Howland v. City Of Asheville

• Decision Date: 12 December 1917
• Docket Number: (No. 545.)
• Citation: 94 S.E. 524,174 N.C. 749
• Court: North Carolina Supreme Court
• Parties: HOWLAND . v. CITY OF ASHEVILLE.

94 S.E. 524

(174 N.C. 749)

HOWLAND .

v.CITY OF ASHEVILLE.

(No. 545.)

Supreme Court of North Carolina.

Dec. 12, 1917.

Appeal from Superior Court, Buncombe County; Shaw, Judge.

Action by Mary H. Howland against the City of Asheville. From an order of dismissal, plaintiff appeals. No error.

The action was brought by the plaintiff to recover damages for the destruction of her residence in the city of Asheville. She al leged that the defendant had full power and authority, under its charter, to provide a system of waterworks with all necessary accessories, for the purpose of supplying water to its citizens for domestic purposes 'and for sanitary and other public purposes, and, among the latter, for fire protection to the city and its inhabitants; that it was authorized further to build and construct the standpipes or reservoirs for the storage of a water supply, and for the building and maintenance of all necessary structures and appliances for forcing the water through its mains and pipes laid in its streets to carry the same to the places where it was needed, and, generally, that its powers were not'only sufficient, but ample, for the purpose of affording an adequate supply of water, with sufficient pressure for fire protection to the city and its citizens, and for furnishing to the latter a sufficient quantity of pure and wholesome water for their domestic uses. Plaintiff further alleged that the defendant had failed to perform its duty to the public, and especially to her, in that the pipe laid near her house was too small to carry a sufficient stream of water with the requisite pressure to protect her property, and that this fact had been called to the attention of the city authorities, who were requested to remedy the defect, but that they failed to heed her request, and, consequently, when her house caught fire, the supply of water and the pressure were insufficient to quench the flames or to check the fire, except to a very small extent, and that she lost her home by reason of the defendant's neglect in the particulars mentioned. There was a six-inch pipe laid by the plaintiff in the street near her home, which she asked the defendant, before the fire, to enlarge so as to afford a greater volume of water for her protection against fire, but this was not done until after the fire, when a ten-inch pipe was substituted. The principal complaint of the plaintiff was the lack of water pressure. There was competent evidence that no charge was made by the city for water used to extinguish fires, but the expense of all water consumed for that purpose was paid out of the general fund. This statement is sufficient to show the general nature of the cause of action, without setting out more fully the allegations of the complaint, and the evidence.

At the close of the evidence, and on motion of the defendant, the court dismissed the action as of nonsuit, and plaintiff appealed.

Thomas Settle, Curtis Bynum, and Merrimon, Adams & Johnston, all of Asheville, for appellant.

Marcus Erwin and Harkins & Van Winkle, all of Asheville, for appellee.

WALKER, J. (after stating the facts as above). We are unable to distinguish this case from Harrington v. Greenville, 159 N. C. 632, 75 S. E. 849, for, on the contrary, wethink that the two cases are in every material respect exactly alike, and certainly they are sufficiently so to require that they should be governed by one and the same principle. We may go even further and say that if there is any difference between the two cases, it is favorable to the defendant in this case, and clearly shows that it is not liable for the plaintiff's unfortunate loss of her property. In providing for water at hydrants distributed throughout the city, there is no exercise of a private or corporate duty arising out of contract, as where the city is engaged in business of its own for the purpose of gain or profit, but it is exercising a governmental function and it is not liable for any damage to a citizen if there is a failure to perform. it, or to perform it properly or even negligently. The language of Justice Hoke in the Harrington opinion states a case so clearly analogous to this one, that we will do well to quote it:

"As we interpret the complaint, plaintiff states and intends to state his grievance in two aspects: (1) That his property was destroyed by reason of negligent failure of the city of Greenville to abate a nuisance which threatened the result: (2) that the injury arose in whole or in part from negligent default in equipment and operation of a fire department maintained by the city for the public benefit, and under our decisions both questions must be resolved against him. It is well recognized with us that unless a right of action is given bv statute, municipal corporations may not be held civilly liable to individuals for 'neglect to perform or negligence in performing duties which are governmental in their nature, ' and including generally all duties existent or imposed upon them by law solely for the public benefit, " citing Mcllhenny v. Wilmington, 127 N. C. 146, 37 S. E. 187, 50 L. R. A. 470: Moffitt v. Asheville, 103 N. C. 237, 9 S. E. 695. 14 Am. St. Rep. 810; Hill v. Charlotte, 72 N. C. 55, 21 Am. Rep. 451.

This court has held that a municipal corporation is not civilly liable for the failure to pass ordinances to preserve the public health or otherwise promote the public good, nor for any omission to enforce the ordinances enacted under the legislative powers granted in its charter, or to see that they are properly observed by its citizens, or those who may be resident within the corporate limits. Hull v. Roxboro, 142 N. C. 453, ' 55 S. E. 351, 12 L. R. A. (N. S.) 638. And in another case that an employe of a fire department of a city cannot recover for injuries caused by a hose reel of the city fire department being knowingly allowed to be and remain in unsafe and dangerous condition. Peterson v. Wilmington, 130 N. C. 76, 40 S. E. 853, 56 L. R. A. 959. It was said in the Harrington Case, at page 635 of 159 N. C, at page 850 of 75 S. E.:

"The ruling in the last case (Peterson v. Wilmington, supra), was made to rest on the principle that in maintaining and operating a fire department for the benefit of the public, the city was engaged in the exercise of governmental duties, and therefore not liable to individuals, unless made so by statute, a position in accord with the general current of authority, " citing Wild v. Paterson. 47 N. J. Law, 406, 1 Atl. 490; Fisher v. Boston, 104 Mass. 87, 6 Am Rep. 196; Jewett v. New Haven, 38 Conn. 368, 9 Am. Rep. 382; Torbush v. Norwich, 38 Conn. 225, 9 Am. Rep. 395; Long v. Birmingham, 161 Ala. 427, 4 South. S81, 18 Ann. Cas. 507; Mayor of New York v. Workman, 67 Fed. 347, 14 C. C. A. 530.

The defendant is not liable in such cases, because it is performing the functions of government, where the whole community is affected in the same way, though not all perhaps in the same degree, and is not performing an act of a business nature for its own benefit. Edgerly v. Concord, 62 N. H. 8, 13 Am. St. Rep. 533. It was said in Hewi-son v. New Haven, 37...