
    (No. 614-S
    CLARK BAILEY, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed January 16, 1948
    
   CHARLES J. SCHUCK, Judge.

Claimant, Clark Bailey, presents his claim in the amount of $50.00, based on the following facts as revealed by the record submitted for our consideration.

On April 29, 1947 the state’s patrol grader, while working on state road No. 20 in Calhoun county, cut a hole in the galvanized culvert constructed over and across said highway near Beech in the said county. The following day, April 30, claimant’s horse, while being ridden along said highway and while passing over the said culvert, stepped into the hole made by the patrol grader and severely injured his right hind leg. No negligence on the part of the claimant is shown and as the state is charged with the duty of keeping the highway in a reasonably safe condition for travel, the failure to do so, in the instant claim, makes it liable for the damages incurred. The claim is recommended for payment by the state road commission and approved by the attorney general.

Claimant was obliged to expend the sum of eighteen dollars for veterinary services, and an additional sum of ten dollars for the use of a horse to take the place of the injured animal. The balance of his claim is for damages to the horse, impairing its ability to work as it could and did before the accident and thereby affecting its value. The appearance of the horse is somewhat marred. The cut was half around the ankle and the hide was cut off the ankle. The horse for a time at least could not be worked on frozen ground or in the mud for if so worked the injured ankle would bleed and become irritated.

In view of these facts we feel that the amount of the claim, to wit $50.00, is reasonable and that a moral obligation devolves upon the state to pay the same.

An award is accordingly made in the sum of fifty dollars ($50.00) by a majority of the court.

ROBERT L. BLAND. Judge,

dissenting.

I do not see in this case any moral obligation of the state to compensate the claimant.

“To constitute a valid declaration by the Legislature of the existence of a moral obligation of the State for the discharge of which there may be an appropriation of public funds in the interest of the public welfare, it is necessary, as a general rule, that there be an obligation or a duty by prior statute created or imposed upon the State, to compensate a person for injury or damage sustained by him by reason of its violation by the State or any of its agencies . . .” State ex rel Cashman v. Sims, Auditor, 43 S.E. 2d 805.

The state road commission was engaged in the exercise of a governmental function when a puncture or hole was cut in the galvanized culvert by the patrol grader. This fact was not known to the operator of the vehicle during the day that he was employed in the grading work. On the following day claimant’s horse stepped into the hole and was injured. The incident was thereupon reported to an employe of the state road commission, and the next day after this report was made, and after the road commission’s first knowledge of the existence of the hole, the culvert was promptly repaired. Certainly no negligence is shown on the part of the road commission. It was alert in making the necessary repairs to the culvert. Necessarily, highways, by the continuous use thereof, will frequently get out of order or repair. It cannot be said that sufficient time may not be allowed for such repair work.

I find in the report of the court of claims of Michigan for the biennium ending December 31, 1942, wherein it held in the case of Manion v. State Highway Department as follows:

“The State may not be held liable for injures sustained by an engineer while off duty on ferry operated by State highway commissioner because of negligence of operators of defendant’s ferries since the operation of such ferries was a governmental function in the absence of statutory liability for negligent operation of such ferries (1 Comp. Laws 1929 Secs. 4698-4702, as amended).”  