Commonwealth, Department of Highways v. William D. Rommel Construction Co.

WILLIAMS, Judge. William D. Rommel Construction Company filed a claim before the Board of Claims complaining of negligence on the part of the Kentucky Department of Highways which resulted in a loss to Rommel of $4,137.16. The Department denied the allegations contained in the complaint and stated that if any damage did occur it was not through the fault or negligence of the Department, its agents, servants or employees. The Board of Claims entered an award in favor of Rommel. The Department appealed to the Jefferson Circuit Court and exceptions were taken to the award on the following grounds: (1) The findings of fact are not supported by the evidence; and (2) the findings of fact do not support the award granted. The circuit court held that the findings of fact were not in error, were supported by the evidence and supported the award granted by the Board of Claims. The court adopted the findings of fact and conclusions of law as found by the Board of Claims and ordered that Rommel recover from the Department the amount awarded by the Board of Claims, which was $4,137.16. The Department has appealed from that judgment. The Department assigns as error the fact that there was no privity of contract between Rommel and the Department. That defense was not made in the Jefferson Circuit Court. The only exceptions taken to the award of the Board of Claims were that the findings of fact were not supported by the evidence and did not support the award granted. On appeal from the Board of Claims the circuit court is limited to determining whether (1) the Board acted without or in excess of its powers; (2) the award was procured by fraud; (3) the award is not in conformity with the provisions of KRS 44.070-44.160; (4) the findings of fact support the award. KRS 44.140(2). The Court of Appeals is limited to a review of the same matters subject to review by the circuit court, plus any errors of law which may arise in the circuit court. KRS 44.150. On this appeal there is no claim that the circuit court erred in its conclusions concerning any of the grounds which by statute it is permitted to consider. Nor is [836] any error of law pointed out. ' There is no allegation that the findings of fact made by the Board of Claims and adopted by the circuit court are not supported by substantial evidence. This Court consequently will not disturb that finding. Commonwealth v. Mudd, Ky., 255 S.W.2d 989. The judgment of the circuit court is affirmed.