Hipp v. Ell

• Decision Date: 06 October 1915
• Docket Number: (Nos. 141, 142.)
• Citation: 86 S.E. 570,169 N.C. 551
• Parties: HIPP . v. PARR ELL et al. (two cases).
• Court: North Carolina Supreme Court

86 S.E. 570

169 N.C. 551

HIPP .

v.PARR ELL et al. (two cases).

(Nos. 141, 142.)

Supreme Court of North Carolina.

Oct. 6, 1915.

Appeal from Superior Court, Lee County; Bond, Judge.

Action by Lester H. Hipp against T. E. Farrell and others. From overruling of their demurrer, and motions to dismiss the action, defendants appeal. Affirmed.

The actions were instituted against the defendants as individuals for an alleged breach of duty on their part as members of the highway commission of Lee county and R. P. Coble as superintendent of said county, holding their offices under chapter 586, Local Laws of 1911, for breach of duty on their part, in that, having means available for the purpose, they knowingly, negligently, and carelessly failed to repair the wooden approaches to a certain bridge in Lee county whereby plaintiff, in attempting to drive his team over said bridge and by the falling in of the same, received severe injuries to his person and to his property. No. 141 having been instituted for recovery of damage done to the team and No. 142 for injuries to the person, the question of liability in each being dependent on the same state of facts and set forth in the complaint as follows: Sections 1 and 2 of the complaint allege the positions held by defendants under chapter 586, Public Local Laws 1911, R. P. Coble as superintendent and the others as members of the highway commission. In sections 4 and 5, the facts relevant to the alleged liability are set forth as follows:

"(4) That the defendants, in violation of the duties and obligations imposed upon them by law, knowingly, negligently, and carelessly allowed the approach on the Sanford side of the Lockville bridge in said Lee county to be and remain out of repair, unsafe, and in a condition dangerous to those using the bridge for a space of over 52 days prior to and including the 17th day of November, 1914, during all of which said time the timbers and joists of said approach were in a rotten, weak, and dangerous condition. That on the 6th day of October, 1914, the defendants, while in a meeting assembled at Sanford, N. C, were duly and formally advised and notified by citizens of Lee county that the condition of the said bridge and approach was as hereinbefore set forth. That the defendants negligently and carelessly failed and omitted to have same repaired until after the date upon which the plaintiff sustained the damage and injuries hereinafter described, although defendants had during said times means and resources wherewith to repair and render safe the said bridge and approach. That the said Lockville bridge, spanning Deep river, and the approach thereto, is a part of the public road or highway in Lee county, known as the Raleigh and Fayetteville road, and as such was at said time under the exclusive care and control of defendants. That the approach to said bridge, upon the Sanford side of Deep river, was an elevated wooden gangway or bridge, which began about 50 feet from the bridge proper, and at its junction with the bridge was elevated about 15 feet above the ground.

" (5) That on or about the 27th day of November, 1914, plaintiff, while lawfully using the highway above referred to, drove a wagon, upon which was loaded about a cord of oak wood, and drawn by two mules, on and upon the approach to Lockville bridge, upon the Sanford side thereof, with the intention of crossing. That the plaintiff was seen upon said wagon, driving in a careful and prudent manner. That, just as the front feet of said mules reached the bridge proper, one of the joists or sleepers which supported said approach broke, and that part of said approach upon which said wagon was standing collapsed, and the wagon upon which the plaintiff was riding fell a distance of 14 1/2 feet to the ground, and the said mules were drawn backward with said wagon and fell through the opening, and one of said mules fell upon, and across plaintiff, pinning him down so he could not free himself, whereby plaintiff was crushed, bruised, and seriously and painfully hurt and injured about the legs, thighs, and back, all of which was caused solely and entirely by the negligence of defendants in allowing said bridge and approach to be and remain out of repair and in an unsafe condition, as aforesaid."

