*1 Virginia Bumgarner ex rel. Wallace State West Edgar Sims, Auditor, etc. B.
(No. 10623) December 1953. Submitted October 1953. Decided *3 Wm. S. Ryan, for relator.
John Fox, G. Attorney General, Fred H. Caplan, Assist- ant General, Attorney for respondent. Judge:
Riley, Wallace Bumgarner, invoking the original jurisdiction of this Court, instituted this proceeding in mandamus Sims, Edgar B. Auditor of the State of West Vir- ginia, for the purpose of commanding auditor to honor the requisition of the State Board of Control for two thou- sand dollars, the amount awarded to petitioner by the State Court of Claims appropriated by the Budget Act for the ensuing 1953-55, biennium of contained in Chapter 1, Acts of the Legislature, First Extraordinary Session, 1953.
The Court of Claims found that petitioner’s claim in the amount of two thousand dollars was based upon a moral obligation, and by Chapter Acts of the Legisla- ture, Regular Session, 1953, the Legislature, alia, inter adopted findings of fact of Claims, the Court of de- clared petitioner’s claim to a moral obligation be of the State, and directed the auditor issue a warrant for the payment any thereоf “out of fund appropriated and avail- able for the purpose.”
This case was heard in this Court upon original (hereinafter as the petition designated “petition”) of the claimant, Bumgarner; upon respondent’s Wallace de- petition; upon murrer filed to the respondent’s answer upon replication demurrer and petition; petitioner’s filed answer; the amended respondent’s upon petition bear- claimant; upon transcript the evidence claim, the State Court on the instant introduced before ing Claims, of the evidence law transcript and the I. M. Coiner Bumgarner against action of Wallace were County, transcripts which Circuit Court Roane by the written proceeding made a of the record in this part and counsel for petitioner of counsel for stipulation respondent. Sims, Edgar B. alleges respondent, that the petition Auditor of State qualified elected and duly
is the duty payment to order legal Virginia, having West its Virginia, all of the State West obligations valid Board of the Statе including duly agencies, constituted approved same have been Control, when payment to the State made available by specific appropriations Auditor. 20, 1950, the May that on or about alleges
The petition Reedy, road from walking along public petitioner Palestine, County; to his home near Wirt County, Roane by the Coiner, employed State and that I. M. who was at guards West Vir- captain Control as a Board of located road prison camp, of a Penitentiary charge ginia road in search driving along the County, in Roane while convict, and without petitioner, overtook escaped of an severely thigh pistol, with through shot him warning him. injuring in the Circuit appears petitioner it petition
From the Coiner an action County instituted Court of Roane re- injuries, petitioner damages personal for shot, been and obtained having as the result of ceived dollars. for three thousand judgment *5 It appears also from petition the that application writ of error to the the judgment of circuit court was refused; made to this Court that thereafter executions were issued on the judgment, which returned were un- satisfied with no found and no the property part judg- ment paid; that on about December Coiner was adjudicated a that in the bankrupt; bankruptcy pro- no ceeding assets were listed from which could petitioner be paid the or any whole part judgment; that Coiner later discharged was from bankruptcy.
The sets forth in detail petition petitioner’s that claim for three dollars, thousand by amount awarded jury in the law action in the Circuit Court of Roane County, rendered, and for judgment was filed Claims, with the State Court of petition alleges and the that after due having notice been to given the interested parties and careful investigation, including an examina- tion of action, of all transcript evidence taken in the law lately pending in the County, Circuit Court of Roane court of claims awarded to petitioner the sum of two dollars; thousand alleges petition award having duly by been certified State Court Claims Rеgular Legislature, Session of the 1953 the Legis- lature made an appropriation an amount to equivalent the award and authorized payment petitioner, to Wallace Bumgarner, dollars, of two thousand as a claim the State Board to of Control be from the paid general revenue fund.
The alleges that petition pursuant the appropriation a requisition Auditor, was drawn upon the State Edgar Sims, B. for the two thousand dollars appropriated, which requisition arbitrarily honor, the auditor refused to honor, still fails refuses to and to issue warrant therefor, any without cause or legitimate excuse. alleges petition generally acts the re- Sims,
spondent, B. Auditor Edgar State West Virginia, refusing validity recognize award made of Claims Court and the appropriation con- justification, are without Legislature
effected and are Virginia, of West trary the laws State *6 disregard respondent’s of arbitrary and capricious, the of Virginia. as Auditor of State West duties the Auditor filed a respondent On October demurrer sеts forth as the petition. demurrer allege does that a that the not petition thereof grounds compensate the of the State to on obligation part moral the that the by Legislature; declared has been petitioner not in the do disclose moral alleged petition facts to compensate peti- of the obligation part on the State on the of tioner; legal obligation part not disclose a do As grounds so. the the State to do further demurrer Legislative ap- that the respondent’s alleges demurrer unconstitutional, purely because it for a is is propriation beyond Legislature, the of the private purpose powers tantamount of the grant and is a mere gift, being in aid of in violation private persons credit of the State X, of Article of the Constitution of West Vir- Section and, therefore, is null and void. ginia, appropriation such And, that petition the demurrer states does finally, any would tend in man- any allegation not contain which negligently, carelessly, ner to that Coiner аcted indicate recklessly, injury intentionally inflicting upon is which the claim based.
