Harrington v. Town of Greenville

Hoke, J. As we interpret tbe complaint, plaintiff states and intends to state bis grievance in two aspects: (1) That bis property was destroyed by reason, of negligent failure of tbe city of Greenville to abate a nuisance wbicb threatened tbe result; (2) that tbe injury arose in whole or in part from negligent default in equipment and operation of a fire department maintained by tbe city for tbe public benefit; and under our decisions both questions must be resolved against him. It is well recognized with us that unless a right of action is given by statute, municipal corporations may not be held civilly liable to individuals for “neglect to perform or negligence in performing duties wbicb are governmental in their nature,” and including generally all duties existent or imposed upon them by law solely for tbe public benefit. McIlhenny v. Wilmington, 127 N. C., 146; Moffitt v. Asheville, 103 N. C., 237; Hill v. Charlotte, 72 N. C., 55. Tbe general power to abate nuisances conferred on municipalities by section 2929 and other sections of tbe Revisal, and tbe power to regulate, inspect, and condemn buildings, con■tained in sections 2981 et seq. are clearly governmental in char *635 acter, and for negligent default on the part of the city and its officers and agents no action lies, none having been given by the law. Applying this principle, the well-considered'case of Hull v. Roxboro, 142 N. C., 453, is an authority directly against the first proposition contended for by plaintiff, and Peterson v. Wilmington, 130 N. C., 76, is equally decisive on the second. In Hull's case it was held: “A municipal corporation is not civilly liable for the failure to pass ordinances to preserve the public health or otherwise promote the public good nor for any omission to enforce the ordinances enacted under the legislative powers granted in its charter, or to see that they are properly observed by its citizens, or those who may be resident within the corporate limits.” And in Peterson’s case: “That an employee of. a fire department of a city cannot recover for injuries caused by a hose reel of the city fire department being knowingly allowed to be and remain in unsafe and dangerous condition.” The ruling in this last case was made to rest on the principle that in maintaining and operating a fire department for the benefit of the public, the city was engaged in the exercise of governmental duties, and therefore not liable to individuals, unless made so by statute, a position in accord with the general current of authority: Wild v. Patterson, 47 N. J. L., 406; Fisher v. Boston, 104 Mass., 87; Jewett v. New Haven, 38 Conn., 368; Torbush v. Norwich, 38 Conn., 225; Long v. Birmingham, 161 Ala., 427; Mayor of New York v. Workman, 67 Fed., 346. We are not called on to decide whether the cases of Coley v. Statesville, 121 N. C., 301, and Lewis v. Raleigh, 77 N. C., 229, are in strict adherence to the principle. We have no disposition to disturb the responsibility as established on the particular facts of those cases and others of similar import, and the liability of such municipalities by reason of defective streets, if in any way inconsistent, is too firmly established to permit of further question. In more especial reference to the negligence alleged in the proper maintenance of the fire department and the failure of the water supply for the same, we deem it well to refer to .a class *636 of cases which, hold that where municipal corporations are engaged in a business enterprise for profit, they will not be considered and dealt with as in the exercise of governmental functions, though their work may inure to some extent to the public benefit, and in such cases the corporation is held subject to the ordinary burdens and liabilities arising in thp course of the business, as in Woodie v. North Wilkesboro, 159 N. C., 353; Terrell v. Washington, 158 N. C., 281; Harrington v. Wadesboro, 153 N. C., 437; Fisher v. New Bern, 140 N. C., 506. But this modification of the general principle, if it be such, must be held to extend only to those burdens and liabilities incident to the business features of the enterprise, and does not obtain where, as in this case, the municipality in the exercise of powers and duties imposed by the law is maintaining and operating a fire department solely for the public benefit. There is no error, and the judgment sustaining the demurrer must be affirmed. Affirmed.