Glenn v. City of Raleigh

• Decision Date: 21 May 1958
• Docket Number: No. 452,452
• Citation: 103 S.E.2d 482,248 N.C. 378
• Court: North Carolina Supreme Court
• Parties: Joseph C. GLENN, by his Next Friend, Mrs. Nora G. Glenn, v. The CITY OF RALEIGH, North Carolina, a municipal corporation.

Page 482

103 S.E.2d 482

248 N.C. 378

Joseph C. GLENN, by his Next Friend, Mrs. Nora G. Glenn, v. The CITY OF RALEIGH, North Carolina, a municipal corporation.

No. 452.

Supreme Court of North Carolina.

May 21, 1958

Paul F. Smith, Raleigh, for defendant, appellant.

Douglass & McMillan, Raleigh, for plaintiff, appellee.

JOHNSON, Justice.

This case was here at the Spring Term, 1957, on defendant's appeal from a verdict and judgment in favor of the plaintiff. The decision, upholding the ruling of the lower court in denying the defendant's motion for judgment of nonsuit but granting a new trial for errors committed by the trial court in charging the jury, is reported in 246 N.C. 469, 98 S.E.2d 913.

The chief contention urged on this appeal, as on the former one, is that the City of Raleigh is immune from liability to the plaintiff under application of the doctrine of governmental immunity. The decision on former appeal resolved this question against the City. This being so, its contention now made must be viewed in the light of the rule that a decision of this Court on former appeal constitutes the law of the case in respect to the questions therein presented and decided, both in subsequent proceedings in the trial court and on subsequent appeal upon substantially the same evidence. Maddox v. Brown, 233 N.C. 519, 64 S.E.2d 864; Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673. On former appeal the Court's decision as to the question of governmental immunity is stated in crucial part by Parker, J., as follows [246 N.C. 469, 98 S.E. 919]:

'Considering plaintiff's evidence in the light most favorable to him, and disregarding defendant's evidence which tends to establish another and a different state of facts, or which tends to impeach or contradict his evidence, which we are required to do on motion for judgment of nonsuit (Atkins v. White Transportation Co., 224 N.C. 688, 32 S.E.2d 209; Singletary v. Nixon, 239 N.C. 634, 80 S.E.2d 676), it is our opinion that the net revenue of $18,531.14 for the fiscal year 1 July 1952 to 30 June 1953 received by the city of Raleigh from the operation of Pullen Park for that period, which was used by the city for the capital maintenance of the park area, building items, paying salaries, buying fuel, etc., (the evidence that the $18,531.14 was spent in the amusement area only is the defendant's evidence), was such as to remove it, for the purposes of the consideration of a motion for judgment of nonsuit, from the category of incidental income, and to import such a corporate benefit or pecuniary profit or pecuniary advantage to the city of Raleigh as to exclude the application of governmental immunity. The required inferences from plaintiff's evidence as set forth in the Record are sufficient to protect him from a nonsuit on this ground.'

The crucial evidence on which the defendant was denied governmental immunity on former trial and appeal was the testimony of City Manager Carper to the effect that for the fiscal year 1952-1953 the City of Raleigh Collected net revenue of $18,531.14 from its operation of Pullen Park. As to this, Carper's testimony was the same on retrial. In fact, the evidence bearing on both the question of governmental immunity and the issue of actionable negligence was essentially the same at both trials. this is conceded by the defendant in its brief by this statement: 'Factually, the evidence in the second trial does not materially differ from the evidence at the first trial. For that reason the defendant will not contend in this appeal, if the Court's rulings on the admission and exclusion of testimony were correct, that there was insufficient evidence of negligence on the part of the defendant's servant. It will contend that there was an improper admission and exclusion of evidence; that the Judge's charge was not in conformity with law; and that the defendant was not liable for the negligence of its servant in the operation of any part of Pullen Park, but in any event, that it was not liable for the negligence of its servant in an area of the Park for which no charge was made for use by the public.'

The defendant makes a two-fold argument in urging that the former decision leaves open the question of governmental immunity.

First, the defendant points to the fact that the record on former appeal discloses that whereas City Manager Carper's testimony as to net revenue of $18,531.14 was heard by the jury, his further testimony as to the overall costs of operating the City's entire recreation program and all its park facilities was given in the absence of the jury. The record on former appeal discloses that Mr. Carper (witness for the plaintiff) testified on cross-examination, in the absence of the jury, that the City spent $90,024.95 on maintenance of all parks and $68,223 for its entire recreation program. On retrial, Carper's testimony as to the foregoing items of expense was received in evidence in the presence of the jury without objection. However, since these items were excluded from jury consideration on the first trial, the defendant assumes that the law of the case respecting the question of governmental immunity was established by the former decision solely on the basis of consideration of the factor of net revenue derived by the City from Pullen Park, with no consideration being given to the factor of overall costs of operating the City's recreation and park programs. Since the evidence of this latter factor of costs was before both the Judge and the jury on retrial, the defendant now contends that both factors should be considered together, and that when the item of net revenue from Pullen Park is considered in relation to the overall costs of operating the City's recreation and park programs, the question whether the doctrine of governmental immunity applies in this case is cast in a different light than on the former appeal. The defendant insists that when due consideration is given the factor of overall costs amounting to some $158,243.95, the item of $18,531.14 net revenue from Pullen Park constitutes only 'incidental income,' insufficient in amount to exclude application of the doctrine of governmental immunity, within the meaning of the rule stated...