Burgess v. State Road Commission

The claimant, J. P. Burgess, administrator of the estate of Edward Sinclair Burgess, deceased, together with five other administrators of the estates of Esther Jones, Ruth Ann Lively, Roy Herber Adkins, Jr., Edward D. Burnette, Jr., and Mar-*141guerette Francis Surber, respectively, bring their several claims against the state road commission for damages resulting from the deaths of the aforesaid Edward Sinclair Burgess, Esther Jones, Ruth Ann Lively, Roy Herbert Adkins, Jr., Edward D. Burnette, Jr., and Marguerette Francis Surber, occasioned by the automobile in which the said six persons were riding being driven or precipitated over a high embankment adjacent to primary road or route No. 61 at and near Deepwater, in Fayette county, West Virginia, on the night of January 26, 1941. All of the said six persons, so far as the record reveals, were instantly killed in the said accident. Each claim is brought in the amount of $10,000.00 and as the facts and circumstances surrounding the happening of the accident are identical, so far as the individual claims are concerned, the court combined them and heard all of the testimony at one hearing, and the claims are now so considered, one opinion only being necessary and governing the disposition of all the said claims or actions.

The testimony shows that the accident happened on the night of January 26, 1941, at approximately 10:45 o’clock; it was a dark, misty night, with limited vision, and while not a fog, yet weather conditions were such as to make it difficult to keep the windshield of an automobile clean and free so ■as to have an unimpaired vision while driving. The road in question reaches from a point near the Kanawha river about six or seven miles from the town of Montgomery, up the mountainside in the direction of Oak Hill; is steep, and at the place of the accident thereof, when traveling toward Oak Hill, has a very high, dangerous and quite precipitous embankment or fall, approximately ninety feet high. It was over this embankment that the automobile in question was driven, falling the entire distance down the side thereof and landing on the railroad tracks below. There were no barriers or railings constructed along the highway at the point in question where the accident took place, nor were there any markers or signs posted along the road to warn persons of its condiiton nor of the nearby embankment; nor was there any white line on the highway to indicate its center or its *142possible width, by which an automobilist could or may have been guided.

The claimants maintain that the state road commission was negligent in failing to provide guards or barriers, as the place where the accident happened was very dangerous; and that the commission was further negligent in not having proper warning signs and in not having the highway marked and lined as a further security to the traveling public.

The state resists the claims on the ground fa) that the state road commission was not bound to erect guardrails or barriers and (b) that the occupants of the automobile were guilty of contributory negligence and therefore the representatives of their several estates barred from any recovery.

In addition to the testimony taken by the court, the members thereof, after the said hearing was closed, realizing the importance of the claims and the questions involved, personally visited the scene of the accident and were thereby afforded a better opportunity for the consideration of the testimony in its application to the various questions raised by the claimants and by the state.

Considering first the legal question offered by the state as to whether or not the road commission was obliged to erect barriers or guardrails, this court had held on several occasions that:

“When the state road commission by the act of 1933 assumed control and authority over the primary and secondary roads of the state, the duty was imposed upon it to guard all dangerous places on the public roads and bridges by suitable railings or barriers, so as to render the said roads and bridges reasonably safe for travel thereon by day or by night.” Fry v. Commission, 1 Ct. Claims (W. Va.) 48; Hersh-barger v. Commission, 1 Ct. Claims (W. Va.) 52.

In both of these cited claims substantial awards were made and subsequently honored and confirmed by the Legislature *143(1943) and ordered paid. In the case of Wells v. County Court of Marion County, 85 W. Va. 663, 102 S. E. 472, it was held:

“The law imposes upon a county court or other public authority in maintaining public roads and bridges, the duty to so guard all dangerous places by suitable railings or barriers as to render them reasonably safe for travel thereon by day or night.”

We can percieve no reason for changing the rule or holding llaid down in the cited cases when we come to consider the instant claims, assuming, of course, that the place of the accident was highly dangerous as hereafter pointed out, and consequently feel that we need not give further consideration to the matter of whether the road commission had a duty to erect guardrails and barriers when necessary and when required for the safety of the traveling public.

