Bailey v. State Road Commission

ROBERT L. BLAND. Judge,

dissenting.

I do not see in this case any moral obligation of the state to compensate the claimant.

“To constitute a valid declaration by the Legislature of the existence of a moral obligation of the State for the discharge of which there may be an appropriation of public funds in the interest of the public welfare, it is necessary, as a general rule, that there be an obligation or a duty by prior statute created or imposed upon the State, to compensate a person for injury or damage sustained by him by reason of its violation by the State or any of its agencies . . .” State ex rel Cashman v. Sims, Auditor, 43 S.E. 2d 805.

The state road commission was engaged in the exercise of a governmental function when a puncture or hole was cut in the galvanized culvert by the patrol grader. This fact was not known to the operator of the vehicle during the day that he was employed in the grading work. On *107the following day claimant’s horse stepped into the hole and was injured. The incident was thereupon reported to an employe of the state road commission, and the next day after this report was made, and after the road commission’s first knowledge of the existence of the hole, the culvert was promptly repaired. Certainly no negligence is shown on the part of the road commission. It was alert in making the necessary repairs to the culvert. Necessarily, highways, by the continuous use thereof, will frequently get out of order or repair. It cannot be said that sufficient time may not be allowed for such repair work.

I find in the report of the court of claims of Michigan for the biennium ending December 31, 1942, wherein it held in the case of Manion v. State Highway Department as follows:

“The State may not be held liable for injures sustained by an engineer while off duty on ferry operated by State highway commissioner because of negligence of operators of defendant’s ferries since the operation of such ferries was a governmental function in the absence of statutory liability for negligent operation of such ferries (1 Comp. Laws 1929 Secs. 4698-4702, as amended).”