Munick v. City of Durham

• Decision Date: 06 April 1921
• Docket Number: 332.
• Citation: 106 S.E. 665,181 N.C. 188
• Parties: MUNICK v. CITY OF DURHAM ET AL.
• Court: North Carolina Supreme Court

106 S.E. 665

181 N.C. 188

MUNICK v. CITY OF DURHAM ET AL.

No. 332.

Supreme Court of North Carolina

April 6, 1921

Appeal from Superior Court, Durham County; Calrut, Judge.

Action by H. Munick against the City of Durham and the Board of Water Commissioners. Judgment of nonsuit, and plaintiff appeals. Reversed.

It was the duty of the board of water commissioners of a city, not only to refrain from assaulting or injuring one who has been invited upon its premises, but also to protect him from any violence which it could reasonably have foreseen if offered by others.

The waterworks in the city of Durham are owned by the municipality and are operated by it under the supervision of the defendant board of water commissioners. Among their employees was one Harvey Bolton, who had general charge and supervision of said water system, and among whose duties it was, assisted by others under his supervision, to keep the books continuing the accounts against all customers purchasing water, to render statements to said consumers for the water used by them and collect all sums due, and to give receipts upon payment of said bills. This is an action by the plaintiff against the city for damages for assault and battery upon him by said Bolton.

The plaintiff, H. Munick, testified:

"I live on Poplar street and conduct a grocery store. I have been living in Durham 11 years, coming here from New York. I came to New York from Russia, and am a Jew. I am married and have a family of four. I own my home and two more houses and buy water from the city of Durham. On April 17 1919, I went to the water company's office, taking a bill which they had sent me for $4.50. No one was with me. I had been there a number of times before and paid my bills. Sometimes I would send the money and pay the bills by the children and sometimes I would take it myself. This time I took it myself. When I came to the office I saw only the lady who collected. This was in the spring of the year about 12 o'clock, but I do not recall the day of the week. I do not know the name of the lady, but I took the money and the bills in my hand and handed them to the lady. I took from my pocket 3 paper dollars, 1 silver dollar, and 50 cents in pennies, and gave it to the lady with the bills. The 50 cents in pennies was in one package and were not loose. They were rolled up like the bank fixes them. I got the pennies in my retail business. The lady receipted my bills and I put them in my pocket and started to leave the office. I did not go outside of the door, and in about five minutes Mr. Bolton, who is manager of the water company, came in the office.

"I was standing beside the window which is the regular place to pay bills when he came in. I had the bills then in my pocket and the bookkeeper started counting the pennies. Mr. Bolton came in and asked the lady, 'What are you counting? Nickels or dimes?' She told Mr. Bolton, 'Mr. Munick gave me 50 pennies.' Mr. Bolton then came around the counter inside the office to the desk where she was. I was on the outside by the front door. Mr. Bolton took the pennies and pushed them off the counter onto the floor where I was standing. He was at the back end of the counter and I was at the front, and he pushed all of these pennies on the floor, and came from the inside to where I was and said, 'Munick, pick up those pennies. They belong to you.' I said, 'Mr. Bolton, those pennies belong to you, not to me.' Mr. Bolton said, 'Munick, pick up those pennies; they belong to you.' I told him, 'The bill is paid and those pennies belong to you.' That is all I said to him. I said, 'Those pennies are just as good as the dollars.' Mr. Bolton then locked the front door and took me by the jacket and called me 'God damned Jew,' and said, 'Give me back my bills.' I did not say anything and he hit me in the face. I did not resist, and the door was locked and I could not get out. The pennies were still on the floor. After he slapped me another man came to pay his bill, and Mr. Bolton opened the door and let him in and the man then went out. Mr. Bolton was standing close to me and did not give me a chance to get out. Then I said, 'Please turn me loose, I have to go home.' I do not know where the other man was then.

