Metz v. City of Asheville

• Decision Date: 25 May 1909
• Parties: METZ v. CITY OF ASHEVILLE.
• Court: North Carolina Supreme Court

64 S.E. 881

150 N.C. 748

METZ v. CITY OF ASHEVILLE.

Supreme Court of North Carolina

May 25, 1909

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

Action by J. H. Metz, administrator, against the City of Asheville. From a judgment of nonsuit, plaintiff appeals. Affirmed.

At the conclusion of the evidence, the court intimated an opinion that upon the entire evidence the defendant, as matter of law, was not liable, and that he would so instruct the jury. In deference to this intimation of opinion, the plaintiff submitted to nonsuit and appealed.

Cities are liable for damage caused by the torts of their officers while exercising their corporate powers for their own advantage.

While a municipality is not liable for personal injuries resulting from the exercise of its governmental powers it is liable for damage to property caused by the torts of its officers in discharging its governmental functions, under the doctrine of respondeat superior.

Chas E. Jones, for appellant.

H. B Carter and Davidson, Bourne & Parker, for appellee.

BROWN J.

Plaintiff sues to recover damages for the death of his intestate caused by typhoid fever communicated by the condition of Reed branch, a small stream emptying into the French Broad river and which ran near the house where said intestate resided. The defendant under its charter maintained a free public sewerage system, the mouth of which emptied into Reed branch a short distance beyond the city limits above the house where intestate resided. It is admitted that, with full knowledge of the conditions necessarily caused by the constant discharge of the sewerage of the city into the branch, the intestate rented the house and moved into it in February, 1905, and died in August following, of typhoid fever, although his wife and children did not take it. There is evidence tending to show that the fever was caused by the sewerage in the branch. It is contended that the sewer system should have emptied into the French Broad river, and that emptying it into Reed branch created a nuisance for which defendant is liable.

Whatever may have been held by some other courts, it is plain that, under the previous decisions of this court, the opinion of his honor is well founded. The principle upon which our decisions have been based is clearly stated by the present Chief Justice, speaking for a unanimous court in McIlhenney v. Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L. R. A. 470: "The law may, on a review of the authorities which are uniform, be thus stated: When cities are acting in their corporate capacity or in the exercise of powers for their own advantage, they are liable for damages caused by the negligence or torts of their officers or agents; but where they are exercising the judicial, discretionary, or legislative authority conferred by their charters, or are discharging the duty imposed solely for the public benefit, they are not liable for the torts or negligence of their officers, unless there is some statute which subjects them to liability therefor." Moffitt v. Asheville, 103 N.C. 237, 9 S.E. 695, 14 Am. St. Rep. 810; Pritchard v. Commissioners, 126 N.C. 908, 36 S.E. 353, 78 Am. St. Rep. 679; Hill v. Commissioners, 72 N.C. 55, 21 Am. Rep. 451; Coley v. Statesville, 121 N.C. 316, 28 S.E. 482. The same principles are recognized and set forth in an elaborate opinion by Mr. Justice Walker in Hull v. Roxboro, 142 N.C. 453, 55 S.E. 351, 12 L. R. A. (N. S.) 638. See, also, Peterson v. Wilmington, 130 N.C. 77, 40 S.E. 853, 56 L. R. A. 959. The theory upon which municipalities are exempted from liability in cases like this is that, in establishing a free sewerage system for the public benefit, it is exercising its police powers for the public good and is discharging a governmental function, and, as expressed by the Supreme Court of Illinois: "It is a familiar rule of law, supported by a long line of well-considered cases, that a city in the performance of its police regulations cannot commit a wrong through its officers in such a way as to render it liable for a tort." Craig v. Charleston, 180 111. 154, 54 N.E. 184; Dillon, Mun. Corp. (4th Ed.) § 975. The distinction between cases in which a power is conferred upon a municipality for private purposes and those where such power has relation to public purposes only, and of the liability or nonliability of the municipality therein, is thus aptly and clearly stated in 1 Smith's Modern Law of Municipal Corp. § 780: "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."

Recognizing this well-defined distinction in the liability of municipal corporations, it is held that, where by statute it is made the duty of the city to remove garbage, it is a governmental function, and the city is not liable for the manner of its discharge. Davidson v. Mayor, etc., 24 Misc. 560, 54 N.Y.S. 51. So a city is held not to be liable for permitting its hydrants to become clogged, since the neglect is in the discharge of a public governmental function. Miller v Minneapolis, 75 Minn. 131, 77 N.W. 788. Therefore a city is not liable for damages of any sort arising from the negligence of its fire department. Irvine v. Chattanooga, 101 Tenn. 291, 47 S.W. 419. Nor in the performance of governmental...