
    (No. 679-S
    ARNOLD P. WEBB and EMMCO INSURANCE COMPANY, Claimants, v. STATE ROAD COMMISSION, Respondent.
    
      Opinion filed April 21, 1950
    
   MERRIMAN S. SMITH, Judge.

About two-thirty o’clock on the evening of July 20th, 1948, claimant Arnold P. Webb, of Charleston, West Virginia, accompanied by his mother, Rosa Webb Freeman, was driving his 1941 Pontiac sedan along secondary route No. 83, between Burnwell and Charleston, Kanawha county, West Virginia, and upon crossing the wooden floored bridge over Paint Creek met with an accident, the circumstances being as follows: On September 27, 1947, a special authorization was approved to repair the said bridge over Paint Creek near Burnwell. The actual work was started December 22, 1947 and work was done periodically until June 10, 1948, when the job was left half completed, so on the morning of July 20, 1948, while the said claimant Arnold P. Webb was driving across the bridge a large plank in the unfinished part of the floor of said bridge became dislodged leaving a large hole. When the claimant’s car struck this hole the right wheel fell through into the hole and in trying to right the automobile it swerved into the guardrails and turned on its side damaging the automobile to the extent of $572.11, also injuring the claimant’s mother Mrs. Rosa Webb Freeman who was an occupant of the car.

At the October 1949 term of court of claims, Rosa Webb Freeman, v. State Road Commission, claim No. 644, the said claimant was granted an award for the injuries sustained in the same accident for which claim for $295.90 is made in this shortened claim as an agreed amount covering the cost o£ repairs to the damaged 1941 Pontiac sedan.

Claimant Arnold P. Webb had a seventy-five dollar deductible policy on the said automobile in the Emmco Insurance Company of South Bend, Indiana, whereupon the said Emmco Insurance Company by a compromise agreement secured an assignment and subrogation release from the said Arnold P. Webb in full for the sum of two hundred ninety-five dollars and ninety cents ($295.90).

Arnold P. Webb being a private individual having sustained damage to his automobile by negligence of the employes of the state road commission did voluntarily assign and subrogate the Emmco Insurance Company in the amount of $295.90. The state agency involved may deal with the substituted representative as it would have dealt with the claimant if there had been no substitution. The court of claims has recognized their right of substitution in the claim No. 500 Aetna Casualty and Surety Company v. State Road Commission, 3 Ct. Claims W. Va. 150.

For the reasons stated in the opinion of this court in the-claim of Rosa Webb Freeman v. State Road Commission, No. 644, the majority of this court are in favor of an award in the sum of two hundred ninety-five dollars and ninety cents ($295.90) in favor of the Emmco Insurance Company.

ROBERT L. BLAND, Judge,

dissenting.

I am not in agreement with my colleagues in the determination which they have made in the above two claims.

Claimant Arnold P. Webb asserts a claim in the amount of $75.00 and the Insurance Company claims the right to have an award in its favor by way of subrogation for the sum of $220.90. These respective claims are concurred in by the head of the agency concerned. The attorney general approved both claims. The determination is made alone in favor of the Insurance Company for $295.90. I do not perceive anything in the record warranting such determination and therefore do not comprehend the reasoning of majority members. However, on the theory of subrogation I do not think the award to be proper. It is not a case in which the doctrine of subrogation may be properly invoked. The award is contrary to the express prohibition of a grant of the credit of the state, found in section 6, article 10 of the state constitution, which reads as follows:

“The credit of the State shall not be granted to, or in aid of any county, city, township, corporation or person; nor shall the State ever assume, or become responsible for the debts or liabilities of any county, city, township, corporation or person; ...”

I am persuaded that under the principles announced in'the recent West Virginia Supreme Court case of State ex rel. Baltimore & Ohio Railroad Company v. Sims, Auditor, reported in 53 S. E. (2d) 505, there could be no valid appropriation of the public funds in satisfaction of the award made in the instant case.  