
    (No. 722
    FLEM L. MULLINS, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed January 25, 1951
    
    J. Paul Clark, for claimant.
    W. Bryan Spillers, assistant attorney general, for respondent.
   ROBERT L. BLAND, Judge.

In this proceeding Flem L. Mullins, sixty-two years of age and a resident of Logan county, West Virginia, seeks an award of $6,209.44. He represents to the court that he has been in the employment of the state road commission of West Virginia for twelve years. Prior to January 10, 1946, he was employed as a laborer, working on the state highway system in Logan county. He maintains that said employment was on the basis of an eight-hour day and an hourly rate of pay. He further maintains that on January 10,1946, he was transferred by the county road supervisor from his job as a laborer on the state highway system to the position of night watchman at the road commission garage located at Stollings, Logan county, and that the rate of pay was on an hourly basis and at the same hourly rate as that of laborer working out on the state highway system, and that the hourly rate of pay at that time and at the time he entered upon his duties as night watchman were the same. He says that he entered upon his duties as night watchman the 10th day of January, 1946, and worked sixteen hours a day in that capacity on through December 31, 1948, but only received remuneration for eight hours a day, and that said contract of employment was on the basis of fifty-eight cents per hour from January 10, 1946 through the 31st day of March, 1946; and sixty-five cents per hour from the 1st day of April, 1946, through the 30th day of April, 1947; and seventy-five cents per hour from the 1st day of May, 1947, through the 15th day of April, 1948, and eighty-two cents per hour from the 16th day of April, 1948 through the 31st day of December, 1948.

Claimant further maintains that in July of 1949, no action having been taken by the county road supervisor, he employed an auditor to audit the number of hours he had worked and the different hourly rates of pay that were in effect during the period from January 10, 1946 through December 31, 1948; that said audit of time and the amount due and payable to him under said audit was presented to the state road commission, but payment was refused; that said audit shows that he worked a total of 17,296 hours but that he only received remuneration for 8,648 hours, and that by computing, the number of hours for which he did not receive remuneration by the different hourly rates of pay that were in effect during this period, there is due and payable to him the sum of $6,209.44.

Upon the investigation' and hearing of the claim the claimant testified at some length on his own behalf. We were not favorably impressed by the method employed by him in keeping his time. According to his statement, for the period that he discharged the duties of night watchman — being approximately three years — he kept his time on calendars, using three of such calendars. He would mark each day that he worked on these calendars. He did not produce the calendars before the court or satisfactorily account for their absence. He did, however, file what purported to be a copy of the calendar showings as an exhibit with his testimony. As before stated, prior to the filing of his claim he had employed an auditor to audit his time but the auditor in question did not testify upon the hearing. It developed that in the course of his examination that although by his petition he claimed to work sixteen hours a day from the time of his employment as night watchman until a period when the duties discharged by him were divided into two shifts and the employes worked every other day, that there was confusion in his testimony, and that on certain occasions he had not worked on Saturdays, thus making it manifest to the court that his testimony was inconsistent with the allegations of his petition. From the testimony of other witnesses introduced on claimant’s behalf it is made quite clear that he had in fact worked many hours in excess of eight hours a calendar day. His contention of overtime work was well established by numerous witnesses, including a former county supervisor.

At the conclusion of claimant’s testimony, W. Bryan Spillers, an assistant attorney general, who represented the interests of the state at the hearing, moved the court to dismiss the claim for reasons assigned at the time, but the court, being of opinion that the claimant having invoked relief through the state court of claims, as he had a lawful right to do, was entitled to be given full opportunity to present his claim, therefore the said motion was overruled.

The further testimony introduced in support of the claim in question gave the court additional enlightenment and assistance, and claimant’s counsel offered to stipulate with the assistant attorney general that no claim would be made for overtime remuneration for those days on which the claimant was at any time absent from duty. It was apparent to the court, however, although the question was not presented for its consideration, that claimant was, during the approximate period of three years in which he discharged the duties of night watchman, entitled to annual leave with pay. The stipulation was not agreed to, and after the claimant rested his case the state introduced its several witnesses who respectively testified according to their personal knowledge of claimant’s overtime work. We deem it unnecessary in this statement to detail in any length the testimony of these witnesses. Suffice it to say that there was unanimity of statement by both the claimant’s witnesses and the state’s witnesses with respect to the overtime work performed by claimant. On the whole claimant’s contention that he was required and allowed to work many hours in excess of eight hours per calendar day was supported by the witnesses offered in opposition to the allowance of the claim. In the judgment of majority members of the court the plaintiff’s claim that he did work over a period of approximately three years far in excess of eight hours per calendar day was satisfactorily established. It would be difficult to determine the actual time of the over work, but in view of the determination hereinafter made by majority members that fact is unimportant.

Majority members of the court are not unmindful of chapter 21, article 4, section 2349 (2) of the official code of. West Virginia, used as point 1 of the syllabi in this statement, which is a general law and certainly means what it says. It should be our guide in disposing .of the claim, “Let the chips fall where they may.” As we perceive our duty under the law of the state and the evidence deduced before .the court upon its investigation of the claim, we can do nothing less than make an award in favor of claimant. Majority members feel that under all the circumstances an award of $3000.00 would be reasonable in the premises. It is possible that a greater award could have been made if claimant had been able to show more satisfactorily than he did the exact number of days he was employed.

Accordingly, majority members of the court make an award in favor of claimant Flem L. Mullins in the sum of three thousand dollars ($3000.00).

JAMES CANN, Judge,

dissenting.

