Shields v. Town of Durham

• Decision Date: 26 May 1896
• Citation: 24 S.E. 794,118 N.C. 450
• Parties: SHIELDS v. TOWN OF DURHAM.
• Court: North Carolina Supreme Court

24 S.E. 794

118 N.C. 450

SHIELDS v. TOWN OF DURHAM.

Supreme Court of North Carolina

May 26, 1896

Appeal from superior court, Durham county; Starbuck, Judge.

Action by J. H. Shields against the town of Durham to recover damages for personal injuries. There was judgment of nonsuit and plaintiff appeals. Reversed.

For report of former appeal, see 21 S.E. 402.

In an action against a city for personal injuries, testimony showed that plaintiff was put in jail for violation of a city ordinance, upon a cold night in winter; that the floor of the cell in which he was placed was covered with ice, and the one blanket upon his bunk was wet and filthy; that there was no fire and, the window being broken, the wind blew in upon him by reason of which his feet were badly frost-bitten and his health impaired. The testimony as to the condition of the jail was corroborated by other witnesses, and it was shown that the authorities had known of its condition for some time prior to plaintiff's arrest. Held, that the testimony was sufficient to warrant a submission to the jury, and a judgment of nonsuit was hence error.

Manning & Foushee, J. W. Graham, and Shepherd & Busbee, for appellant.

F. A Green and Boone, Merritt & Bryant, for appellee.

FURCHES J.

This is an action to recover damages for injuries sustained by plaintiff on account of his imprisonment by defendant in a guardhouse improperly constructed, filthy and uncomfortable without sufficient bed-clothing, with window glass out, on a cold, freezing winter night, from which he suffered great pain, and his feet were frozen, and his health greatly impaired. The court intimated the opinion, after the evidence was all in, that the plaintiff could not recover, and in deference thereto the plaintiff suffered a nonsuit, and appealed. Although this case has been tried twice below, and is here for the second time on appeal, the point is now made for the first time to dismiss the case for the reason that the complaint does not state a cause of action. To sustain this motion the defendant says that this is an action against a municipal corporation, and that it is necessary that the complaint should allege that plaintiff's claim (if he has any) has been presented to defendant, and that defendant has refused to audit and pay the same, as provided in section 757 of the Code. This motion, though made at this late day, has received our careful attention, and has given us some trouble. But, after a thorough consideration of the matter, we have come to the conclusion that section 757 does not apply to an action like this for unliquidated damages. It is true that the language of this statute is very broad,--"no person shall sue any city *** unless he shall have made a demand upon the proper municipal authorities." And the complaint shall be verified, and show (1) "that the claimant presented his claim to the lawful municipal authorities to be audited and allowed, and that they had neglected to act upon it, or had disallowed it." While we have many cases in our court where this section has been considered and sustained by dismissing actions brought without the claim having first been presented, these cases, so far as our examination has gone, have all been upon claims ex contractu; and we do not think any will be found where the demand is for damages on a claim ex delicto. Nor have we been able to find any adjudicated cases in other states to aid us in our construction. But we find that all the law dictionaries which we have been able to consult define the word "audit" to apply only to claims ex contractu. Abb. Law Dict.; Bouv. Law Dict.; Rap. & L. Law Dict. And these authorities have aided us in coming to the conclusion that this section does not apply to an action for damages like this. Indeed; we do not see how such a claim as this could be audited. It might be compromised by the parties. But this is much more than auditing the same. It is the work of both parties; the agreement of minds; a contract, and not an ex parte process of auditing. For the reasons assigned, we refuse to dismiss on the motion of the defendant.

This action was here at spring term, 1895, reported in 116 N.C 394, 21 S.E. 402. That appeal was by the defendant, and we then held that the court erred in not giving certain instructions asked by defendant, and that the court erred in not submitting the evidence of the condition of this prison, and its improper construction, to the jury,--probably for the reason that they were not sufficiently averred in the complaint. But this defect in the complaint has been removed by an amendment allowed by the court and made by the plaintiff. The evidence on this appeal and that on the appeal at spring term, 1895, is generally very much the same, and yet there is a marked difference in some respects, which materially affects the case. There is another marked difference in this appeal and that. The appeal before the court in 1895 was by the defendant upon the refusal of the court to give certain instructions, and the court's refusing to give the instructions was the matter then before the court. But this is an appeal by the plaintiff from a judgment of nonsuit, upon an intimation of the court that the evidence did not make out a case entitling the plaintiff to recover. This being the state of this appeal, no evidence tending to exonerate the defendant or tending to sustain defendant's contentions can be considered. And, on the other hand, all the evidence tending to sustain plaintiff's action must be taken to be true, and considered in the most favorable light for the plaintiff; for while the jury might have discredited...