pistol, severely injuring him.

From the petition it appears that petitioner in the Circuit Court of Roane County instituted against Coiner an action for damages for personal injuries, which petitioner received as the result of having been shot, and obtained a judgment for three thousand dollars.

It also appears from the petition that application for a writ of error to the judgment of the circuit court was made to this Court and refused; that thereafter executions were issued on the judgment, which were returned unsatisfied with no property found and no part of the judgment paid; that on or about December 19, 1951, Coiner was adjudicated a bankrupt; that in the bankruptcy proceeding no assets were listed from which petitioner could be paid the whole or any part of the judgment; and that...