
    (No. 613-S
    LUCILLE H. MOORE, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed January 16, 1948
    
   CHARLES J. SCHUCK, Judge.

On May 27, 1947, claimant Lucille H. Moore, a school teacher living at Wallace, West Virginia, driving over and along what is known as Gregory’s Run road, a secondary road in Harrison county, met with an accident, having her car overturned and damaged to the extent of the claim here presented, namely $239.62. Fortunately she suffered no personal injuries.

The record as submitted to us for our consideration reveals that the road in question was being resurfaced with tar and no notice of any kind, either by watchman’s signals or warning signs, had been given to those using the highway on the morning in question. The statement of the safety director contains the significant statement that claimant . . was on the tar before she knew it and as the result the accident occurred.” Claimant herself makes the statement that she ran into the fresh oil on the road surface and traveling a distance then slid to the side, hit a dry spot and turned over. We repeat, no warning of any kind was given to the travelers of oncoming automobiles.

Under all the facts as revealed, we feel that either flagmen should have been properly stationed to warn automobile drivers of the condition of the road, or that some warning signs or notices of some kind should have been used, and that the failure to do so was the immediate cause of the accident and that claimant is entitled accordingly to the sum asked for, namely $239.62, for repairs to her car and labor incident to make said repairs. It is admitted that the road was dangerously slick, but no explanation is given why the foreman in charge did not use the necessary precaution when he first discovered that he was making the road highly dangerous for travel. Experience has shown that even the most careful driver will often find himself in trouble when passing from a dry roadway onto a freshly tarred surface of the road.

The state road department recommends payment of the claim and the attorney general of the state approves the claim. We feel, therefore, that there is a moral obligation devolving upon the state of West Virginia to make restitution, and an award, by a majority of the court, in amount of two hundred thirty-nine dollars and sixty-two cents ($239.62) is hereby made to the claimant.

ROBERT L. BLAND, Judge,

dissenting.

The record of this claim, prepared by the state road commissioner, with his concurrence therein and recommendation for payment thereof, consists of six pages intended to show grounds sufficient to warrant this court in making an award of $239.62 of the public funds and justify the Legislature in making an appropriation of that amount of the people’s money. Not one of these pages contains an affidavit to verify the truth of its contents. Mere ex parte, unverified statements do not constitute evidence or proof. The validity of every claim filed in the court of claims against the state, seeking money allowance, should be established by legal proof. In no other way can the merit of such claims be properly determined. This court is an investigating body, charged with the duty of acquainting itself with all the facts concerning the claim presented and recommending to the Legislature the proper disposition thereof. It must necessarily place the court in an embarrassing situation to recommend to the Legislature the wisdom of appropriating the public funds when such claim is not shown by valid and satisfactory proof that it is possessed of merit.

The claim under consideration involves both questions of fact and liability. In its consideration of the claim the court is precluded from examining and cross examining the claimant. The court is asked to act in making its determination as a mere ratifying body. Such action is repugnant to my way of thought. I am constrained to perform my duty as I see it.

At the time of the accident alleged to have occurred, the road commission was engaged in the performance of a governmental function. It was acting in pursuance of mandatory, lawful authority. Claimant in the use of the highway possessed no right or privilege superior to the right of the state. She was charged with the duty of having her automobile under control. The court has had no opportunity to investigate the extent, if any, to which she may have been guilty of contributory negligence. The main part of the road is built of asphalt. It is a straight road for a short distance, with grade. Its width is eighteen feet, with berm on the east of two feet and berm on the west of five feet. The claimant, I think, by the exercise of proper discretion could have avoided the accident. Within the meaning of the rule announced by the Supreme Court of Appeals of West Virginia in the case of State, ex rel, Cashman v. Sims, Auditor, as to what constitutes a moral obligation of the state, I perceive no such duty in this case. I recognize the binding effect of that decision.

For the reasons herein set out and others that might be easily assigned, I dissent from the judgment of my esteemed colleagues and would disallow the claim.  