
    (No. 393
    ACHILLES T. ROBISON, Claimant, v. STATE BOARD OF CONTROL, and STATE ROAD COMMISSION, Respondents.
    
      Opinion filed February 2, 1945
    
    C. R. Morgan, for claimant;
    
      Ira J. Partlow, Attorney General, and W. Bryan Spillers, Assistant Attorney General, for respondents.
   ROBERT L. BLAND, Judge.

Achilles T. Robison, a former city mail carrier at New Mar-tinsville, seeks in this case an award of $26,988.35, and bases his claim on alleged negligence of the state board of control and the state road commission, their officers and employees, in allowing a convict with a dangerous criminal record to be transferred from the penitentiary at Moundsville to a prison road camp, and escape therefrom and attack and do him great bodily injury.

Claimant, who resides in the country, about one mile from New Martinsville, the county seat of Wetzel county, further elucidates his claim by saying that in the afternoon of May 6, 1944, after concluding his duties as a mail carrier on that day, he went to his home; and, his wife and son being absent, he secured a key to his residence and entered the house, where he was confronted by one James Clark, alias James McCune, alias Joseph Kurosi. Clark had in his possession a double-barreled, 12-gauge shotgun, the property of claimant. With this gun he deliberately shot claimant in both of his legs. He then demanded and obtained what money claimant had in his possession and drove away in claimant’s Buick automobile. Claimant was taken to the hospital at New Martinsville, where his wounds were cleansed and he was given blood plasma and a blood transfusion. Thereafter it was found necessary to amputate his right leg. After this was done gangrene set in and it was found expedient to perform a second amputation of the limb.

Claimant was forty-six years of age at the time he was shot by Clark and was earning $185.00 per month. His injuries are such that he will never be able to resume the duties of a city mail carrier. As a result of the injuries inflicted upon him he has lost the benefit of his employment in which his salary would have increased at intervals. He has incurred heavy expenses in surgical, hospital and home treatment; and, although he has procured an artificial limb, there are shots in his knee that render the use of it exceedingly uncomfortable.

Claimant submits an estimate of the co~ts which have been and will be incurred by him due to the injuries inflicted upon him by Clark, as follows:

Dr. J. O. Theiss_ _ $ 200.00
Miss Imogene Thomas, registered nurse . 230.00
Mrs. Clyde Clegg, R.N., New Martinsville 12.00
Miss Rosamond Tiber, registered nurse . 217.00
Wetzel County Hospital_ _ 517.60
Penicillin from Ohio Valley Hospital 92.75
lama ambulance _ ... 7.00
Loss of time from May 6, to July 15, 1944 _ ... 362.00
Estimated cost of artificial limb __ 200.00
Estimated cost of reshaping leg __ 150.00
Loss of Leg_ __ .. 25,000.00
$26,988.35

Claimant’s testimony relates to his injuries and nothing stated by him sheds any light upon the circumstances attending the escape of Clark from the prison road camp.

The state has entered. a general denial of responsibility or liability, and contests the right of claimant to an award. It denies the negligence imputed to it, and it therefore becomes necessary for claimant to prove by a preponderance of evidence the negligence on which he relies to support his claim. To do this claimant demanded the production by the state of Clark’s criminal record. This demand was promptly complied with and the following record produced:

"For
(PHOTOGRAPH)
(a front and side view)
West Virginia Penitentiary 32745
Marks and Scars: Small scar right shoulder. Tatts: Skull with 2 bars above and Death Before Dishonor below, right lower outer arm, question mark, right middle finger. Tattoo heart on chest, with initial Pop and Mom. Small heart with cross and number 13 below left shoulder. Spread eagle with U. S. Marine Corps and L. K. in body of eagle. Scroll with name Lena and two dice below. Dim Tatt: I'itial J. G. below left lower outer arm.
CONDUCT RECORD
Date No. Rep. Offense Penalty
2- 6-43 1 Escape Huttonsville, 1-24-43 6 Mos. Red Si White. All G. T. L. Hold for Crt.
3-24-43 Unnecessary Noise on RSiW. 3 Days Guard House.
3-26-43 Destroying State Blanket 5 Days Guard House.
6- 5-43 Creating Disturbance in Cage After the Lights Were Out 5 Days Guard House.
6- 7-43 5 Creating Disturbance on Red Si White for Three Nights 5 Days Guard House.
8-26-43 Thowing Medicine in Spit Can 5 Days Guard House.
3-23-44 Possession of Sweater Charged to Floyd Larch No. 31741 2 Days Guard House.
6-13-44 8 Escapi g from Road Camp No. 80 5-4-44 6 Mos. Red Si White. All G. T. L. Hold for Court.
7-17-44 9 8-20-44 10 Sleeping in on Morning Count Writing to Party, Claiming Her To Be His Sister When She Is Not 2 Days Guard House. 30 Days Writing Privilege.
Arr. Vernon, Texas 4-25-42 for Fed. Auths. Rel. Authorities Wichita Falls, Texas, Impersonating a U. S. Marine Officer, Trans, to Dallas, Texas. Subject Wanted as a Deserter from U. S. Marines. Admits: Boys Ind. Sch. Lancaster, Ohio, 1939, Auto Theft, Indef. Term 2 Years. Paroled to Join U. S. Marines. Admits Arr: Hudson, Ohio, 1939 BS5E. Given I Year Prob. Violated. Admits Arrested Cleveland, Ohio, Several Times for Misdeameanors.”

