
    (No. 647
    VIRGINIA S. PALMER, Claimant, v. ADJUTANT GENERAL’S DEPARTMENT, Respondent.
    
      Opinion filed January 31, 1949
    
    
      Claimant, in her own right.
    W. Bryan Spillers, Assistant Attorney General, for the state.
   MERRIMAN S. SMITH, Judge.

About eight o’clock on the morning of September 7, 1948, while driving her Buick automobile west along Gaines Street, in Montgomery, Fayette county, West Virginia, claimant Virginia Palmer became involved in a collision with a national guard truck, the details being as follows. As she approached the armory a national guard truck being driven by sergeant Melvin McDaniel pulled into the lot in front of the armory, and Gaines Street being narrow, claimant noticed that she did not have room to pass, whereupon she stopped her car and lowered the window and called to the driver of the truck to pull up so she might drive by. Instead of driving the truck forward, the truck backed into the left side of her car which was standing still. The affidavit of Sergeant McDaniel was to the effect that his foot slipped off the clutch and the gears being in reverse the truck eased backward into the Buick automobile, crushing the rear door and denting the top and breaking the rear door glass. The estimated cost of repairs was $131,48.

This claim presents a situation wherein there is dual function of government, for under our constitution and under the national defense act of 1916, as amended, there is a dual sharing of the cost in the national guard organization. The national guard is organized in peace time to be totally under the control of the governor of the state, as ex officio commander-in-chief. During such peace time there is a sharing of expense. The state is, under the national defense act, required to furnish armory facilities to recruit organizational units, train the men and determine their responsibilities and activities. The federal government furnishes the equipment and allots the funds to the state to pay drill expense and full-time employe remuneration. The care, operation and maintenance of this equipment, however, is a responsibility of the state for if a vehicle is damaged at the fault of the state, the state must pay for it, and if a vehicle is in collision with another vehicle and the state is at fault, then the state is liable for whatever damages are inflicted upon the adverse vehicle. While the title remains in the federal government, actual possession and complete control is vested in the state. The liability should be imposed upon the agency having complete control and consent, and in the instant claim there can be no doubt but that the state was in complete control and that sergeant McDaniel was acting within the scope of his assigned duties and orders at the time of this accident.

An award in the sum of one hundred thirty-one dollars and forty-eight cents ($131.48) is made by a majority of this court to claimant Virginia S. Palmer.

ROBERT L. BLAND, Judgs,

dissenting.

Claimant did not own the car in which she was driving at the time of her accident. Title to the vehicle was vested in her husband, who has not asserted a claim for damages thereto.

The driver of the national guard truck was engaged in the discharge of his legitimate and necessary duties at the time of claimant’s accident. He was guilty of no negligence in the premises. He saw claimant for a distance of about seventy-five feet, driving very slowly on the highway. He waited to see whether she would stop or drive on past his truck. She could have stopped before reaching the truck, but elected to try to pass. When she saw that she would be unable to do so she stopped and completely cut her motor off and called to the driver of the truck to “drive up a little.” All the while the driver of the truck had his machine in neutral. His foot slipped off the clutch and the truck backed into the car driven by claimant. It was an unavoidable accident. I do not see any meritorious reason for making the award. The public revenues are not to be indiscriminately appropriated.  