Stewart v. Adjutant General

6 Ct. Cl. 57

• Court: West Virginia Court of Claims
• Decided: October 24, 1951
• Docket: No. 737
• Status: Published

Opinion

JAMES CANN, Judge.

Claimant alleges that on Sunday, March 4, 1951, while operating his automobile over and upon u. s. route 60, in the city of Ceredo, Wayne county, West Virginia, he had stopped for a traffic signal, when a truck operated by private Robert Smith, a member of the West Virginia national guard, struck the rear of his automobile causing damages thereto in the sum of $79.41.

The evidence disclosed that on the afternoon of the above mentioned day, claimant, in company with his wife and three children, was operating his automobile over and upon u. s. route 60 enroute to Kenova, West Virginia. As he proceeded through the city of Ceredo, he and several others operating automobiles immediately ahead of him were compelled to stop at the intersection of u. s. route 60 and Main Street, in said city, by reason of a traffic light showing red, indicating a stop signal. As claimant came to a complete stop behind the other automobiles ahead of him, the rear of his automobile was suddenly struck by a truck carrying a “live load” of West Virginia national guardsmen, and operated by private Robert Smith of the West Virginia national guard.

Colonel Marble Zickefoos, representing the respondent, testified that the truck in question was one which was loaned by the U. S. government to the West Virginia national guard, under the supervision of the state adjutant general in the performance of his duty in maintaining national guard units in this state, and said truck, at the time of the accident, was being operated by a member of the West Virginia national guard, who, although paid by the federal government under its scheme of maintaining state national guard units in all of the states, was under the complete control, discipline and supervision of the respondent. Colonel Zickefoos exhibited to the court an investigation report which indicated that the operator of the truck at the time of the accident was not alert; that no fault was shown on the part of claimant and in his opinion this was a just and meritorious claim. All of the testimony in this case indicates that the proximate cause of the damages done to claimant’s automobile was the independent and negligent act of the agent of respondent, and which was in no way brought about by any fault on the part of claimant.

Under the circumstances and facts presented to us, we make an award in favor of claimant, Clifford S. Stewart, in the amount of seventy-nine dollars and forty-one cents ($79.41).