
    (No. 703
    LUTHER GOLDSBORO, claimant, v. WEST VIRGINIA BOARD OF CONTROL, respondent.
    
      Opinion filed November 15, 1950
    
    
      Steptoe & Johnson (Kingsley R. Smith), for claimant,
    W. Bryan Spillers, assistant attorney general, for respondent.
   A. D. KENAMOND, Judge.

On August 29, 1946, the claimant Luther Goldsboro lived on U. S. route No. 50, about three miles east of Bridgeport, in Taylor county. Some time that night three escapees from the industrial school for boys at Pruntytown (Randolph Brewster, Jack Sproles and Jack Palmer) stole a 1937 Oldsmobile four-door sedan owned by claimant, breaking the padlock on the garage in which the car was stored, and driving the car to Clarksburg, West Virginia, where it was demolished about six thirty a. m. on August 30, 1946, in a head-on collison with a bus owned by City Lines of West Virginia, Inc., in front of Victory High School.

Claimant alleges that the West Virginia board of control was negligent in permitting Randolph Brewster, Jack Sproles and Jack Palmer to escape from said industrial school; that some or all of the escapees had previously escaped therefrom and had previous to August 29, 1946 committed crimes during those other escapes; that, despite all of those escapes and crimes, respondent took no additional precautions for preventing them from escaping again; and that as a direct and proximate result of the aforesaid careless, negligent and improper conduct of the respondent, the claimant suffered damages, as itemized in the petition, amounting to $880.45.

At a hearing of the case on October 24, 1950, L. Steele Trotter, of the West Virginia board of control, appeared with the official records of the industrial school, at Pruntytown, with regard to Randolph Brewster, Jack Sproles and Jack Palmer.

The record of Randolph Brewster showed that at his first commitment on July 5, 1944, at the age of twelve years, he had been charged with theft of $138.00; that on a recommitment of August 2, 1944, he had been guilty of breaking and entering and auto theft; that he was returned on November 4, 1945, on violation of his parole of September 1, 1945, for stealing a car; and that on his sixth return “Randolph stated he broke and entered three stores in Logan, West Virginia, and stole an auto.”

Between the time of commitment to Pruntytown on October 12, 1945, at the age of thirteen, for breaking, entering and theft, and the time of his escape resulting in theft of the Luther Goldsboro automobile, Jack Sproles had escaped only once, and that during the immediately preceding month, on July 10, 1946.

The third escapee in this case, Jack Palmer, was committed to' Pruntytown on May 5, 1942, for breaking and entering and auto theft. His first escape on July 1, 1942, was of short duration, as he was caught two miles from the institution and returned. His second escape, on November 3, 1942, was in company with three other boys, all four going out the window and down the fire escape and proceeding to burn down a haystack and break into a house and take some food. He was returned from a third escape on December 11, 1942. His participation in the theft of the Luther Goldsboro automobile was recited under “Statement of escape upon fifth return.”

In the case of Coy v. State Board of Control, 3 Ct. Claims (W. Va.) 49, the West Virginia industrial school for boys at Pruntytown was held to be a penal institution within the meaning of section 14 of the act creating the court of claims. In this opinion the court was supported by a brief filed by counsel for the state maintaining “that said school is, in truth and fact, a penal institution.”

In the case under consideration the relation of the state agency involved to the escapees can thus not be regarded as that of a father to a minor son who does some tortious act as an independent design of his own. Instead, we must consider the position of the state agency to be like that of a sheriff under duty bound to keep in custody those lawfully committed to him, said sheriff being liable when he voluntarily permits the escape of those committed. (19 American Jurisprudence 373.)

That the claimant suffered damages amounting to S880.45, as itemized in the petition, and at the hands of the escapees, was conceded by the respondent. The question of culpability on the part of the West Virginia board of control is to be determined by the court.

That the escapees had a bad record of escapes and thefts was fully shown, and altogether they had participated on four occasions in the theft of an automobile before they escaped from the lawns of the Pruntytown institution and stole and wrecked the Goldsboro automobile. That it was foreseeable and to be anticipated that some such damage would result from the escape of Randolph Brewster, Jack Sproles and Jack Palmer cannot he denied. We are of the opinion that, those in charge of the institution at Pruntytown did heedlessly and consciously make the escape of these boys on August. 29. 194l’>, easily possible, with results to be anticipated, in that these boys were given the liberty of the fields and lawns and in a group of fifteen to twenty-five boys all under the surveillance of only one guard or some older boy powerless to prevent escape. The circumstances surrounding their commitment and confinement were such as to make the escapees in question objects of special restraint. Lack of discipline and control, in our opinion, brought about the commission of the tort, namely the theft and wrecking of Luther Goldsboro’s automobile by the three escapees.

