Milkint v. State Road Commission

6 Ct. Cl. 75

• Court: West Virginia Court of Claims
• Decided: January 17, 1952
• Docket: Nos. 755-S, 756-S, 757-S, 758-S and 759-S
• Status: Published

Opinions

A. D. KENAMOND, Judge.

These claims submitted under the shortened procedure provisions of the court of claims act and approved by the attorney general, the state road commission having concurred in the claims and recommended the awards claimed, all grew out of the same incident and act of a paint crew of the state road commission. Each case involved an automobile damaged by paint spray.

On September 5 and 6, a paint crew of the state road commission, under the foremanship of Clay Ferris, was spray painting with aluminum the bridge which spans Blackwater river on u. s. 219, at Thomas, West Virginia. The bridge structural steel is completely in the sub-structure and the roadbed located above the painting project. Evidently the paint crew failed to note a rising wind, which Ward Hudson, safety director for district 8 and investigator of the facts and circumstances in these cases, in a written report dated December 6, 1951, said carried specks of aluminum paint and caused damage to the several automobiles in the amounts shown in photostatic copies of proof of loss.

Claimants Robert and Emogene Milkint had their 1951 Plymouth sedan parked in front of their place of business approximately 80 feet from the bridge, said automobiles being generously sprayed with paint from the operation at bridge, with a resulting damage of $50.00.

Ugo J. Massie had his 1951 Ford sedan parked on a city street approximately 70 feet from the bridge and sustained damage of $50.00, amount necessary to remove paint specks and rewax automobile.

Louis and Virginia Milkint had their 1950 DeSoto sedan legally parked about 50 feet from the bridge and the paint spray which carried to their automobile necessitated the expenditure of $50.00 for removal.

Jacquelyn R. DelSignore had his 1951 Ford sedan parked in front of his residence approximately 100 feet from the bridge and claims $50.00 to pay for removing aluminum paint and re-waxing car.

Gerald H. Parks had his 1950 Oldsmobile completely specked with aluminum paint on September 6, 1951, while driving across the state owned bridge on u. s. 219 at Thomas, West Virginia, the sub-structure of which was then being spray painted. His claim is for actual damage of $40.00.

The records submitted in all these cases rule out the possibility that the aluminum paint spray on the automobiles involved could have come from any source other than the operation of the state road commission paint crew. No other painting activities were known to have been carried on at that time in that locality either by public or private concerns or individuals. In each case the report made by Ward Hudson, safety director, showed that in his opinion the state road commission paint crew was at fault.

In view of the investigation made by the respondent in each of these cases having shown said respondent to be at fault, and of the recommendation of respondent that awards be made for the several amounts claimed, with the approval of the attorney general, a majority of the members of this court make the following awards:

To Robert and Emogene Milkint and American Farmers Mutual Insurance Company, fifty dollars ($50.00);

To Ugo J. Massi and American Farmers Mutual Insurance Company, fifty dollars ($50.00);

To Louis and Virginia Milkint and American Farmers Mu. tual Insurance Company, fifty dollars ($50.00);

To Jacquelyn DelSignore and American Farmers Mutual Insurance Company, fifty dollars ($50.00);

To Gerald H. Parks and American Farmers Mutual Insurance Company, forty dollars ($40.00).