¶1dissenting:
¶2With deference I dissent from the decision of this Court in the above-styled case, for the reason that I am of opinion that the facts in this case bring it within the holding of this Court in point 2 of the syllabus of State ex rel. Catron v. Sims, 133 W. Va. 610, 57 S. E. 2d 465. This syllabus reads: “A moral obligation of the State in favor of a private person such as would ground a valid appropriation of public funds exists where there is ‘an obligation or a duty, legal or equitable, not imposed by statute but created by contract or resulting from wrongful conduct, which would be judicially recognized as legal or equitable in cases between private persons.’ State ex rel. Cashman v. Sims, Auditor, 130 W. Va. 430, 442.”
¶3In the instant case the crew foreman of the State Road Commission drove a truck belonging to the road commission, the gasoline tank of which was leaking at the time, into the road commission’s garage. The foreman placed the truck on the concrete floor of the garage about, four feet away from the side of the garage nearest the building of relator, J. A. Cox. After placing the truck in that position, a mechanic, likewise an employee of the road commission, employed at the garage, went under the truck on a movable appliance known as a “creeper”, which moved on four steel rollers. In preparing to repair the leak in the tank the mechanic drained five gallons of gasoline from the tank into a large open can, and then closed the drainage valve on the tank. The mechanic *505then pushed the can from under the truck to a position between the rear fender of the truck and the nearest side of the garage. In the meantime the gasoline, which had leaked from the truck, had spread on the concrete floor of the garage over a circular space of eight or ten feet, and-while the mechanic was on the creeper, moving it toward the rear of the truck for the purpose of withdrawing the can from beneath the truck and getting another container for use in draining the remaining gasoline from the tank, the gasoline on the concrete floor suddenly became ignited. The fire spread quickly, first to the clothing and parts of the body "of the mechanic, and then to the truck, the gasoline in the nearby open container, and the wall adjacent to relator’s building and the ceiling of the garage.
¶4As there was no open fire in the garage at the time the gasoline became ignited, it seems that it was ignited by no other means than sparks engendered by the steel wheels on the concrete floor. This the road commission’s mechanic should have reasonably anticipated. He, therefore, was guilty of negligence, which proximately caused the damage to and destruction of relator’s property. Under the doctrine of respondeat superior and the holding of this Court in point 2 of the syllabus in the Catron case and similar cases, the State Road Commission would be liable in an action at law, were it not for the immunity of the State from suit under Section 35, Article VI, West Virginia Constitution,• which reads: “The state of West Virginia shall never be made defendant in any court of law or equity, …
¶5This case, in my opinion, cannot be distinguished in principle from the Catron case. In the instant case the State Road Commission through its employee, the mechanic employed at the garage, by negligence started what was initially a hostile fire, which proximately resulted in damage to relator’s property. In the Catron case the employees of the State Road Commission started what was initially a friendly fire on the right of way of *506West Virginia-United States Route No. 60 in close proximity to Catron’s property, upon which he was growing “Christmas” trees, which fire, though initially friendly, became through the negligence of the road commission’s employees a hostile fire, resulting in the destruction of a large number of Catron’s trees. On the basis of these facts this Court in the Catron case held that there was a moral obligation on the part of the State in Catron’s favor, which would ground a valid appropriation of public funds.
¶6For the foregoing reason I would grant the writ prayed for.