Young v. State Adjutant General

This case was submitted to this court under the shortened procedure section of the court act, and the record presented reveals that in the forenoon of June 29, 1951, one Kenneth L. Smith, a member of the West Virginia national guard, while driving one of its trucks, a GMC truck No. 4726012, in the city of Clarksburg, Harrison county, West Virginia, was stopped in line of traffic, behind a milk truck, at the traffic light located at the intersection of Sixth and Pike streets; the claimant was stopped immediately in the rear of the national guard truck. When Smith attempted to proceed, the milk truck did not move, so he looked for the driver of the truck and found none in the cab. He then attempted to move around the milk truck by first backing up, as he did so he heard the sound of a horn blown by claimant, warning him of his presence in the rear, but before Smith could stop he crashed into the front of claimant’s automobile causing damages in the amount of $202.90.

The investigation made by the proper authorities reveals that the driver of the national guard truck was primarily at fault, *71and nothing is shown that claimant in any way contributed to this accident.

The state agency involved concurred in this claim and recommended that an award be made, and the same was approved by the attorney general.

The majority of this court hereby makes an award in favor of claimant, Hazen D. Young, in the amount of two hundred and two dollars and ninety cents ($202.90).

dissenting.

I am sure that I would much prefer to act in concert with my colleagues than to record my dissent from their determination of a claim. However, because of the manner in which this claim has been filed and prosecuted in the court of claims and because the court has been restricted to the views of the adjutant general and the attorney general without any independent investigation by the court of claims of the real merit of the claim, I respectfully record my dissent to the majority opinion and the determination therein made. I also refer to my dissenting statement in claims No. 755-756-757-758-759, Milkint et als v. State Road Commission, determined at the present term of the court, and to my dissent in claim No. 760-S Andrews v. Adjutant General. (Reported elsewhere in this volume).