Parks-Belk Co. v. City of Concord

138 S.E. 599, 194 N.C. 134, 1927 N.C. LEXIS 31

• Court: Supreme Court of North Carolina
• Decided: June 25, 1927
• Status: Published

Opinion

CoNNOR, J.

In Price v. Trustees, 172 N. C., 84, it is said: “It is tbe general rule in this jurisdiction that a municipal corporation when engaged in tbe exercise of powers and in tbe performance of duties conferred and enjoined upon them for tbe public benefit, may not be held liable for torts and wrongs of their employees and agents, unless made so by statute. Snider v. High Point, 168 N. c., 608; Harrington v. Greenville, 159 N. C., 632; McIlhenny v. Wilmington, 127 N. C., 146; Moffit v. Asheville, 103 N. C., 237; White v. Comrs., 90 N. C., 437.

A limitation upon tbe general rule is recognized and established in several of tbe more recent decisions on tbe subject when tbe injury complained of amounts to a taking of private property of tbe citizen, within tbe meaning of tbe term ‘taking’ as understood and defined in administering tbe rights of eminent domain. See Donnell v. Greensboro, 164 N. C., 330; Hines v. Rocky Mount, 162 N. C., 409; Little v. Lenoir, 151 N. C., 415.

Again it is held that the general rule, as first stated, does, not obtain where the corporation, though partaking to some extent of the nature of a municipal agency and exercising such powers, is, in its primary and controlling purpose, a private enterprise, undertaken and organized for purposes of private gain. Leary v. Comrs., 172 N. C., 25; So. Assembly v. Palmer, 166 N. C., 75; Comrs. v. Webb, 160 N. C., 594.”

In Scales v. Winston-Salem, 189 N. C., 469, it is said, in the opinion written by Adams, J.: “The nonliability of a municipal corporation for injury caused by negligence in the exercise of its governmental functions may be illustrated by cases in which it is held that a city is not liable for a policeman’s assault with excessive force, or for the suspension of a town ordinance indirectly resulting in damage to property, or for injury to an employee while in the service of the fire department, or for failure to pass ordinances for the public good, or'for the negligent burning of trash and garbage, or for personal injury caused by the negligent operation of a truck by an employee in the service of the sanitary department of a city.” See cases cited in the opinion.

Upon all the facts which the evidence tends to establish, the act of defendant’s employee which plaintiff alleges was negligence, was done by him in behalf of defendants, in the exercise of governmental power conferred, and in the performance of governmental duties, imposed upon defendants. The general rule of nonliability, as stated in Price v. Trustees, supra, is therefore applicable; there is no evidence from which the jury could find facts to which either of the exceptions to said rule, as stated therein, are applicable.

Nor was there evidence, sufficient to be submitted to the jury, tending to show negligence on the part of defendants in failing to cut the water off from the bursted main, and thus stopping its flow into the basement of plaintiff’s building. The water main bursted about 12 o’clock at night; the evidence offered by plaintiff shows that employees of defendants were notified of the situation with reasonable promptness and, under the circumstances, within a reasonable time stopped the flow of water and pumped same out of the basement. Upon all.the evidence, under the law in this State, as it has been frequently declared by this Court, defendants are not liable in damages^for the injury sustained by plaintiff.

There is no error. The judgment dismissing the action is

Affirmed.