David Hinerman, a guard at the West Virginia penitentiary at Moundsville, called as a witness by claimant, testified that on one occasion he “heard James Clark make the remark that if he got out right away he would try to go straight and behave himself, and if he had to serve ten years he would shoot everybody who got in his way,” and that similar remarks were frequently made by prisoners at the institution. Clark was at that time serving a sentence of from one to ten years for “breaking and entering.” This was about two months before Clark was sent from the prison to the prison road camp at Reedy, West Virginia.

Claimant also produced Carl F. Montgomery, captain of the guard at camp 80, the only armed prison labor camp in the state. He testified that on May 4, 1944, James Clark, an'inmate of the penitentiary, who had been transferred to prison labor camp No. 80, was one of three prisoners who escaped from this camp on May 4, 1944. He stated that W. E. Phalen was guard on duty when these escapes were effected, and that he had never before lost a prisoner. Witness also testified as to the general efficiency, watchfulness and reliability of Phalen as a guard. He expressed the opinion that Phalen was guilty of no dereliction of du'y in the escape of Clark from the quarry at which he was working.

The foregoing is a substantial summarization of the evidence adduced and relied upon by claimant to establish a prima facie right to have 'he Court of Claims recommend to the Legislature an appropriation in payment of his claim.

To meet and rebut the charge of negligence in allowing the escape of Clark from the prison labor camp, H. H. Cottle, deputy warden of the penitentiary, Carl F. Montgomery, captain of the guard at Camp 80, R. M. Coiner, chief road guard, William E. Phalen, guard on duty at the time of the escape oí Clark, Lloyd E. Phillips, guard at camp 80, Berton Blake, guard at the same camp, Clinton H. Hill, quarry foreman of the prison labor division of the state road commission, and William Willoy, another guard in the same division, were called by the state as witnesses.

In the opinion in the case of Claim No. 228, Johnson v. State Road Commission, 2 Ct. Claims (W. Va.) 203, it is said:

“It is provided by statute in West Virginia that all male persons convicted of felony and sentenced to imprisonment or confinement in the penitentiary, or so many thereof as may be required by the state road commissioner, shall, as incident to such sentence or confinement, constitute the state road force, and as such may be employed under the supervision of the state road commissioner in building, surfacing and maintaining roads under the supervision of the state road commissioner, code, chapter 17, article 5, section 1.
“The warden of the penitentiary prepares for the state road commissioner a monthly report which shows the names of not less than five hundred inmates of the penitentiary who are suitable fox road work. From said list the road commissioner selects the number needed for road work, Supra, sec. 2.”

Under authority of law in such case made and provided the state road commission maintains a prison labor camp at Reedy, in Wetzel county. There have been as many as 205 convicts from the penitentiary there at one time. All of these men were persons who have been convicted on charges of felony and sentenced to confinement in the penitentiary. James Clark was one of the convicts transferred from the penitentiary to the prison labor division of the state road commission. He was so transferred under lawful authority. A quantity of rocks had been quarried at Hill’s quarry. Clark was one of ten convicts sent from- camp 80 to this quarry to load these rocks into dump trucks, to be taken out on the road to knapping crews. William E. Phalen was assigned as guard over the men. He had been a prison guard for approximately three years. He was stated to be an exceptionally good guard. Prior to May 4, 1944, he had “never lost a man.”

The face of Hill’s quarry is three hundred feet in width. Its height is approximately seventy-five feet. The stones which had been taken from the quarry were stacked in piles on three sides. The piles on the quarry side were so built as to leave a small passageway between the face of the quarry and the long stone pile. The stones were of such size that the prisoners could lift them and place them in the trucks. The stone piles on the face of the quarry side were as “high as a man’s head.” They precluded a view of the passageway between the row of rocks and the face of the quarry. Two dump trucks were being used. Guard Phalen was stationed straight in front of the trucks, and about thirty feet from where the prisoners were working. The guard was armed with a sawed-off shotgun. The prisoners were “bunched” around the trucks. Phalen caused the prisoners to begin the loading of the stones from the right-hand side of the rows of stones. When these rocks had been removed by the trucks the prisoners worked from the right side of the pile in front of the face of the quarry toward the left. While the convicts loaded the truck Phalen could not see the passageway between the long row of stones and the face of the quarry. When behind the truck where they could not be seen, the prisoners removed a sufficient number of stones to effect an entrance to the passageway between the row of stones and the face of the quarry, and in that way Clark and two other prisoners made their escape. The guard explains their action in these words: “So, while these men were picking up stones from the pile on the ground and loading them into the dump trucks three of them got through an opening that they had made by loading the stone into the truck.” The guard could not reasonably have seen the men behind the truck.

