# State Ex Rel. Bumgarner v. Sims

> West Virginia Supreme Court · December 15, 1953 · 139 W. Va. 92

URL: https://www.frixlaw.com/law-library/cases/9851663

## Case

- **Full name:** State of West Virginia Ex Rel. Wallace Bumgarner v. Edgar B. Sims, Auditor, Etc.
- **Court:** West Virginia Supreme Court
- **Decided:** December 15, 1953
- **Citations:** 139 W. Va. 92; 79 S.E.2d 277; 1953 W. Va. LEXIS 5
- **Precedential status:** Published
- **Opinion:** Dissent by Lovins
- **Judges:** Riley, Lovins
- **Cited by:** 24 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9851663

## Opinion text

Lovins, Judge,
dissenting:
I respectfully dissent from the conclusions of the Court in compelling the Auditor of this State to pay petitioner the- sum of $2000.00, out of State Funds. My dissent is based in part on the reasons set forth in the dissenting opinions filed in the cases of Trust Company v. Sims, 130 W. Va. 623 , 46 S. E. 2d 90 ; Catron v. Sims, 133 W. Va. 610 , 57 S. E. 2d 465 ; State ex rel. Utterback v. Sims, 136 W. Va. 822 , 68 S. E. 2d 678 , and further, for the reasons set forth in the dissenting opinions of the Honorable Fred L. Fox, late, a Judge of this Court, in the cases of Saunders v. Sims, 135 W. Va. 163 , 58 S. E. 2d 654 ; Jordan v. Sims, 134 W. Va. 167 , 58 S. E. 2d 650 ; Price v. Sims, 134 W. Va. 173 , 58 S. E. 2d 657 .
It is unnecessary to restate those reasons and to reiterate the many reasons, which to me at least show that the doctrine of moral obligation, as recently applied, is a metaphysical concept which lacks validity in the face of reality.
This Court holds the State of West Virginia is liable for the negligence of its officials, servants and employees in the performance of governmental functions. See Catron v. Sims, supra; Saunders v. Sims, supra; Jordan v. Sims, supra; Price v. Sims, supra; State ex rel Utterback v. Sims, *121 supra. The Court also held that a moral obligation of the State exists by reason of the criminal acts of an escaped convict. Trust Company v. Sims, supra.
I think the time is here to define and delimit the somewhat unrealistic doctrine of moral obligation of a Sovereign State. The plain inhibitions contained in the Constitution of this State impel me to this conclusion. “The State of West Virginia shall never be made defendant in any court of law or equity * * * ”. Section 35, Article VI, Constitution of West Virginia. “The credit of the State shall not be granted to, or in aid of any * * * person; nor shall the State ever assume, or become responsible for the debts or liabilities of any * * * person.” (Emphasis supplied) Section 6, Article X.
In the instant case, the claimant obtained a judgment in the Circuit Court of Roane County by private litigation, on the basis of the injuries inflicted on him by Coiner. Having failed in his attempt to collect such judgment, the claimant then filed a claim in the Court of Claims in an effort to obtain from the State on the basis of a moral obligation payment of such judgment.
This Court, in holding the State liable to pay the claimant under the theory of moral obligation has, in effect, applied the doctrine of respondeat superior as if the State were an ordinary employer and a guarantor for the payment of the judgment so obtained. The State of West Virginia is in effect made a surety.
I think the conclusion reached in the instant case is in direct contravention of the express provisions of Section 6, Article X, and Section 35, Article VI, of the Constitution of this State, and is therefore erroneous.
The Court, by reasoning which to me is erroneous, has permitted the public funds to be appropriated for a purely private purpose which renders the provisions contained in our Constitution ineffective and sets them at naught.
I would deny the writ prayed for.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9851663. Public record. Not legal advice.