Was the place where the accident happened dangerous and did it require the erection and construction of suitable guardrails and barriers? We are of the opinion that it was, and that guardrails and barriers ought to have been erected or installed on the highway. The testimony shows the road to be steep, approximately eighteen feet wide from the mountainside to the embankment or cliff across the highway; that there was .a reverse or “S” curve at the point of the accident, (record p. 37); that the paved part of the road was fourteen feet wide (record p. 42), with a berm of three feet (record p. 43). Beyond the paving and on the side of the road where the accident happened the berm narrowed as one approached the point in the road where the automobile went over the cliff, graduating from a width of approximately six and one-half feet to three feet in width, and this fact of itself, in our opinion, presented a hazard to one using the road, and especially so on a dark, misty night, and as there were no lines indicating the center line of the paved portion of the highway, as well as no warning signs or markers of any kind, the hazard became doubly dangerous when considered in connection with the attendant conditions existing at the time. Coupled with these facts was the further fact, highly *144important in our judgment, of the reverse curve which existed at the point of the accident, and the very nature of which added to the danger and made an accident highly probably even to one acquainted with these conditions and exercising the degree of care required of a traveler on the road in question at the time and place of the accident. Undoubtedly the commission or the state road authorities in charge of this highway considered it dangerous, as preparations had evidently been made some time before the accident to erect barriers or railings thereon. The uncontradicted testimony reveals (record p. 31) that wire in rolls, seemingly of the kind used for barrier purposes, had been left or deposited on the highway at or near the point of the accident for a long period of time prior to January 1941. The wire was not used until after the accident happened; its use before the accident may have saved the lives of these young people and rendered the road safe for travel; the authorities would have at least complied with the rule making the road reasonably safe for travel both by day or night. Added to all these facts was our. own view of the highway and attendant conditions which forced us to the conclusion that the road was dangerous and one that required guardrails or barriers to render it reasonably safe for the traveling public. We repeat, it was a primary road and much traveled.

The state maintains that decedents were guilty of contributory negligence; that they had driven over the road earlier in the day while on the way to Montgomery and therefore must have been acquainted with existing conditions. However, it must be noted that when on the way to Montgomery they must have been driving on the side of the road against the mountain or hillside and may or may not have noticed the danger incident to using the road when traveling in the opposite direction. Whether they, or any of them, had ever used the road before is not definitely shown. It is admitted by stipulation that the decedents had not been drinking, and so far as we are able to determine from the testimony were not guilty of reckless or careless driving. Visibility must necessarily have been bad, considering the weather conditions, *145and while the driver of the automobile could perhaps see some distance ahead, the question of the effect on the happening of the accident by the presence of the reverse or offset curve is all important and may or could, under alii the circumstances, have confused any driver, even though he was reasonably careful, and thus have caused the automobile to leave the highway at the place as shown in the testimony.

With the absence of barriers, markers, lines or warnings of any kind we may reasonably well be confused as to whether or not there was contributory negligence sufficient to bar an award, and the minds of men may reasonably differ on these matters after a mature consideration of all the testimony and facts as presented. Under these circumstances, considering all the facts, we are of the opinion that an award of $3500.00 should be made in the instant claim, and consequently a similar award of $3500.00 in each of the other five claims, and recommend that an appropriation accordingly be made by the Legislature and the amounts in question be paid to the several claimants respectively, upon the execution of a full and complete release to the state and the state road commission for all damages occasioned by reason of the accident in question.

An award is therefore made in the sum of thirty-five hundred dollars ($3500.00) to each of the aforesaid claimants, in accordance with the majority opinion.

dissenting.

Since I do not concur in the above awards in the aggregate sum of $21,000.00 it becomes my mandatory duty to state the reasons for my nonconcurrence. If it be said that a dissent is but an “idle gesture” I answer that it should not be so treated when it deals with a proposed appalling appropriation of the public revenue. The requirement in the court act of a dissenting opinion is a wise provision. It is intended to give notice to the Legislature that the members *146of the court who have investigated the claim in question are not in agreement as to the proper recommendation to be made for its disposition and thus afford the Legislature an opportunity to make reexamination of the claim before making what might prove to be an improper appropriation for its payment.

