Floyd v. North Carolina State Highway and Public Works Commission

• Decision Date: 04 February 1955
• Docket Number: No. 665,665
• Citation: 85 S.E.2d 703,241 N.C. 461
• Court: North Carolina Supreme Court
• Parties: Dalsy O. FLOYD, Administratrix of E. L. Floyd, Deceased, v. NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION.

Page 703

85 S.E.2d 703

241 N.C. 461

Dalsy O. FLOYD, Administratrix of E. L. Floyd, Deceased, v. NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION.

No. 665

Supreme Court of North Carolina.

Feb. 4, 1955

R. Brookes Peters, Kenneth Wooten, Jr., Raleigh, for defendant-appellant.

DeLapp & Ward, Charles W. Mauze, Lexington, for plaintiff-appellee.

HIGGINS, Justice.

In 1951 the State, acting through its legislative branch, Chapter 1059, Session Laws 1951, waived its immunity from suit in cases where injury and damage result from the acts of negligence of its employees. The United States and some of the other states have similar statutes. The courts are not in agreement as to whether such acts should be strictly or liberally construed. Inasmuch as the acts permitting suit are in derogation of the sovereign right of immunity, we think the sounder view is that they should be strictly construed. The authorities are cited in the concurring opinion by Justice Bobbitt in the case of Alliance Company v. State Hospital at Butner, N. C., 85 S.E.2d 386. At any rate, the statute giving the right to maintain the suit must be followed as written. G.S. § 143-291 authorizes the filing of the claim before the North Carolina Industrial Commission. G.S. § 143-297 provides that the claim must be accompanied by an affidavit in duplicate, setting forth among other things, (b) The name of the department, institution or agency of the State against which the claim is asserted and the name of the State employee upon whose alleged negligence the claim is based. The purpose of requiring the claimant to specify the State employee whose negligent act caused the injury is to enable the State or department to make proper investigation as to the employee designated and ascertain the facts with respect to his alleged acts of negligence, and present evidence or be heard with respect thereto.

In this case the claimant charges negligence against Fred L. Everhart and Elton Cross. Nowhere in the evidence is Cross mentioned. There is no evidence of any act on his part, negligent or otherwise. If recovery is sustained, therefore, it must be on the negligence of Everhart alone. It isn't enough to say that some employee's negligence caused the injury. The claim and the evidence must identify the employee and set forth his act or acts of negligence which are relied upon. Even in the ordinary case of negligence between private parties the proof must follow the allegation as to whose negligence caused the injury. Whichard v. Lipe, 221 N.C. 53, 19 S.E.2d 14, 139 A.L.R. 1147. However, in order to sustain an award under the Tort Claims Act, the claimant must show not only injury resulting from a designated employee's negligence, but also must go further and show that the claimant was not guilty of contributory negligence. For the claimant to prevail in this case she must show a negligent act on the part of Everhart proximately causing the injury and, in addition thereto, she must show absence of contributory negligence on the part of her intestate. Failure in either particular defeats recovery.

The record contains all the evidence presented at the hearing. Careful examination compels the conclusion that certain of the findings of fact made by the hearing commissioner and adopted and confirmed on appeal by the full Commission are not supported by the evidence. However, the unsupported findings relate to unimportant details without bearing on the question of Everhart's negligence. The evidence upon which the claimant seeks to charge Everhart is: (1) He was Maintenance Supervisor for Davidson County; (2) while rebuilding the road he failed to see that his instructions were carried out with respect to the use of larger tile after he had notice that the fill had washed out once before in 30 years.

True, in his evidence, Garner stated the fill had washed out twice before, the last time about eight or ten years prior to the time the repairs were being made. However, the plaintiff's uncontradicted evidence is that he told Everhart the fill had washed out once before. The claimant contends Everhart was negligent in that he failed to make inspection and ascertain whether his directions had been carried out. The instructions were given, Everhart went on about other duties. The tile was installed, the fill completed, which, of course, covered up the tile. There is no evidence that Everhart had notice that his instructions had been carried out only in part. Was the maintenance supervisor in charge of the county road system of a large and populous county required to go back to the fill, measure the tile at each end to see if the tile down-stream was the same size as the tile up-stream? Suppose Everhart had permitted the fill to remain as it was with the tile that so far as he knew had carried the water for 30 years, except on one occasion. Can it be charged that in so doing he committed an act of negligence within the meaning of the law? Maintenance supervisors throughout the State know of washouts. Can it be that in event of a second washout the State Highway and Public Works Commission is liable should injury result?

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