Hines v. City of Rocky Mount

• Decision Date: 28 May 1913
• Parties: HINES v. CITY OF ROCKY MOUNT.
• Court: North Carolina Supreme Court

78 S.E. 510

162 N.C. 409

HINES v. CITY OF ROCKY MOUNT.

Supreme Court of North Carolina

May 28, 1913

Appeal from Superior Court, Edgecombe County; Daniels, Judge.

Action by Watson Hines against the City of Rocky Mount to recover damages caused by an alleged nuisance. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

In an action against a city for maintaining a nuisance, evidence of sickness, while admissible as bearing on the diminished value of plaintiff's property by reason of the nuisance, could not be properly considered as a direct element of damage.

On the trial, it was made to appear that in 1910 plaintiff and his family were occupying a house and lot in Rocky Mount, when the town authorities, professing to act under powers conferred by the charter, etc., and for sanitary purposes etc., organized and directed a general cleaning up of the town; that plaintiff's house was built on a street which had been laid out by a land company, the street being through an old brickyard, and in which there was a hole 15 feet long by 12 feet wide and 2 or 3 feet in depth, and the agents and employés of the town in carrying out the purpose, and acting under instructions, threw the trash, rubbish, etc., into this hole, partly to put the same out of the way and also with a view of filling the hole that it might the better be used for the streets. The testimony on part of plaintiff tended to show that in filling this hole the employés threw garbage refuse, etc., and caused foul stench and odors, resulting in great annoyance and inconvenience to plaintiff and his family, and rendering several of them sick with fever causing outlay for expense, loss of time, etc. There was evidence on part of defendant tending to show that no nuisance had been created, and that there were other sources of infection on or near the premises entirely sufficient to account for the alleged sickness and much more likely to cause it.

On issues submitted, the jury rendered the following verdict:

"(1) Did the defendant maintain or cause to exist on Holly street a public nuisance by reason of filling up the hole in front of plaintiff's house, as alleged in the complaint? Answer: Yes.

"(2) Was the plaintiff damaged thereby? Answer: Yes.

"(3) If so, what damage did he sustain? Answer: $890."

Judgment on the verdict for plaintiff, and defendant excepted and appealed, assigning for error: (1) The refusal of the court to nonsuit plaintiff; (2) allowing as a direct element of damages the sickness in plaintiff's family and costs incident to same, etc.

T. T. Thorne and L. V. Bassett, both of Rocky Mount, for appellant.

J. W. Keel, of Rocky Mount, and W. O. Howard, of Tarboro, for appellee.

HOKE, J. (after stating the facts as above).

The charter of the city of Rocky Mount, Priv. Laws 1907, chap. 209, sec. 40, subsec. 21, provides, in general terms, that the Board of Aldermen shall have power to make proper regulations for the conservation of the public health and may create and appoint a board of health to exercise and carry out such powers under the supervision and control of the first-mentioned board.

The acts complained of were chiefly in the exercise, or attempted exercise, of the powers there conferred, and should be considered governmental in character. Springfield Insurance Co. v. Keeseville, 148 N.Y. 46, 42 N.E. 405, 30 L. R. A. 660, 51 Am. St. Rep. 667; Love v. City of Atlanta, 95 Ga. 129, 22 S.E. 29, 51 Am. St. Rep. 64; 1 Abbott on Municipal Corporations, p. 304, § 147.

This being the correct position, our decisions hold the general rule to be, and they are in accord with well-considered authority elsewhere, that: ""Unless a right of action is given by statute, municipal corporations may not be held civilly liable to individuals for failure to perform, or neglect in performing, duties governmental in their nature, including generally all duties existent or imposed upon them by law for the public benefit." Harrington v. Greenville, 159 N.C. 634, 75 S.E. 849, citing and referring, among other cases, to Hull v. Roxboro, 142 N.C. 453, 55 S.E. 351, 12 L. R. A. (N. S.) 638; Peterson v. Wilmington, 130 N.C. 76, 40 S.E. 853, 56 L. R. A. 959; McIlhenney v. Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L. R. A. 470; Moffitt v. City of Asheville, 103 N.C. 237, 9 S.E. 695, 14 Am. St. Rep. 810. See, also, Hill v. Boston, 122 Mass. 344, 23 Am. Rep. 332; Commonwealth v. Kidder et al., 107 Mass. 188; Smith's Modern Law of Municipal Corporations, § 780.

