Gentry v. Town of Hot Springs

• Decision Date: 24 September 1947
• Docket Number: 99
• Citation: 44 S.E.2d 85,227 N.C. 665
• Parties: GENTRY v. TOWN OF HOT SPRINGS.
• Court: North Carolina Supreme Court

44 S.E.2d 85

227 N.C. 665

GENTRY v. TOWN OF HOT SPRINGS.

No. 99

Supreme Court of North Carolina

September 24, 1947

In substance, the complaint alleges that during the early morning hours of April 27, 1946, plaintiff's intestate, a boy 15 years of age, was wrongfully incarcerated in the lockup or jail of the Town of Hot Springs, N. C., by the chief of police and jailor, Milt Landers, after having been brutally and inhumanly treated by said officer; that the vicious and criminal propensities and general unfitness of said officer were well known to both Mayor and Board of Aldermen of the town; likewise, the jail, with its surroundings, was known to be a potential fire trap, unsafe and unfit for such use, with faulty electric-lighting equipment, etc.; that soon after the incarceration of plaintiff's intestate, his brother, Frank Gentry, aged 22, came to the jail and was himself brutally assaulted by the Chief of Police and placed in the lockup; that the Chief of Police then left for his home, taking with him the only available key to the jail, and in a short time, about 3:30 a m., a fire broke out among the shavings, sawdust and other inflammable materials in the workshop adjacent to the lockup which quickly spread to the jail and suffocated plaintiff's intestate and his brother. Wherefore plaintiff seeks recovery for the wrongful death of his intestate.

Demurrer was interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action for wrongful death against the defendant municipality.

From judgment sustaining the demurrer, the plaintiff appeals assigning error.

Calvin R. Edney, of Marshall, for plaintiff-appellant.

George M. Pritchard, of Asheville, and George L. Greene, of Marshall, for defendant-appellee.

STACY Chief Justice.

The complaint paints a lurid picture. However, if we look beyond the paint and examine the foundation of the alleged cause of action for wrongful death, as the demurrer invites us to do (Andrews v. Seaboard Air Line R. Co., 200 N.C. 483 157 S.E. 431), we perceive no distinguishable difference between this case and the case of Dixon v. Town of Wake Forest, 224 N.C. 624, 31 S.E.2d 853. The Dixon case was itself predicated on Parks v. Town of Princeton, 217 N.C. 361, 8 S.E.2d 217, and Nichols v. Town of Fountain, 165 N.C. 166, 80 S.E. 1059, 52 L.R.A., N.S 942, Ann.Cas.1915D, 152. The demurrer, which challenges the complaint on the ground of governmental immunity, was properly sustained on authority of these cases. See Annotations 46 A.L.R. at page 98; 61 A.L.R. 569; 41 Am.Jur. 899.

This doctrine which shields a municipality and its innocent taxpayers from liability for the negligent acts of its officers, done in the exercise of a purely governmental function, is recognized in all the decisions on the subject. True, many fine distinctions may be found in some of them, but the doctrine itself is regarded as essential, else is would be impossible to say where the liability of a municipal corporation would end, or how heavy a burden might be imposed on those who sustain its existence. Nichols v. Town of Fountain, supra. In the absence of statute, the doctrine of respondeat superior is not applicable to a State, or to its subdivisions when discharging a governmental duty (save perhaps in admiralty matters). Clodfelter v. State, 86 N.C. 51, 41 Am.Rep. 440; Brown's Adm'r v. Town of Guyandotte, 34 W.Va. 299, 12 S.E. 707, 11 L.R.A. 121; 41 Am. Jur. 896. See discussion in Hunt v. City of High Point, 226 N.C. 74, 36 S.E.2d 694.

Shearman and Redfield, in their work on the Law of Negligence, Fourth Edition, Sec. 253, state the rule as follows: 'The governmental powers of the state are further exercised by a great number of municipal and quasi-municipal organizations such as cities, towns, counties and boards, to which, for purposes of government and for the benefit and service of the public, the state delegates portions of its sovereignty, to be exercised within particular portions of its territory, or for certain well-defined public purposes. To the extent that such local or special organizations possess and exercise governmental powers, they are, as it were, departments of state; as such, in the absence...