It is true that the Legislature of 1943 paid slight heed to the arduous work of the court of claims — its special instrumentality — but ratified and approved, apparently without examination or scrutiny, awards totaling more than one hundred thousand dollars, except in the case of two claims for indemnity on account of alleged negligence of county school board officials, which had later been disapproved by majority members of the court. Seemingly it should be the duty of the Legislature to carefully scrutinize and examine all awards made by the court of claims — however carefully and painstakingly they may have been made — before making appropriations for their payment. The record of each claim considered by the court, including all documents, papers, briefs, transcripts of testimony and other materials, are preserved by the clerk and are made available to the Legislature or any committee thereof for the reexamination of the claim. (Court act, section 24). It is the court’s duty to make thorough investigation of claims asserted against the state and make recommendations concerning them. These recommendations are not conclusive. The responsibility for making appropriations rests with the Legislature. Our awards do not have the effect of judgments obtained in courts of law. They are merely recommendations, after careful investigation and study, subject to ratification or rejection by the Legislature.

There is a limitation upon the right and power of the Legislature to make appropriations for payment of the public funds of the state.

The Legislature is without power to levy taxes or appropriate public revenues for purely private purposes, but it has power to make an appropriation to a private person in *147discharge of a moral obligation of the state, and an appropriation for such purpose is for a public, and not a private, purpose. Woodall v. Darst, 71 W. Va. 350

I do not believe that the claims in the instant cases are founded on justice or supported by moral obligation, or that the state is responsible for the unfortunate and pathetic mishap which resulted in the six deaths for which the awards are made by majority members of the court. I do not see the picture of the accident in the light in which it is reflected by the majority opinion.

The theory on which these claims are prosecuted is alleged negligence on the part of the state road commission in failing to have necessary warning signs of danger on the highway.

The proof offered in support of the claims fails to show that the said highway on which the fatal accident happened was not reasonably safe for travel) thereon by day or by night. On the contrary the evidence conclusivelly shows, I think, that the road at the time of said accident was safe for those who comply with the law and use reasonable precautions.

The accident occurred on a mountainside in the nighttime. There was no eye witness to it. The exact cause of the accident is highly problematic and conjectural. No one can say just how it happened, but certain deductions may reasonably be made from circumstances attending it.

As is disclosed by the record, the occupants of the automobile, ranging in age from sixteen to twenty-one or twenty-two years, were returning from Montgomery to Oak Hill. Up about six or seven miles the road follows the river, then makes a sharp left-hand turn and proceeds over a mountain. On the right of this curve there was a steep embankment. This first curve was successfully negotiated. However, there was another small turn after the main turn was passed. Claimants *148contend that this little turn, which they describe as a “double S” curve, was lower in elevation than the rest of the road. It was at this point that the automobile was precipitated over the embankment, resulting in the death of 'all six occupants of the vehicle.

It is contended that the condition of the road at the point of this last mentioned curve was responsible for the accident. I am not prepared to concede this to be a fact.

The accident happened about 10:45 o’clock on the night of January 26, 1941. It is shown that there was no guardrail, curve sign or road marking of any kind at or near the point where the fatal automobile left the road.

After the occurrence of the accident trooper J. M. Ballengee, a member of the department of public safety, made an investigation of the accident and an examination of the highway at and near the point where it occurred. From information given by him to A. L. McMillion, assistant maintenance engineer, district one of the state road commission, the latter caused a further investigation and survey to be made under his direction and supervision. A plat or map showing this actual survey was introduced in evidence upon the hearing of the claims.

Trooper Ballengee testified on behalf of the claimants and Mr. McMillion was introduced and testified as a witness on behalf of the state. The testimony of trooper Ballengee was not of material aid in determining the cause of the accident. He testified very clearly as to the point where the automobile was precipitated over the embankment. He gave it as his opinion that the automobile was driven straight over the embankment at the point of a 'small curve and that the road dips slightly right at that particular place “not very much, but there was a slight dip in the road there.” He stated the width of the road at that point to be eighteen feet. He further stated that cars could get over the road all right at the point of the accident.