On filed an answer respondent October pleaded petition, including all well admits facts Auditor, is respondent, legal the fact that under duty by to honor all valid incurred payment obligations Virginia, specific and held the State of West when Legis- are made available the State appropriations those denied in payment, except expressly lature for such all conclusions law the answer. The answer denies allegation petition stated petition; warning start- petitioner Coiner overtook without allegation at him with a shooting pistol; ed arbitrarily refusing acted respondent petition issuance of pay- honor the a warrant requisition ment of the amount appropriated by the Legislature, the reason that allegation arbitrary action is a conclusion of law; and that respondent acted capriciously or in disregard his official in refusing duties to honor requisition to compensate petitioner. 6, 1953,
On Oсtober the petitioner filed an amended petition, which, in addition to the allegations containe'd in the original (1) petition, alleges: That by Chapter Acts of the Legislature, Session, Regular 1953, the Legis- adopted lature of fact findings claims, court declaring that petitioner’s claim in the ámount of two thousand dollars a moral obligation of the State to pay, and directed that the respondent Auditor issue warrant for the payment of the award of the State Court Claims in plaintiff’s favor from any fund *7 appropriated avail- able the (2) for that purpose; “Legislature the the [in Act Budget contained in Chapter Acts of Legislature, the Session, First Extraordinary made an appropriation 1953] in an amount equivalent award, said duly to author- * * *” ized to payment be made the general from revenue fund.
On day, the same October petitioner the a filed answer, demurrer and general to replication respondent’s in which petitioner demurrer asserts that the answer is law, sufficient not it makes no because denial of the allegations material of the and sets forth no petition, legal reason respondent’s for refusal to issue a for the warrant sum of two dollars to petitioner conformity thousand with by the made appropriation Legislature. the
The evidence adduced before the State Court Claims trial, and in the jury bearing question on the whether him, Coiner in shots firing petitioner at and wounding misconduct, was wilful guilty negligence or is in direct As petitioner only eye- conflict. Coiner and the were witnesses to the their shooting, testimony alone bears upon question. shot, nine or on he was nine-thirty evening
About old, twenty-six years a farm worker Bumgarner, young along part of State Route No. which walking was Reedy to his home County, lies in Roane from the Town Bumgarner proceeding along As was near Palestine. home, Coiner, M. a captain road in the direction his I. guards Virginia Penitentiary, at the then in West as charge by road such authorized prison camp, firearms, carry Penitentiary Warden authority “gun permit”, driving evidenced was was escaped in search of a had along prisoner road who at road his automobile camp, stopped from- prison Bumgarner on near was walking, the road where place and, stopped Coiner soon as he according petitioner, him, it”; I am to let have “Right going you his car told here him, not to and when told Coiner shoot petitioner I face and gun my former “stuck the started run”. twice, shot at testified Coiner him Bumgarner him, that the shot struck the bullet piercing peti- second the knee from the rear to leg tioner’s above right out, Thereupon Bumgarner front thereof. cried and evi- he was dently ground, fell to the where cared kindly other boy Hugh disposed people named White and who, having in the heard the shot and neighborhood, his outcry, came to assistance. Bumgarner’s testified further that Coiner started to shoot Bumgarner away feet from the Coiner twenty when he about one or automobile, but whether he shot both shots automobile, he left or whether while seated shots, Bumgarner did car and then fired either not *8 not observe. the act of running remember or did When away Coiner’s automobile and from toward the back of Coiner, leg, Bumgarner shot struck him the the second twenty away time he about feet from testifying at that was the automobile. dressed a Bumgarner
At the time he was shot was trousers, and Coiner of khaki was pair shirt and gray badge, Bumgarner to and did not exhibit not uniform authority. indicia of any other wear 20, 1950, May evening that on the Coiner testified about nine-thirty, he started out automobile from the prison road camp to which he had assigned been as a captain guards Virginia West Penitentiary, prisoner search of a who had escaped from the on camp the previous day. Upon he his leaving camp headed Elizabeth, automobile toward County. in Wirt he When just beyond was County the Roane line and had entered County, Wirt this witness a man saw on the standing berm of the road “thumbing” ride. The man’s hair was ruffled, his shirttail was trousers, outside his his mouth and, open, to use Coiner’s language, exact “He looked like a man that just had come out of the and woods tired out, worn and he looked like the I prisoner was looking for”. For the purpose of ascertaining identity of this man, who, the record establishes beyond peradventure, was the and not petitioner the escaped prisoner, Coiner he testified drove past petitioner toward Palestine distance, short and then turned around car and drove the back “pulled side Coiner man.” testified in contradiction Bumgarner’s to testimony he told Bumgarner arrest, he was under and admonished not him run; and that Bumgarner run, forthwith started to “I guess road, it would be down the to Palestine anyhow my back of car.” Coiner stated that he left his car ran to could; the back of it as as quickly he that he shot two shots into the ground road, the berm of thinking that Bumgarner would stop running, not; but he did that as Bumgarner ran from right berm of the road berm, at an across the left one angle witness said he fired shot at Bumgarner’s leg. Thereupon, Bumgarner cried out, which witness testified led him to believe that he had man, Then, shot the but that he was not sure of this. to Coiner’s he his according testimony, turned car around shot, with if thought the man had been he would probably stop running shortly give himself up.
