Williams v. Town of Greenville

• Decision Date: 25 March 1902
• Citation: 40 S.E. 977,130 N.C. 93
• Parties: WILLIAMS v. TOWN OF GREENVILLE.
• Court: North Carolina Supreme Court

40 S.E. 977

130 N.C. 93

WILLIAMS v. TOWN OF GREENVILLE.

Supreme Court of North Carolina

March 25, 1902

Appeal from superior court, Pitt county; Winston, Judge.

Action by Elisha C. Williams against the town of Greenville. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Douglas J., dissenting.

Where a drain constructed by a municipal corporation becomes, through its negligence, choked with refuse, and overflows the premises of an adjacent landowner, the corporation is liable for any damages the landowner sustains to his property by such overflow.

Jarvis & Blow and F. G. James, for appellant.

Skinner & Whedbee and A. M. Moore, for appellee.

FURCHES C.J.

The plaintiff is a resident and citizen of the town of Greenville and the defendant is a municipal corporation. The plaintiff is the owner of a house and lot in the defendant corporation upon which he and family reside, and have done so for the last 8 or 10 years. The plaintiff alleges that it was the duty of the defendant to make such drains and sewers as were necessary to secure the health and comfort of all its inhabitants, but the defendant has utterly failed and neglected to perform and discharge its duty in this respect that plaintiff's lot is situate on land much lower than that of a large portion of said town, and that defendant before the plaintiff became the owner of his said lot, had cut an open ditch from the higher land through an adjacent lot into the street just below his lot, and made a culvert for the water to pass this street into a branch below, and the defendant had allowed this culvert to become so choked and out of repair that in time of heavy rains it would not carry the water that came down the ditch; that defendant had allowed the open ditch to become the depository of dead fowls and dead animals until it produced a stench, both disagreeable and unhealthy; that by reason of the improper construction of this ditch, and the obstruction to the flow of the water at the culvert, in times of heavy rains the water would overflow his entire lot; that this overflow water would at times remain upon his lot for a day or more, and when it would recede it would leave a scum upon his lot; that by reason of the negligence of the defendant--the overflow of this water--his home was made and became unhealthy, and two of his children became sick and died; that by reason of said sickness and deaths he suffered great pain and anguish of mind, that he lost much time in nursing them, that the expenses of his family were much increased, and he had large doctor's bills and drug bills to pay, to his damage $10,000. The defendant answered, denying the material allegations of the complaint, and denying its liability to the plaintiff for any damage. There was much evidence introduced by the plaintiff tending to sustain the allegations of fact in the complaint, and by the defendant to rebut the same. There were many prayers for special instructions on the part of the defendant, which we will not state or consider here. The court submitted the following issues: "(1) Was the plaintiff damaged by the negligence of the town of Greenville in diverting water on his premises as alleged in the complaint? Ans. Yes. (2) If so, what is the amount of actual damage, outside of mental suffering, caused to him thereby? Ans. $333. (3) If so, what amount of damage did he sustain from mental suffering resulting directly from such negligence? No answer." The entire charge of the court is not sent up, and we take it there was no objection to that part. But from that sent up it appears that he charged the jury on the first issue as follows: "If the town ponded water from a natural water course by obstructing the course, then it is the same as it the water was diverted. The law draws a distinction between water within banks--a natural water course--and surface water. If the town diverted water, as I have indicated,--cut the ditch where there was no natural drain,--then it was its duty to keep the ditch clear." And upon the second issue he charged as follows: "This is the actual amount paid out on account of the sickness and his loss of time incident thereto. If you answer the first issue 'Yes,' you will assess, for your answer to the second issue, the amount in your judgment the plaintiff actually paid out by reason of such sickness, and what he lost from his work by reason of such sickness; and in this connection you will consider what he paid the doctor, if anything, what he spent for such articles as drugs, medicines, stimulants, and other things in the sickness growing out of these conditions over and above his usual cost of living." The defendant excepted. There was no evidence that there was a natural water course flowing by the plaintiff's lot, or where the old ditch was cut, though it was along or near the natural flow of the surface water. And while it was shown that there were dead fowls and animals in the old ditch, there was no evidence that the defendant put them there, or knew that they were there, until they were removed.

We will not set out the special prayers for instruction not given by the court, as we put our opinion upon what we understand to be the law of liability of a municipality in cases like this. We say "municipality," because we understand the rule of liability as to such corporations to be quite different from the liability of individuals or private corporations. In actions for damages against a municipal corporation, where the act complained of was done in pursuance of its legislative or judicial powers, or in the exercise of its authorized police powers, the doctrine of respondeat superior does not apply, except as to property rights. And such defendant is only liable for injuries caused by neglect to perform some positive duty devolved upon it by reason of the incorporation,--such as keeping the public streets in repair, or damage to property, or when it receives a pecuniary benefit from it. The reason for this distinction that it is liable for damage to property, seems to lie in the fact of ownership--vested rights--which no one has the right to invade, not...