*149Trooper Ballengee testified that he made examination of the tire marks found on the highway and that the tread of the tires was well defined. He stated that the tire marks started at a certain point “and angled off into this small curve.” He located on a photograph the point on the road from which the tire mark started before angling off into the small curve where the vehicle went over the embankment and identified such point by placing his initials on the picture. From the same information communicated by him to engineer McMil-lion the latter caused a survey of these tire marks to be made and delineated on a plat. This plat shows the path of the outside wheels of the automobile as pointed out by trooper Bal-lengee. It further shows that the automobile left the paved portion of the highway on the embankment side of the road and ran on the berm for a distance of twenty feet when the car turned over the embankment at the point where the small curve started to reverse. It may be that the driver of the car lost control of the wheel at the point twenty feet distant from this small curve where it left the paved portion of the road and ran on the berm until it went over the embankment at the small curve. The survey shows that at the point where the car left the outer edge of the road the pavement was fourteen feet in Width and the berm at that point on the embankment side of the road was six and a half feet in width, while on the mountainside the berm was approximately three feet in width. Thus it is made clear that the automobile started to leave the highway at a point where it was twenty-three and one-half feet wide. After rounding the first large curve where the road leaves the river the automobile traveled a distance of fifty-two feet to the point where it started to leave the road at which point it was twenty-three and one-half feet in width. It is shown that the road had an average grade of seven per cent and was of sufficient width to enable automobiles to travel thereon in safety. There was no occasion for a warning sign of danger to be placed at or near the point where the car started to leave the paved portion of the road. So far as the evidence discloses the highway was in good condition. Naturally any road that traverses a mountainside is *150attended by more or less danger. Persons using such a road are charged with the duty of exercising care and caution.

In re claim no. 13, Rachel C. Lambert, Admx. v. State Road Commission, 1 Ct. Claims (W. Va.) 186, we held:

“Where the evidence in the case shows the highway on which the accident happened was improved and eighteen feet wide, with no obstruction and no defect in the highway, and the claimant’s decedent was killed by reason of the car in which he was riding leaving the said highway and striking a depression or hole in the berm, then there is no cause of action against the state road commission and the claim will be denied and dismissed.”

In re claim no. 118, Marguerite Smith v. State Road Commission, 1 Ct. Claims (W. Va.) 258, we held:

“When an adult woman of good intelligence, while driving her husband’s automobile on a state highway passes a hole on one side of said highway caused by a break or slip on the rock base of said highway, which hole she could or should have seen by the use of ordinary care, and on the same day, in the daytime thereof, while driving said automobile in the opposite direction derives it into said hole and the said automobile is precipitated over an embankment and she sustains personal injuries in consequence of said accident, she will be held to be guilty of contributory negligence barring a claim for an award for damages occasioned by said accident.”

Under the act creating the court of claims, negligence on the part of the state agency involved must be fully shown before an award will be made. Moore v. Road Commission, 1 Ct. Claims (W. Va.) 93; Miller v. Road Commission, 1 Ct. Claims (W. Va.) 97.

I do not see that claimants have established a case of negligence on the part of the state road commission entitling them to awards. It appears from the evidence that the highway on which the accident happened was an improved primary *151road of good grade and in generally good condition. It is shown that it was extensively used and it does not appear that an accident had theretofore occurred thereon. Too much emphasis, I think, is placed upon the alleged' defective condition of the road at the particular point where the automobile went over the embankment and it is not proved to my satisfaction that the condition of the road at that point was the proximate cause of the accident. On the contrary, I believe that the loss of control of the automobile by the driver thereof when the machine left the road where it was twenty-three and one-half feet in width was responsible for the accident. I think, moreover, that the occupants of the car were guilty of contributory negligence. Since they were returning from Montgomery to Oak Hill, it would seem that they had previously traveled the road from Oak Hill to Montgomery. It is not shown that the road was actually out of repair at the immediate point where the car went over the embankment. The fact that the road at the particular point where the automobile went over the embankment sloped more, that is that the elevation was turning more to the right side of the road, does not establish negligence on the part of the road commission in maintaining the road at that point. It was proper for the curve to have the elevation in that direction. The road sloped in the direction of the embankment in order to accommodate traffic. As very clearly indicated by engineer Mc-Million, the elevation of any curve is supposed to have a super-elevation so as to make it easy for the traffic in the curve. The condition of the slope or elevation in the curve at the point where the automobile went over the embankment was in line with engineering principles. All curves are elevated.