Respondent in the case granted that escape was made easily possible for the three boys. Lack of discipline and control calculated to prevent commission of the tort was explained, if not justified, as a matter of policy in line with modern trends in institutional attempts to reform and rehabilitate wayward, incorrigible or vicious youths. Respondent stated that the policy had proved advantageous in efforts to make normal citizens of a high percentage of the boys at Pruntytown, that “we figure if we can save twenty boys by letting two escape under such a system, that is well worthwhile, regardless of what the boys do when they escape.” (r. p. 22.)

Saving the “twenty boys” is undoubtedly a noble purpose and “well worthwhile,” but what can be said of the resulting loss and injury of property of a private citizen incurred by a few escapees with a record for theft? Is a private citizen to have imposed upon him the obligation to make such a substantial private contribution as that involved in this case to the reformation of the “twenty boys” who profit from the modern policy? We believe the intent and purpose of the act creating the court of claims is to give answer in the negative. The great and sovereign state of West Virginia has been not only magnanimous in providing for the rehabilitation of delinquent youth (nearly a quarter of a million dollars per year at Pruntytown), but has also shown grace in repeatedly recognizing a moral obligation.

In the recent case of Price v. Sims, 58 SE 2d 659, the Supreme Court of Appeals said:

“Moral obligation of state, declared by legislature to exist in favor of claimant for negligent injury to his property, will be sustained, and a legislative appropriation of public funds for its payment will be upheld, when conduct of agents or employees of state which proximately cause injury is such as would be judicially held to constitute negligence in an action for damages between private persons.”

Some of the best legalistic minds have differed as to the liability of the state for a claim such as is involved in this case without a statute specifically making it so. However, we have noted the opinion of .the Supreme Court of Appeals in the related case of State ex rel. Davis Trust Company v. Sims, Auditor, 130 W. Va. 638:

“The doctrine which gives rise to a moral obligation of the state, in any particular instance, is not rendered inoperative by, and is not incompatible with, the principle which recognizes the immunity of the State from suit, or the principle which denies the existence of a cause of action against it for the negligence of its officers, agents or employees. It rests upon consideration of an entirely different and independent character. If the State were subject to suit or action, or a cause of action existed against it for the negligence of its officers, agents or employees, while engaged in the discharge of a governmental function or in other activity or conduct; or if there were a legal liability upon the State, or any legally recognized remedy for such against it, there would be no occasion for one aggrieved or injured to seek from the State, upon the basis of a moral obligation, the relief which he is denied by positive law but to which he would be entitled if, in the identical situation, an obligation or duty would be judicially recognized in cases between private persons.”

In consideration of all the facts, and under the circumstances in this case, we favor an award and accordingly recommend that the claimant, Luther Goldsboro, be compensated in the amount of eight hundred eighty dollars and forty-five cents ($880.45).

ROBERT L. BLAND, Judge,

dissenting.

Since I am not in accord with the determination made by majority members of the court of the claim involved in this case and cannot concur in the majority opinion awarding the claimant the sum of $880.45, I most respectfully record this dissent from said award for the reasons hereinafter set forth.

The claim is asserted and prosecuted against the state board of control, which state agency exercises jurisdiction over the West Virginia school for boys at Pruntytown, to obtain an appropriation from the Legislature for the alleged theft of and damages done to a certain automobile in the possession of and owned by the claimant, by three escapees from said West Virginia school for boys. The proceeding is distinctly one predicated upon alleged negligence of the officials of the state charged with the duty of managing and operating said School for Boys. Negligence is the gist of the proceeding.

The Court of Claims, prior to the time it became presently constituted, in the case of George Coy, Jr., by George Coy, Sr., his next friend, v. State Board of Control, 3 Ct. Claims (W. Va.), held in point two of the syllabi, as follows:

“II. The West Virginia industrial school for boys at Pruntytown is held to be a penal institution within the meaning of section 14 of the act creating the court of claims.”

Since the majority opinion neither disapproves nor overrules such holding it is manifest that the claimant seeks to charge the sovereign state of West Virginia with negligence arising out of the conduct and management of said West Virginia school for boys, and a majority of the court have placed the stamp of approval upon said claim.

I think it is a sound and well recognized rule of law that the state in the conduct of its penal institutions is engaged in a governmental function, and in the exercise thereof it is not responsible for the negligent acts of its servants, agents or inmates in the absence of a statute making it so liable.

Since' the state is inherently sovereign at all times and in every capacity the state, by taking over an enterprise, usually of the nature of a private business, is not hampered by the private character thereof, and so there is no basis for charging the state thus engaged with liability for torts of its officers and agents. 59 Corpus Juris 195.

I think it may reasonably be said that the prevailing rule is that “The state in the conduct of its penal institutions is engaged in a governmental function, and in the exercise thereof is not responsible for the negligent acts of its servants, agents or inmates in the absence of a statute making it so liable.”

