State ex rel. Cox v. Sims, 10588

• Decision Date: 26 June 1953
• Docket Number: No. 10588,10588
• Citation: 138 W.Va. 482,77 S.E.2d 151
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. COX, v. SIMS, Auditor.

Page 151

77 S.E.2d 151

138 W.Va. 482

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

No. 10588.

Supreme Court of Appeals of West Virginia.

Submitted May 26, 1953.

Decided June 16, 1953.

Dissenting Opinion June 26, 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.' Point 1, Syllabus, Price v. Sims, 134 W.Va. 173 .

2. '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.' Point 3, Syllabus, State ex rel. Cashman v. Sims, 130 W.Va. 430 .

3. 'Whether an appropriation is for a public, or a private purpose, depends upon whether it is based upon a moral obligation of the State; whether such moral obligation exists is a judicial question; and a legislative declaration, declaring that such moral obligation exists, while entitled to respect, is not binding on this Court.' Point 2, Syllabus, State ex rel. Adkins v. Sims, 130 W.Va. 645 .

4. Negligence to be actionable must be the proximate cause of the injury complained of and must be such as might have been reasonably expected to produce an injury.

5. 'The care required by law of one in a sudden emergency is that of the average person under like circumstances.' Point 6, Syllabus, Robertson v. Hobson, 114 W.Va. 236 .

6. 'An appropriation by the Legislature of public funds for a purely private purpose is beyond the scope of its legitimate powers of legislation and is, for that reason, null and void.' Point 5, Syllabus, State ex rel. Cashman v. Sims, 130 W.Va. 430 .

Chas. E. Mahan, Fayetteville, W. Holt Wooddell and Keith Cunningham, Elkins, for petitioner.

John G. Fox, Atty. Gen., and Arden J. Curry, Asst. Atty. Gen., for defendant.

HAYMOND, President.

This is an original proceeding in mandamus in which the petitioner, J. A. Cox, 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 an appropriation in favor of the petitioner and five insurance companies. The claim involved in this proceeding is against the State Road Commission and is for compensation for property loss and damage sustained by the petitioner as the result of a fire which originated in a garage occupied and operated by the commission in Huttonsville, Randolph County, West Virginia, on the morning of April 21, 1948, and which spread to and destroyed the store building and a large portion of its contents owned by the petitioner located at a distance of a few feet from the garage. The claim is based on the alleged negligence of an agent and employee of the commission in starting the fire in the garage and in failing to prevent the fire from spreading to the nearby property of the petitioner.

Upon a hearing the State Court of Claims, on June 23, 1950, by a two to one vote, allowed the claim and awarded compensation in the amount of $22,580.71. This award was certified to the Legislature at its Regular Session, 1951, and referred to appropriate committees of each House. After hearings and investigations by these committees the award was reduced to $21,080.71. In making the original award a majority of the State Court of Claims found that the origin of the fire and its spread and communication to the nearby property of the petitioner resulted from the negligence of a mechanic of the State Road Commission in the course of his employment. By Senate Bill No. 82, passed March 10, 1951, effective July 1, 1951, and approved by the Governor, the Legislature, in considering a number of claims of different persons against the State and some of its agencies, including the instant claim against the State Road Commission, adopted as its own the finding of fact of the State Court of Claims as to the origin and the spread of the fire, declared the claim in the reduced amount of $21,080.71, 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 28, Acts of the Legislature, 1951, Rugular Session. It also made an appropriation of the sum of $21,080.71 for the payment of the claim. Chapter 8, Acts of the Legislature, 1951, Regular Session.

In fixing the amount of the award both the State Court of Claims and the Legislature allowed to each of the five insurance companies the amount of insurance paid by each company to the petitioner and which each company claimed by way of subrogation. The aggregate of the amounts paid by the companies was $7,000.00 and the residue of the total award of $21,080.71, amounting to $14,080.17, was allowed in favor of the petitioner. Each of the five insurance companies, however, has released its claim of subrogation against the petitioner and the State, and as a result, the claim involved in this proceeding is the individual claim of the petitioner for his uninsured property loss in the amount of $14,080.17. The amount of the claim is not disputed and the parties by stipulation have fixed the uninsured property loss of the petitioner at the sum of $14,080.17. The Auditor refused to pay the foregoing claim from the appropriation made by the Legislature for that purpose and on April 21, 1953, the petitioner instituted this original proceeding in this Court. The defendant filed his written demurrer to the petition, assigning numerous grounds, and on May 26, 1953, the issues presented by the petition and the demurrer were submitted for decision upon the written briefs and the oral arguments in behalf of the respective parties.

The facts upon which the claim is based and the finding of the State Court of Claims, adopted by the Legislature, are set forth in some detail in the opinion of that court and are embraced in their entirety in the transcript of the evidence introduced before it; and the opinion and the transcript of the evidence are made a part of the record in this proceeding by written stipulation of the parties.

The garage in which the fire occurred was a one story wooden structure with a concrete floor and a roof of rubberoid composition. It is conceded that it was not of fireproof construction. It was situated on the same side of the street as the store building of the petitioner and the near side of each building was separated by an alley from nine feet to eleven feet in width.

About seven thirty o'clock on the morning of April 21, 1948, a crew foreman of the State Road Commission brought to the garage for repair one of its trucks the gasoline tank of which was leaking at the time. The truck was driven forward a short distance inside the front of the garage and placed on the concrete floor about four feet from the side of the garage nearest the building of the petitioner. Immediately after the truck was placed in that position, the mechanic employed at the garage, who was the only person then present, went under the rear of the truck on a movable appliance known as a creeper which moved on four steel rollers and, in preparing to repair the leak in the tank, drained five gallons of gasoline from the tank into a large open can and closed the drainage valve on the tank. He then pushed the can from under the truck to a position between the fender of the truck and the nearest side of the garage and while on the creeper moved it toward the rear of the truck for the purpose of withdrawing from beneath the truck and getting another container for use in draining the remaining gasoline from the tank. While the creeper was in motion and still under the rear of the truck the gasoline which had leaked from the truck and had spread over a circular space of eight or ten feet on the concrete floor suddenly took fire. The fire spread quickly and ignited, in this order, the clothing and parts of the body of the mechanic, the truck, the gasoline in the nearby open container, the wall of the garage adjacent to the building of the petitioner and the ceiling of the garage. As soon as the mechanic could extricate himself from beneath the truck he ran from the garage through the nearby front door and extinguished the fire on his clothes and on parts of his body. He reentered the garage immediately and attempted to extinguish the fire by the use of a small fire extinguisher attached to the truck. Being unable to extinguish or check the fire and realizing that it was then beyond his control, he ran to the store of the petitioner, told him the garage was afire, and asked him for help. He then returned to the garage and drove the burning truck from the building. Shortly after it had been removed another truck which had been placed in the garage before the fire was driven out of the building by another person who had come to the scene of the fire.

The fire originated at about ten minutes after eight o'clock on the morning of April 21, 1948, and within approximately one hour after it started it had completely destroyed the superstructure of the garage, the building of the petitioner, and all its contents except a relatively small portion of them which the petitioner and several persons assisting him were able to remove from his building before it was completely enveloped by the flames, and had also damaged a nearby residence of another person. At the time of the fire there was no adequate supply of water available for extinguishing or checking the spread of fire in Huttonsville. The nearest fire...