The absence of warning signs of danger on this mountainside road does not establish negligence on the part of the state road commission warranting or justifying the awards made in these cases. The very fact that the road was on a mountainside was sufficient to put the occupants of the car on notice and cause them to use care and caution as they proceeded thereon. Weather conditions also rendered it expedient for them to pay particular attention to the road. The *152fact that a roll of wire had been placed1 alongside of the highway is not significant or a circumstance tending to show negligence. It frequently happens that wire and other equipment for use in road repair and maintenance are placed at intervals on the roadside for purposes of convenient access and use. A white line on the road is only intended to indicate the side of the road to be used and the presence of a white line on the road in question would1 not have prevented the accident under the circumstances disclosed by the evidence. I know of no obligation that rests upon the road commission to build and maintain retaining walls on mountainside roads. Such policy would be prohibitive. All that the state is required to do, in my opinion, is to make roads reasonably safe for public use and that seems to have been done on route 61. The state road commission is vested with certain discretion as to when and where it will make repairs on a state controlled highway.

As observed by Judge Elswick in the opinion in re claim No. 12, Harper v. Road Commission, 1 Ct. Claims (W. Va.) 12, “The State is not an insurer as to the condition of its roads.” And, as we have heretofore stated, “The mere fact of injury received on a state highway raises no presumption of negligence on the part of the state road commission.”

While it is true that since our determination of claim No. 17, Charles Golden Fry v. State Road Commission, 1 Ct. Claims (W. Va.) 48, the court of claims 'has held:

“1. When the state road commission by the act of 1933 assumed! control and authority over the primary and secondary roads of the state, the duty was imposed upon it to guard all dangerous places on the public roads and bridges by suitable railings or barriers, so as to render the said roads and bridges reasonably safe for travel thereon by day or by night.

“2. When the claimant is charged with contributory negligence which from the evidence presents a mixed question of law and fact, and on which reasonable minds may differ, the question of such negli*153gence will be considered in determining whether or not an award should be made, and, if made, the amount thereof.”

I am of opinion that such holding should be disapproved and reversed. We based our opinion in that and subsequent cases on Wells v. County Court, 85 W. Va. 663, 102 S. E. 472, in which it was held:

“The law imposes upon a county court or other public authority in maintaining public roads and bridges, the duty to so guard all dangerous places by suitable railings or barriers as to render them reasonably safe for travel thereon by day or by night.”

Such holding of the Appellate Court in that case was based upon an existing statute imposing liability upon county courts. Acts of the first extraordinary session of the Legislature of 1933 imposes no such liability on the state road commission. Section 35, article 6 of the constitution forbids the enactment of such a statute. The state road commission of West Virginia is a direct governmental agency of the state, and as such is not subject to an action for tort. Mahone v. State Road Commission, 99 W. Va. 397, 129 S. E. 320. A state cannot be sued without its consent, and is immune from suability for torts of its' agents and officials. Wilson v. State Highway Commissioner, (Va.) 43 S. E. (2d Ed.) 746. The immunity of a state from liability for torts of its servants and agents rests on public policy. Id. The state cannot waive its constitutional immunity from suit. Chapter 20 of the acts of the Legislature of 1941, creating the court of claims made no change in this fundamental law. The jurisdiction conferred by the act upon the court of claims to consider claims and demands, liquidated and unliquidated, ex contractu and ex delicto, against the state or any of its agencies which the state as a sovereign commonwealth should! in equity and good conscience discharge and pay, does not increase or enlarge the liability of the state, but merely provides a forum wherein claims against the state may be adjudicated. This was so held by court of claims of the state of Illinois in construing a statute almost identical with our court of claims act.

*154The express purpose of the court act is to provide a simple and expeditious method for the consideration of claims against the state that, because of the provisions of section 35, article 6 of the constitution of the state, and of statutory restrictions, inhibitions or limitations cannot be determined in a court of law or equity. The constitutional immunity of the state from suit should at all times be borne in mind. The court is not invested with and does not exercise the judicial power of the state in the sense of article VIII of the constitution of the state. Its duties are limited to the investigation of claims filed against the state which cannot be maintained in courts of law or equity and recommending the disposition thereof to the Legislature. The court is, therefore, distinctly an investigating and advisory commission. It deals only with claims against the state which as a sovereign commonwealth it should in equity and good conscience discharge and pay. It was not the intention of the Legislature, I think, that the court of claims should make awards éxcept in cases where claims should be ascertained to be just and proper within the contemplation and meaning of the court act. And in the application of this statute it should be the obligation of the court to consider its objects and purposes, “and the condition of affairs which led to its enactment, so as to effectuate rather than destroy the spirit and force of the law which the Legislature intended to enact.”

