
    No. 606-S
    JOHN H. BREEDLOVE, Claimant, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed April 20, 1948
    
   MERRIMAN S. SMITH, Judge.

On June 20, 1947, claimant John H. Breedlove was driving his privately owned one and one-half ton Chevrolet truck, loaded with coal, along secondary road No. 50-9, near Grafton, Taylor county, West Virginia. Upon crossing a wooden bridge (culvert type) the said bridge collapsed causing damages in the amount of $210.78 to the tires, tubes, spring and body of the truck.

The claimant had paid license fee for overload of six tons gross and at the time of the accident the gross weight of the cargo and truck was well within the limits allowed by law. There was no “load limit” sign posted at the bridge and no warning of any kind was given to the public as to the unsafe condition of the bridge. Michie’s Code of West Virginia, 1943, chapter 17, article 4, section 1474(15) provides :

“The commissioner shall inspect all bridges upon state roads. If any bridge is found to be unsafe, the commissioner shall promptly condemn, close and repair it.”

It seems from the record in this case that the statute above cited was disregarded in this instance, thereby making the state guilty of negligence. The failure of the state road commission to perform its statutory duty was the proximate cause of the damage to the said truck. No negligence of any kind was shown on the part of claimant.

The state road commission made proper investigation as to the merit of this claim and concurs in the claim and the claim is approved by the special assistant to the attorney general as one that should be paid.

From the record as filed before this court it appears that claimant, John H. Breedlove, carried a one hundred dollar deductible collision policy with the State Automobile Mutual Insurance Company of Columbus, Ohio, which took subrogation to the extent of its payment.

It is the opinion of the majority of this court that an award be made in the amount of two hundred ten dollars and seventy-three cents ($210.73) to be paid jointly to

John H. Breedlove and the State Automobile Mutual Insurance Company of Columbus, Ohio.

ROBERT L. BLAND, Judge,

dissenting.

The facts which constitute the basis of this claim are set forth by the state road commissioner, the head of the agency involved, as follows:

“A privately-owned 1% ton truck (Chevrolet) of John Breedlove, Taylor County, hauling a load of coal on Secondary Road No. 50/9 and crossing wooden bridge (culvert type) when rear wheels crashed through bridge. SRC did not have bridge posted for any gross load limit and truck was issued overload license of 6 tons. The load traveling over the bridge at the time of the accident was less than what trucker was permitted to haul by law.”

By reason of the accident claimant’s truck was damaged, as he maintains, to the extent of $210.73, and the road commissioner concurs in the claim for that amount, and it is approved by the attorney general’s office “as one that, in view of the purposes of the Court of Claims Statute, should be paid.”

I do not think the facts relied upon for an award in this case warrant or justify the making of such an award. Certainly it cannot be seriously maintained upon the meagre showing made by the record that if the state were suable there could be recovery in a court of law. How heavy was the load of coal that was being transported over the bridge? To what extent was claimant acquainted with the bridge? How frequently did he cross over the bridge in the hauling of coal? These and other pertinent questions could have been propounded if the case had been heard under the regular procedure and not under the shortened procedure. Was the claimant in any way guilty of contributory negligence? In the recent case of Jacob F. Bennett v. State Road Commission, not yet reported, the Supreme Court of Appeals of West Virginia held that an award made by this court was based upon manifestly insufficient facts. The record in the instant case certainly falls far short of the facts set forth in the Bennett record.

I respectfully dissent from the award made by majority members of the court.  