witness then drove back toward Palestine for a short distance, anyone, but did not see and so turned he around back prison camp drove as quickly possible, where Fielder, he obtained the assistance one a fellow- *9 the scene then drove back to and camp, at the
guard prison a search for making purpose for the shooting however, When, Coiner nearby in a field. Bumgarner men, asked whether that one hospital”; him to the along on or lights parked the on truck with pick-up saw standing nearby, men road, three or four with testified, road, who, witness the berm of the lying man on Passing parked he shot. the man had thought he was around, and turned man, Coiner prostrate truck and the the man that back, informed someone drove and was had been shot. ground on the lying standing the men he said to one of says Coiner that I car, will take there, load him in the you help “If will me men him to that one asked whether hospital”; comes”; that until the witness he had better “wait law injured just man wounded that in case the was replied hospital tо take him to the as soon that it would be better in Coiner’s man then injured placed as was possible. blanket, the hos- automobile, in a and taken to wrapped could,' testified, as with the so Coiner he quickly, pital at the On the prison camp. that he exception stopped nausea, man way hospital, injured complained a minute probably at the “for stopped camp so witness ammonia”, evidently spirits aromatic got some he the guard At the Coiner testified told camp ammonia. DePue, evidently call him to Dr. accompanied who had DePue, Roane physician practicing Spencer, Dr. J. M. had shot a County, and witness physician tell try to that he like for the doctor to would prisoner, at the time Coiner arrived Spencer reach the hospital injured testimony man. This latter there with admitted because the court objected hearsay, to as but error, any, if was harmless. thought realized for the first time that It that Coiner .seems not the when the injured escaped prisoner peti- man was lights oрerating under the on the table placed tioner was the man though Coiner testified hospital. at he was doubtful because prisoner, looked like *10 had a escaped face, scar on the side of his prisoner large hut he “looked at Mr. Bumgarner and he has a scar it but large.” wasn’t as realization,
Upon such and as witness and Fielder were leaving the Coiner told Fielder: hospital, may- “this man be an escaped There prisoner. is some loose at the camp at at Gypsy some But Huttonsville. that not the man I thought I he undoubtedly wrong was. have shot the man.” Fielder suggested they then that go back into the hospital to see if the person shot anything had on him he whereby identified, could be an got Fielder identi- fication from the petitioner, which proved injured that the was, fact, man the petitioner, Bumgarner, Wallace when questioned Bumgarner told Fielder that name his. was Bumgarner”; and that he near lived Pales- “Wallace. tine.
At time Bumgarner, Coiner, he shot according Bumgarner was gray dressed in a blue or shirt and khaki trousеrs, which apparel was similar to that worn at prisoners the camp.
On cross-examination Coiner testified that he did not see face, the scar on Bumgarner’s darkness; because of the and on further cross-examination Coiner testified that when he drove back on along the road side Bumgarner, he “Rabbit, said [evidently nickname of the escaped you prisoner] arrest”; are under and “Don’t run.” He said, “Rabbit, denied that he I got you”, have and then started to shoot. Further on cross-examination Coiner that shot, testified after he fired the last he could hear Bumgarner running, and that he not did' know that Bum- garner I down; “was didn’t him”; even that I know had hit but witness thought he had hit Bumgarner from the fact that the latter just cried out after the shot was fired.
At jury trial evidence was concerning introduced Bumgarner’s injuries. It was established that the shot in piercing Bumgarner’s leg did not sever or strike right bone, artery or leader Bumgarner’s but leg; peti- contradiction, testified, he continues
tioner
without
leg.
some
in his
pain
to suffer
jury
evidence the
Largely
foregoing
on the basis of the
Coiner
in the action instituted
petitioner
County found
verdict
the Circuit Court of Roane
dollars,
thousand
petitioner
amount
three
well as the evidence
testimony,
on the
basis
Claims,
that' court
adduced before
Court of
State
negligent
shooting
petitioner,
found
Coiner
dollars,
made
thousand
an award in
amount
two
found was based
the State Court of Claims
which award
obligation
upon
pay.
moral
the State
*11
this record is
presented by
The basic
whether
question
in
the
amount of two thousand dollars
appropriation
the
for the 1953-55
by
Budget
the
Act
Legislature
made
biennium,
1, Acts
the
Chapter
Legislature,
in
of
contained
Session,
be-
1953, is unconstitutional
Extraordinary
First
6,
X, Section
it
of Article
provision
cause
contravenes the
“The
Constitution, that
credit of
Virginia
of the West
to,
county, city,
granted
any
be
in aid of
State shall not
or
ever
nor shall the State
township, corporation
person;
or
assume,
or liabilities
responsible
or become
for
debts
any county, city,
corporation
person;
township,
* *
VI,
35,
provision
of Artiсle
Section West
and
that,
Virginia
Constitution,
“The state of West
Virginia
of law or
any
shall never
made defendant
court
be
**
equity,
in pay-
If the
for two thousand dollars
appropriation
favor is based
petitioner’s
upon
ment of the award
pay,
appropriation
of the State to
obligation
moral
provisions.
of these constitutional
is not violative
either
430,
Sims,
43
E.
ex rel. Cashman v.
130 W. Va.
S.
State
Sims,
S.
805;
rel.
Va.
46
State ex
Adkins v.
130 W.
2d
81;
Sims,
2d
State ex rel. Catron v.
133 W. Va.
E.
