Rhodes v. City of Asheville

• Decision Date: 23 March 1949
• Docket Number: 162
• Citation: 52 S.E.2d 371,230 N.C. 134
• Parties: RHODES v. CITY OF ASHEVILLE et al.
• Court: North Carolina Supreme Court

52 S.E.2d 371

230 N.C. 134

RHODES v. CITY OF ASHEVILLE et al.

No. 162

Supreme Court of North Carolina

March 23, 1949

This is an action to recover damages from the defendants for the alleged wrongful death of the plaintiff's intestate at the Asheville-Hendersonville Airport, in Henderson County.

The complaint alleges that the Asheville-Hendersonville Airport is owned, operated, maintained, managed and controlled by the three defendants in their corporate character and capacity and in the exercise of powers for their own advantage, and that it was so operated and managed at the time of the death of plaintiff's intestate.

It is further alleged that the Asheville-Hendersonville Airport Board, as the operating agency of the defendants, employed one J. R. Calton, who was required to be on duty at the airport at night, to watch the property and safeguard the facilities and to have general control over the property during the hours he was on duty and when the manager was not present; that plaintiff's intestate arrived at the airport about 2:30 a. m., August 7, 1947, and almost immediately upon his arrival there, he was shot and killed by the said J. R. Calton, agent, servant and employee of the defendants, and that such killing was wrongful, negligent unjustified, unnecessary and felonious.

This case was here on appeal at the Fall Term, 1948, from an order which disallowed the defendants' motion in part, to strike certain allegations of the complaint, and reported in 229 N.C. 355, 49 S.E.2d 638. Thereafter defendants, in apt time, filed a demurrer to the complaint and challenged the sufficiency of the facts alleged to state a cause of action for the reason that G.S. s 63-50 declares that 'the acquisition, establishment, construction, enlargement improvement, maintenance, equipment and operation of airports and other air navigation facilities, and the exercise of any other powers herein granted to municipalities, are hereby declared to be public, governmental and municipal functions exercised for a public purpose and matters of public necessity * * *.'

The defendants further demur on the ground that the defendant Henderson County cannot be held liable, for the reason that a distinction exists in law as between a county and a city, in that a county is not liable in tort for the wrongs of its officials and employees unless such liability is created by statute; and further that J. R. Calton at the time of the death of plaintiff's intestate, was an airport guard and police officer, and that the defendants, and each of them, in maintaining, regulating and operating the said Asheville-Hendersonville Airport, and in watching and safeguarding the same, through said guard and police officer, J. R. Calton, were exercising governmental functions and acting in a governmental capacity, and cannot be held liable to the plaintiff on the facts alleged.

The demurrer was overruled and the defendants appealed to the Supreme Court and assign error.

R. L. Whitmire, of Hendersonville, for plaintiff, appellee.

Edwin S. Hartshorn, of Asheville, Arthur Shepherd and L. B. Prince, both of Hendersonville, and Robt. W. Wells, of Asheville, for defendants, appellants.

DENNY Justice.

We think the demurrer interposed by the defendants, involves three questions which should be considered on this appeal. (1) In the operation of a municipal airport, pursuant to the authority contained in Chapter 63 of the General Statutes of North Carolina, Sections 63-1 to 63-58 inclusive, does a municipality act in a proprietary or governmental capacity? (2) If such an enterprise is a proprietary one, may a county participating therein pursuant to the authority contained in the above statutes, be held liable in tort? And (3) was J. R. Calton acting as the servant or agent of the defendants at the time he killed the plaintiff's intestate, or was he exercising police powers which G.S. s 63-53(b) provides may be exercised by airport guards?

A municipal corporation cannot legally engage in any enterprise in its governmental or proprietary capacity which does not come within the meaning or definition of a public purpose. Nash v. Town of Tarboro, 227 N.C. 283, 42 S.E.2d 209.

And even though a municipal activity has been held to be for a public purpose, we may still have difficulty in determining whether such activity is a corporate or proprietary function, and is therefore subject to suits in tort, or a governmental function and immune from such suits.

These functions were defined by Justice Barnhill, in speaking for the Court, in Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42, 44, in the following language: '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), s 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', citing numerous authorities.