I d'o not believe that the claims are claims for which awards should be made. I do not think that the awards made are just and proper or that the court of claims had authority to make them. The claims are not shown to be supported by either legal or equitable obligation. They grew out of an unfortunate automobile accident. Such an accident is liable to occur at any time on any road when three boys and three girls, filled with the exuberance and gayety of youth, while riding in an automobile fail to observe necessary care and precaution for their safety.

I would deny the awards and dismiss the claims.

upon petition for rehearing.

*155A majority of the court having heretofore decided that the several claims presented in the above entitled matter should be allowed, and an award of $3500.00 having been made in each instance, the state, through the attorney general’s office, filed its petition and brief for a rehearing of the cases, which said rehearing was granted and the facts in connection with the cases again argued, briefs submitted and the matter again placed in the hands of the court for its determination.

Giving full credit to the very able brief filed by the state and considering fully the law as outlined in the several cases submitted in the state’s brief, a majority of the court are still of the opinion and so hold that an award should be made in favor of the claimants On consideration of the case of Wessels v. Stevens County (Washington) 188 Pacific, page 490, which is particularly relied upon by the state, we find that the court in its decision uses this very significant language in its headnote quoted in the respondent’s brief:

“A County was not negligent in not maintaining a warning sign or barrier at a 100 degree curve . . . the curve not presenting any extraordinary condition or unusual hazard; . . (Italics supplied.)

The majority of the court maintains, as set forth in our previous opinion, that the reverse or S curve involved in rthe instant claims, presented in our opinion an extraordinary condition and an unusual hazard and that protection should have been afforded under the circumstances to a driver or user of the road in question. This was not done, notwithstanding the hazardous condition; no markers were present on the road, no barriers or posts had been erected to properly protect a driver or pedestrian from accident at this particularly hazardous point.

We are, therefore, of the opinion that as the particular place where the accident happened was one of unusual hazard, and again considering the condition of the weather on the night of the accident and all the attendant circumstances, that the *156claimants are entitled to recovery. The majority of the court reaffirm their previous opinion and allowance, to wit, thirty-five hundred dollars t $3500.00) in each case.

dissenting.

Upon the rehearing of these claims I again find myself to be at variance with my colleagues. The opinion of the majority members of the court leaves undisturbed the far-reaching rule laid down in the original majority opinion, namely:

“When the state read commission by the act of 1933 assumed control and authority over the primary and secondary roads of the state, the duty was imposed cn it to guard all dangerous places on the public roads and bridges by suitable railings or barriers, so as to render the said roads and bridges reasonably safe f:r travel thereon by day or by night.”

I cannot subscribe to that proposition. I know of no statute in West Virginia that imposes such duty upon the state road commisslcr.. The state road commission is a legislative corporation established as a part of the government of the state. It is. indeed, one of the principal governmental agencies of the state. If such a duty as the majority members maintain exists upon the part of the road commission it would necessarily follow that there should be some remedy to enforce the performance of such duty. No action for actual defects in highways could be maintained at common law except as given by statute.

We must at all times bear in mind that section 35 of article VI of the constitution of West Virginia declares:

“The state of West Virginia shall never be made defendant in any court of lav,' or equity.”

The Legislature may impose upon the state liability for the acts of its agents if it is not. prohibited by the constitution from doing so. 26 R. C. L. 66.

*157In 25 Ruling Case Law, at section 50, page 413, we read:

“The immunity of a state from suit is absolute and unqualified, and the constitutional provision securing it is not to be construed as to place the state within the reach of the process of the court.”

In Kinnare, Admr. v. The City of Chicago, et al., 171 Ill 332, at p. 335, it is observed:

“The State acts in its sovereign capacity and does not submit its action to the jurisdiction of courts and is not liable for the torts of or negligence of its agents, . .

Mr. Justic Miller, in the case of Gibbons v. United States, 8 Wall 269, at p. 274, says:

“No government has ever held itself liable to individuals for the misfeasance, laches or unauthorized exercise of power by its officers and agents.”

And. Judge Story says, in his work on Agency, section 319:

“. . . the government . . . does not undertake to guarantee to any persons the fidelity of any of the officers or agents whom it employs; since that would involve it, in all its operations, in endless embarrassments, and difficulties, and losses, which would be subversive of the public interests; . .

It has been declared that the state government cannot be made amenable to judicial process, except by her own consent.