465;
Sims,
the evidence adduced before State appropri- Legislature, all of which was certified valid, duty it is the favor is petitioner’s ation to honor the respondent requisition auditor of a warrant of Control the issuance State Board appropriation. payment petitioner of amount Coiner, such employee, If the conduct of the State’s for be- damages negligence would base an action a moral on the private persons, obligation part tween This has stated and postulate the State exists. been *12 cited, in the cases heretofore by restated this Court in the decisions in the particular by has been settled Sims, rel. Utterback v. suprа, cases of Price v. and State ex Sims, 822, 2d 136 68 E. 678. W. Va. S. Sims, supra,
In Price v. the settled the governing law the for the public moneys by Legislature of appropriation a on the upon obligation moral of claims based payment 1 points stated in detail in and 2 pay of the State to part case, Price the of the as follows: syllabus of State, declared by of the obligation “1. A moral of to exist in favor a claimant Legislature sustained, will be property, to his negligent injury of funds public legislative appropriation and a 106 payment
made for its
be
upheld,
will
when
conduct of
or
of
agents
employees
the State which
proximately
injury
caused such
is such as would
be
to
judicially
negligence
held
constitute
an
action for damages
persons.
between private
“2. A claim for
to
damages
property injured
by the negligence
agent
of an
or an employee of
State,
engaged
while
discharge
gov-
of
function,
ernmental
may form the
basis of valid
moral
of
obligation
the State and
justify
legis-
lative appropriation of the public funds of the
State for the
payment
such claim.”
In
1
point
syllabus
of the
of State ex rel. Utterbaek v.
Sims,
822,
136 W.
678,
Va.
68 S. E.
points
2d
1 and 2 of
the syllabus
Sims,
in Price v.
supra,
quoted,
heretofore
approved
were
2
applied;
point
and in
syllabus
case,
the Utterbaek
in accordance
gov
with
norm
erning the adjudication of
involving
cases
the moral obli
gation
State,
of the
point
stated in
4 of the
syllabus
State ex rel. Cashman
Sims,
v.
supra, the Court held: “A
claim for personal
injuries
caused
the negligence of
an
or an
agent
employee,
State,
of the
while engaged in
the discharge
function,
of a governmental
may form the
basis of
obligation
valid moral
of the
justify
State and
a legislative appropriation of public funds of the State
for the
payment
such claim.” In
opinion
Utterbaek case this
“A majority
Court observed:
members of this Court is
unwilling
also
from
depart
decisions
this Court in State ex rel. Davis Trust
Company
Sims,
623,
90;
v.
130 W. Va.
46 S. E. 2d
State ex
Catron
Sims,
465;
rel.
133 Va.
W.
S. E. 2d
State
Sims,
ex rel.
650;
Jordan
134 W.
58 S.
Va.
E. 2d
Sims,
654;
Saunders v.
W. Va.
58 S. E. 2d
Sims,
Price v.
58 S. E. 2d
in each of
W. Va.
thе declaration
of a moral
Legislature
obli
State,
from the
gation
arising
negligence of its
officers,
agents the exercise of a
employees
govern
mental function
held to be valid. The holdings
Court
cases are
approved
in those
adhered
State
upon
are
be
settled law this
declared
*13
involved
those decisions.”
questions
So the question immediately before us is
whether
the circumstances portrayed
records had in the law
action in
County,
Roane
and before the
Claims,
Court of
29,
Chapter
Acts of the Legislature, Regular Session, 1953,
Legislature
which the
adopted as its own the finding
of the Court of
Coiner,
Claims that
as the State’s em
ployee, was negligent
in shooting the petitioner, and in
which it
declared
was
that the State was under the moral
obligation to pay petitioner’s claim, is a valid enactment:
This is a judicial question. The finding and declaration
of the Legislature, however, are entitled to respect, but
the determination of
question,
being juristic in char
acter, is for the courts. State ex rel. Cashman
Sims,
supra;
Sims,
Price v.
supra;
Sims,
Utterback v.
supra; and
State ex rel.
Sims,
Cox v.
W. Va.
Initially, should be observed that Coiner at the time he shot the petitioner regarded must be as an employee of the State by reason employment by of his the State Control, Board of which a direct of agency the State and an integral part thereof. Miller Co. v. Supply State Control, Board 72 W. 672; Va. 78 S. E. ex State rel. of Control, Gordon State Board 85 W. Va. 102 S. E. 688. See also Mahone v. The State Road Commission of West Virginia, 99 W. Va. 129 S. E. which involved an action instituted by plaintiff therein for the pur pose .asserting liability for a tort.
At the time petitioner Coiner, was shot as the State’s employee, clearly was acting within the of his em- scope ployment apprehend attempting prisoner, who theretofore had from escaped prison camp which Coiner was employed captain the guards. Under Code, 28-5-5,'Coiner the right had to carry firearms and weapons concealed while on official duty, duty ex- tended to him “in from travelling place place within * ** State for the purpose pursuing apprehending ** escaped convicts the prisoner, who Coiner seeking apprehend, fleeing Code, was felon under 61-11-1, punishable because his conviction a crime
108 from by escaping in the penitentiary confinement committed, had had he to he been prison camp
the which Code, 62-8-1, separate a under which was felony committed he initially had been sentenced from that for which penitentiary. place to on the
If,
Coiner
his automobile
the
as
drove
be-
walking,
road
was
Coiner
Bumgarner
where
public
was,
Bumgarner
and had reason to believe that
in
lieved
convict, and
and had
fact,
Coiner believed
escaped
the
circum-
necessary
to
it
in the
reason
believe
stances,
escapee,
to
the
to
apprehend
suspected
order
him, under the
apprehend
in order to
suspect
shoot
State,
rule,
public
in this
a
which obtains
common-law
a
officer,
duty
fleeing
to
felon
charged
аpprehend
with
wound,
kill,
if such action be
may
escapee,
even
apprehension,
using
effect his
and in
necessary
order to
good
officer is
to act in
presumed
such force the
faith.
