
    (No 476
    WARD HUFFMAN, guardian of BOBBY L. COGAR, an infant, Claimant, v. STATE BOARD OF CONTROL, Respondent.
    
      Opinion filed August 29, 1945
    
    
      Opinion on rehearing filed December 17, 1945
    
    
      Wysong B Wysong. for claimant:
    
      W. Bryan Spillers and Ralph M. Ilincr. Assistant Attorneys General, for respondent.
   ROBERT' L. BLAND, Junc.n.

In my opinion the Court of Claims cannot make an award on the sole ground of sympathy, however strong the appeal may be. It is without power to recommend to the Legislature an appropriation of the public revenues as a gratuity. The rule of equity and good conscience cannot be invoked for such purpose.

Bobby Cogar, fourteen years of age, on whose behalf a petition is filed in this case by his duly appointed and acting guardian, seeking an award of $10,000.00 as compensation to his said ward for personal injuries sustained while he was an inmate of the West Virginia children’s home at Elkins, is the son of Mr. and Mrs. Ellery Cogar, late residents of Webster county, and both now deceased. The father of said infant was a veteran of World War I. By virtue of that fact his children and dependents became entitled to an allowance of funds from and at the hands of the veterans’ administration, West Virginia facility. On the death of both the father and mother of said ward, the duty rested upon said facility to pay said money to the dependents of said deceased veteran, including petitioner’s ward. At the time of the appointment of petitioner as guardian for said infant son of said deceased veteran, his ward was in charge of the department of public assistance, children’s division, of West Virginia, and was being kept and cared for in the home of Al Lanham, of Camden-on-Gauley, West Virginia. The appointment of petitioner as guardian for said infant was made at the instance of the Veterans’ Administration. The department of public assistance subsequently caused the boy to be removed to the children’s home at Elkins. He was removed to that institution in September, 1943. The boy was required to attend the school taught at the home and did minor chores from time to time. The twenty-eighth day of December, 1943, was observed as a holiday. On that date petitioner’s ward effected an entrance to the basement of a building through which he made his way to the laundry. The laundry work had just been concluded by Mrs. Hazel Collett, the laundress at the institution. She had momentarily left the laundry. Only a young female inmate was present when the boy made his appearance. The current of a drying machine, known as a “spinner” had been turned off. The spinner, however, continued in motion for a short time thereafter. The boy walked to this spinner and deliberately thrust his hand into it. The top had not at the moment been replaced when the current was shut off. He gave as a reason for his action that he saw a nut in the machine and wanted to see what it looked like. He further added "Well, I was fooling around the furnace and I just went in there and I was fooling around and went in there and stuck my hand in the thing.” As a result of his inquisitiveness his arm was severed and dropped into the spinner. He was given first aid by the superintendent of the institution and his wife, and immediately conveyed to the Davis Memorial hospital where his right arm was amputated close to the socket. There can be no doubt that the child was badly and seriously injured. His case is one that makes an exceedingly strong appeal to the sympathy of the court. The claim is prosecuted solely on the alleged ground of the negligence of the officers and agents of the institution. The claim is advanced that the machine was a dangerous instrumentality and that the duty rested upon those in charge of it to protect the inmates from accident and harm. The state resists an award in the case. It is shown by the testimony of Mrs. Collett, the laundress, that children were warned against danger and forbidden to go to the laundry except when they were sent for the purpose of bathing and carrying laundry. On the day of the accident the boy had no occasion to be in the laundry. He effected entrance clandestinely and the accident occurred immediately after he entered the room and while the laundress was absent for approximately five minutes on an essential mission. There is no evidence in the case on which majority members can see their way clear to recommend relief for the child. To say, under the facts disclosed by the record, that the officials, agents and servants of the institution were negligent in the premises would be a violent assumption. I am impressed by the fact that all ordinary precautions against danger to the child, as well as to other inmates of the institution, were employed. The machine is not shown to be an inherently dangerous instrumentality. I do not believe that an appropriation of the public revenues of the state would be proper under the circumstances disclosed by the evidence in this case. Such an appropriation would amount to nothing more than the bestowal of a gratuity, and it would establish an unfortunate precedent. The public revenues cannot properly be appropriated for private purposes. An appropriation to compensate petitioner’s ward would, I think, be for a private purpose. An award is therefore denied and the claim dismissed.

