Hodges v. City of Charlotte , 214 N.C. 737 ( 1939 )

ClaeksoN, J.,

dissenting: Judicial candor compels me to register a dissent from the views of my brothers. Municipal immunity from responsibility for the negligent acts of its employees is a doctrine which should ever remain carefully circumscribed, as it constitutes an exception to the general rule that the master is liable for the damage done by the servant. When the servant of a citizen or a private corporation, negligently kills or injures, the employer is answerable in damages. What I now say is not urged in the interest of removing long established immunity; such questions of policy are for the legislative, not the judicial, forum. My insistence is upon this, and this alone, that in a doubtful and border-line case such as the instant case, the rule of immunity should be construed against the municipality and in favor of the injured citizen. When old legal formulse must be rewritten to cover some difficult feature of a particular case, courts should ever remember that the law — even government itself- — -is made for man, not man for the law. In those rare cases in which within the periphery of the law, a free choice is left to the courts, the choice should ever be made on the side of humanity and the relief of the broken and the dying. The opinion of the majority in the instant case is a further extension, in a border-line case, of a rule which often, if not generally, operates with peculiar harshness and cruelty. Here, in my opinion, if the doctrine of immunity, interpreted strictly, is applied to the facts of this case, this case would fall outside the limits of that immunity and an injured citizen would be permitted to present her cause to a jury.

The facts in the instant case are simple; it is the interpretation of those facts which is difficult. The city employee who drove the city truck at the time of the injury to plaintiff was a maintenance man. He was “engaged in fixing signal lights and installing trafile signs and the maintenance of the white lines.” It was also his duty to “paint the signs and set the poles in the holes in the concrete and mark off people’s driveways and install signs.” He also had a continuing duty, under instructions of the city manager, to report “defective conditions of the street,” “holes in the street and defective water meters.” The employee testified: “On this particular morning that I went to fix this light at the corner of College and Trade Streets, of course, if I had found any defective place along the street I traveled over that I thought was bad enough that somebody might get hurt, I would have considered it my duty to report it to the various departments it would fall in.” His principal duties, accordingly, dealt with the maintenance and repair of various traffic devices and traffic control aids, along with a general duty of street inspection. Most, if not all, of these devices and aids were mechanical substitutes for policemen, established in the interest of economy and efficiency as a means of saving money for the city. The employee was largely busied with electrical repairs and painting. He was not employed by the police department. The traffic signal division was a separate department; he could as well have been attached to the street maintenance force or the street lighting force. Rarely — and certainly not in this case — -is there a necessary and imperative connection between the duties of an electrician-sign painter and the governmental functions of a police department. The majority opinion is based upon the assumption that the employee was a police officer. The work in which the employee was engaged was not so much the discharge of a police function as it was the maintenance of mechanical substitutes for traffic officers, which is quite a different matter. In maintaining these mechanical aids and devices, the city was acting primarily in its corporate capacity for the financial benefit and general advantage of the citizen-members of the corporation. In such a situation cities may not claim the immunity of the sovereign.

“When a function is undertaken by a municipality in its private or proprietary capacity for the profit, benefit or advantage of the corporation (or of the people who compose it, rather than for that of the public at large), it is liable for the negligence of its employees to the same extent and under the same conditions as a private corporation.” 19 R. C. L., 1109, “Mun. Corp.,” paragraph 391.