Railway Co.,
116
Western
W. Va.
Thompson Norfolk
doing,
But in
as stated
705, 706,
4
Though the of respondeat doctrine superior is not ap- plicable to the State because of the State’s immunity from suit under VI, 35, Article Section West Virginia Constitu-
tion, this Court has tacitly applied rationale of the doctrine in the several cases which declarations Legislature of moral obligations on part State, from arising the negligence officers, of its agents and em- ployees in the exercise of governmental functions, were held to be valid. State ex rel. Davis Trust Co. Sims, v. supra; State ex rel. Catron Sims, v. supra; State ex rel. Jordan Sims, v. supra; Sims, Saunders supra; v. and Price Sims, v. supra.
The instant case is somewhat analagous to the cases of Layne v. The Chesapeake Railway Co., and Ohio 66 W. Va. 1103; 67 S. E. and Moss Campbell’s Creek Railroad Co., 75 W. Va. 83 S. E. 1915C,1183; L. R. A. McKain Co., Baltimore and Ohio Railroad 65 W. Va. (N. S.) 289, S. E. 23 L. R. A. in which this.Court has held employer that an will be held liable for injuries in- upon flicted a third person by employer’s special (cid:127)officer, who, inflicted, at the time the injuries were was acting scope private within the his employment. case, as an involving alleged tort,
This it does must be appraised though as it a law action plaintiff were defendants, servant, from the damages recover master and personal on the basis that the injuries servant is liable of his negligence, because own and the master is liable be- negligence cause the servant’s' under the doctrine of respondeat superior. applying So rule in the case of Fielder, Co., Admx. Cab supra, v. Service kindred cited, heretofore it is our conflict duty cases resolve the evidence, negli- in the on the factual bearing question gence, light petitioner. most favorable There- fore, petitioner’s testimony we take as true as he was walking State Route 14 in the direction of his along No. home, Coiner, acting captain guards at the and in search of a con- Virginia Penitentiary fleeing West vict, along State Route No. 14 in furtherance driving was search, and, his upon seeing Bumgarner, his stopped place at a on the road near Bumgarner automobile where walking; thereupon petitioner, told I “Right here it”, then you am to let have Coiner “stuck the going face and I to run.” gun my started We likewise must Coiner take as true the evidence that shot at petitioner twice, the second shot struck bul- petitioner, and that *16 let his above the knee from the rear to piercing right leg Also must take as true that the front thereof. we Coiner convict, not the petitioner fleeing did not realize that was escapee by nickname, Coiner and although knew had a escapee large knew the noticeable scar on his scar, face, petitioner only slight carried while which was hardly discernible. Likewise evidence the effect that Coiner not in uniform and did not was exhibit other indicia of badge any petitioner authority, and for suddenly warning, except without the above-quoted threat, weapon face, at pointed petitioner’s Coiner run, him, started to he shot must also petitioner as be Moreover, there is nothing as true. this record taken that Coiner at and would indicate before the time any inquiry petitioner Bumgarner he shot made as to identity. his
111 think We that if this proceeding were: a actiofr law. recover damages for personal injuries, the evidence por trayed by record herein present would question jury determination whether Coiner negligent shooting petitioner.
Arising on this record is the question interesting whether the unsatisfied judgment petitioner’s favor n against alone, Coiner entered Circuit Court of Roane County action at law instituted by the peti- tioner against Coiner, and whether Coiner’s bankruptcy discharge his in the bankruptcy proceeding, without any satisfaction of petitioner’s claim, either in whole inor part, would serve to release Coiner’s employer, if such employer private were a person and not the State of West Virginia.
In this jurisdiction a joint action of tort may be insti tuted a master and servant in a case in which the plaintiff’s injuries were occasioned solely by the negli gence servant, and the only ground for holding master liable is that furnished the doctrine of respon- deat superior. Humphrey v. Virginian Railway Co., 132 204; W. Va. 54 Billy Powell, S. E. 2d O’Dell supra; Co., Universal Credit 1pt. syl., W. Va. 191 S. E. Subject 568. to the rule set forth in points syllabus of the Humphrey case that where the master’s duty absolute is and nondelеgable, or where the liability of the master is not predicated upon the solely negligence employee impleaded, upon but the negligence of another employee, or that of himself, the master an acquittal by a jury the servant an action instituted against the master and servant to establish liability based solely on the servant’s negligence will not release the master. The relation of master and servant in those cases, in which the respondeat doctrine of superior applies, joint, and the parties regarded should be though *17 they joint were tort-feasors. Wills v. Gas Coal Montfair Co., 476, 125 97 W. Va. In however, S. E. 367. some respects, the relation may regarded joint be as and several. See 76, 532, 65 Tomlinson, 141 E. Va. S. v. 105 W.