G. H. A. KUNST, JUDGE,

concurring in part, dissenting in part.

I concur with Judge Bland in his opinion that there be no award granted in this case because I am of the opinion that this court had no jurisdiction of the case.

This claim arose out of the care or treatment of Bobby L. Coger, an inmate of the West Virginia children’s home, a state institution, under the control and jurisdiction of the state board of control, respondent herein. By reason of the alleged negligence of its officers, employees and servants in not rendering to him the care or treatment which its duty under the circumstances, as custodian of such inmate who had not yet reached the age of discretion, legally required of it, but, on the contrary, this ward of the state while in said institution was exposed to a dangerous instrumentality, a spinner, not properly guarded and concerning which he had not been sufficiently warned and instructed as to its dangerous character and by which his arm was torn off and for which injury and suffering, an award of $10,000.00 is asked against said respondent.

The third provision of sec. 14, art. 2 of ch. 39 of the Acts of the West Virginia Legislature for the year 1945 says:

“The jurisdiction of the court of claims shall not extend to any claim . . . Arising out of the care or treatment of a person in a state institution.”

Care is delinied as “a relative term and of broad comprehension, meaning responsibility: charge or oversight: watchful regard and attention.” Courts have said that the distinction of different degrees of care “is unscientific and impracticable, as the law furnishes no definition of these terms that can be applied in practice.” 9 C. J. 1287 and 1288.

Treat is defined: “to conduct one’s self in a certain manner with respect to; use; as, ‘to treat a horse cruelly.’ ” Treatment is defined as the act or manner of treating in any sense. “I speak this with an eye to those cruel treatments which men of all sides are apt to give the characters of those who do not agree with them. Addison-Spectator No. 243, Century Dictionary. (Italics ours).

Failure to bestow upon a person in a state institution the degree of care which the situation demands constitutes treatment out of which a claim may arise.

The phrase, care or treatment, has received judicial interpretation in an English case: “Care or treatment of any lunatic.” (Italics ours).

"The parents of a lunatic who resides with them under their care are persons ‘having the care or charge’ of a lunatic within the meaning of 16 & 17 Vict. C 96 S 9 and may be convicted under that section for ill-treating such lunatic." Buchanan and Another, Appellants v. Hardy, Respondent. Vol. 18, Q. B. D. pp. 486 and 487. (Italics ours).

Lord Coloridge C. J.: "I am of opinion that this conviction must be affirmed. The justices have found that the appellants did ill-treat the lunatic, who was their daughter and under their care, it had been argued that, notwithstanding those findings, the persons charged with ill-treating this lunatic are not liable under 16 & 17 Vict. c. 96. S. 9, because they are the parents of the lunatic. That section enacts that if 'any person detaining or taking or having (he care or charge, or concerned or taking part in the custody care or treatment of any lunatic or person alleged to be a lunatic, in any way abuse, ill-treat, or wilfully neglect such lunatic or alleged lunatic, he shall be guilty of a misdemeanor.’ ” Id. (Italics ours) .

The care or treatment of a person in a state institution out of which a claim could arise is that degree of care or treatment which constitutes actionable negligence.

"Judge Cooley in his work on Torts, defines actionable negligence as ‘the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury,’ and this definition has been adopted or quoted with approval in a large number of cases and characterized as the best definition." 45 C. I. 631 and cases cited.

No plea to the jurisdiction was filed herein by the attorney general, representing respondent, and this provision of the court act was overlooked and not considered by Lhc court undl after the case had been heard, and no conclusion was reached. The other members of the court were of opinion that the case having been heard on its merits a decision should be made thereon and opinions written.