In maintaining the road on which the deaths occurred the state road commission is acting within its governmental powers and engaged in the exercise of a governmental function.

The attorney general argues that the original majority opinion is not supported by the law, but is out of line with public policy and the law in the state of West Virginia. He maintains that it has never seriously been contended in West Vir*158ginia, previously, that the state road commission has a duty to place barriers or guardrails alongside the paved portion of our highways located, as they are, in hilly or mountainous terrain and containing literally hundreds of sharp and winding curves. He further contends that there is no liability of the nature sought to be enforced in this proceeding against the state road commission, and that the court of claims is not authorized to make an award founded on claims such as are sought to be enforced in these cases. I think, therefore, that his very able brief is entitled to be seriously considered. He cites code, 14-2-1, as amended by chapter 20, acts of the Legislature of 1941, which section reads:

“The purpose of this article is to provide a simple and expeditious method for the consideration of claims against the state that because of the provisions of section thirty-five, article six of the constitution of the state, and of statutory restrictions, inhibitions or limitations, cannot be determined in a court of law or equity; and to provide for proceedings in which the state has a special interest.”

He calls our attention to section 12 of said article 2, relating to the general powers of the court, the first sentence of which is a repetition or restatement of the declared purpose for the creation of the court, reading as follows:

“The court shall, in accordance with this article, consider claims which, but for the constitutional immunity of the state from suit, or of some statutory restrictions, inhibitions or limitations, could be maintained in the regular courts of the state.” (Italics supplied.)

I have been inclined for some time to think that where no liability exists upon which the state could be sued at law or in equity, if it were suable, the court of claims has no jurisdiction to make an award. This is the holding of the Illinois court of claims. The statute creating the court of claims of Illinois and the statute creating the court of claims of West Virginia are very similar.

*159No action on behalf of the claimants in these cases could be maintained against the state in its regular courts in view of the constitutional immunity of the state from suit and the state’s inherent exemption from liability as a sovereign commonwealth. The state is not liable for accidents occurring on its highways. There is no duty imposed by statute on the road commission to guard all dangerous places on the public roads and bridges by suitable railings or barriers. In Mahone v. State Road Commission, 99 W. Va. 397, it is held:

“The State Road Commission of West Virginia is a direct governmental agency of the State, and as such is not subject to an action for tort.”

And in the opinion in Clayton v. County Court, 96 W. Va. 333, it is said:

“. . . The liability of the county court was purely statutory, created by the statute, and otherwise would not exist. At common law the county courts would not have been liable. Parsons v. County Court, 92 W. Va. 495. . . .”

There is, according to my view, no legal or equitable obligation of the state to pay the claims for which thesé awards have been made.

Chapter 20 of the acts of ihe Legislature of 1941, creating the court of claims, was introduced in and passed by the Legislature as,

“AN ACT to amend article two, chapter fourteen of the code of West Virginia, one thousand nine hundred thirty-one as amended, by repealing . . . section three, article three, chapter twelve, thereof, all relating to claims and proceedings against the state, its officers and agencies.”

In 59 Corpus Juris, page 282, under the title of “Claims against State,” it is said:

*160“A claim against the state is a demand by some one other than the state, against it for money or property.”

Corpus Juris further says:

“ ‘A legal claim’ against the state is one recognized or authorized by the law of the state, or which might be enforced' at law if the state were a private corporation.

“Within the meaning of statutory or constitutional provisions relating to their presentation and allowances,”

continues this excellent authority,

“the term ‘claims against the state’ refers to ‘a legal claim’, a claim as of right, and generally it is further limited to claims arising out of contract, where the relation of debtor and creditor exists.”

I do not think that the awards are based upon claims which the state as a sovereign commonwealth should discharge and pay. It was never within the contemplation of the Legislature, in creating the court of claims and giving it jurisdiction to consider claims ex contractu and ex delicto; to make the state liable in damages for accidents occurring upon mountainous highways on which guardrails and barriers had not been erected. The court act authorizes us to consider actions ex contractu and ex delicto, but imposes no liability against the state where none would exist independently of the act. At most this act provides a remedy for the consideration of actions recognized at common law or against the sovereign or created by statute. It creates no cause of action. It provides a remedy for existing causes but imposes no new liability. It does not waive any defense.

