Steelman v. City of New Bern, No. 6

• Docket Nº: No. 6
• Citation: 184 S.E.2d 239, 279 N.C. 589
• Case Date: November 10, 1971
• Court: United States State Supreme Court of North Carolina

Page 239

184 S.E.2d 239 279 N.C. 589 Joseph F. STEELMAN, Administrator of the Estate of Joseph
Flake Steelman, Jr.
v.
CITY OF NEW BERN, North Carolina, a Municipal Corporation. No. 6. Supreme Court of North Carolina. Nov. 10, 1971.

Adams, Lancaster, Seay, Rouse & Sherrill by Basil L. Sherrill and John E. Lansche, Raleigh, for plaintiff appellant.

Walter L. Horton, Jr., Raleigh, and A. D. Ward, Ward & Ward, New Bern, for defendant appellee.

MOORE, Justice.

Plaintiff's sole assignment of error is to the granting of defendant's motion for summary judgment on the basis that the governmental immunity doctrine applies to the maintenance of a municipal street lighting circuit.

Plaintiff, in an excellent and persuasive brief, concedes that this Court in Baker v. Lumberton, 239 N.C. 401, 79 S.E.2d 886 (1953), held that a municipal corporation is not liable for negligence of its officers or

Page 241

agents when the injury results from contact with a wire used by the city in transmitting electricity for street lighting purposes only, since street lighting was a governmental function and not a proprietary function. In that case Justice Winborne (later Chief Justice) said:

'1. It is contended, and rightly so, that the evidence shows affirmatively that the death of plaintiff's intestate resulted from contact with a wire used by the city in transmitting electricity for street lighting purposes only, a governmental function, in the performance of which the city is not liable for tortious acts of its officers and agents. Hodges v. Charlotte, 214 N.C. 737, 200 S.E. 889; Beach v. Tarboro, 225 N.C. 26, 33 S.E.2d 64; Alford v. Washington, 238 N.C. 694, 78 S.E.2d 915; Hamilton v. Hamlet, 238 N.C. 741, 78 S.E.2d 770.

'The decisions of this Court uniformly hold that, in the absence of some statute which subjects them to liability therefor, when cities acting in the exercise of police power, or judicial, discretionary, or legislative authority, conferred by their charters or by statute, and when discharging a duty imposed solely for the public benefit, they are not liable for the tortious acts of their officers or agents. See Hodges v. City of Charlotte, supra; also Hamilton v. Hamlet, supra, and numerous cases there cited.

[279 N.C. 592] 'And it has been held by this Court that the installing and maintaining of traffic light system in and by a city is in the exercise of a discretionary governmental function. See Hodges v. City of Charlotte, supra; Beach v. Tarboro, supra; Alford v. Washington, supra; Hamilton v. Hamlet, supra.'

In feudal England the monarchy was sovereign and could not be liable for damage to its subjects. This was based on the theory that 'the king could do no wrong.' Apparently, the present-day doctrine of governmental immunity from tort liability originated in the English case of Russel v. Men of Devon, 2 T.R. 667, 100 Eng.Rep.R. 359 (1788), which held that an unincorporated town could not be liable for damage caused by a defective bridge.

The doctrine was not a part of the common law of England which was adopted by the State of North Carolina in G.S. § 4--1. That statute adopted the common law of England as of the date of the signing of the Declaration of Independence, which took place thirteen years before the Russel case was decided. The early North Carolina decisions expressly rejected the doctrine. Meares v. Wilmington, 31 N.C. 73 (1848); Wright v. Wilmington, 92 N.C. 156 (1885). However, commencing with the decision in Moffitt v. Asheville, 103 N.C. 237, 254, 9 S.E. 695, 697 (1885), this Court has not wavered from the basic rule there succinctly stated by Justice Avery:

'The liability of cities and towns for the negligence of their officers or agents, depends upon the nature of the power that the corporation is exercising, when the damage complained of is...