State ex rel. Stollings v. Gainer

• Citation: 153 W.Va. 484,170 S.E.2d 817
• Decision Date: 20 November 1969
• Docket Number: No. 12862,12862
• Court: Supreme Court of West Virginia
• Parties: STATE ex rel. Marilyn STOLLINGS v. Denzil GAINER, Auditor of the State of West Virginia.

Page 817

170 S.E.2d 817

153 W.Va. 484

STATE ex rel. Marilyn STOLLINGS v. Denzil GAINER, Auditor of the State of West Virginia.

No. 12862.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 23, 1969.

Decided Oct. 28, 1969.

Dissenting Opinion Nov. 20, 1969.

Syllabus by the Court

1. Where the State Road Commission of West Virginia had constructed an experimental mile of road which proved deceptively slick, and the condition, although known to the Commission to have caused numerous accidents, was not remedied for at least two years, there exists a moral obligation on the part of the State of West Virginia to warrant an appropriation to pay a claim for serious personal injuries sustained by an automobile driver who, while proceeding at a safe rate of speed commensurate with the hazard known to her, nevertheless skidded and wrecked her vehicle by going over an embankment.

2. 'In order to validate a legislative appropriation of public money for private use it must affirmatively appear that the legislature in making the appropriation has found that it was necessary in order to discharge a moral obligation of the State.' Syllabus, State ex rel. Adkins v. Sims, 127 W.Va. 786 (34 S.E.2d 585).

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.' Pt. 2, syllabus, State ex rel. Adkins v. Sims, 130 W.Va. 645 (46 S.E.2d 81).

4. 'By Section 8, Rule II of this Court, exhibits may be filed with and made a part of the pleadings in any original proceeding in habeas corpus, mandamus, or prohibition instituted in this Court.' Pt. 1, syllabus, State ex rel. Wilson v. County Court of Barbour County, 145 W.Va. 435 (114 S.E.2d 904).

W. Bernard Smith, Logan, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Dennis R. Vaughn, Jr., Asst. Atty. Gen., Charleston, for respondent.

BERRY, Judge.

This original mandamus proceeding was instituted in this Court by Marilyn Stollings against Denzil L. Gainer, Auditor for the State of West Virginia, in order to obtain a writ of mandamus compelling the respondent to issue a warrant in the amount of $10,000 in compliance with a requisition from the State Road Commission to cover damages Mrs. Stollings suffered in an automobile accident which the 1969 Regular Session of the Legislature of West Virginia found to be a moral obligation and appropriated money for such claim in Enrolled House Bill 958. After the Auditor refused to honor the requisition issued by the State Road Commission, this proceeding was instituted in this Court by the petitioner and a rule was issued on September 8, 1969 returnable September 23, 1969 at which time the case was submitted for decision upon arguments and briefs of the parties.

The claim involved in this proceeding has been pending for some time and is complicated by the course of the procedure it followed. The petitioner was injured in an automobile accident on June 6, 1964 when a car she was driving slid off the road known as Route 10--W, a few miles from Logan in Logan County, West Virginia, between North Mitchell Heights and Pecks Mill Bridge. On June 16, 1966 the petitioner filed her claim before the Attorney General of West Virginia, who at that time was vested with authority by statute as an 'instrumentality of the legislature' to hold hearings on claims against the state, and make recommendations thereon to the legislature with regard to the payment thereof. A hearing was held before the claims division of the office of the Attorney General on November 3, 1966 although apparently no decision or recommendation was made after such hearing. At the 1967 regular session of the legislature of West Virginia an act was passed which transferred the duties of the Attorney General in this respect to a newly established 'Court of Claims'. The effective date of the act creating a new Court of Claims was July 1, 1967. By virtue of the implications of this act all claims before the Attorney General that had not been decided were transferred to the Court of Claims, among which was the claim involved in the case at bar.