In Wessels v. Stevens County, 110 Wash. 196; 188 Pac. 490, cited by the attorney general, the Supreme Court of the state of Washington held:

*161“A county was not negligent in not maintaining a warning sign or barrier at a 100 degree curve in a 14-foot highway below which was a deep canon, the curve not presenting any extraordinary condition or unusual hazard; there being hundreds of just such curves upon the highways of the state.”

I quote as follows from the opinion in that case:

“The accident, which caused the death of the deceased, occurred on what is known as the hill road between Spokane and Colville. It was a good gravel road, and one of the principal thoroughfares between these two cities. On the evening of January 5, 1918, the deceased was traveling over the highway in an automobile driven by one Loyal Clark. At the point where the accident occurred the road makes a sharp or abrupt curve around the brow of the hill. Below the road at this point is a valley or canon several hundred feet wide. The decline to the valley below is precipitous. The turn is described1 as a 100 degree curve. The roadway at this point was approximately 14 feet wide. The accident occurred about 6 o’clock in. the evening; it being then dark. The deceased was riding in the front seat with the driver of the car. As the automobile was rounding the curve it passed outside of the outer beaten track to the brink of the decline and rolled down the hill. The deceased went down the hill with the car, and sustained the injuries from which he died a few days later. The lights on the automobile were good, and focused upon the road about 40 feet in front of the car. It was traveling 8 or 10 miles pér hour at the time and could be stopped at that speed within its length. The road approaching the brow of the hill, over which the automobile passed just prior to the accident, was practically level and straight.

“[1] The negligence alleged was the failure to have any warning sign or barrier at the curve. It is the admitted rule that a county is reauired to keep its highways in a reasonably safe condition for ordinary travel. The evidence shows that a large number of automobiles passed over this road every week. There is no map or drawing in the record showing the exact situation, but there are a number of pho*162tographs, by which, taken in connection with the testimony, the condition of the road and the curve are made reasonably apparent. One of these photographs, referred1 to as ‘Exhibit 5,’ shows the highway at the curve, the point of the hill on the upper side, and a man standing at the brink of the decline looking over the valley. The evidence shows that the point where the man is standing is where the automobile went over. At this point the distance between the outside traveled track of the roadway and the place where the man is standing is a number of feet. The appellant admits that if this were a hillside road, there would be no cause of action.

“[2] Whether the county was negligent in not maintaining a warning sign or barrier depends upon whether the road at the curve presented an extraordinary condition or unusual hazard. There are probably hundreds of just such curves upon the highways of this state, and if it were held that the county failed in the performance of its duty by not having a warning sign or barrier here, the same would be true of every other similar situation.

“In Leber v. King County, 69 Wash. 134, 124 Pac. 397, 42 L. R. A. (N. S.) 267, it is said:

“ ‘Here we have a road graded and in repair, 15 feet wide, which is wide enough for all ordinary travel unless it be in the populous centers of the state. We think it will require no argument to make plain the fact that here there was no extraordinary condition or unusual hazard of the road. A similar condition is to be found upon practically every mile of hill road in the state. The same hazard may be encountered a thousand times in every county of the state. Roads must be built and traveled, and to hold that the public cannot open their highways until they are prepared to fence their roads with barriers strong enough to hold a team and wagon when coming in violent contact with them, the condition being the ordinary condition of the country, would be to put a burden upon the public that it could not bear. It would prohibit the building of new roads and tend to the financial ruin of the counties undertaking to maintain the old ones. The unusual danger noticed by the books *163is a danger in the highway itself. It may become a question for the jury. Such was the condition in the Neel case. [Neel v. King County, 53 Wash. 490, 102 Pac. 390.]

“It is true the accident in that case happened upon a hillside road, hut the principle is applicable to the present case, because there was no unusual danger or extraordinary hazard at this curve as compared with other similar curves. The case of Beach v. Seattle, 85 Wash. 379, 148 Pac. 39 is not controlling. There the accident happened in a thickly populated city, at the end of a paved street, which was crossed by a gulch. The automobile went down the street and into the gulch. The incandescent light on a pole nearby tended to obscure the gulch and give it the appearance of the continuation of the street in an unpaved condition.”

Because I believe that the adherence of the majority members upon rehearing to the rule announced in the syllabus of the original majority opinion to be wrong, and am of opinion that it is an incorrect statement of the lav.’ ar.d that such holding is contrary to public policy. I now respectfully record this dissent.