When the escape of the men was discovered guard Phalen directed a truck driver to go to the camp and notify the captain of the guard as to what had occurred. State police and other officials were given immediate notice and a prompt search was made to apprehend the convicts.

The evidence as a whole refutes the charge of negligence. Majority members of the court therefore find the state free from negligence and dismiss the claim. Judge Schuck will file a dissenting opinion.

G. H. A. KUNST, JUDGE,

concurring in part.

I concur in Judge Bland’s opinion that negligence of respondent contributing to the escape of this convict is not proven; also that an award should be denied claimant.

I do not concur in the doctrine that if negligence of respondent contributing directly to his escape had been fully shown that respondent would have incurred liability.

Kuhns v. Fair, 124 W. Va. 761; 22 S. E. (2d) 455, holds that the custodian of convicts is not personally liable for a tort committed by a convict, unless, by breach of duty, he directly participated in the commission of the tort.

Negligence is the breach of duty considered. In the Supreme Court case negligence contributes to, or is the proximate cause of the tort; in the other, between the negligence and resulting escape and the tort there is an intervening criminal act of a responsible agency; the causal connection between the first negligent act and the tort is broken. The last act in legal contemplation is regarded as the sole cause of the tort, the proximate cause thereof.

Negligence to be actionable must be the proximate cause of the injury. Proximate cause is the superior, or controlling agency as distinguished from incidental or subsidiary cause. It is the last negligent act contributing thereto and without which such tort would not have resulted.

No recovery can be allowed against a defendant for an injury which resulted from a criminal act of a third person, although there existed at the time a condition which made the act possible, or less difficult to accomplish and which was produced by the negligence of defendant.

In the instant case, negligence of the guard and respondent is not proven. Preponderance of evidence is to the contrary. And if negligence contributing directly to the escape had been proven, it would not have constituted the proximate cause of the injury to claimant.

The opinions cited and relied upon by counsel for claimant are not in point and do not apply to the facts of the case.

In my opinion, the correct legal doctrine applicable to the facts in this case, was stated by me in my concurring opinion in the case of Herbert Fisher v. State Board of Control, 2 Ct. Claims (W. Va.) 428, as follows:

"... A defendant's negligence is too remote to constitute the proximate cause, where an independent illegal act of a third person intervenes, which, because it is criminal, defendant is not bound to anticipate, and without which such injury would not have been sustained. ...”

Very much legal authority supporting this doctrine is cited by the attorney general in his brief filed herein, which I shall not encumber the record by repeating.

CHARLES J. SCHUCK, JUDGE,

dissenting.

An analysis of the majority opinion as rendered in this claim presents but one issue, namely, whether or not there was negligence on the part of the state agency involved. It becomes necessary, therefore, to analyze the facts as presented to the court and to determine from these facts whether or not there was negligence on the part of the guard involved, and, in my judgment further, whether there was negligence on the part of the department or agency having charge of the work in failing to have a sufficient number of guards to supervise and control the work of the convicts who were employed on the project.

As set forth in the majority opinion, the evidence shows that the quarry in question was about three hundred feet long and seventy-five feet high, and it is virtually admitted that it would be impossible for an escape to have been made up over the face of the quarry. The prisoners, ten in number, were loading stone on two trucks, to be conveyed to the highway that was being improved in a nearby section of Wetzel county. The stone had been placed in piles and although there is no direct testimony of any kind as to the manner of the escape, it is assumed and maintained as a defense that the prisoners in question must have gotten behind the piles of stone and thus eventually made their escape from the project. The work of loading the stone took place about the middle of the quarry, which left at least a hundred feet of the quarry itself exposed on either side of the trucks that were being loaded, and so far as the evidence reveals, with no obstruction that would prevent a watchful guard from seeing the men if an attempt to escape was being made. The testimony fails to show definitely how long the prisoners had escaped before their absence was noted. It is assumed that a space of seven or eight minutes elapsed before their action was noted. The guard in question, William E. Phalen, maintains that the men escaped through an opening in the stone pile, but a review of his testimony reveals the fact that the stone piles in question left an open, unobstructed space of at least a hundred feet on either side through which no convict could escape without being detected or seen if the guard was exercising the degree of care necessary under the circumstances. He maintains (record p. 77) that he could not see them behind the truck that was being loaded. This fact of itself, to my notion, constituted negligence in that he ought to have placed himself so that he could have seen the prisoners at all times, or, if this is not true, and assuming that his statement is correct, then the department involved was in my judgment negligent in not supplying him a sufficient number of guards to take care of the number of prisoners that were employed on the work, and who, if Phalen’s testimony is correct, could have been working without a guard seeing them at the time.