If I am correct in my opinion, no award should be made and no opinions be rendered on the merits of this claim without having first determined the question of jurisdiction.

“Objection for want of jurisdiction of the subject matter may be taken by demurrer, or motion, or in any way whereby the subject may be brought to the court’s attention, and if npt brought to the attention of the trial court, may be noticed by the appellate court of its own motion for the first time.” Thacker v. Hubbard & Appleby. 122 Va. 379; 94 S. E. 929; 21 A. L. R. 414n.

A motion to dismiss because the subject matter is not within the jurisdiction of the court is rightly entertained by the court.

"When it appears that the court has no jursdiction over the subject matter of the suit, it will take notice of the defect, whether objection is made or not, and will dismiss or stay the proceedings ex mero motu, and it is its duty to do so.” . . . 12 Enc. of Pleading & Practice, 190.

It should be the duty of the court to carry out the intention and policy of the Legislature. Since the language of this statute is plan and unambiguous, there is no occasion for construction. Every technical rule, as to construction and force of particular terms, must yield to a clear expression of legislative will. The intention of the Legislature is clearly expressed in the clear unambiguous statement of the statute, which enactment could be stated: The jurisdiction of this court does not extend to a claim arising out of actionable negligence to a person in a state institution.

CHARLES J. SCHUCIC, Judge,

dissenting.

I cannot agree with the reasoning set forth in the majority opinion refusing an award, and I am therefore obliged to dissent.

While, of course, no appropriation by the Legislature can be made as a mere gratuity or on the sole ground of sympathy, but when the facts, carefully analyzed, show negligence and carelessness on the part of those in charge of a state institution, then no question of mere gratuity is presented but rather the matter of doing justice in equity and good conscience as set forth in the act creating this court.

The testimony clearly shows that the machine in question was highly dangerous not only when it was being operated for the purpose for which it was constructed, namely taking care of and drying the washing of the laundry of the institution in question, but also, even after the work had been completed for which the machine was used and the electric current turned off it still continued to operate and was so dangerous that it amputated this boy’s arm when for some reason he put his arm into the machine. The very happening of the accident and its nature in my judgment, demonstrates conclusively that it was a dangerous instrumentality or machine used in carrying on the work of the istitution. No precaution had been taken to keep the children away from the machine or its operation as the evidence reveals. No protection in or about the machine had been constructed or built for the purpose of protecting the children of the institution and so far as the evidence reveals, it was only after this deplorable accident had happened that any precautionary measures whatever were taken by those in charge of the institution.

I challenge the statement that all ordinary precautions against danger were taken. A careful reading of the record, I repeat, discloses that no precautionary measures were taken, save only that, since the accident, rules and regulations have been formulated not to allow any of the boys in the laundry room who are not employed there in taking care of the cleaning and drying of the laundry. So far as the record reveals, no rules had been promulgated before the accident. In fact, every inference and deduction shows that no precautions against injury to the children had been taken previous to that time. If this was not negligence, considering all of the circumstances and facts, namely that it was a state institution where children of tender ages were confined without the proper discretionary power to discriminate between what was or might be dangerous or machinery that might be harmless, then I fail to comprehend how or under what conditions negligence or lack of proper or ordinary care could ever be imputed to those in charge of a like insti'ution. As shown in the record (p. 40) the machine could have been operated when entirely enclosed and continued to operate, so far as the drying process is concerned when and if enclosed. In view of these facts the proper supervision was not maintained in my judgment in allowing the machine to operate without being closed and thus making it highly dangerous to any children that would enter the laundry room. That the claimant in question did enter the laundry room under the circumstances shown in the record was or ought to have been anticipated by the authorities in charge and as the record further shows, they have since endeavored to remedy this condition by keeping the door to the laundry locked and boys arc now only allowed there when in charge of or under the supervision of one of the matrons or older employees.

