McCombs v. City of Asheboro, 6919SC402

• Decision Date: 22 October 1969
• Docket Number: No. 6919SC402,6919SC402
• Citation: 170 S.E.2d 169,6 N.C.App. 234
• Parties: Curtis E. McCOMBS, Administrator of Estate of Eric Wood McCombs, Deceased v. CITY OF ASHEBORO, a Municipal Corporation.
• Court: North Carolina Court of Appeals

Page 169

170 S.E.2d 169

6 N.C.App. 234

Curtis E. McCOMBS, Administrator of Estate of Eric Wood McCombs, Deceased v. CITY OF ASHEBORO, a Municipal Corporation.

No. 6919SC402.

Court of Appeals of North Carolina.

Oct. 22, 1969.

Coltrane & Gavin, by W. E. Gavin and Hugh R. Anderson, Asheboro, for plaintiff appellant.

Miller, Beck & O'Briant, by Adam W. Beck, Asheboro, for defendant appellee.

MORRIS, Judge.

Defendant's grounds for demurrer are twofold: The first ground is that the plaintiff's alleged cause of action arises out of the alleged negligence of defendant in the construction of a sewer line along a city street and that this is a governmental function for which it is not subject to tort liability. The second basis for demurrer is that the complaint fails to state a cause of action for the reason that there are no facts alleged constituting negligence on the part of the defendant and that the doctrine of attractive nuisance is not applicable.

With respect to the first ground, plaintiff contends and alleges that the defendant was engaged in a proprietary function in the construction of a sewer line. The question of a municipality's governmental immunity from tort liability has often been discussed by our Supreme Court. A list of situations in which the municipality has been held immune by reason of its being engaged in a governmental function can be found in Rhyne v. Town of Mount Holly, 251 N.C. 521, 112 S.E.2d 40 (1959). Justice Brown, in Metz v. City of Asheville, 150 N.C. 748, 64 S.E. 881, 22 L.R.A.,N.S., 940 (1909), distinguished between governmental and proprietary functions thusly:

'When power conferred has relation to public purposes and for the public good, it is to be classified as governmental in its nature and appertains to the corporation in its political capacity. But when it relates to the accomplishment of private purposes in which the public is only indirectly concerned, it is private in its nature, and the municipality in respect to its exercise is regarded as a legal individual. In the former case the corporation is exempt from all liability, whether for nonuser or misuser; while in the latter case it may be held to that degree of responsibility which would attach to an ordinary corporation.'

While the rule may be simply stated, application of the definition to particular situations is not so simple. The line between powers classed as governmental and those classified as proprietary is none too sharply drawn and seems to be subject to a change in position as society changes and progresses and the concepts of the functions of government are modified.

In actions brought to recover damages for injury to property and person by reason of the alleged negligent maintenance of a sewerage system, our Court has allowed recovery for damage to property on the theory of the creation of a nuisance and the taking of property. Hines v. City of Rocky Mount, 162 N.C. 409, 78 S.E. 510, L.R.A.1915C, 751 (1913); Moser v. City of Burlington, 162 N.C. 141, 78 S.E. 74 (1913); Williams v. Town of Greenville, 130 N.C. 93, 40 S.E. 977, 57 L.R.A. 207 (1902); Downs v. City of High Point, 115 N.C. 182, 20 S.E. 385 (1894). However, recovery for illness or death resulting from the negligent maintenance of sewerage systems was specifically denied and evidence with respect thereto admitted only for purpose of proving existence of the nuisance. In Metz v. City of Asheville, supra, plaintiff sought to recover for the death of his intestate from typhoid fever allegedly communicated by the condition of Reed Branch which ran near the house in public sewerage system emptied. Plaintiff contended the defendant should have had the sewage empty into French Broad River. The Court, apparently basing its decision on the exercise of the police power, held the establishment of a free public sewer system to be a governmental function and said:

'Certainly nothing is more necessary to the health of a city than that its filth should be removed and its area well drained.

That the establishment of a public sewer system is an exercise of a governmental function is recognized by all the authorities I have quoted.'

In Hines v. City of Rocky Mount, supra, an action based on negligent maintenance of the sewer system, the Court quoted with approval the following statement of O'Brien, J., in Hughes v. Auburn, 161 N.Y. 96, 55 N.E. 389, 46 L.R.A. 636 (1899):

'In the construction and maintenance of a sewer or drainage system, a municipal corporation exercises a part of the governmental powers of the State for the customary local convenience and benefit of all the people, and in the exercise of these discretionary functions the municipality cannot be required to respond in damages to individuals for injury to health, resulting either from omissions to act or the mode of exercising the power conferred on it for public purposes to be used at discretion for the public good * * *'

Justice Seawell, in Plant Food Co. v. City of Charlotte, 214 N.C. 518, 199 S.E. 712 (1938), commenting on the Metz case, noted that recovery was denied 'on the ground that the commissioners of the town, in the construction and operation of the sewerage plant, were in the performance of a purely governmental function' and noted further that under the general powers given to cities and towns to construct and operate sewer systems, it is doubtful whether it is necessary to invoke the police power to sustain such authority.