It must be borne in mind that this was known as an armed camp, and that prisoners with long-term records, and of a vicious nature, were amongst those employed at this particular work and consequently there was a higher duty devolving upon the state agency involved than would be present or required in an unarmed camp. The record shows that Phalen himself was armed with a shotgun at the time.

The witness Blake, one of the witnesses for the state agency, when asked the question (record p. 112), “Can you explain how, if a guard had been on the alert three men could have gone to one end or the other of the quarry without being seen,” replied, "It looks to me like he could have seen them all right.” Further in this connection the witness Montgomery, who was in charge of the guard, states (record p. 22) that it was the duty of the guard to keep the prisoners in view at all times. If this was the duty of the guard Phalen then he definitely violated that duty, because he has testified (record pp. 76-77) that he could not see the men behind the truck.

It is difficult to comprehend that a watchful guard could not have prevented the escape when, as he testified, he could not have been more than thirty feet away from the prisoners themselves, and they, the prisoners, could not have been more than that distance in front of him, the guard. (Record p. 76.) Either the guard was negligent in not noticing the escaping prisoners or the circumstances were such that, considering the nature of the men who were employed in this work, the state agency involved ought, beyond all question, to have employed more guards in carrying on the work. In either event it seems to me that in equity and good conscience the state should be liable for any act committed by an escaping prisoner that deprives a citizen of his right of property or who by reason of the vicious act of an escaping prisoner is so maimed as to be made a cripple for life and deprived of the means of earning his livelihood.

The project of improving our highways, under the system and plan adopted, must be commended, not only from an economic but from a social standpoint as well. The work done by reason of this plan saves many dollars for the state in bringing about necessary improvements and at the same time perhaps creates a more humane manner of handling prisoners and at least, gives the prisoner who wants to be reformed an opportunity to do so in the open without being confined within the gloom of four walls. This very scheme and plan, however, carries with it certain responsibilities and obligations that must be fully discharged by the state. One of these is that in view of the very nature of the work that is carried on and the prisoners involved, the state is under obligation, at least in equity and good conscience, to protect the citizen, as well as his property, from any tort or criminal act that might be committed against him or his property by reason of the presence of these prisoners. Within reason the state must take the required and necessary precautions. It must have a sufficient number of guards, in an armed camp especially, to take every precaution to avoid escapes. It must see to it that capable, keen and alert guards are placed in charge of the work, and failing to carry out these conditions, it ought to be, in my opinion, held liable for any harm that was done to a citizen by an escaped prisoner when these requirements have not been met by the state itself.

At the close of the third to the last paragraph of the majority opinion there is this significant statement: “The guard could not reasonably have seen the men behind the truck.” Let me ask, if not, why not? I repeat, in view of this statement, either the guard was not keen and alert or a sufficient number of guards had not been supplied. In either case there was negligence which ultimately led to the deplorable and tragic injury to claimant.

Joe Yoho, safety director for the state road commission, of the district involved, who made an independent investigation of this whole affair, when asked (record p. 148) whether or not Carl F. Montgomery, who also testified, and who was the chief of the guard, had made a statement to Yoho to the effect that Phalen had been discharged for negligence, answered “Yes, Sir. He made this quotation: that he discharged guard Phalen for negligent — for negligence on line of duty relative to that escape.” This statement was afterward denied by Montgomery himself, but the fact remains, as shown on record page 165, that Montgomery, the captain, told Phalen that he would not need him on the morning of May 13, 1944, which was a week or ten days after the escape in question had taken place, and so far as this record reveals Phalen has not been employed or engaged as a guard since, and it is questionable whether or not he has any connection with the department at the present time. The witness Montgomery further testifies (record pp. 165-166) that he wanted to talk to Phalen about matters of the escape but never had an opportunity as Phalen went to his home at Cass, West Virginia, to spend a two weeks’ vacation, but he has never returned to the job as a guard. So far as the record reveals he never returned to that particular work nor is it definitely shown whether he was discharged or not or whether he was in fact acquitted of any negligent conduct in watching over the men at the quarry. All of which indicates to me rather strongly that at least to the officials in charge of the project the acts of Phalen as the quard in question were not those of a careful, prudent man, and that he should not be continued in that line of work. After the escape of the three men in question on May 3rd, he, Phalen, allowed another man to escape also.

Under all these circumstances I would make a substantial award to claimant to recompense him, to a degree, at least, for the irreparable injury he has suffered.  