And in Broome v. Coty of Charlotte, 208 N.C. 729, 182 S.E. 325, 326, Justice Devin, speaking for the Court, laid down the following distinctions between proprietary and governmental powers: 'In its public or governmental character, a municipal corporation acts as agent of the state for the better government of that portion of its people who reside within the municipality, while in its private character it exercises powers and privileges for its own corporate advantage. When a municipal corporation is acting in its ministerial or corporate character in the management of property for its own benefit, it may become liable for damages caused by the negligence of its agents subject to its control. But when the city is exercising the judicial, discretionary, or legislative authority conferred by its charter, or is discharging a duty imposed solely for the benefit of the public, it incurs no liability for the negligence of its agents, unless some statute subjects the corporation to responsibility. Moffitt v. Asheville, 103 N.C. 237, 9 S.E. 695, 14 Am.St.Rep. 810; Parks-Belk Co. v. [City of] Concord, 194 N.C. 134, 138 S.E. 599.'

The defendants contend that the provisions of G. S. s 63-50, which declares the construction, maintenance and operation of an airport by municipalities pursuant to the provisions of Chapter 63 of the General Statutes of North Carolina, 'to be public, governmental and municipal functions exercised for a public purpose and matters of public necessity,' and the use of the property and equipment in connection with the construction, operation and maintenance of a municipal airport is 'to be acquired and used for public, governmental and municipal purposes and as a matter of public necessity' are controlling, and therefore, the acts of the officers, agents and employees of the municipalities operating such airport are immune from suits in tort.

The answer to the question raised is not that simple. Since this Court handed down the decision in 1903, in the case of Fawcett v. Mt. Airy, 134 N.C. 125, 45 S.E. 1029, 63 L.R.A. 870, 101 Am.St.Rep. 825, the construction, maintenance and operation of a water and light plant by a municipality, has been held to be a necessary governmental expense. Even so, it has been uniformly held that, except as to certain exempted services such as furnishing water to extinguish fires, Klassette v. Liggett Drug Co., 227 N.C. 353, 42 S.E.2d 411; Mabe v. City of Winston-Salem, 190 N.C. 486, 130 S.E. 169; Mack v. Charlotte City Water-Works, 181 N.C. 383, 107 S.E. 244; G.S. s 160-255, a municipality in operating a water or light plant or other business function does so in its corporate or proprietary capacity. Fisher v. City of New Bern, 140 N.C. 506, 53 S.E. 342, 5 L.R.A., N.S. 542, 111 Am.St.Rep. 857; Harrington v. Commissioners of Town of Wadesboro, 153 N.C. 437, 69 S.E. 399; Terrell v. City of Washington, 158 N.C. 281. 73 S.E. 888; Woodie v. Town of North Wilkesboro, 159 N.C. 353, 74 S.E. 924.

The construction and maintenance of streets by a municipality is a governmental and not a proprietary function, but since the decision in Bunch v. Town of Edenton, 1884, 90 N.C. 431, it has been uniformly held in this jurisdiction that municipalities may be held liable in tort for failure to maintain their streets in a reasonably safe condition, and they are now required by statute to do so, G.S. s 160-54. Hamilton v. City of Rocky Mount, 199 N.C. 504, 154 S.E. 844; Speas v. City of Greensboro, 204 N.C. 239, 167 S.E. 807; Broome v. City of Charlotte, supra; Whitacre v. City of Charlotte, 216 N.C. 687, 6 S.E.2d 558, 126 A.L.R. 438; Hunt v. City of High Point, 226 N.C. 74, 36 S.E.2d 694.

'Where a city maintains a wharf and charges wharfage for the use thereof, negligence relating thereto, resulting in injury, may create municipal liability. * * The municipality is bound the same as a private individual to use ordinary care and diligence in keeping the wharf free and safe from obstructions, and is liable in an action at common law for damages done to a vessel, or person on the wharf, by reason of neglect of such duty. ' McQuillin, Municipal Corporations, 2d ed., Section 2849, p. 1183, et seq., Henderson v. City of Wilmington, 191 N.C. 269, 279, 132 S.E. 25.

We have cited the above decisions to show...