State Ex Rel. Stollings v. Gainer , 153 W. Va. 484 ( 1969 )

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 toy 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 opposite 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 vertebrae 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 her 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 not know when the signs were put up. Apparently, they were there at the time the hearing was held before the Attorney General. However, it appears that it was a matter of common knowledge that this section of the road where the accident occurred was extremely slick in wet weather.

There is a conflict in the evidence with regard to the speed the petitioner’s car was being driven at the time of the accident. A witness who was driving his automobile approaching the claimant’s vehicle at the time of the accident testified that she was going between 40 and 50 miles an hour. However, the claimant testified that she was positively not going over 35 miles an hour at that time, and her sister-in-law, who was a passenger in the car at the time of the accident, stated the car was being driven between 30 and 35 miles an hour. The witness who was approaching the petitioner’s car at the time of the accident said he would consider 45 miles an hour a safe speed on that road, although another witness who did not see the accident said he would consider a speed of between 40 and 50 miles an hour to be an unsafe rate of speed for the road.

The petitioner knew that this experimental part of the road was slick when it was wet, and she stated that when it began raining about two miles from where the accident occurred she took proper precaution by slowing down when she entered this portion of the road. Regardless of this, she stated she slid, turned completely around and went over the bank resulting in the car turning over and pinning her in the wreckage.

The Court of Claims apparently disallowed the claim on the ground that regardless of any negligence on the part of the State Road Commission, which the Court thought was not sufficiently shown, the claimant or petitioner was guilty of contributory negligence by virtue of the speed she was driving at the time of the accident which was the proximate cause of the accident.

Attached to the petition as an exhibit were two affidavits, one by State Trooper C. T. Webb and another by Harold Hale, road supervisor at the time of the accident. Trooper Webb, who investigated the accident but did not testify before the hearing of the Attorney General, stated in his affidavit that there were no warning signs posted regarding the dangerous conditions of the road, that that road was slick, defective and unsafe for travel and the driver of an automobile could not ascertain or anticipate from the conditions of the other portion of the same highway how slick the part was where the accident occurred, and that there was only a little moisture on the road at the time and that the rest of the road was not slick. Trooper Webb further stated that petitioner was not speeding at the time of the accident and no charges were placed against her. Harold Hale, who testified at the hearing before the Attorney General, stated in his affidavit that the road at the scene of the accident was of defective construction; that it was unusually slippery even in the mildest rain and was not of the same condition as the other portions of the road traveled by the public even when wet. He stated that it was like a trap since the rest of the road was not slick under the same conditions and suddenly drivers would come upon this portion of the road which was slick; that the road was defective and this condition was the cause of the accident in question and the road should not have been accepted by the State Road Commission as properly constructed in the first instance; and also that signs with regard to the dangerous conditions were not posted until after the wreck. Both of these affidavits were taken in June, 1969.

An answer was filed by the respondent which denied that there was any moral obligation on the part of the state to pay this claim and which asserted that it was his duty to deny payment where such payment was for a private purpose. He also contends the two affidavits attached to the petition should be stricken because they were not before the Court of Claims or the legislature for consideration.

A demurrer was filed to the answer that it was not sufficient in law, because it did not rebut the presumption that the act was for a public purpose and did not show the lack of a moral obligation on the part of the state.

The Court of Claims is advisory and recommendatory in character to both the legislature and state agencies where, as here, an appropriation has not been made in advance of the Court’s action. Its function in that manner is not judicial. It is created by the legislature with one of its purposes that of conducting investigations in aid of legislative actions for obtaining information necessary to enable the legislature to discharge its functions and to exercise its power of legislation. The legislature may accept or reject its findings, or approve or disapprove its recommendations. See State ex rel. Adkins v. Sims, 127 W. Va. 786, 34 S. E.2d 585, and State ex rel. Cashman v. Sims, 130 W. Va. 430, 43 S. E.2d 805, which were decided under the 1941 law creating a prior Court of Claims but are basically applicable to the present Court of Claims in explaining its jurisdiction.