The arbitrary award of $3000.00 made to claimant in this case by a majority of the court, in the light of the evidence introduced, compels me to file this dissent. So many matters were set out in the majority opinion, justifying the instant award which, to my opinion, were not part of the record or part of any one’s testimony. But without going into any of that, I shall confine my dissent to the lack of proof, as required by law, on the part of claimant. Mr. Mullens testified at great length with respect to his employment as night watchman for respondent. He presented a sheet of paper which purported to show the number of hours he had worked each day as night watchman from the tenth day of January, 1946 to the thirty-first day of December, 1948; this sheet of paper attempted to indicate that he had worked sixteen hours each day, during the above period, and as he stated, was paid for only eight hours at the prevailing hourly rate. He was asked from where he had obtained the information shown on the above mentioned sheet of paper, and his reply was “From three calendars” on which he had marked the hours he had worked as a night watchman; he was further asked about the whereabouts of such calendars and was unable to explain their absence from this hearing; he was also further asked as to who had made up the purported record of his time and he stated that an auditor, one James A. Hogg, had made up such record. The auditor was not presented as a witness. He admitted that the sheet of paper introduced in evidence, which set out the hours worked, was only a copy of the original record. (R. pps. 29-30-42-43-44-45-46). No explanation was ever made or attempted to be made, of the whereabouts of the purported calendars or original record. The majority opinion states that the above proof was unsatisfactory; that his itemized statement attempting to show that he had worked sixteen hours each day during the disputed period, when he testified that during such period he was off a number of days, made it manifest that the testimony and proof were inconsistent with the allegations of his petition. I was particularly impressed with, claimant’s testimony with respect to his complaint made to Charles Sattler, commissioner of labor of the state of West Virginia. When claimant complained to Mr. Sattler about the hours he had worked for respondent, for which he had not been paid, Mr. Sattler advised claimant to prepare and furnish him with a statement, setting forth the days he had worked for respondent and the number of hours worked over eight hours (the legal limit provided by statute). This, claimant failed or refused to do and Mr. Sattler gave the matter no further attention. Why was not the same information requested or required of the claimant at the hearing of this case? It is true that from the evidence one can conclude that claimant had at sometime worked sixteen hours during his employment as a night watchman, but on what, and for how many, days did he work that number of hours?

It is elementary law that the burden of proof rests upon the party asserting the affirmative of an issue.

“In an action for tort, the plaintiff bearing the burden of proof, a verdict for him cannot be found on evidence which affords mere conjecture that the liability exists, and leaves the minds of jurors in equipoise and reasonable doubt. The evidence must generate an actual rational belief in the existence of the disputed fact.” Moore v. West Va. Heat & Light Co., 65 W. Va. 552; 64 S. E. 721. Antonovich v. Home Life Ins. Co., 116 W. Va. 159. Wiles v. Walker, 88 W. Va. 147; 106 S. E. 423. Legg v. Junior Mercantile Co., 105 W. Va. 287; 142 S. E. 259.

Our own court has held on numerous occasions that when a claimant fails to establish liability on the part of a respondent by the production of proper evidence as proof in support of his claim an award will be denied.

“All claims asserted against the state or any of its agencies must be established by satisfactory proof before awards may be made for the payment of them. A claim asserted but not proved can have no meritorious status in the court of claims.” Clark v. State Road Commission, 1 Ct. Claims (W. Va.) 232.
“Claimant must prove his claim by a preponderance or greater weight of the evidence, and no award can be made in the absence of such proof.” Hartigan v. Board of Control, 2 Ct. Claims (W. Va.) 275.
“A claim is denied when claimant fails to establish liability on the part of the department concerned by the production of proper evidence as proof in support of his claim.” Swartzwelder v. State Road Commission, 2 Ct. Claims (W. Va.) 96.
“Where the evidence offered in support of a claim against the State fails to establish by a preponderance of proof its merit as a claim for which an appropriation should be made by the Legislature, an award will be denied.” Smith v. State Road Commission, 3 Ct. Claims (W. Va.) 1.
“An award will be denied upon failure to prove by a preponderance of the evidence the justness and merit of a claim against the state or any of its governmental agencies.” Loveless v. State Road Commission, 4 Ct. Claims (W. Va.) 19.
“A claim for damages not sustained by the evidence and an award refused.” Thompson v. State Road Commission, 4 Ct. Claims (W. Va.) 74.

As another ground for dissenting, it is my firm belief that the purported itemized statement, filed in this case, attempting to show the hours worked as a night watchman, should have been rejected for two reasons: (1) It was not the original record and (2) it did not correctly state on what actual days sixteen hours were worked by claimant.

Our Supreme Court has held:

“The record offered is secondary evidence; the book in which the original entries were recorded, so far as a record is concerned, being the best evidence. The authorities are uniform to the effect that the best evidence must be produced.” Thompson v. Turkey Gap Coal Co., 139 S. E. 642; 104 W. Va. 134. Also Art Co. v. Thacker, 65 W. Va. 143. State v. Gillaspie, 47 W. Va. 336. Fox v. Railroad Co., 34 W. Va. 466.
“Courts should be cautious in admitting the introduction of secondary evidence. Without an effort to procure and offer the original contract or a showing entitling a party to offer secondary evidence, secondary evidence should not be admitted. Sec. 120, Evidence, Michie’s Jurisprudence. Also Cobb v. Dunlevie, 63 W. Va. 398; 60 S. E. 384.

For the reasons set out I respectfully dissent from the majority opinion in this case.  