Carter v. City of Greensboro

• Decision Date: 14 January 1959
• Docket Number: No. 603,603
• Citation: 106 S.E.2d 564,249 N.C. 328
• Parties: Jimmy CARTER by his Next Friend Fred Clapp, v. CITY OF GREENSBORO.
• Court: North Carolina Supreme Court

Page 564

106 S.E.2d 564

249 N.C. 328

Jimmy CARTER by his Next Friend Fred Clapp, v. CITY OF GREENSBORO.

No. 603

Supreme Court of North Carolina.

Jan. 14, 1959

H. J. Elam, III, City Atty., H. L. Koontz, Holt, McNairy & Harris, Greensboro, for defendant, appellant.

Jordan, Wright & Henson, by Welch Jordan, Greensboro, for plaintiff, appellee.

HIGGINS, Justice.

The legal dispute involves the question of law whether the facts in evidence make out a case for the jury. The defendant contends the cause should have been withdrawn from the jury upon either of three grounds: (1) The plaintiff failed to file his claim within the time required by the city charter as a condition precedent to the institution of this action; (2) the defendant is immune from liability for negligence in this case in that the injury occurred incident to the performance of a necessary governmental function; (3) the defendant was the local managing agent for the United States under the terms of the contract, and, therefore, any action for tort must be brought in the Federal court which is given exclusive jurisdiction. The defenses interposed do not involve the question of negligence, the character of the injuries, or the amount of the verdict.

1. The evidence discloses the plaintiff was horribly burned on December 2, 1946 under the circumstances alleged in the complaint. He was then three years old, living with his father and mother in one of the rental units. Later the father and mother separated, then were divorced. The plaintiff remained with the mother. She was a witness in the case. It is apparent from her testimony that she was of very limited education. She testified the plaintiff had difficulty in remembering things; that 'he can work around the house; he waters and feeds dogs, and he helps in the garden a little.' From the time of the injury until the last day of December he was treated in the hospital at Greensboro and then transferred to Duke Hospital in Durham where he remained until June, 1947. At Duke Hospital he underwent six different skin grafting operations; was given 17 blood transfusions; and submitted to anesthesia 41 times during the course of his treatment. He testified he goes to school, is in the 7th grade, but is crippled and handicapped in his movements. One of his school teachers, called as a witness by the defendant, testified: 'He is below average--a dull, slow student.' He was without guardian. His family consisted of his mother, his stepfather, and a sister two years older than he. He remembers very little about the accident, his stay in the hospital, or his return home. So far as the record discloses, he was first advised of his legal rights by Mr. Jordan, now of counsel, who immediately gave notice and filed his claim. The plaintiff was then twelve.

Ordinarily, the giving of timely notice is a condition precedent to the right to maintain an action, and nonsuit is proper unless the plaintiff alleges and proves notice. Wallace v. City of Asheville, 208 N.C. 74, 179 S.E. 18; Dayton v. City of Asheville, 185 N.C. 12, 115 S.E. 827, 30 A.L.R.1186; Pender v. City of Salisbury, 160 N.C.363, 76 S.E. 228. However, there is an exception to the rule. The plaintiff may relieve himself from the necessity of giving notice by alleging and proving that at the time notice should have been given he was under such mental or physical disability as rendered it impossible for him by any ordinary means at his command to give notice; and that he actually gave notice within a reasonable time after the disability was removed. Barnett v. Elizabeth City, 222 N.C. 760, 24 S.E.2d 264; Webster v. City of Charlotte, 222 N.C. 321, 22 S.E.2d 900; Foster v. City of Charlotte, 206 N.C. 528, 174 S.E. 412; Hartsell v. City of Asheville, 166 N.C. 633, 82 S.E. 946; Terrell v. City of Washington, 158 N.C. 281, 73 S.E. 888.

In this case the plaintiff, as a part of his cause of action, alleged his failure to file the notice within the time fixed by the defendant's charter and at the same time he alleged facts which, if true, brought his case within the exception. The evidence offered was sufficient to support the finding the plaintiff, the three-year-old son of one of the distressed tenants, was horribly burned; that he spent more than six months in the hospital, underwent six skin grafting surgical operations, was given 17 blood transfusions, and submitted to anesthesia 41 times. He was without guardian; his mother of limited education, later divorced, and his father in parts unknown. Under such circumstances is it not the policy of the law and the duty of judges to guard his rights with jealous care and to see that the door of the courthouse is not closed to him when he is without fault? The evidence required the court to submit the second issue to the jury. Its answer is conclusive. Failure to give earlier notice does not justify nonsuit.

In order properly to understand the defendant's second and third grounds for nonsuit, we quote a few pertinent provisions of the contract between the United States (FPHA) and the defendant (the Local Body): 'This contract entered into this 2lst day of February, 1946, by the United States (FPHA), * * * and the City of Greensboro * * * The FPHA will provide * * * 96 family dwelling units * * * all of which undertakings * * * shall be at its cost and expense. The local body * * * shall select and provide a site * * * deemed suitable by FPHA. * * * The local body shall prepare a plan of management for the project * * * consisting of standards for * * * adjustment of rents and an estimate of * * income and expense. * * * The Project Management Plan shall be prepared (by the local body) in accordance with a form prescribed by FPHA * * * and submitted * * * for review and approval. * * * The local body shall manage and operate the project * * * in accordance with the provisions of this contract (including the approved Project Management Plan) and in accordance with such further rules * * * as may be deemed appropriate by the local body * * *'

The project was made possible by the Act of Congress known as the Lanham Act, 42 U.S.C.A. § 1521 et seq. The purpose was to furnish temporary low rent housing accommodations for distressed families of servicemen in congested areas. The contract provided that the local body should collect the rent, retain a fixed amount per unit for ground rental, for water, for taxes, for insurance, for management expenses, and to account to the FPHA for any balance. 'Notwithstanding any other...