The statement in the preface in Enrolled House Bill 958 is confusing because it states that it. accepts the findings of fact of the Court of Claims and “adopts” them as its own in connection with this claim and specifically declares this claim to be a moral obligation, but actually the action of the legislature appears to be in conflict with the findings of the Court of Claims which had disallowed the claim, meaning that the Court did not find it to be a moral obligation. It was held in the syllabus of the case of State ex rel. Adkins v. Sims, 127 W. Va. 786, 34 S. E.2d 585, that: “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.” It affirmatively appears in the end of this act by the legislature that the appropriation was for a moral obligation for the state. It has been held that a legislative declaration of fact, if not arbitrary, will be considered as final. Lemon v. Rumsey, 108 W. Va. 242, 150 S. E. 725; and that “A legislative declaration of fact should be accepted by the courts unless there is strong reason for rejecting it.” Glover v. Sims, 121 W. Va. 407, 3 S. E.2d 612. However, when the declaration of fact by the legislature is based on facts which give rise to a juristic condition the declaration is not conclusive. The matter involved in the instant case being in its nature juristic, the power of the legislature in connection therewith is subject to judicial inquiry and consideration. State ex rel. Cashman v. Sims, supra.

This matter is clearly stated in the second syllabus point in the case of State ex rel. Adkins v. Sims, 130 W. Va. 645, 46 S. E.2d 81, in the following language: “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.”

This is not an appeal or review of the findings of the Court of Claims. This is an extraordinary proceeding governed by the Rules of this Court and the same procedure does not apply to cases on appeal. The evidence before the Court of Claims is merely an exhibit attached to the 'petition, as well as are the affidavits which are objected to by the respondent by the request to strike these affidavits because they are not before the Court of Claims and the legislature. There is no merit to this contention because under the Rules of this Court, Rule II, Section 8, Rules of Practice in the Supreme Court of Appeals, they may be considered and if objected to by the opposing party evidence may be taken to disprove contentions contained in the affidavit. This procedure was made abundantly clear in the case of State ex rel. Wilson v. County Court, 145 W. Va. 435, 114 S. E.2d 904, wherein it is stated in point 1 of the syllabus: “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.”

The evidence in this proceeding before this Court clearly shows that the road in question at the scene of the accident was in an unsafe condition, and that the State Road Commission was negligent in failing to properly maintain the highway and guard against accidents occasioned by the conditions of the road and that the petitioner was not guilty of contributory negligence which would bar her from recovery if an action with regard to this nature was brought between private individuals.

It has been recently held by this Court that where such facts exist it constitutes a moral obligation on the part of the state and would warrant the payment of the claim involved in the case presented here. State ex rel. Vincent v. Gainer, 151 W. Va. 1002, 158 S. E.2d 145.

The case of State ex rel. Adkins v. Sims, 130 W. Va. 645, 46 S. E.2d 81, held that there was no moral obligation on the part of the state where a car driven on the highway ran off the road and turned over injuring the occupants thereof because the contention was not valid that it was negligence on the part of the state in not having guard rails, signs posted and the road painted. In that case this Court stated that there was no contention that the road proper was in an unsafe condition and that: “We do not mean to say that situations may not arise where the failure of the road commissioner properly to maintain a highway, and guard against accidents, occasioned by the condition of the road, may not be treated as such positive neglect of duty as to create a moral obligation against the State, * *

The case of State ex rel. Vincent v. Gainer, supra, clearly distinguishes the second Adkins case, State ex rel. Adkins v. Sims, 130 W. Va. 645, 46 S. E.2d 81, from cases similar to the Vincent case and the case at bar, and is authority for the finding of a moral obligation and the payment of the claim involved herein.

For the reasons stated herein, the writ is granted.

Writ granted.