
    (No. 664-S
    PROCTOR & GAMBLE DISTRIBUTING COMPANY, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed April 15, 1949
    
   MERRIMAN S. SMITH, Judge.

On the morning of January 4, 1949, one Edward Dougher, a representative of the Proctor & Gamble Distributing Company, was driving a company-owned Ford automobile west towards Clarksburg, West Virginia, along U. S. route 50, in Harrison county. It was a wintry morning and the highway was icy and slick. A state road commission truck was going in an easterly direction with two employes on the rear who were cindering the roadbed. At this particular point U. S. route 50 is a three-lane highway, and the truck was in the center lane, traveling at about the rate of three miles per hour. One of the employes was spreading cinders on the north lane. When Dougher started to pass the approaching truck he blew his horn. Notwithstanding this warning, the state employes threw the cinders against the left section of the windshield and broke it. The cost of the material and labor for repairs amounted to $13.84, for which sum the claimant asks this court to reimburse it.

Upon affidavit filed as evidence, the state employe stated he did not see the passing automobile until too late to check his shoveling action. From the report of the investigation by the department involved, there was no contributory negligence shown on the part of the driver of the automobile.

Since the state employe did not exercise due care under the circumstances, the state road commissioner concui's in the claim and it is approved by the attorney general, as provided for in the state court of claims act. Therefore, an award in the sum of thirteen dollars and eighty-four cents ($13.84) is hereby recommended by a majority of the court, to claimant, Proctor & Gamble Distributing Company.

ROBERT L. BLAND, Judge,

dissenting.

The amount of the claim involved in this case is small, but the principle involved is important and far-reaching. It will be observed upon the statement of facts contained in the majority opinion that at the time of the accident the state road commission, a governmental agency, was engaged in the exercise of a governmental function. It must be manifest that one who uses the highways of the stale is charged with the exercise of certain prudence and care. The right of the state in the exercise of a governmental function, in this case the spreading of cinders upon a highway or slippery road for the protection of those using the highway, is superior to the right or usage of said highway by the driver of a motor vehicle.

The record of the claim, prepared and filed in this court by the state road commission, is exceedingly meagre in its statement oí facts, and such record does not support the assumption of facts set forth in the majority opinion. Cinders were being spread upon the entire three-lane highway by two employes of the commission. The statement of claimant discloses that the driver of the motor vehicle recognized the work in which the employes of the commission were engaged, and contented himself with the mere blowing of the horn on the vehicle, and attempted to bypass the two workmen. He could not have been unaware of the danger into which he was driving his car. I cannot agree with the statement of the majority of the court that he was guiltless of contributory negligence, such contributory negligence as would defeat a claim for damages in a court of law of the state, if the state could be sued.

Since taxes may only be levied and collected for public purposes, any appropriation by the Legislature for the payment of the claim, for which the award is made, would necessarily have to be based upon the moral obligation of the state to pay it. Relying upon the West Virginia case of Bennett v. Sims, Auditor, 46 S. E. 13, which, in my judgment, would prohibit the Legislature from making an appropriation in favor of the claimant, I am unable to concur in the action of my colleagues.  