Hipp v. Farrell (State Report Title: Hipp v. Ferrall)

• Decision Date: 21 March 1917
• Docket Number: 98.
• Citation: 91 S.E. 831,173 N.C. 167
• Parties: HIPP v. FARRELL ET AL. [*]
• Court: North Carolina Supreme Court

91 S.E. 831

173 N.C. 167

HIPP v. FARRELL ET AL. ^[*]

No. 98.

Supreme Court of North Carolina

March 21, 1917

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

Action by Lester B. Hipp against T. E. Farrell and others. Judgment for defendants, and plaintiff excepts and appeals. No error.

Public officers in performing official duties involving exercise of judgment and discretion are not personally liable for breach of such duties, unless acting corruptly or maliciously.

These rules apply only to actions within scope of official duties and not to acts done in excess of authority.

The action was to recover damages for physical injuries caused by the alleged negligence of defendants as individual members of the highway commission of Lee county, in failing to repair a certain bridge on the line of Lee and Chatham counties, and known as the Lockville bridge, and by reason of which plaintiff, driving a wagon over same, was caused to fall with his team some 15 feet, and thereby receive serious injuries. On denial of liability, issues were submitted to the jury as to negligent default and damages incident thereto, and on the issue as to negligence there was verdict for defendants.

The cause was before the court on a former appeal, and will be found reported in 169 N.C. 551, 86 S.E. 570.

Williams & Williams, of Sanford, and Clarkson & Taliaferro, of Charlotte, for appellant.

Seawell & Milliken and Hoyle & Hoyle, all of Sanford, and R. H Hayes, of Pittsboro, for appellees.

HOKE J.

On the former appeal, the cause was presented on demurrer of defendants, and it was thereby admitted, as alleged in the complaint, that defendants were members of the highway commission of Lee county; that Lockville bridge, constituting a part of the public highways of said county, was under the exclusive care and control of said defendants; that for 52 days prior to the occurrence and with "means and resources" sufficient to repair it, they had "negligently and carelessly" allowed said bridge to remain in an "unsafe and dangerous condition," by reason of which the injuries complained of were received, and, further, that full and formal notice had been given defendants of the condition of the bridge, at a meeting held in Sanford, October 6, 1914, prior to the injury which was received on November 17th following. It will be noted that these averments, admitted to be true by the demurrer, are very broad and inclusive in their terms, and while they could have been construed as meaning that the default charged against defendants was in the performance of their public duties as highway commissioners and for the public benefit, they also permitted the inference that the defendants, as they might have done under the provisions of the act controlling in the matter (Laws 1911, c. 586), with or without an arrangement with the county commissioners, had taken personal charge of the upkeep and repair of the bridge, and were dealing with the same purely as administrative officials, likening their duties to that of overseer of public roads, who, under our decisions, may at times be held liable for negligent default in the performance of their duties. Hathaway v. Hinton, 46 N.C. 243. Under admissions thus capable of two constructions the court did not consider it proper to make final determination of the rights of the parties, but overruled the demurrer that the relevant facts might be more fully and definitely ascertained.

This opinion having been certified down, a trial was had on appropriate issues wherein it appeared that this was a county line bridge, primarily under the control of the county commissioners in conjunction with the commissioners of the adjoining county (Revisal, § 2696); that the defendants had not undertaken the repair or upkeep of the bridge as a physical proposition, either under an arrangement with the county commissioners or in the exercise of any authority claimed by themselves, but their default, if any existed, was in a negligent performance of the duties imposed upon them by statute, as a governmental board having general charge and supervision of the highways of the county, defendants' evidence tending strongly to show that the roads in the county where they lately took charge were in bad condition; that the calls upon them for funds were exacting and general throughout the county, and that, while they received notice of the condition of the bridge, they then had no funds available for its proper repair; that they had been advised by a competent engineer that the approach to the bridge should be of steel, and with this in view they had endeavored to arrange for temporary repairs by a reliable and competent contractor, but the bridge had fallen in before it could be done. Upon this evidence, there was no error, to plaintiff's prejudice certainly, in submitting the question of individual liability to the deliberations of the jury, and his honor might well have charged the jury that no such liability would attach.

It is held in this state that public officers, in the performance of their official and governmental duties involving the exercise of judgment and discretion, may not be held liable as individuals for breach of such duty, unless they act corruptly and of malice. Templeton v. Beard, Markham et al., 159 N.C. 63, 74 S.E. 735, 47 L. R. A. (N. S.) 1120; Baker v. State, 27 Ind. 485.

It is also the recognized principle here and the position is sustained by the great weight of authority elsewhere that, in case of duties plainly ministerial in character, the individual liability of such officers, for negligent breach of duty,...