And section 6 states the extent of the injury as claimed in the one case to the person of plaintiff and the other to the wagon and team.

The defendant, in apt time, filed a written demurrer to the complaint in terms as follows:

"The defendants demur to the complaint upon the following grounds: (1) For that there is a defect of parties, in that there is no community of interest amongst the said defendants with respect to the alleged cause of action. (2) For that several causes of action have been improperly united, in that there is no community of interest amongst the defendants with respect to the cause or causes of action set up in the complaint. (3) For that the complaint does not state facts sufficient to constitute a cause of action, in that the complaint does not state that the defendants in the various acts and omissions with which they are charged have acted other than negligently."

On the hearing the defendants in addition moved ore tenus to dismiss the action as to R. P. Coble for that no cause of action wasstated against him. And also the other defendants so moved to dismiss the action as to them. The court overruled both the demurrer and the motions made, and defendants, having duly excepted, appealed.

A. A. F. Seawell, of Sanford, for appellants.

Clarkson & Taliaferro, of Charlotte, for appellee.

HOKE, J. (after stating the facts as above). [1] Authority here and elsewhere is to the effect that, where the wrongful acts of two or more persons concur in producing a single injury and with or without concert between them, they may be treated as joint tort-feasors and, as a rule, sued separately or together at the election of the plaintiff. Hough v. Railroad, 144 N. C. 692, 57 S. E. 469; Clark v. Guano Co., 38 Cyc. p. 488 et. seq. The only case with us which tends to impose any restriction on the position is that of Guthrie v. Durham, 168 N. C. 573, 84 S. E. 859, where, on a question of primary and secondary liability of joint tort-feasors, it was held that, on application of the defendants, the person primarily liable should be made party; the policy and purpose of our present Code of procedure requiring that every feature of a given controversy should be settled in one action as far as consistent with the orderly and efficient administration of justice. Again, it is held with us that, where two or more are sued as jointly responsible for a wrong, a joint demurrer filed will be held bad, if a cause of action is stated against either of the defendants. Caho v. Railroad, 147 N. C. 20, 60 S. E. 640.

It would seem therefore that the first and second grounds, as stated in the written demurrer, cannot be sustained.

Recurring then to the third position of the written demurrer and as presented by the motion to dismiss ore tenus, it is recognized in this state, supported, we think, by the weight of well-considered authority in other jurisdictions, that one who holds a public office, administrative in character and in reference to an act clearly ministerial, may be held individually liable, in a civil action, to one who has received special injuries in consequence of his failure to perform or negligence in the performance of his official duty, and it is very generally held that a failure to keep in repair the public highway or bridges, when the duty is plain and the means for the purpose available, should be construed as a breach of a ministerial duty, rendering the offender liable within the meaning of the principle. Hathaway v. Hinton, 46 Ni C. 243; Hover v. Barkhoof, 44 N. Y. 113; Robinson v. Chamberlain, 34 N. Y. 389, 90 Am. Dec. 713; Doeg v. Cook, 126 Cal. 213, 58 Pac. 707, 77 Am. St. Rep. 171; Adsit v. Brady, 4 N. Y. (Hill) 630, 40 Am. Dec. 305; Robinson v. Rohr, 73 Wis. 436, 40 N. W. 668, 2 L. R. A. 366, 9 Am. St. Rep. 810; Commissioners v. Blackburn, 105 Md. 226, 66 Atl 31; Smith v. Zimmer, 48 Mont. 332, 137 Pac. 53S; Throop on Public Offices, § 737; 2 Elliott on Roads & Streets, § 858. The position referred to is all the more insistent with us for having held, in White v. Commissioners, 90 N. C. 437, 47 Am. Rep. 534, and other cases, that the county, as a municipality, cannot be held liable, unless expressly made so by statute. If the county officials, guilty of a breach of a plain ministerial duty, are not liable as individuals, the greatest wrongs could be perpetrated and the citizen left without any adequate redress. The doctrine, as...