
    (No. 772-S
    MARGARET E. WEEKLEY, J. C. WEEKLEY, CORA JOHNSON, and MRS. H. N. CRICHTON, Claimants, v. STATE ADJUTANT GENERAL, Respondent.
    
      Opinion filed October 22, 1952
    
   JAMES CANN, Judge.

On the 30th day of June, 1952, claimant Margaret E. Weekley, accompanied by one Cora Johnson and a Mrs. H. N. Crichton, was driving her husband’s (claimant J. C. Weekley) 1950 Plymouth automobile east on Washington avenue, approaching Third street, west, in the city of Huntington, county of Cabell, state of West Virginia. As she neared the intersection of Washington avenue and Third street, west, she was compelled to stop in obedience to a red signal light, when an army vehicle 2-% ton, 6X6 truck, No. 4874171, driven by Cpl. Carl L. Morton, battery C, 468th field artillery battalion, West Virginia national guard, Huntington, West Virginia, turned into Washington avenue from said Third street, west, veered into the wrong lane to the left and struck a motor vehicle owned by Carl V. Ridgley, of said city of Huntington, which was the automobile directly ahead of claimant, and who also had stopped in obedience to said red light traffic signal, then struck the automobile driven by claimant causing damage thereto amounting to $608.72, and personal injuries to her and her companions, necessitating doctor and hospital expenses in the aggregate amount of $117.00.

This claim was presented to the court under the shortened procedure section of the court of claims act and the record was prepared by the office of the adjutant general. A full and comprehensive investigation of this accident was made by the respondent which reveals that no fault is alleged against either of the two civilian drivers, Mrs. Weekley or Mr. Ridgley, that the proximate cause of the accident was either malfunction of the steering mechanism of the truck or error of the driver thereof, and that the investigation further did not determine definitely that the steering mechanism of the truck had locked as the driver thereof had claimed.

The record presented to this court complies in every respect to the requirements of the court act. It sets forth a full, clear and accurate statement, in narrative form, of the facts upon which the claim is based; it further shows that the claimants, or either of them, did not through neglect, default or lack of reasonable care, cause the damages complained of. It further shows that the proximate cause of the damages complained of was the sole, independent and negligent act of the agent of the respondent. It still further shows that the amount of the claim is properly itemized and supported by proper invoices and statements and are all vouched for as to their correctness and reasonableness by the head of the state agency involved; and it further shows that the state agency involved has concurred in this claim and the same has been approved by the attorney general as one that, in view of the purposes of the court of claims statute, should be paid.

For the reasons set out, a majority of this court favors and grants an award in the amount of seven hundred twenty-five dollars and eighty-two cents ($725.82), to be paid as follows:

To Margaret E. Weekley the sum of fifty-seven dollars ($57.00), doctor and hospital bills occasioned by the personal injuries received;

To J. C. Weekley the sum of six hundred eight dollars and eighty-two cents ($608.82), representing damages done to his automobile;

To Cora Johnson the sum of thirty dollars ($30.00), doctor and hospital bills, occasioned by the personal injuries received;

To Mrs. H. N. Crichton the sum of thirty dollars ($30.00) doctor and hospital bills, also occasioned by personal injuries received.

It is recommended by the majority of this court that before the above claims are paid that proper releases be executed and delivered to the state agency involved.

ROBERT L. BLAND, Judge,

dissenting.

The legislative interim committee, which worked out the scheme for the creation of the court of claims, in its report to the Legislature, emphasized the fact that it was not the intention of the committee that the shortened procedure provision of the court act should be resorted to or used in a case where an issue was presented by the record. The court of claims is naturally bound bji the rules which it has heretofore adopted for its guidance and for the guidance of those state agencies which submit claims to it for determination. The interim committee also stressed the fact that the shortened procedure provision of the court act should only be used where it was plainly manifest that an award should be made. Under a rule of the court of claims all claims are treated as denied and therefore call for strict proof. In the instant case, proceedings involving several claims all presented by claimant Margaret Weekley the claim of her husband sounds in tort and is for damages occasioned to his automobile. The record of these several claims has been prepared by the head of the state agency concerned. It consists chiefly of affidavits with recommendation on the part of the head of the agency that awards should be made as set forth in the majority opinion.

The court of claims has had no opportunity whatever to make any independent investigation of the merit of the several claims, presented by the record. It has merely approved the conclusion of the adjutant general’s office that the owner of the automobile damaged should be paid by way of remuneration in the sum set forth in the majority opinion. The effect of the manner of the presentation of these claims and the way in which they have been determined by the adjutant general is to defeat the very purpose of the court act. If the adjutant general, or any other single agency of the state, can investigate claims asserted against the state and make determination of such claims there would seem to be no real need for the court of claims. It may be true that the awards made to the parties other than the owner of the automobile are just, and it may be true that the amount of the award made in favor of J. C. Weekley is likewise fair and reasonable if, in fact, an award should under the law and under the facts set forth in the record be made at all. My chief grounds of objection to the determination of the case is based upon the manner in which it is presented to the court of claims. As an individual member of the court I am not satisfied with the result of respondent’s investigation and determination of the claims for which awards are made bj^ majority members of the court and cannot concur in such awards. My judgment constrains me to disapprove the investigation of claims in the manner in which such investigation has been made in the instant case. I think the awards made constitute a dangerous precedent and one that strikes at the very necessity for the continued existence of the court of claims.  