Orange County v. Heath

• Decision Date: 15 November 1972
• Docket Number: No. 21,21
• Citation: Orange County v. Heath, 192 S.E.2d 308, 282 N.C. 292 (N.C. 1972)
• Parties: ORANGE COUNTY, a municipal corporation v. Forrest T. HEATH and wife, Nancy B. Health.
• Court: North Carolina Supreme Court

Page 308

192 S.E.2d 308

282 N.C. 292

ORANGE COUNTY, a municipal corporation v. Forrest T. HEATH and wife, Nancy B. Health.

No. 21.

Supreme Court of North Carolina.

Nov. 15, 1972.

Graham & Cheshire, by Lucius M. Cheshire, Hillsborough, for plaintiff appellee.

Winston, Coleman & Bernholz, by A. B. Coleman, Jr., Hillsborough, for defendants appellants.

HIGGINS, Justice.

The history of this proceeding leading up to Judge Hobgood's order appears in our prior decision reported in 278 N.C. 688, 180 S.E.2d 810. Judge Hobgood denied the defendants' motion for the assessment of damages on the ground the County of Orange cannot be held liable to the defendants for any damages they may have sustained as a result of the invalid restraining order issued by the court at the instance of Orange County, which order resulted in a work stoppage and delay in the completion of their mobile home park. The denial was based solely on the ground that Orange County, being a municipal corporation, having obtained the restraining order in the exercise of its governmenatal function, is immune from suit for damages.

The common law rule of governmental immunity prevails in North Carolina: 'Under this common law rule a municipality is not liable for the torts of its employees or agents committed while performing a governmental function.' Galligan v. Chapel Hill, 276 N.C. 172, 171 S.E.2d 427; Taylor v. Bowen, 272 N.C. 726, 158 S.E.2d 837; Millar v. Wilson, 222 N.C. 340, 23 S.E.2d 42. In the absence of statutory authority a municipality has no power to waive its governmental immunity. Stephenson v. Raleigh, 232 N.C. 42, 59 S.E.2d 195.

The fact that the defendants' claim arose in the action instituted by the County does not confer jurisdiction on the court to hear defendants' claim for damages. 'The defendant in setting up this 'new matter and by way of counterclaim,' . . . is in effect bringing a cross-action against the plaintiffs for their wrongful act as county commissioners in their official capacity, which he could not maintain if brought directly, and therefore he cannot bring it by way of counterclaim.' Morgantown Graded School v. McDowell, 157 N.C. 316, 72 S.E. 1083.

The defendants, conceding the general rule of governmental immunity, nevertheless contend that North Carolina, by the enactment of Procedural Rule 65(c) (G.S. § 1A--1), waived immunity in a case of the type here involved. Rule 65(c) provides that restraining orders shall not issue except 'Upon the giving of security by the applicant . . . No such security shall be required of the State of North Carolina or of any county or municipality thereof, of any officer or agency thereof acting in an official capacity, but damages may be awarded against such party in accord with this rule.' Section (e) of Rule 65 provides: 'An order or judgment dissolving an injunction or restraining order may include an award of damages against the party procuring the injunction and The sureties (emphasis ours) . . . without a showing of malice or want of probable cause . . ..' It is arguable that the provision includes only parties who are required to give The sureties. This interpretation fits into Professor Sizemore's view later referred to herein. The wording of the rule as to whether it applies generally or only to parties who are required to give sureties is at least equivocal.

Prior to the enactment of G.S. § 1A--1, the Bar Association and the General Statutes Commission made a study, looking toward changes in the rules of court procedure. These studies clearly indicate that G.S. § 1A--1 was intended as an amendment to the procedural law of the State bringing it in line with Federal Procedural Rule 65. However, the Bar Association and the General Statutes Commission were mindful of Article IV, Section 13(2) of the North Carolina Constitution which provides this limitation: 'No rule of procedure or practice shall abridge substantive rights or abrogate or limit the right of trial by jury.'

Professor Sizemore of the Wake Forest University School of Law, published an article in 5 Wake Forest Intramural...