This general principle is subject to the limitation that neither a municipal corporation nor other governmental agency is allowed to establish and maintain a nuisance causing appreciable damage to the property of a private owner without being liable for it. To the extent of the damage done to such property, it is regarded and dealt with as a taking or appropriation of the property, and it is well understood that such an interference with the rights of ownership may not be made or authorized except on compensation first made pursuant to the law of the land. Little v. Lenoir, 151 N.C. 415, 66 S.E. 337; Nevins v. City of Peoria, 41 Ill. 502, 89 Am. Dec. 392; Winchell v. Waukesha, 110 Wis. 101, 85 N.W. 668, 84 Am. St. Rep. 902; Eaton v. Railroad, 51 N.H. 504, 12 Am. Rep. 147; Bohan v. Port Jervis, etc., Co., 122 N.Y. 18, 25 N.E. 246, 9 L. R. A. 711; Joplin Min. Co. v. City of Joplin, 124 Mo. 129, 27 S.W. 406; Fertilizer Co. v. Malone, 73 Md. 268, 20 A. 900, 9 L. R. A. 737, 25 Am. St. Rep. 595; Franklin Wharf Co. v. Portland, 67 Me. 46, 24 Am. Rep. 1; Village of Dwight v. Hayes, 150 Ill. 273, 37 N.E. 218, 41 Am. St. Rep. 367; Langley v. Augusta, 118 Ga. 590, 45 S.E. 486, 98 Am. St. Rep. 133; 3 Abbott, Municipal Corporations, § 961; 1 Lewis, Eminent Domain (3d Ed.) § 65.

In affording redress for wrongs of this character, injuries caused by a nuisance wrongfully created in the exercise of governmental functions, our decisions hold, as the correct deduction from the above principle, that the damages are confined to the diminished value of the property affected, and that sickness attributable to such nuisance may not be properly considered as a direct element of damage (Metz v. City of Asheville, 150 N.C. 748, 64 S.E. 881, 22 L. R. A. [N. S.] 940; Williams v. Greenville, 130 N.C. 93, 40 S.E. 977, 57 L. R. A. 207, 89 Am. St. Rep. 860), a position which finds support in decisions of other courts of recognized authority (Hughes v. City of Auburn, 161 N.Y. 96, 55 N.E. 389, 46 L. R. A. 636; Folk v. Milwaukee, 108 Wis. 359, 84 N.W. 420). The evidence, or some of it, may be relevant on the question of the diminished value of the property, and might, in given instances, present a case for injunctive relief, but may not be made the basis for a direct estimate and award of uncertain and unrestrained damages.

Speaking to some of the underlying reasons for the position, O'Brien, Judge, delivering the opinion in the Hughes Case, among other things, said: "If an individual injured by disease produced by the acts or neglect of a city, such as are stated in the complaint, can recover damages at all, it must be upon some principle of the common law; and, had it been suggested half a century ago that such a principle existed, the assertion would have been received with some surprise. In the form in which this case comes here there is ample room to urge in argument elements of individual hardship, well calculated to disturb the mind and divert it from the questions of law that underlie the action. On the principle that there can be no wrong without a remedy, courts are sometimes astute to discover grounds for relief in cases of this character, that, when applied as general principles to like cases, are found to be exceedingly inconvenient, if not untenable, and hence very frequently have to be distinguished, modified, or entirely abandoned. The principle upon which the judgment in this case rests is that an individual who has suffered from disease, caused by the neglect of a city to observe sanitary laws with reference to its sewer system, may recover damages from the city. This principle, if sanctioned and applied generally to all cases coming within its scope, cannot fail to produce evils much more intolerable than any that can possibly arise from such acts of omission or commission as the plaintiff states as the basis of this action. It must necessarily become the prolific parent of a vast mass of litigation which the municipality can respond to only by taxation, imposed alike upon the innocent and the guilty"--and, further: "In the construction and maintenance of a sewer or drainage system a municipal corporation exercises a part of the governmental powers of the state for the customary local convenience and benefit of all the people, and in the exercise of these discretionary functions the municipality cannot be required to respond in damages to individuals for injury to health resulting either from omissions to act or the mode of exercising the power conferred on it for public purposes, to be used at discretion for the public good. I have attempted to state some of the reasons that underlie this principle and their application to this case with the evil results that must follow any departure from it."

Applying the doctrine as it obtains with us, we must hold that there was error in allowing the jury to consider the testimony as to sickness of various members of the plaintiff's family as a direct element in estimating the damages. The motion to nonsuit was properly overruled because there were facts in evidence tending to show the existence of an actionable nuisance, causing damage to the proprietary rights of the plaintiff and entitling him in any event to a recovery for nominal damages. It does not...