State ex rel. Hayes v. Billings , 240 N.C. 78 ( 1954 )

JohnsoN, J.

The doctrine of governmental immunity, which shields a county and its innocent taxpayers from liability for the negligence of its officers in the exercise of governmental (as distinguished from proprietary) functions, obtains with all its rigor in this jurisdiction. Jones v. Commissioners, 130 N.C. 451, 42 S.E. 144; Keenan v. Commissioners, 167 N.C. 356, 83 S.E. 556; Rhodes v. Asheville, 230 N.C. 134, 141, 52 S.E. 2d 371. Our decisions are in accord with the great weight of authority elsewhere: 14 Am. Jur., Counties, Sections 48, 49, and 50; 20 C.J.S., Counties, Sections 2.15 and 220.

A county acts in a purely governmental capacity in erecting and maintaining a jail, and is therefore not liable to a person imprisoned or locked up therein for injuries sustained by reason of its improper construction or negligent maintenance. See Manuel v. Commissioners, 98 N.C. 9, 3 S.E. 829; 41 Am. Jur., Prisons and Prisoners, Sec. 18; Annotations: 46 A.L.R. 94; 61 A.L.R. 569.

True, as an exception to the general rule that the State and its subordinate divisions of government are immune from tort liability, we have a line of decisions which recognizes the principle enunciated in Lewis v. Raleigh, 77 N.C. 229, to the effect that a municipality is liable for injuries proximately caused by its negligent construction or maintenance of a prison or lockup. See Moffitt v. Asheville, 103 N.C. 237, 9 S.E. 695; Shields v. Durham, 116 N.C. 394, 21 S.E. 402; S. c., 118 N.C. 450, 24 S.E. 794; Coley v. Statesville, 121 N.C. 301, 28 S.E. 482; Nichols v. Fountain, 165 N.C. 166, 80 S.E. 1059; Hobbs v. Washington, 168 N.C. 293, 84 S.E. 391; Parks v. Princeton, 217 N.C. 361, 8 S.E. 2d 217; Dixon v. Wake Forest, 224 N.C. 624, 31 S.E. 2d 853; Gentry v. Hot Springs, 227 N.C. 665, 44 S.E. 2d 85.

However, in Manuel v. Commissioners, supra (98 N.C. 9), tbis Court refused to extend the doctrine of Lewis v. Raleigh so as to make it applicable to counties, and we are not disposed in the instant case to so extend the scope of this exception to the general rule of nonliability, which according to the text writers obtains in no other jurisdiction. 41 Am. Jur., Prisons and Prisoners, Sec. 18; Annotation, 46 A.L.R. 94, 97 et seq. See also Shaw v. Charleston, 57 W. Va. 433, 50 S.E. 527.

The judgment sustaining the demurrer and dismissing the action as to "Wilkes County will be upheld. Scott v. Veneer Co., ante, 73.

This brings us to a consideration of the sufficiency of the allegations as to the defendant Billings, Sheriff'and custodian of the "Wilkes County jail. Our study of the complaint leaves the impression that the allegations thereof when liberally construed in favor of the plaintiff, as is the rule on demurrer, are sufficient to state a cause of action for negligence against the defendant Sheriff and overthrow the demurrer as to him. See Dunn v. Swanson, 217 N.C. 279, 7 S.E. 2d 563; Davis v. Moore, 215 N.C. 449, 2 S.E. 2d 366; 47 Am. Jur., Sheriffs, Police, and Constables, Sections 26 and 42; G.S. 162-22; G.S. 109-34.

The results, then, are:

As to the defendant County of Wilkes: Affirmed.

As to the defendant Billings : Eeversed.