Carpenter v. Atlanta & C.A.L. Ry. Co.

• Decision Date: 22 November 1922
• Docket Number: 445.
• Citation: 114 S.E. 693,184 N.C. 400
• Parties: CARPENTER v. ATLANTA & C. A. L. RY. CO. ET AL.
• Court: North Carolina Supreme Court

114 S.E. 693

184 N.C. 400

CARPENTER v. ATLANTA & C. A. L. RY. CO. ET AL.

No. 445.

Supreme Court of North Carolina

November 22, 1922

Appeal from Superior Court, Gaston County; Webb, Judge.

Action by John G. Carpenter, administrator of Benjamin L. Clark deceased, against the Atlanta & Charlotte Air Line Railway Company and others. From an order sustaining demurrer to the complaint by defendant State Highway Commission, plaintiff appeals. Affirmed.

Mangum & Denny, of Gastonia, for appellant.

James S. Manning, Atty. Gen., Frank Nash, Asst. Atty Gen., and W L. Cohoon, of Elizabeth City, for State Highway Commission.

ADAMS J.

The plaintiff alleges that Sam Finley, who was employed by the State Highway Commission to surface certain roads in the county of Gaston by agreement with the Southern Railway Company built a tank or tanks on the railroad's right of way in the town of Lowell within a few feet of overhead wires which were charged with an electric current of high voltage; that these tanks contained asphalt which was to be used in surfacing the roads then in process of construction; and that the plaintiff's intestate, a road inspector in the employ of the Highway Commission, went to one of the tanks in obedience to orders given him, and mounting a ladder, undertook by means of an iron rod to dig or cut into the asphalt, when the rod came in contact with one of the wires and communicated the electric current to his body, causing his death. The plaintiff further alleges that the Highway Commission negligently permitted Finley to place the tanks in dangerous proximity to the wires, and negligently failed to furnish for the plaintiff's intestate a safe place in which to work, or to warn him of the danger to which he was exposed.

The Highway Commission demurred on the ground that the complaint does not state a cause of action against them in that the commissioners are agents of the state engaged in the performance of a public service, and are not subject to suit for the cause alleged. The demurrer was sustained, and the plaintiff excepted and appealed.

The appeal presents the question whether the allegations in the complaint constitute a cause of action which can be maintained against the State Highway Commission in the superior court. It is not necessary to consider the alleged cause of action against Finley (who is named as a defendant) for the reason that Finley has never been served with process and is not in court, and because, moreover, the demurrer was filed only by the Highway Commission.

In 1915 the General Assembly established a State Highway Commission to consist of the Governor and six others, and afterwards increased the number of commissioners, enlarged their duties, and more clearly defined their powers. P. L. 1915, c. 113; P. L. 1919, c. 189; P. L. 1921, c. 2. Section 10 of the act of 1921 clothed the Commission with the general supervision of all matters relating to the construction of the highways of the state, including the execution of contracts, the selection of the materials to be used, the control for the benefit of the state of any existing county or township roads, the regulation of the use of the roads and of the police traffic thereon, responsibility for the maintenance of all highways other than streets in towns and cities, and other enumerated powers. The Commission was not incorporated with the right to sue and to be sued, but was manifestly established as an agency of the state for the purpose of exercising administrative and governmental functions.

The principle is firmly established that a state cannot be sued in its own courts or elsewhere unless it has expressly consented to such suit, except in cases authorized by article 11 of the Constitution of the United States, or by some provision in the state Constitution represented, for example, by article 4, § 9, of the Constitution of North Carolina. In Beers v. Arkansas, 20 How. 527, 15 L.Ed. 991, Chief Justice Taney said:

"It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. And, as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it."

See U.S. v. Clarke, 8 Pet. 436, 8 L.Ed. 1001; U.S. v. Eckford, 6 Wall. 484, 18 L.Ed. 920; Railroad Co. v. Tenn., 101 U.S. 337, 25 L.Ed. 960; U.S. v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; Moody v. State Prison, 128 N.C. 12, 38 S.E. 131, 53 L. R. A. 855; Jones v. Com'rs, 130 N.C. 452, 42 S.E. 144.

It is true that a suit against the officials of a state is not necessarily a suit against the state, for the nature of the action must be determined by the substance of the relief sought. Ins. Co. v. Herriott (C. C.) 91 F. 715; Bain v. State, 86 N.C. 49. But where a suit is prosecuted against an officer or agent who represents the state in action and liability and the state is the real party whose action would be controlled by the judgment and against which relief is sought, the action is in effect a suit against the state. North Carolina v. Temple, 134 U.S. 22, 10 S.Ct. 509, 33 L.Ed. 849; Louisiana v. Steele, 134 U.S. 230, 10 S.Ct. 511, 33 L.Ed. 89; Smith v. Reeves, 178 U.S. 436, 20 S.Ct. 919, 44 L.Ed. 1144.

The plaintiff insists, even if these propositions be conceded, that the original jurisdiction of the Supreme Court conferred by article 4, § 9, of the state Constitution, is not to be exercised if by the ordinary process of the law a plaintiff can regularly constitute his case in court and obtain relief against the defendant (Bain v. State, 86 N.C. 50), and that the instant action can be maintained on two distinct grounds: (1) That authority for the Commission to sue and to be sued is implied from the character and purpose of the legislation by which it was established; and (2) that the action was instituted for the recovery of damages caused by the negligence of the officers or agents of the state, and not as a suit against the state.

As to the first ground we understand the plaintiff to admit, in accordance with the decisions, that the power to sue and to be sued given under C. S. § 1126, applies only to private and quasi public corporations, and not to the governmental agencies of the state. Moody v. State Prison, supra. Besides this, the mere right to sue and to be sued, even if expressly granted the Commission, would not destroy the public policy on which immunity from a suit in tort is made to rest. In Moody's Case it is said:

"But, even if such authority was given, it would cover only actions ordinarily incidental in its operation, and would not extend to causes of action like the present. There is a distinct difference between conferring suability as to 'debts and other liabilities for which the state's prison is now liable,' and extending liability for causes not heretofore recognized. Murdock Grate Co. v. Commonwealth, 152 Mass. 28: 'The exemption of the state from paying damages for accidents of this nature does not depend upon its immunity from being sued without its consent, but rests upon grounds of public policy, which deny its liability for such damages.' Bourn v. Hart, 93 Cal. 338."

In Jones v. Com'rs, supra, it was held that counties, as instrumentalities of the state, are not liable in damages in the absence of a statutory provision giving a cause of action against them, and, even if such authority...