North Carolina has long followed the view to the effect that a city or town in the exercise of its private or corporate powers is liable in damages for the negligence of its officers, agents, and employees. Broome v. Charlotte, 208 N. C., 729; Hamilton v. Rocky Mount, 199 N. C., 504. On this point McQuillan, in his extensive work on Municipal Corporations, declares: “When acting in its proprietary capacity . . . the incorporated city or town, in the absence of some special exemption, is subject to all of the liabilities and usually entitled to all of the rights, immunities and benefits of the private law. The borderline between the public or governmental and the private or gwasi-private or proprietary side of the municipal corporation in some instances is quite difficult to discern.” 6 Mun. Corp., p. 1012. It is just at this borderline that I insist that doubts should be resolved against the city and in favor of the injured citizen. Where the function discharged is for private benefit or pecuniary profit, and damage results from negligence, the municipality is liable to the same extent that a private corporation or individual would be liable. Goodwin v. Reidsville, 160 N. C., 411; Moffitt v. Asheville, 103 N. C., 237; Meares v. Wilmington, 31 N. C., 73; 6 McQuillan, Mun. Corp., p. 1041. To the extent that municipal corporations exercise powers not essentially governmental in character, “voluntarily assumed powers intended for the private advantage and benefit of the locality and its inhabitants, there seems to be no sufficient reason why they should be relieved from that liability to suit the measure of actual damage to which an individual or private corporation exercising the same powers for purposes essentially private would be liable.” Stayton, J., in Galveston v. Posnainsky, 62 Tex., 118, 50 Am. Rep., 517, quoted with approval in 6 McQuillan, Mun. Corp., p. 1043.

The mere fact that the city employee in the instant case usually received his calls to repair signal lights — as he received the call which he was answering in the instant case — from the police department, is not determinative. It does not affirmatively appear whether he was an employee of the department of safety or of the department of public works. It is the character of the actual function which determines its governmental character. For example, a city is liable in tort in the operation of a municipal garage even though the chief of police has charge of it. City v. Foster (Okla.), 247 Pac., 80.

A further reason for resolving the doubt here in favor of the injured plaintiff is that the defense of a city that it was engaged in a governmental function is an affirmative defense and the burden is upon the city to show that the activity engaged in was essentially governmental in nature. Jones v. Sioux City, 185 Iowa, 1178, 170 N. W., 445. When it is taken into consideration here that the employee not only had the duty to repair the signal light but also in going to the signal light had the continuing duty to observe and report street defects, it is clear that he was at the time of the injury discharging two functions, one of which may be considered governmental and the other of which is plainly ministerial. In such a case, it may be argued that since both a ministerial and a governmental function is involved, the city is not relieved from liability. See Cone v. Detroit, 191 Mich., 198, 157 N. W., 417.

Even if it be granted that the installation of traffic signal lights is a governmental function, it does not necessarily follow that the maintenance and repair of such lights is likewise a governmental function. This very distinction is recognized generally as to streets; although the original construction of the streets is a governmental function, their maintenance is a corporate or ministerial duty. 6 McQuillan, Mun. Corp., p. 1053; as to the North Carolina accord with this view, see the cases cited above.

It cannot be said that the maintenance of traffic signals along the streets is any more in the interest of the general public than the maintenance of the streets themselves along which the signals are installed. The signals are established to regulate the use of the streets and are useless but for the part they play in regulating traffic along the streets. So long as the maintenance of the streets is regarded a corporate function, the maintenance of traffic lights should, by the same standard, be treated as a corporate function. Similar reasoning might have been applied to the maintenance of police radio cars in Lewis v. Hunter, 212 N. C., 504. However, it seems to me that the instant case is one calling for the expression of the limits of the rule laid down in that case, and to the extent that the doctrine of that case is regarded as determinative of this case. I am unwilling to follow the majority in the further extension of the rule as to municipal immunity from tort liability.

The doctrine of municipal immunity “is undergoing essential modification, and certain judicial decisions and writers have faith in its abolition. ...” 6 McQuillan, Mun. Oorp., p. 1042; “Objections to the Governmental or Proprietary Text,” Murray Seasongood, 22 Va. Law Rev., June, 1936. “Concerning the denial of municipal liability for negligence in the performance of public or governmental function, it has been.said that 'the theory is the survival of the medieval idea that the sovereign power can do no wrong. Reasons for its existence are based upon theories discarded and exploded in every other realm dealing with the relationship of citizens to government and government to citizens.’ The doctrine has been seriously questioned and condemned by eminent jurists and distinguished legal authors.” McQuillan, Mun. Corp., p. 1054, quoting from McNaught, J., in Baty v. City of Binghamton, 252 N. Y. S., 263, 265-6; 141 Mis. Rep., 127.