The dangerous instrumentality of the spinner or machine in question is made manifest by the absolutely undisputed fact that although the power of the motor was no longer furnished by the electric current yet the uncovered and unguarded machine had power enough and sufficient to inflict this deplorable injury on a child of thirteen years of age. I am also of the opinion, as the facts reveal and as the claimant’s personal appearance before the court will show, that while he was thirteen years of age, and therefore under the age with which he could be charged with contributory negligence so far as the legal rule was involved, yet, his mental development had been considerably retarded and was but that of a child of nine or ten years of age. These facts were or should have been known by those in charge of the institution.

The superintendent in charge at the time of the accident had been at the institution but a few days previous thereto and perhaps had not had time to fully acquaint himself with the various situations presented nor the hazard present in the using of the machine in question. He seems to have done what was necessary as a precautionary measure after the accident occurred; but frankly admits that so far as he was able to learn and know no precautions were taken before the accident (record p. 35.)

In Rine v. Morris et al, 127 S. E. 908; 99 W. Va. 52, Judge Hatcher in the opinion says:

"Where the defendants negligently leave exposed in a public place, unsecured, unguarded, and unattended, a dangerous machine, likely to attract children, excite their curiosity, and lead to their injury, while they are pursuing their childish instincts, a child of tender years, injured by said machine while meddling with it, is entitled to recover damages for the injury inflicted.” (Italics ours).

Surely, the reasoning of Judge Hatcher in the case just referred to, has a most significant application to the facts presented by claimant.

The further question is presented by the supplemental opinion filed by Judge Kunst in which he agrees with the conclusion as set forth in the majority opinion, but concludes that the act creating the court, sec. H, art. 2, of chan. 14, code, denies that the court has any jurisdiction to hear and try a claim arising out of the care and treatment of a person in a state institution.

I frankly admit that this provision is vague and indefinite as to whether or not it includes state institutions of every kind and description. If it does, then a student at the state university or any other state school who pays his tuition as well as room and board in case he occupies one of the dormitories, would be barred from presenting a claim to this court for injuries sustained while such student; and no matter how meritorious his claim may be or how extreme the negligence on the part of those in charge of the institution where the student had been injured, yet he would be denied the right to have his claim heard in this court on jurisdictional grounds. I cannot conceive that the Legislature intended such construction to be placed on the provision in question. I am of the opinion that it refers to penal and such other institutions in which the state is called upon to give aid and assistance, medical and otherwise, and in which the state could not be held liable for the treatment of inmates by any in charge of the institution either through a mistake in the matter of treatment such as could easily happen in a state insane hospital or asylum or by the conduct of the guards or employees toward an inmate in any such institutions.

I would give to this provision a more liberal interpretation and would hold that in our state institutions and state schools, as well as where the state is charged with the duty of making and molding the lives of children and growing boys and girls into good citizens, that the duty of reasonable and ordinary care in their protection devolves upon the state under the circumstances and that the state should be liable when any of its officers or officials in charge are guilty of negligence and any of the students or inmates without fault, are injured thereby. I trust that at the next session of the Legislature this paricular provision will be clarified and the jurisdiction of this court in this respect definitely defined. For the reasons set forth, I dissent and would favor an award.

CHARLES J. SCHUCK, JUDGE,

upoir petition for rehearing.

A rehearing having been heretofore granted the claimant in re the above claim, and all of the facts adduced in the first or original hearing, as well as those presented at the second hearing, having been duly considered, and Judge Smith, sitting for the first time at the regular October term, 1945, agreeing with the views set forth in my dissenting opinion heretofore filed, and in which an award was recommended, and for the reasons set forth in the said opinion, an award is now made to the claimant in the sum of three thousand dollars ($3000.00) ; the said dissenting opinion hereby being adopted as the majority opinion of the court in the matter of said award; and we further recommend that payment be made accordingly in the said sum to the proper guardian duly appointed and qualified to care for the said infant’s affairs and interests.

