James v. City of Charlotte

• Decision Date: 02 June 1922
• Docket Number: 444.
• Parties: JAMES v. CITY OF CHARLOTTE.
• Court: North Carolina Supreme Court

112 S.E. 423

183 N.C. 630

JAMES v. CITY OF CHARLOTTE.

No. 444.

Supreme Court of North Carolina

June 2, 1922

Appeal from Superior Court, Mecklenburg County.

Action by Norman James, for his next friend, Herbert H. James against the City of Charlotte. From judgment for defendant plaintiff excepts and appeals. Affirmed.

Civil action heard on demurrer ore tenus to the facts as alleged and admitted in the pleadings; the pertinent facts being that in July, 1921, plaintiff while standing on a sidewalk of a street or alley in the city of Charlotte, was run into by a truck negligently driven by an employee of the city, and in excess of speed permitted by the statute law directly controlling the matter (C. S. § 2618), and received serious and permanent injuries; that said employee at the time was operating the truck in the service of the sanitary department of the city, removing certain materials from private property pursuant to municipal regulations, the city collecting a charge for the same, the fee allowed by the statute. There was judgment sustaining the demurrer, and plaintiff excepted and appealed.

J. D McCall and John M. Robinson, both of Charlotte, for appellant.

C. A Cochran and C. W. Tillett, Jr., both of Charlotte, for appellee.

HOKE J.

The statute under which the regulations were chiefly made and the employee operating the truck at the time (C. S. § 2799) contains provision as follows:

"The governing body may by ordinance provide for the removal, by wagon or carts, of all garbage, slops, and trash from the city; and when the same is not removed by the private individual in obedience to such ordinance, may require the wagons or carts to visit the houses used as residences, stores, and other places of habitation in the city, and also may require all owners or occupants of such houses who fail to remove such garbage or trash from their premises to have the garbage, slops, and trash ready and in convenient places and receptacles, and may charge for such removal the actual expense thereof."

In Harrington v. Town of Greenville, 159 N.C. 632, 634, 75 S.E. 849, 850, it is stated as the recognized doctrine in this jurisdiction:

"Unless a right of action is given by 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 McIlhenney 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. City of Charlotte, 72 N.C. 55, 21 Am. Rep. 451.

And Mack v. Charlotte City Waterworks, 181 N.C. 383, 107 S.E. 244; Howland v. Asheville, 174 N.C. 749, 94 S.E. 524, L. R. A. 1918B, 728; Snider v. High Point, 168 N.C. 608, 85 S.E. 15; Peterson v. Wilmington, 130 N.C. 76, 40 S.E. 853, 56 L. R. A. 959; and other cases with us--are in approval of the position. In Snider v. High Point, supra, the employee whose negligence caused the injury was engaged in the removal and destruction of garbage and other refuse matter under the sanitary regulations of the city, and the decision of the court denying liability on the ground that the employee at the time was engaged in performance of duties governmental in their nature would seem to be controlling against the plaintiff on the facts of the present record.

In a recent decision of the Supreme Court of the United States, Adelbert Harris v. District of Columbia, 256 U.S. 650, 41 S.Ct. 610, 65 L.Ed. 1146, the same principle is fully recognized. It is contended for plaintiff that the position referred to does not apply to the facts of the present record because it appears that the employee at the time was in violation of the speed regulations applicable and constituting the...