In the words of McNaught, J., in Baty v. Binghamton, supra: “The doctrine of nonliability of municipal corporations, even in the exercise of governmental functions, has been seriously questioned and condemned. Eminent jurists and distinguished legal authors have criticized the doctrine in unsparing terms. Reasons for immunity in one case and liability in the other have been clearly shown not to be satisfactory. The United States Supreme Court has said: ‘We must not be understood as conceding tbe correctness of tbe doctrine by wbicb a municipal corporation, as to tbe discharge of its administrative duties, is treated as having two distinct capacities, tbe one private or corporate, and tbe other governmental or sovereign, in wbicb latter it may inflict a direct and positive wrong upon tbe person or property of a citizen without power in tbe courts to afford redress for such wrong.' Workman v. City of New York, 179 U. S., 552, 574; 21 S. Ct., 212, 220; 45 L. Ed., 314.”

Professor Borchard has made it clear that tbe modern tendency is against tbe rule of nonliability as to municipal corporations. “Government Liability in Tort,” 34 Yale Law Journal, 528. Tbe late Justice Cordoza wrote, “Tbe line of demarcation (between corporate and governmental functions) . . . has at best a dubious correspondence with any dividing line of justice. Tbe distinction has been questioned by tbe Supreme Court of tbe United States. It has been rejected recently in Ohio.” Law and Literature, p. 57, citing Workman v. City of New York, supra, and Fowler v. City of Cleveland, 100 Ohio St., 158, 126 N. E., 72. More recently Professor Barnett has demonstrated that tbe recently attempted distinction between tbe so-called “public” and “private” functions of municipal corporations did not exist at'English common law, that tbe distinction was made in tbe Dartmouth College case only for tbe protection of contract obligations and was forcibly grafted upon municipal tort law in Bailey v. City of New York (1842) in bolding tbe city liable. He criticizes tbe distinction as being reactionary and unfortunate in that it limited tbe liability of municipal corporations to one class of functions in contradiction to tbe prevailing view wbicb logically applied tbe general principle of tort liability to all corporations alike. “Tbe Foundations of tbe Distinction Between Public and Private Functions in Respect to tbe Common Law Tort Liability of Municipal Corporations,” James D. Barnett, 16 Oregon Law Review, April, 1937, p. 250.

Tbe problem is essentially a social one of distributing tbe social and economic effects of injury or death so that it may be borne in tbe most desirable manner. Under tbe traditional rule of immunity tbe loss falls heavily upon tbe individual, often an individual or family who is poorly prepared to withstand tbe economic shock of serious illness or death. In an enlightened age tbe social policy of permitting such a loss to lie where it has fallen may, well be questioned. So long as government exists as a group society, one of its primary aims must be tbe distribution of losses to tbe end that tbe plight of tbe unfortunate individual may be made less severe by tbe aid of tbe group which exists for tbe protection of tbe individuals within that group.

Tbe social and legal reasons for challenging a further extension of tbe doctrine of municipal immunity from tort liability in tbe instant ease, in my opinion, are compelling. In tbe first place, the facts of this case are such that, on the facts alone, it may well be held to be beyond the scope of the rule of nonliability. In the second place, there is at least doubt as to the applicability of the nonliability doctrine to the facts of this case, and in such a situation the law resolves the doubts against the immunity and in favor of the injured citizen. Finally, the doctrine of nonliability has been so sharply challenged both as to its legal and historical soundness and as to its social desirability, that, in my opinion, the rule should not be extended further, but should be limited sharply to those fact situations which are clearly covered by the prior pronouncements of this Court.

No government stands above the moral code. What is simple justice between men should be justice between governments and men. A law cannot hope for permanence which rests largely upon the superior force of the sovereign; -law should represent the group consciousness of the right, the fused good will of the individuals within the group. A sovereignty born of the common welfare means, more than anything else, the ability to secure the assent of the individuals within the group. There is nothing sacred or essential in the doctrine of municipal non-liability for torts. The State and municipalities can function as surely, and perhaps with greater precision in the meting out of exact justice among its people, if the doctrine of nonliability is strictly interpreted and applied as the exception rather than the general rule.