Chewning v. Credit 1090n, Universal and O’Dell A. L. R. and 1088n Court, speaking Co., of which cases supra, in the latter said: opinion 680 of the through page Hatcher Judge on Hager against of action “Plaintiff’s cause servant] [the See joint in its nature and several.” and defendant E. Co., 463, 143 105 Va. S. v. Fordson Coal W. Wellman servant a master and jоint against a action which involved caused injuries recover for party a third instituted 120 W. Fleming Nay, and negligence; the servant’s is under master Va. 200 S. E. where had his failure recovery absolute can be on duty is with perform duty, joined where the servant he is recover damages, master in action at law to an of his duties and acts within negligent performance employment, respondeat the doctrine of scope of his liability. relieve servant of his tort superior does not Co., See also Wills v. Coal supra. Gas Montfair Virginias, rule in the governing common-law tort-feasors, Law liability stated in 1 Barton’s aptly “* * * Edition, Practice, 75, as A Section follows: Second defendants, trespass for lies several joint against action liability joint, but the of tort feasors is several as well he is one although plaintiff may wrong-doer, sue others; if prevented suing not from also but thereby feasor, obtained one tort judgment against has been satisfied, that has action will lie fully against been not has, rule jurisdictions, others.” This in other been applied principal agent. Maple actions Co., Rep. Cincinnati H. & D. R. 40 Ohio St. 48 Am. 685; (Pa. St.) 124; Betcher v. A. Free McChesney, man, ed., 5th 574. Judgments, Section
In this jurisdiction the common-law rule in 35 stated Jur., Servant, Am. Master and Section that “Where servant for party both master and are liable to third servant, tort of the release of master or valid either liability servant release the operates from tort other,” abrogated, by Code, has been 55-7-12. Sec- part,
113 12 to, tion “A or an reads: release accord and satisfaction with, feasors, one or more or tort shall joint trespassers, not inure to the benefit of another such or tort trespasser, feasor, no against and shall be bar to an action or suit such joint feasor, other trespasser, tort for the same cause of action to which the release or accord and satis relates.” 12 by faction Section was amended the adoption Code, 1931, Official words “one substituting or more joint trespassers” for the joint words “one tres passer”; and the words “or tort-feasor” were inserted in the statute. The substitution and addition of the new made, words were Note, according Revisers’ express more clearly statute, obvious intent of the “to indicate that applies section to all joint wrong doers, as is held Leisure v. Monongahela Valley Trac Co., tion 85 W. Va. In the S. E. 737.” Leisure case this Court held though the statute was especially not applicable to joint tort-feasors, a plea, filed in an action for damages for an injury alleged to be the result of the negligence another, or tort of charges neg ligence alleged joint is the negligence of the defendant person, and another and that the plaintiff has received satisfaction from such other person and has executed a therefor, release does not interpose a bar to an action the injured party against joint tort-feasor with whom no settlement has been made.
Under the common rule in England, law the liability injured to an person by tort-feasor, who acted jointly another, with is joint and several in sense, as stated Pollock’s, F. Torts, Law of Ed., Thirteenth page 202, that: “Where more than one person is concerned in wrong, person commission of a wronged has his remedy against any all or one or more of them at his * * choice. *. But plaintiff when the in such a case has choice, made his he is concluded by it. After recovering judgment against some or one joint authors he wrong, cannot sue the other or others for the same matter, even if judgment in the first action remains unsatisfied.” early Supreme Appeals Virginia
-The Court of Jackson, M. (12 Va.) case of Wilkes Hen. and strictly common-law rule of the Courts of applied case England, and that rule remained in the law Vir- until the Code of ginia adoption Virginia, Section 1919,the rule being judgment that a without satisfaction as a release of all other operated one tort-feasor for the wrong. tort-feasors liable same *19 however, States, the in Supreme Court of United Lovejoy Murray, the case of v. refused to Wall. follow rule, the common a judgment against law held that is joint tresрasser against one not a bar to a suit another trespass, nothing satisfaction, for the same short of full such, or that which law must consider as can make such judgment a bar. to the
Expressly applicable instant is of case the case McClung, 131, 132, v. 5 W. in syl., Va. which this Griffie Court held
that: “A judgment against joint trespasser one against no bar to a suit another for the trespass; same full'satisfaction, short of or that nothing which law such, consider as can make such a judgment must bar.” in early days adopted So this decision this Court those Courts, rule in the Federal and did not prevailing common in the prevailing follow the law rule Courts prevailed Virginia nor the rule England, prior which adoption Virginia Code 1919. Prior to the case, this Court in the case of Bloss decision Griffie release, held that a not Plymale, v. W. Va. under seal, discharge of one or a satisfaction joint trespasser, against joint trespasser, such which liability shows it the intention of parties on its face that was not to satisfy discharge liability the release a trespassers, will not be allowеd work as dis- other a As against joint trespasser. of a action pending charge Bloss a Plymale, supra, involved release the case March trespassers, which was dated joint one of several McClung, supra, 22, 1866, and the case of Griffie all, some, not of several but judgment against a involved joint trespassers, which was entered Circuit Court (now of Kanawha County, Virginia, Virginia) West Court, cases, in deciding those did not have provisions under consideration the of Section Chapter Virginia West Code 1868. As a corollary to decisions in Bloss Griffie it cases, was held in 2 of point syllabus Chewning v. Tomlinson, that, supra, though judgment against several severable, defendants action is tort “The collection in a judgment full of one joint trespasser, operates separate a satisfaction of a judgment against another trespasser such for the same injury, except as costs. 136, Code, Code, 7'of Chapter [now 55-7-12] Section con- In strued.” the Chewning case this Court awarded the a writ prohibiting relator enforcement of an exeсution obtained an action justice instituted before by Martin, one peace Nickells, in which and one Chewning being Chewning’s master, impleaded the latter were joint tort.