The claim asserted against respondent in the instant case is not of the type or character for which the court of claims may properly make an award or for which the Legislature may make a valid appropriation of the public funds. The following excerpt taken from the opinion of the court in the case of Murdock Parlor Grate Co. v. Commonwealth of Massachusetts, reported in 8 L.R.A. (2nd), 399, is pertinent in the consideration of the instant case:

“The object of the statute cannot have been to create a new class of claims for which a Sovereignty has never been held responsible, and to impose a liability therefor, but to provide a convenient tribunal for the determination of claims of the character which civilized governments have always recognized, although the satisfaction of them has been usually sought by direct appeal to the sovereign, or in our system of government, through the Legislature."

And the following .statement, taken from an Illinois court of claims opinion, has peculiar significance in the interpretation of the act of the Legislature creating the court of claims of West. Virginia:

“In creating the Court of Claims the Legislature of Illinois did not create a cause of action nor a right of action in any given case, but merely provided a forum wherein claimants against the State might submit their grievance, and where, if a legal basis for redress was shown to exist, an award might be obtained.”

Although I maintain that any award in favor of the claimant in this case is improper and contrary to public policy when made upon the basis of negligence, I may add that no negligence of the state or of the boys industrial school at Prunty-town is actually disclosed by the evidence heard upon the investigation of the claim in question. I do not think that any person reading the facts as set forth in the majority opinion can see any negligence. In the recent case of Bennett v. Edgar B. Sims, Auditor, the opinion set forth in detail the facts supporting an award made by the court of claims and held that nothing in said facts would support an appropriation of public funds.

The decision of our Court of Appeals in the late case of Price v. State Road Commission is no warrant for the award made in this case. Every claim must be determined upon the basis of its own facts. The Price decision merely held that under circumstances set forth in the opinion an award of public funds would be sustained. There is, however, quite a difference between the facts in the Price case and the facts in the instant case, and also quite a difference in the law controlling the determination made in the instant case. No support for the award is found in the Supreme Court case of State ex rel, Davis Trust Company v. Board of Control. In that case the Supreme Court sustained the legislative appropriation upon the ground of the gross negligence of the warden of the penitentiary. Such decision was based upon the peculiar facts of the case and could not, in my judgment, support the award made in the instant case.

I do not see how anything appearing in the testimony of L. Steele Trotter, a member of the board of control, could be construed in any respect as supporting, much less tending to establish, the contention of claimant that the West Virginia industrial school for hoys at Pruntytown, “heedlesly and consciously made the escape of these boys on August 29, 1946, easily possible, with results to be anticipated, in that these bojrs were given the liberty of the fields and lawns and in a group of fifteen to twenty-five boys all under the surveillance of only one guard or some older boy powerless to prevent escape.” It very clearly appears from the testimony of Mr. Trotter that the Pruntytown institution is maintained and operated in accordance with the plan adopted and followed by similar institutions in many of the states of the Union. As a matter of fact, the evidence adduced before the court of claims showed the institution to be conducted most commendably. The care and treatment of such inmates is definitely performed as a governmental function and while the management of such institutions may see fit to have such inmates engage in various occupations, such activity is recognized as being for the primary purpose of occupying the time of such inmates. Apparently the majority opinion would take the position that inmates of the Pruntytown institution should be confined in cells and that high walls should enclose the several hundred acres of land belonging to the institution. The opinion loses sight of the testimony relative to the commandoes who are in charge of the inmates and of the older inmates who frequently exercise surveillance over the younger one. I do not think that it is within the province of the court of claims to establish or promulgate a plan for the care and treatment of the inmates of the institution. Men of wide experience in educational work, such as the present head of the institution and his predecessor, Mr. Mollohan, with high and skilled training and judgment have worked out a plan approved by similar institutions in other judisdictions. It must be borne in mind that all of the inmates of the institution have been committed therein by the order of courts of law of the state on account of incorrigibility. It would require a vivid imagination to find anything in the record that would support the conclusion that any official connected with the institution could foresee what happened in relation to the escapes made by the three boys under consideration, or that they contributed in any way or were responsible in any way for such escapes. To hold the state responsible in damages in the instant case is foreign to all law that controls in cases like the present. The award could not be based upon any legal right possessed by the claimant and no equitable principle may properly be invoked to support the award. How, therefore, could there be a moral obligation upon the State to compensate the claimant for the damages suffered by him as set forth in his petition praying for compensation?

For a period awards made in the court of claims had three hurdles, the Legislature, the auditor (the guardian of the public revenues of the state) and the Supreme Court of Appeals. The latter tribunal has, however, in numerous recent decisions given the court of claims much enlightenment and guidance. We now have precedents which are helpful.

In conclusion, I can only say, that if the public revenues may be appropriated upon the facts set forth in the majority opinion,

God save the State!  