Judge Bland dissents and will file an opinion setting forth his views.

ROBERT L. BLAND, Judge,

dissenting.

Upon careful reexamination of the record of this case and due consideration given to argument of counsel, I am constrained to adhere to the views which I expressed in a written opinion filed after the original hearing. Indeed, such views are strengthened and confirmed. It is not, in my opinion, a case in which an award may properly be made within the contemplation of the court act. I perceive nothing in the record that could possibly render either the board of control or the West Virginia children’s home at Elkins culpable or in any way responsible for the accident sustained by Bobby Cogar. I do not see any actual negligence upon which an av/ard could be based if an award may be made on that ground. It is well understood that the doctrine of respondeat superior docs not apply to the state. The claim is prosecuted on the sole ground of negligence. The state is not liable for the negligence of its officers, agents or servants. In West Virginia no.such liability has been voluntarily assumed. The youth had no occasion to be in the laundry. His presence there was without the knowledge or consent of anyone connected with the children’s home, and was effected clandenstinely during the momentary absence of the laundress. When she left the laundry the current had been cut off the electric spinner. The lid was on the machine. The laundress had no reason to know or anticipate that the boy would enter the room and deliberately thrust his arm into the spinner.

Claimant’s ward was born March 24, 1910. The accident occurred December 28, 1943. The boy was, at that time, three months less than fourteen years of age, and was in the fifth grade in school. An infant over the age of fourteen years is presumed to have sufficient discretion and understanding to be sensible of danger and to have power to avoid it. Hairston v. United States Coal & Coke Company, 66 W. Va. 324.

The boy explained his presence in the laundry in these words:

‘‘Well, I was fooling around the furnace and I just went in there, and I was fooling around and went in there and stuck my hand in the thing.” He further stated: “Well, I was fooling around it there, and I went over there, and I just looked down in it, and I slipped my arm down in it.” When asked if the laundress had not told him that he was not supposed to come in the laundry, he replied: “Well, sometimes she did.” When asked if he had told the superintendent of the home or his wife, when they would not let him go to a show one night that he was going down there and stick his other arm in the machine, he answered: "Well, I might have done it.” The boy was not required to work in the laundry and did not work there. When he went to the laundry on the occasion that the accident happened the door was closed. He testified that he “just had to bear down on it, and it would come open.”

Anna Lee Helmick, the only person in the laundry when the accident occurred, told the boy not to put his arm about the machine.

Mrs. D. B. Gainer, assistant superintendent and financial secretary of the home, testified that all children were instructed not to go in various places and that the laundry was one place that boys especially are not to enter since they have no occasion to be there except when bringing laundry from the boys’ basement. This witness described the spinner, which claimant contended to be a dangerous instrumentality, as follows: “It is a very smooth machine. It doesn’t have any blades. It has a round whirl built on against the outside wall of the machine and at the top a very smooth copper band and there are no blades in it; it is perfectly smooth in the bottom, with just this nut in the center, and this section that goes around has holes drilled in it, and there are no blades in the machine.”

Mrs. Hazel Collett, laundress at the home, testified that she had put her table linens in the dryer and walked into the adjoining room, and might have been gone as long as five minutes. The current had been turned off. The spinner still revolves for a short time after the current is turned off. It was during her absence from the room that the boy appeared there, walked over to the dryer and put his arm in it. She further testified that when she went to the laundry she was instructed that boys were not to fool around machinery and always warned the boys accordingly.

I see no moral obligation on the part of the state to make an award in this case. An award, under the evidence, must amount to the bestowal of a gratuity. The Legislature is without power to thus appropriate the public funds.

I do not think that the jurisdiction of the court to make a determination of the claim is excluded by section 14 of the court act. The claim does not arise out of the "care” or "treatment” of a person in a state institution within the meaning of the statute.

The injury suffered by the boy makes a strong appeal to my personal sympathy; but as I view my duty, as a member of the court, I am unable to unite with my colleagues in recommending an award in his favor.  