Hamilton v. City of Rocky Mount

Adams, J. The plaintiff alleges that the defendant in its private and corporate capacity owns and operates a plant for generating and distributing electricity for profit, not only to citizens within the corporate limits, but to persons and corporations outside the city; that for accomplishing these purposes the defendant owns and maintains also a system of wires, poles, and transformers within and without the city limits; and that a part of the electric current, not sold for profit, is used in lighting the streets. If it be conceded for the present purpose that the lighting of its streets by the defendant is a governmental function, the distribution of electricity for a profit is a privilege exercised in its private capacity for its own benefit. As to the proprietary or private character of a municipal corporation “the theory is that the powers are supposed not to be conferred, primarily or chiefly, from considerations connected with the government of the State at large, but for the private advantage of the compact community which is incorporated as a distinct legal personality or corporate individual; and as to such powers, and to the property acquired thereunder, and contracts made with reference thereto, the corporation is to be regarded quoad hoc as a private corporation.” 1 Dillon (5 ed.), sec. 109. *509 Upon tbe doctrine of tbe twofold character of municipal corporations tbe defendant rests its contention that if tbe complaint sets forth certain acts done by tbe defendant in its governmental capacity and other acts which are of a proprietary, private or quasi-private nature, the plaintiff alleges that she was injured while the city was engaged in the construction of a system for lighting its streets, which it contends, was merely the performance of a public or governmental duty. There is substantial unanimity of opinion upon the proposition that a city when exercising its private or corporate powers is liable in damages for the negligence of its employees and, as a rule, that it is not liable for negligence in its exercise of a governmental function. 6 McQuillin’s Mun. Corporations (2 ed.), sec. 2792; Mack v. Charlotte, 181 N. C., 383; James v. Charlotte, 183 N. C., 630; Scales v. Winston-Salem, 189 N. C., 469; Parks-Belk Co. v. Concord, 194 N. C., 134; Cathey v. Charlotte, 197 N. C., 309. The law which imposes liability in one case and not in the other has been stated in a number of the decisions of this Court, notably Fisher v. New Bern, 140 N. C., 506; Harrington v. Wadesboro, 153 N. C., 437; Terrell v. Washington, 158 N. C., 282; Woodie v. Wilkesboro, 159 N. C., 353; Harrington v. Greenville, ibid., 632; Asbury v. Albemarle, 162 N. C., 247; and Munich v. Durham, 181 N. C., 188. In some of these cases there is strong intimation, if not express decision, that according to the complaint, which the demurrer admits to be true, the city was not engaged in the exercise of such governmental function as would exempt it from liability. But the decision of this question is not essential to affirmance of the judgment. In the complaint there is clear and definite allegation that the city negligently failed to maintain its streets in a reasonably safe condition; that the cable by which the plaintiff was injured extended along the sidewalk and created a dangerous obstruction which imperiled the safety of those who had occasion to use the streets. This allegation removes the defense of a governmental function. The controlling principle is given by McQuillin: “And where the right of action is based on the failure of the municipal corporation to use ordinary care in maintaining its streets, public ways and sidewalks in a reasonably safe condition for travel in the usual modes, such negligence in a majority of the states, aside from statutory or charter provision, furnishes another exception to the principles mentioned, and hence the governmental function doctrine in such eases has no application.” 6 Mun. Corporations (2 ed.), sec. 2793. “This rule,” he says, “is founded upon the ‘illogical exception’’ to the general rule of the common law disallowing actions against municipalities for negligence in the discharge of duties imposed upon them for the sole benefit of the public and from which they derive no compensation or benefit in their *510 corporate capacity. It is obvious that tbe obligation, so far as travelers are concerned, is one of a public character, fulfilled, not for pecuniary profit'or private corporate advantage, but exercised as a purely governmental function. It is generally said that the liability arises by implication from the nature of the subject and the vast powers conferred upon such corporations, including the exclusive control of the streets. The additional reason is presented in some decisions, that making and improving streets and keeping them in repair is a ministerial function and relates to corporate interests only.” I Mun. Corporations (2 ed.), sec. 2902. Whether this doctrine is illogical is a question with which we are not concerned. This Court has consistently adhered to the principle that the liability of municipal corporations for injury caused by defective streets is “too firmly established to admit of further question.” Harrington v. Greerville, supra. The purpose of the defendant, it will be observed, was not to construct or improve its streets and sidewalks, but to install a system of electric lights. One other question is to be considered: The plaintiff filed her first complaint on 6 June, 1929; the defendant demurred, and Judge Daniels sustained the demurrer for the reason that the complaint had no allegation that the city was engaged in the exercise of any corporate function. This defect was supplied in the amended complaint and the defendant’s demurrer thereto was overruled. The defendant now contends that the plaintiff is concluded by the judgment sustaining the first demurrer and relies upon the doctrine of estoppel by judgment. This asserted defense does not appear on the face of the amended complaint; and when a demurrer invokes a fact which does not appear on the face of the pleading demurred to, it is called a “speaking demurrer,” and as such is insufficient. Sandlin v. Wilmington, 185 N. C., 257. To meet this objection the defendant moved that the action be dismissed because the question raised by the demurrer had been finally determined by the judgment of Judge Daniels, and offered to read the first complaint and the first demurrer. The motion was in legal effect a demurrer ore tenus, which, when a formal demurrer is filed, is permissible for stating other causes which could have been included in the formal demurrer; but such objection (except when there is a want of jurisdiction or the complaint does not state a cause of action) is considered only in its relation to the particular pleading to which the formal demurrer is addressed. Mountain Park Institute v. Lovill, 198 N. C., 642. There was no error in denying the defendant’s motion. The defense may be interposed by answer. Judgment affirmed.