Mabe v. City of Winston-Salem

• Decision Date: 18 November 1925
• Docket Number: 359.
• Citation: 130 S.E. 169,190 N.C. 486
• Parties: MABE ET AL. v. CITY OF WINSTON-SALEM.
• Court: North Carolina Supreme Court

130 S.E. 169

190 N.C. 486

MABE ET AL. v. CITY OF WINSTON-SALEM.

No. 359.

Supreme Court of North Carolina

November 18, 1925

Appeal from Superior Court, Forsyth County; Schenck, Judge.

Action by Ada L. Mabe, administratrix, and another against the City of Winston-Salem. From a judgment of nonsuit, plaintiffs appeal. Affirmed.

City required to maintain streets in reasonably safe condition.

Civil action to recover damages for an alleged negligent placing of curbstones or rocks around a fireplug or hydrant, in violation of a city ordinance whereby the fire department of the city of Winston-Salem was unable, on March 23, 1920, to save the plaintiff's house from being destroyed by fire which, it is alleged, it could and would have done but for such negligent obstruction.

The alleged obstruction was placed around the hydrant in question by agents and employees of the defendant city while paving a street in the vicinity of plaintiff's house, and it was permitted to remain there for 6 or 8 months prior to the time of the fire.

There was only a small blaze on the top of plaintiff's house at the time of the arrival of the fire department, but by reason of said obstruction, some 10 or 15 minutes were consumed in removing same, before any connection with the hydrant could be made, and in the meantime the fire assumed uncontrollable proportions and resulted in the destruction of plaintiff's house.

This action was instituted by J. W. Mabe, the owner of the house who died pendente lite, and his administratrix has been substituted as party plaintiff. The George Washington Fire Insurance Company was adjudged to be a necessary party by order of court.

At the close of plaintiff's evidence, and on motion of defendant, there was a judgment as of nonsuit, from which plaintiff appeals.

John C Wallace, Richmond Rucker and Hastings, Booe & Du Boose, all of Winston-Salem, for appellant Mabe.

Craige & Craige, of Salisbury, and F. L. Webster, of Winston-Salem for appellant George Washington Fire Ins. Co.

Parrish & Deal, of Winston-Salem, for appellee.

STACY C.J. (after stating the facts as above).

It is conceded that the defendant, city of Winston-Salem, which owns a municipal light and waterworks system, and operates the same in its governmental capacity, cannot be held liable in damages for a failure to furnish a sufficient supply of either water or light. Howland v. Asheville, 174 N.C. 749, 94 S.E. 524, L. R. A. 1918B, 728; Harrington v. Greenville, 159 N.C. 632, 75 S.E. 849.

C. S. § 2807, appearing in the chapter on "Municipal Corporations," is as follows:

"The city may own and maintain its own light and waterworks system to furnish water for fire and other purposes, and light to the city and its citizens but shall in no case be liable for damages for a failure to furnish a sufficient supply of either water or light. And the governing body shall have power to acquire and hold rights of way, water rights, and other property, within and without the city limits."

It is also conceded that the defendant, in the absence of statutory provision to the contrary, is not liable for any damage occasioned by the negligence of its fire department. Mack v. Charlotte, 181 N.C. 383, 107 S.E. 244; Peterson v. Wilmington, 130 N.C. 76, 40 S.E. 853, 56 L. R. A. 959; note, 9 A. L. R. 143.

For the purposes of its creation, a municipal corporation is an agency of the state government, possessing powers, within its limited scope of authority, which, in their nature, are either legislative or judicial, and may be denominated governmental or public. The extent to which it may be proper to exercise such powers, as well as the mode of their exercise by the corporation, within the limits prescribed by the law creating them, are of necessity intrusted to the judgment, discretion, and will of the properly constituted authorities to whom they are delegated; and, being public in their nature, the corporation is not liable, either for a failure to exercise them, or for errors committed in their exercise, unless expressly made so by statute. Kistner v. Indianapolis, 100 Ind. 210. A city, therefore, in the absence of statutory provision to the contrary, does not, by building and operating a system of waterworks or by maintaining a fire department, thereby enter into any contract with, or assume any implied liability to, the owners of property to furnish means or water for the extinguishment of fires, and for the breach of which an action in damages may be maintained. A city may not be sued for loss sustained by fire, where the wrongful act charged was neglect in cutting off water from a hydrant, but for which the fire might have been extinguished, or in failing to keep a reservoir in repair, whereby the supply of water became inadequate, or because the pipes were not sufficient or out of order, or because the officers and members of the fire department were negligent in the performance of their duties. 3 Dill. Mun. Corp. p. 2300. The extinguishment of fires is a function which a municipal corporation undertakes in its governmental capacity, and in connection with which, in the absence of statutory provision to the contrary, it incurs no civil liability, either for inadequacy in equipment or for the negligence of its employees. 19 R. C. L. 1116; Scales v. Winston-Salem, 189 N.C. 469, 127 S.E. 543, and cases there cited.

The principle announced in Gorrell v. Water Supply Co., 124 N.C. 328, 52 S.E. 720, 46 L. R. A. 513, 70 Am. St. Rep 598, Fisher v. Water Co., 128 N.C. 375, 38 S.E. 912, Jones v. Water Co., 135 N.C. 553, 47 S.E. 615, and Morton v. Water Co., 168 N.C. 582, 84 S.E. 1019, to the effect that, when a water company contracts with a city to furnish, at all times, a supply of water sufficient for the protection of the inhabitants and property of the city against fire, the company must answer in damages for loss by fire resulting from its failure to perform its contract, has no application to the facts of the present record. Those cases rest upon the doctrine of contracts voluntarily assumed and wrongfully breached, but no such case is presented here....