Code, 55-7-12, evidently was enacted to con- originally *20 form with the by Supreme rule the prescribed Court of United case Lovejoy Murray, States in the of v. supra, judgment against that a one is a joint trespasser not bar against trespass; to a suit for the another same and that short nothing satisfaction, of full or which that the law such, as against must consider will bar an action other trespassers. joint regard In it is to noted that Sec- this be tion 12 of the present incorporated statute was originally statutory 136, this in in the law of State Section Chapter 7, 1868, of Code of from a notation printed and margin page appears, on which Section its enact- 7 was prompted by ruling Supreme ment Court Turner, of of in case 2 Appeals Virginia of Ruble v. 38, 1808, M. on in 3, Hen. and decided March which Court of of Virginia per- held that release one several tort, or of a an accord and guilty joint sons with satisfac- from, them, to an tion reсeived one of is a bar action as release, all; acknowledgment such or “notwithstanding 116 to the satisfaction, applying only part expressed be notwithstanding in trespass; one took and in of the other that it shall not favour proviso operate
a trespassers.” Coiner, entered judgment against petitioner’s
As the satisfied, not County, Circuit Court Roane in or in under the executions issued part, either whole in judgment bankruptcy proceeding, on not serve to bar opinion, peti- our would judgment, Virginia based on against claim the State West tioner’s so hold under the obligation; provisions a moral we Code, 55-7-12, authority and under the Griffie McClung, supra. jurisdiction judgment in this that a prevailing
The rule a a joint against one tort-feasor is not bar to suit tort, nothing tort-feasor the same joint another satisfaction, or that con short of full which the law must such, can make the subse judgment sider as bar quent action, is, reasonable, our opinion, just great weight authority is the United supported Freeman, ed., 573; 2 5th Section Judgments, Fitz States. gerald 486, 308, 27 A. L. R. Campbеll, Va. S. E. 799, 822, inclusive; 805 to Verhoeks v. pages and note Gilli 287, 1083, and ban, 244 Mich. 221 N. W. 65 A. L. R. (R. I.), 1092,inclusive; Hyson note Hackett v. pages 1087 pages 48 A. 2d 166A. L. R. note 1099to See also the annotated note in Minne inclusive. well Review, 709, inclusive, and in pages par sota Law 676 to pages ticular 706 and 707. rule, however,
This subject exception one of jurisdiction joint where several tort-feasors has obtained this Court writ of error to a joint judg- court, in a resulting ment rendered trial diminished *21 error, the in judgment against plaintiff payment the of the as on the of error an judgment diminished writ is part creditor, election on the judgment oper- in judgment court; ates as satisfaction the trial an on judgment against execution the one or more tort-feasors, joint did not the prosecute error, who writ of issued to collect the difference between.the amounts of the judgments, prohibited. two should be Chewning v. Tom linson, supra. exception rule, This the general how ever, is not bar, case applicable at the reason- instant case deals with a action separate against tort-feasor, having which on executions been issued, of the amount the judgment was not satisfied in whole or in part. is respectable
There authority jurisdictions other judgment effect where a has creditor obtained a judgment joint against tort-feasors, two or more an un- successful attempt by the of issuance executions to collect one from of the tort-feasors the full amount the judg- ment, is a bar to an obtaining execution against the others. Anno., See American Reports, just Law cited above. We not, however, do follow decisions to that but effect* firmly adhere rule jurisdiction established in this as syllabus McClung, stated supra, that: Griffie judgment joint "A against trespasser [tort-feasor] one is not a bar to a against suit another trespass for the same [tort]; full nothing satisfaction, short of or that which the such, must consider can law make judgment such bar.” final question considered in case to be this is whether discharge bankruptcy,
Coiner’s assets with no available payment petitioner’s for the of the whole or any part claim, independent would bar an action Coiner’s if such had employer, employer private person. been a is jurisdiction, This novel in not with- question difficulty out of solution.
The answer to this is to be found in the rule question discharge bankruptcy, that a unlike the administration estate, only bankrupt’s which concerns distribu- tion the assets at owned the time of bankrupt adjudication bankruptcy, only to protect serves which assets has bankrupt acquired adjudi- after creditors, cation bankruptcy from claims of
118
(C.C.A. 2),
Re Loweree
adjudication.
prior to the
existed
a
dis
it is well established
831. On this basis
F. 2d
157
himself,
bankrupt
is
to the
bankruptcy
personal
in
charge
therefore,
be
and,
may
it
used as a
persons;
and no other
only where the
bankrupt
to the
personal
defense which is
as a bar
discharge
personally pleads
bankrupt
Co. v. Hanson
Fidelity
Casualty
Union
liability.
personal
26
985, affirming (Civ. App.)
44
2d
(Com. App.),
S. W.
599,
12,
ed.
395,
287 U.
53 S. Ct.
77.L.
2d
cert. denied
S.
S. W.
Railway
Crawley,
Co. v.
522; Alabama Great Southern
Combs,
v.
