
    (No. 691-S
    RUSSELL D. SABOL and TRAVELERS FIRE INSURANCE COMPANY, Claimants, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed July 11, 1950
    
   A. D. KENAMOND, Judge.

Claimant Russell D. Sabol, an employe of the Hagers Motor Sales in Wellsburg, West Virginia, parked his 1948 Studebaker maroon automobile on their used car lot, on June 1, 1949, and on getting the car to go home found a light mist of silver paint all over it. In the meantime employes of the State Road Commission were spray painting the under side of the bridge across Buffalo Creek, south of Wellsburg, on West Virginia Route No. 2. At the time when claimant Russell D. Sabol parked his car no one was spraying paint. Statements were made by the State Road Commission’s maintenance superintendent and foreman for Brooke County that they did have a crew of men painting the above mentioned bridge and that it was a little windy, but that they did not think the mist would carry as far as it did. However, paint was blown by the wind to the north flecking Sabol’s car, necessitating removal of paint, cleaning and waxing to the cost of $25.50, for which Mr. Sabol was reimbursed by the Travelers Fire Insurance Company, which looks to the state road commission for recovery by virtue of the negligence of the commission’s employes causing the damage.

There being no contributory negligence on the part of the claimant, and a bill from the Hagers Motor Sales showing $25.50 to be the cost of removing the paint from his car, and the said amount having been concurred in by the state road commission and the attorney general, the majority of this court hereby makes an award and recommends the payment of twenty-five dollars and fifty cents ($25.50) to claimants Russell D. Sabol and the Travelers Fire Insurance Company.

ROBERT L. BLAND, Judge,

dissenting.

I am of opinion that an appropriation of public funds in satisfaction of the award made by majority members of the court is prohibited by section 6, chapter 10 of the constitution of West Virginia under the principle announced by the Supreme Court of Appeals of West Virginia in the case of State ex rel. Baltimore & Ohio Railroad Company, v. Sims, Auditor, 53 S. E. (2d) 505.  