
    (No. 522
    JAMES REYNOLDS, Claimant, v. STATE BOARD OF CONTROL, Respondent.
    
      Opinion filed May 8, 1946
    
    Appearances:
    
      Cecil B. Dean, for claimant;
    W. Bryan Spillers, Assistant Attorney General, for the state.
   CHARLES J. SCHUCK, Judge.

This claim arose by reason of an accident to the claimant while engaged as a janitor or laborer at Marshall College on September 13, 1945, and while claimant was replacing light bulbs in what is known as Laidley Hall of the said college. He was using a small two or three tread or step ladder to do the work and render the service of replacing the light bulbs, and, as he was about to descend, claims the ladder slipped causing him to fall to the hard floor and sustain severe bodily injuries. There were no rubber tips on the ladder to hold or keep it from slipping but the testimony is not conclusive as to whether this condition of the ladder caused the accident or brought about claimant’s fall. It was not, however, what is known as a safety ladder, and had no protective appliances or attachments. Claimant is seventy-two years of age and seemingly rather frail and not very robust. The college had at the time not availed itself of the provisions of the workmen’s compensation act, but has, since the accident, complied with the requirements of the said act, and any employee involved in a similar accident happening now would undoubtedly be entitled to some compensation. Claimant has been paid approximately $400.00 by the board of control, his wages from the time of the accident to January 1, 1946.

Carefully reviewing the facts as presented to us and believing that the claimant’s testimony preponderates in-his favor, we are of the opinion that the state or agency involved is morally bound to pay some compensation to him, somewhat commensurate with the allowance that would have been made if the college at the time of the accident had already availed itself of the provisions of the workmen’s compensation act. Taking into consideration that claimant has already been paid the sum of approximately $400.00 we feel he is en'itled to an additional payment of five hundred and fifty dollars ($550.00) and recommend an award accordingly in that sum.

ROBERT L. BLAND, Judge,

dissenting.

Prior to September 13, 1945, Marshall College, a state educational institution at Huntington, had not complied with the statute which requires the state of West Virginia and all governmental agencies or departments created by it to subscribe to, and pay premiums into the workmen’s compensation fund for the protection of their employees, and be subject to all requirements of said statute, and all rules and regulations prescribed by the commissioner with reference to rates, classification and premium payments. On the contrary, the institution had, on its own initiative, paid for injuries sustained by workmen in line of duty until some months ago the state auditor, always alert to the protection of the public revenues, refused to authorize any charge for medical services and hospital services and thereupon the college immediately took steps to come under the workmn’s compnsation act.

On the said 13th day of September, 1945, claimant, James Reynolds, a roustabout and janitor at the college had occasion to install an electric light bulb in Laidley Hall. For the purpose of doing so he used a small ladder, about two feet in height, and consisting of three steps. He had installed the bulb. When he attempted to descend and placed his foot on the second step he slipped and fell (o the floor. As a result of the fall he sustained a fracture of the right hip just below the angulation of the socket. He incurred expenses of approximately $529.50. In this case he seeks damages in the amount of $5000.00. From the time of his accident until the 1st day of January, 1946, he was paid by'the college his salary at the rate of $105.00 a month. By a majority of the court he is given an awurd of $550.00.

I do not think that under the facts disclosed by the record an award should be made in any amount. The s'ate is not bound to compensate an individual employee for injuries sus-taied while in its service, and no right of recovery in favor of such employee exists by inference or legal construction, or otherwise than by statute. 49 Am. Jur., Section 73, at page 284. The award made would, in my opinion, be a mere gratuity. If ratified by the Legislature it would authorize an appropriation of the public revenues of the state for a purely private purpose. This court has no jurisdiction in workmen’s compensation cases. Such iurrdiction is exoressly excluded by subsection 4 of section 14 of the Court Act. There is a difference between relief which may be afforded under chapter 23 of the code, being the workmen’s compensaron statute, and awards which may be made by the Court of Claims. One may qualify for relief under the workmen’s compensation statute when he would not be entitled to an award in the Court of Claims. If 'he Legislature had intended this court to make awards under circumstances calling for relief in workmen’s compensation cases it would not have excluded such jurisdiction in the Court Act.

I do not think that upon the merits of the instant case the claimant has shown himself to be entitled to an approved claim. I think his injuries were the result of his own carelessness. The ladder which he used in installing the electric light bulb, consisting as above stated of three steps, was exhibited to and inspected by the members of the court. The writer of this statement stepped safely upon each of the three steps of the small ladder and it did not wobble. H. O. Clark, superintendent of buildings and grounds at the Huntington institution, testified that he weighs 187 pounds and that the ladder did not wobble when he stepped upon it. If the award made shall be ratified claimant will have received his salary at the rate of $105.00 a month for three and one-half months, plus the amount of the award, namely, $550.00, as a reward for falling off a step not more than eighteen inches from the floor. I can and do sympathize with him for the injury which he sustained as a result of the fall and for the pain which he has endured in consequence thereof, but I cannot concur in an award made on what I conceive to be purely a sentimental ground. The door of the court of claims should be closed to purely sentimental claims.  