171 Va.
Matney
118 Miss.
On himself, concern the assets bankrupt and does not at the estate, bankrupt had bankrupt’s of the is adjudicated bankrupt, provided time he a it A., Act, (11 Section Section Sixteen U. S. C. Bankruptcy a a 34) liability that: “The who is co-debtor person for, a with, surety or in manner a bank- guarantor any or of such bank- by discharge shall not be altered rupt 772. (Revised), Section Bankruptcy, See 6 Am. Jur. rupt.” only concerns discharge bankruptcy Because a adjudication a at the time of the bankrupt assets of our discharge bankruptcy, bankruptcy, Coiner’s against claim petitioner’s did not serve to vitiate opinion, moral upon as it Virginia, of. West based the State statute, S.U. language pertinent obligation. The It evi A., Section is broad. Bankruptcy, C. Title operation confine the intent legislative dences bankrupt had at Act to assets which the Bankruptcy and does not bankrupt, adjudicated time he was those are liable with to release claims who operate manner, liqui the claim be whether bankrupt any a claim debt, such as unliquidated, as a dated, such Steere, 121 13 N. E. Ill. Lackey a tort. upon based Co-Debtors, II cited in 518, 2 135. See also cases Am. St. A., 34. 11 C. Section Decisions, U. S. *23 “debt”, word as in sense, used the broad has been defined “Any as duty to respond another money, labor or service; it may even mean a moral honorary obligation, legal unenforceable by Dict., action.” Black’s Law 4th Ed., page 491. United Sugar See States Equalisation Board Co., v. P. DeRonde Inc., & (C. Del.); 7 F. 2d C. A. in particular See Burling Co., v. Schroeder Hotel 238 Wis. 17, 298 N. W. a case a Federal involving Court order bankruptcy concerning a tort claim. arte, therefore,
We of the if opinion proceeding an were action between the petitioner persons and private charged servant, awith tortfeasance master Coin- as discharge er’s in bankruptcy not affect petitioner’s would claim; and by the same does not him token it bar from asserting against based, is, a claim upon the State as it moral obligation. this proceeding
As 4 of point under of syllabus Sims, State ex rel. supra, appraised Cashman should be though separate it at were action instituted law petitioner damages against person, to collect a private Coiner, had employed alleged resulting who injuries' acting from Coiner’s negligence, scope while within employment, suggests, of his this record it does though decision, (1) If the give questions: not rise to for two of had judgment the Circuit Court Roane been County favor, petitioner judg- not in his could against be inter- respondeat superior under the doctrine of ment posed separate against employer, as bar to a action token, claim and, by petitioner’s .against the same State; (2) judgment and executions thereon if had been for an amount less than amount awarded Legislature, judgment would the.amount of Bumgarner’s thereon limit the amount the executions 812; L. cited 27 A. R. the State? See cases claim pose 816; simply A. L. 1009. We A. and 60 R. L. R. determination, occasion if the for future these questions of this itself, scope limitation presents opinion. of mandamus prayеd
For reasons writ foregoing Vir- for, State of West commanding the Auditor of the Control State Board of honor ginia to warrant payment dollars in the amount two thousand claim, petitioner’s is awarded.
Writ awarded. Judge, dissenting: Lovins, from of the Court
I dissent the conclusions respectfully to pay petitioner the Auditor this State compelling Funds. $2000.00, My out of State dissent is the- sum dissenting *24 on reasons forth in the part based in set Sims, of Trust v. Company filed the cases opinions 90; Sims, 2d v. W. 46 E. Catron 133 W. Va. Va. S. 130 Sims, 465; 2d ex rel. v. 136 57 S. E. State Utterback further, 822, 68 S. 2d for the W. Va. E. reasons set in the of the Honorable dissenting opinions forth late, Court, Fox, Fred cases of Judge L. this Sims, 654; S. E. v. 135 W. Va. 2d Jordan Saunders 650; Sims, 2d Sims, v. 134 W. Va. 58 S. E. Price v. 173, 58 S. 2d W. Va. E. 657.
It to restate to re- unnecessary is those reasons and reasons, me at many iterate which to least show that obligation, recently applied, the doctrine moral validity in the face of which lacks concept metaphysical reality. for Virginia State of West is liable
This Court holds officials, employees its servants negligence See Catron performance governmеntal functions. Sims, Sims, supra; v. Jordan v. Sims, Saunders supra; v. Sims, rel v. Sims, State ex Utterback supra; supra; Price of the obligation held moral supra. The Court also of an escaped acts of the criminal State exists reason Sims, supra. Trust Company convict. the some- and delimit
I think the time is here to define of a Sov- obligation moral unrealistic doctrine of what Con- contained ereign State. The inhibitions plain “The conclusion. impel stitution of this State me defendant made Virginia State of West shall never be * * * VI, 35, Article any court of or ”. Section equity law the State credit of “The Virginia. Constitution of West ** * nor to, any person; in aid of granted shall not or be responsible or become assume, shall State ever * * * (Emphasis any person.” the debts liabilities of 6, Article X. supplied) Section a judgment case,
In the claimant obtained the instant litiga- by private County in the Circuit of Roane Court him inflicted on tion, of the injuries on the basis such attempt to collect Coiner. failed his Having a claim in the Court then filed judgment, the claimant on the from the Stаte in an effort to obtain of Claims judgment. of such obligation payment of a moral basis pay holding the State liable This Court, has, in obligation of moral theory claimant under as if superior effect, respondeat doctrine of applied the guarantor and a ordinary an employer the State were The State so obtained. judgment for the payment surety. is in effect made Virginia West case is reached in the instant conclusion I think the of Sec- express provisions in direct contravention VI, Con- 35, Article X, 6, Article and Section tion State, and is therefore erroneous. of this *25 stitution erroneous, has to me is reasoning which Court, by appropriated funds to be the public permitted con- provisions renders the purpose purely private them at and sets ineffective in our Constitution tained naught. for. prayed writ deny
I would Notes defined should be sense the word “debtor” In its strict as one who owes another “a of money sum due cer tain and express agreement.” Diet., Ed., Black’s 4th Law “debt”, however, 490.. The page word has interpreted been an being obligation arising otherwise than sentence court for by-a breach public peace or crime. Ruggles State, 1080, 1084, Md. A. and the