On January 17, 1968 the Court of Claims, after reviewing the transcript of the hearing had before the Attorney General which had been turned over to it, rendered an opinion in which it found the claimant guilty of contributory negligence and disallowed the claim. No appropriation had up to the date of disallowance been made by the legislature to pay the claim involved here and nothing further was done in connection with the claim until the 1969 regular session of the legislature at which time the Enrolled House Bill 958 was enacted which was an omnibus claims bill and included the petitioner's claim.

It appears from the act, a copy of which was made an exhibit and attached to the petition, that the legislature prefaced the omnibus claim act with the statement that it considered the findings of fact and recommendations reported to it by the Court of Claims concerning various claims against the state and agencies thereof, and with respect to each of the claims the legislature adopted such findings of fact as its own and declared it to be a moral obligation to pay each such claim in the amount specified and directed the auditor to issue warrants for the payment thereof. Regardless of whether this was a correct statement as to the other claims listed in the act, it was clearly an incorrect statement as to the claim involved herein, because the Court of Claims had done just the oposite to what the legislature said it had done. However, the act concluded after the claims were listed with the positive statement that the legislature found them to be moral obligations, and that the appropriation made in satisfaction thereof should be full compensation for each claimant, provided for the Court of Claims to receive a release from the claimants releasing all claims for the moral obligations arising from the matter considered by the legislature in the finding of the moral obligation, and the making of the appropriation for the said claimant. It also directed the Court of Claims to deliver all releases obtained from the claimants to the departments against which the claims were allowed.

On June 28, 1969 a release was prepared as required by the Bill and submitted to the Court of Claims which transmitted the release to the State Road Commission with an accompanying letter pointing out that the Court of Claims had denied the claim which the legislature had included as approved when it passed the act with the statement indicating that the claim had been allowed. When the Auditor received the requisition from the State Road Commission to pay the claim he declined to honor the requisition because the Court of Claims had reached one conclusion and the legislature another and he stated that the matter should be answered by 'the courts'.

The transcript of the evidence taken before the Attorney General which was attached to the petition as an exhibit shows that the claimant was seriously injured in the accident. She had numerous large scars on her legs and left arm, and a chipped vertabrae which her doctor stated would be a permanent injury. She suffered considerable pain, was confined to the hospital for over two weeks and walked with the use of crutches for some time after he release from the hospital. She was unable to do her housework and it was necessary for her to hire help to do this work, such extra hired help still being necessary at the time of the hearing. She was pregnant at the time of the accident and suffered a premature birth of her child which, according to the father's testimony, resulted in the health of the child being impaired.

The evidence as to the condition of the road in question where the accident occurred shows that it was one mile of experimental type of surface which apparently consisted of tar with sand on top of it followed by a layer of tar, sand and gravel mixed. This material was placed on the highway in April, 1962 and it appears that whenever it became wet or damp it was extremely slick resulting in an unsafe condition of the road. Numerous witnesses, including employees of the road commission, stated that there had been frequent wrecks on this one mile section of the road and constant complaints of the people living along this stretch of the road had requested that guard rails be placed in front of their property in order to keep cars from sliding off the road and hitting their homes. At least one witness stated that there had been several hundred wrecks on this section of the road or highway between the period it was placed there in 1962 and the time he testified in 1966. The condition of the road in question was known by the state road commission as early as 1962 and the local and regional officers of the road commission spent considerable time and money in an attempt to give the surface an abrasive effect such as placing sand, 'red dog' and small limestone particles, none of which were successful. The condition of the road was reported to high officials of the road commission but apparently the reports were misplaced or ignored, and no action was taken to correct the unsafe surface of the road in question until after the accident involved herein occurred. One wreck did $30,000 damage when a car ran off the road, hit a gas meter and considerable property was burned.

The evidence is in conflict as to whether any signs were posted warning of the dangerous condition of the road. When the condition of the road was reported to the district engineer he directed the road supervisor to post warning signs with regard to the road being slippery, but the signs were not placed by the county supervisor because he stated it was not his job and he did...