Millar v. Town of Wilson

• Decision Date: 02 December 1942
• Docket Number: 91.
• Citation: 23 S.E.2d 42,222 N.C. 340
• Parties: MILLAR v. TOWN OF WILSON.
• Court: North Carolina Supreme Court

23 S.E.2d 42

222 N.C. 340

MILLAR v. TOWN OF WILSON.

No. 91.

Supreme Court of North Carolina

December 2, 1942

Carter & Carter, of Washington, and Connor, Gardner & Connor, of Wilson, for plaintiff-appellee.

Lucas & Rand, of Wilson, for defendant-appellant.

BARNHILL Justice.

A municipal corporation is dual in character and exercises two classes of powers--governmental and proprietary. It has a twofold existence--one as a governmental agency, the other as a private corporation.

Any activity of the municipality which is discretionary political, legislative or public in nature and performed for the public good in behalf of the State, rather than for itself, comes within the class of governmental functions. When, however, the activity is commercial or chiefly for the private advantage of the compact community, it is private or proprietary.

When injury or damage results from the negligent discharge of a ministerial or proprietary function it is subject to suit in tort as a private corporation. 6 McQuillin, Mun.Corps.2d, § 2792.

While acting "in behalf of the State" in promoting or protecting the health, safety, security or general welfare of its citizens, it is an agency of the sovereign. No action in tort may be maintained for resulting injury to person or property. Parks v. Princeton, 217 N.C. 361, 8 S.E.2d 217; Hodges v. Charlotte, 214 N.C. 737, 200 S.E 889; Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814; Scales v. Winston- Salem, 189 N.C. 469, 127 S.E. 543; Hill v. Board of Aldermen of Charlotte, 72 N.C. 55, 21 Am.Rep. 451; McIlhenny v Wilmington, 127 N.C. 146, 37 S.E. 187, 50 L.R.A. 470; Harrington v. Greenville, 159 N.C. 632, 75 S.E. 849; Snider v. High Point, 168 N.C. 608, 85 S.E. 15; James v. Charlotte, 183 N.C. 630, 112 S.E. 423; Cathey v. Charlotte, 197 N.C. 309, 148 S.E. 426; Broome v. Charlotte, 208 N.C. 729, 182 S.E. 325; Hagerman v. Seattle, 189 Wash. 694, 66 P.2d 1152, 110 A.L.R. 1110, Annotation at page 1117.

The difficulty is not in ascertaining what the law is but in applying known and accepted principles of law to a given state of facts. The line between municipal operations that are proprietary and, therefore, a proper subject of suits in tort and those that are governmental and, therefore, immune from suits is sometimes difficult to draw.

Which principle--that of governmental immunity or that of corporate liability--should be applied here?

While the maintenance of public roads and highways is generally recognized as a governmental function, exception is made in respect to streets and sidewalks of a municipality.

This exception to the prevailing doctrine which imposes liability upon a municipality for damages resulting from failure to exercise ordinary care in keeping its streets and sidewalks in a reasonably safe condition--created by judicial decree--is an "illogical" exception to the general rule of the common law disallowing actions against municipalities for negligence in the discharge of duties imposed upon them for the sole benefit of the public and from which they derive no compensation or benefit in their corporate capacity. "It is obvious that the obligation, so far as travelers are concerned, is one of a public character, fulfilled, not for pecuniary profit or private corporate advantage, but exercised as a purely governmental function." 7 McQuillin, Mun.Corps.2d, sec. 2902; Hamilton v. Rocky Mount, 199 N.C. 504, 154 S.E. 844.

None the less, the exception has been recognized and uniformly applied in this jurisdiction and the maintenance of streets and sidewalks is classed as a ministerial or proprietary function. Sandlin v. Wilmington, 185 N.C. 257, 116 S.E. 733, and cases cited; Graham v. Charlotte, 186 N.C. 649, 120 S.E. 466; Willis v. New Bern, 191 N.C. 507, 132 S.E. 286; Michaux v. Rocky Mount, 193 N.C. 550, 137 S.E. 663; Hamilton v. Rocky Mount, supra; Speas v. Greensboro, 204 N.C. 239, 167 S.E. 807.

The duty, as thus recognized, is positive. While the municipal authorities have discretion in selecting the means by which the traveling public is to be protected against a dangerous defect in the street, provided the means selected are adequate, there is no discretion as to the performance or nonperformance of the duty itself.

Here the defendant's employee was on his way to place a protective light at a dangerous hole in the street. He was undertaking to make safe that which was unsafe and to protect the city against liability for failure to maintain its streets in a reasonably safe condition. This act was intimately connected with and directly related to the duty of the city to maintain its streets. We are of the opinion that it must be classified as a part and parcel of the performance of that duty.

It is true that the failure to provide a light to give warning of a hole in a street is not negligence. It is merely a relevant circumstance on the determinative questions whether the streets were kept in a reasonably safe condition and whether the authorities had properly performed their duty concerning them at the time and place of its occurrence. Johnson v....