However, we find no case presenting squarely to the Court the question of whether a municipality can be required to respond in damages for personal injuries resulting from the alleged negligent acts of its employees in the Construction of a sewer line. In Guilford Realty & Insurance Co. v. Blythe Brothers Co., 260 N.C. 69, 131 S.E.2d 900 (1963), an action for damage to property resulting from dynamiting in constructing a sewer outfall for the City of High Point, the defendant by answer contended that the City of High Point, if a party, would be immune from liability under the doctrine of governmental immunity and this immunity would enure to its benefit. The Court, speaking through Bobbitt, J., noting that a determination of the question of governmental immunity was not necessary to the disposition of the appeal, said:

'There is a conflict of authority in other jurisdictions as to whether a municipal corporation is performing a governmental function when engaged in the Construction of a sewerage system. 63 C.J.S. Municipal Corporations § 1049; 38 Am.Jur., Municipal Corporations § 585; McQuillin on Municipal Corporations, 3rd Edition, Vol. 18, § 53.125, and cases cited. No decision of this Court determinative of the precise question has come to our attention.'

The Court has held that garbage removal by the municipality is a governmental function. James v. City of Charlotte, 183 N.C. 630, 112 S.E. 423 (1922); Sinder v. City of High Point, 168 N.C. 608, 85 S.E. 15 (1915).

It appears that the courts are sharply divided as to whether the construction of a sewerage system constitutes a governmental function or a proprietary function. However, the weight of recent authority seems to favor the theory of a governmental function. e.g., 63 C.J.S. Municipal Corporations § 873, p. 253; 61 A.L.R.2d 881. See City of Scottsdale v. Municipal Court of City of Tempe, 90 Ariz. 393, 368 P.2d 637 (1962); Foster v. Crowder, 117 Ga.App. 568, 161 S.E.2d 364 (1968); Smith v. kansas City, 158 Kan. 213, 146 P.2d 660 (1944); Trapani v. Parish of Jefferson, (Ct.App. Louisiana 4th Cir.) 180 So.2d 850 (1965); Safransky v. City of Helena, 98 Mont. 456, 39 P.2d 644 (1935); Bengivenga v. City of Plainfield, 128 N.J.Law 418, 26 A.2d 288 (1942); Hamilton v. City of Bismarck, 71 N.D. 321, 300 N.W. 631 (1941); State ex rel. Gordon v. Taylor, 149 Ohio St. 427, 79 N.E.2d 127 (1948); Ratliff v. City of Akron, Ohio Com.Pl., 157 N.E.2d 151 (1959); Bowie v. City of Houston, 152 Tex. 533, 261 S.W.2d 450 (1953). We are persuaded to the view that the construction of a sewerage system is a governmental function by what we consider to be the better reasoning. Certainly, the preservation of the public health is one of the duties devolving upon the State as a sovereign power and in the discharge of this duty the State is acting strictly in discharge of one of the functions of government. Similarly, a municipal corporation in the discharge of the duty of preservation of the public health is exercising a purely governmental function affecting the welfare not only of citizens of the corporate community but of the citizens of the State generally, all of whom have an interest in the prevention of the spread of infections or contagious disease. If the reasoning advanced in the cases, James v. City of Charlotte, supra, and Snider v. City of High Point, supra, was valid as to garbage collection more than forty years ago, it is even more apposite today in the case of sewage. The use of modern devices and appliances results in the disposal of garbage as well as human excretion and waste into sewer lines. In today's society people are compelled to live in close proximity. Adequate sewage disposal is no longer merely desirable. It is an absolute necessity.

Nor do we think the fact that 'defendant charges, and did on March 17, 1964, for such sewage and sanitary service so furnished the citizens of the City of Asheboro' removes the defendant city from the protection from liability. This question was raised in James v. City of Charlotte, supra. There the plaintiff contended that the city was not protected from liability because it charged a fee for removal. The Court held the principle which applied in cases where municipal corporations enter into the business of selling light and power to the citizens for profit was not applicable, because the City of Charlotte was merely making a charge covering the actual expense of removing garbage and refuse in discharge of a duty primarily incumbent on the individual...