"When this other man went out Mr. Bolton locked the door again, took me by my jacket, and pushed me in the back room where the tools belonging to the city water company were. I said, 'Please turn me loose;' begging him to turn me loose. I do not remember how many times. He did not close the door when he pushed me in the back room. The front door was closed but not the door in the back room. When he got me in the back room he took his two hands about my neck and choked me. He was standing in front of me and I said, 'Please turn me loose. I've got to go home.' He turned me loose for about five minutes, and then took hold of me again and choked me fast, until it interfered with my breathing. It hurt me and I told him to please turn me loose. When he turned me loose the second time he called to some one to bring a towel. A gentleman brought the towel and he took that towel and put it over my face. This interfered with my breathing, as I could not breathe with it over my face. A little later I told him, 'Maybe I got a dollar. I will take back the pennies, Mr. Bolton, turn me loose.' I started looking in my pockets and I found one paper dollar, and said, 'I am glad I got one dollar to settle with you.' Mr. Bolton took that dollar and gave me back the 50 pennies. I took them and Mr. Bolton opened the front door and said, 'Get out of here, and don't come no more to pay your water bill.' That is all he said to me, and I left his office.

"I had been feeling mighty bad. I do not know how long I was in there, but I begged Mr. Bolton to turn me loose, as I was sick and could not stand it. I had some kind of sickness in my head. I was back there in the office being subjected to this treatment about one half hour from the time I went in. I went to Mr. Lunsford's office and asked him to phone for me a doctor. I do not know what Mr. Lunsford said. He was busy in his office. I left his office and went home. I used to trade with Mr. Lunsford. I did not see a doctor. The treatment I had received made me sick. When he choked me it hurt me for from eight to ten days. His finger prints where he choked me could be seen on my neck by everybody for eight or ten days. Everybody asked me what was the matter. It made me feel very bad when he cursed me. I had Mr. Bolton indicted, and he was in court, and the court found him guilty and fined him. He did not resist. I have Mr. Lunsford, Mr. Speed, and Mr. Draughan for character witnesses."

On cross-examination, he said:

"I used to come to this water company's office before this, but had never been treated by any one that way before, and had never heard of any one being treated that way before or after I went there. This is the first time. I put my money on the counter and the young lady took the money and signed my receipt and gave me a receipt and I put it in my pocket. I paid my bill in full and all my matters were closed with the city. Mr. Bolton got mad because I paid the pennies. I was on the inside. I got to the door on the inside, and Mr. Bolton locked the door so I could not get out. I had never heard of folks being locked in; that was an unusual sort of thing. I do not know what he did with the key. I could not get out, and did not try. He grabbed hold of me and I said, 'Please turn me loose.' He got madder and madder all the time. I was yelling, and he got the towel to stop me from yelling. The young lady was inside the office while this yelling was going on. She was not doing anything. I do not know who the man was that brought the towel, but he worked in the office. He did not do anything but give the towel to Mr. Bolton, I do not know his name. He was white and not a very heavy man. I do not know him. I did not try the door. Mr. Bolton opened the door for another man who paid his water bill, and then Mr. Bolton locked the door again. The man who brought the towel stayed there in the back. He just gave the towel to Mr. Bolton and nothing else. The young lady who I gave the money to did not do anything. She stayed there in the office looking through the window. She was there while Mr. Bolton was cursing me, where she could hear it. I indicted Mr. Bolton in the recorder's court. He pleaded guilty, and I am suing the city, whose agent he was."

J. O. Lunsford testified that he had known the plaintiff for 12 or 15 years; had sold him flour for several years, and knew his general character and it was good; that on the day of this occurrence the plaintiff told him about having this trouble in the water company's office.

A. J. Draughan also testified that he had known the plaintiff 10 or 12 years; that he had sold him goods, and knows his general character and that it was good.

At the close of the above testimony the defendant offered no evidence, but moved for judgment of nonsuit, which was granted, and the plaintiff appealed.

R. O. Everett and William G. Bramham, both of Durham, for appellant.

S. C. Chambers, of Durham, for appellees.

CLARK C.J.

The testimony for the plaintiff presents one of the most singular occurrences that has come to this court. The defendant offered no evidence, and the nonsuit was granted on the uncontradicted testimony for the plaintiff as above set out. It is therefore taken as true, with all the inferences from it in the most favorable light to the plaintiff. But, indeed, there seems to be but one that could be drawn from it. The plaintiff, an old and feeble man, went to the water company on receiving a notice sent by it to...