Price Ex Rel. Bland v. Board of Trustees

Hoke, J. The complaint, in effect, alleges that in September, 1915, defendant, incorporated by act of General Assembly, Public-Local Laws 1913, ch. 321, and charged with duty of constructing and maintaining the public roads of Goldsboro Township, Wayne County, were, through their employees and agents, in performance of their corporate duties, engaged in blasting out certain portions of a public road in said township and using for the purpose dynamite cartridges, etc.; that said employees, while so engaged, by reason of a rainstorm suddenly arising, were forced to seek shelter in a barn of one Howard, situate near the roadway, and, on departing from said barn, wrongfully, carelessly, and negligently left therein a box of dynamite cartridges, and later a child of the owner, aged 9, found said box, which had been left “on a sill in said barn in easy reach and plain view,” and the contents were distributed among his playmates, who were present with him at the time; that one of these, Ollie Price, aged 10, was endeavoring to open the cartridge given to him, with a pin, when it exploded, causing him serious and permanent injury, etc. To this complaint, defendant corporation entered formal demurrer for cause, chiefly, that it appeared on face of the complaint that defendant corporation, in so far as connected with the transaction, is a municipal *85 corporation, a branch of tbe county government, and engaged at tbe time in building and grading tbe public roads, a work purely public and governmental in its nature, and in sucb case tbe corporation is not liable for tbe torts of its employees, agents, etc. His Honor, being of opinion witb defendant, entered judgment, as stated, sustaining tbe demurrer, and the plaintiffs appealed. It is tbe general rule in this jurisdiction that a municipal corporation, when engaged in tbe exercise of powers and in tbe performance of duties conferred and enjoined upon them for tbe public benefit, may not be held liable for torts and wrongs of their employees and agents, unless made so by statute. Snider v. High Point, 168 N. C., 608; Harrington v. Greenville, 159 N. C., 632; McIlhenny v. Wilmington, 121 N. C., 146; Moffit v. Asheville, 103 N. C., 237; White v. Comrs., 90 N. C., 437. A limitation upon tbe general rule is recognized and established in several of the more recent decisions on tbe subject when tbe injury complained of amounts to a taking of private property of tbe citizen, within tbe meaning of tbe term “taking” as understood and defined in administering tbe rights of eminent domain. See Donnell v. Greensboro, 164 N. C., 330; Hines v. Rocky Mount, 162 N. C., 409; Little v. Lenoir, 151 N. C., 415. Again, it is held that tbe general rule, as first stated, does not obtain where tbe corporation, though partaking to some extent of tbe-nature of a municipal agency and exercising some sucb powers, is, in its primary and controlling purpose, a private enterprise, undertaken and organized for purpose of private gain. Leary v. Comrs., ante, 25; Southern Assembly v. Palmer, 166 N. C., 75; Comrs. v. Webb, 160 N. C., 594. There is doubt if tbe limitation first suggested has been always sufficiently adverted to and observed in some of our cases; but however that may be, there can be no question that, on tbe facts of this record, the general rule should prevail, it appearing that tbe wrong complained of was in no sense an invasion of tbe proprietary rights of plaintiffs, or any of them, but a tort pure and simple, perpetrated by defendant’s agents and employees, if at all, while engaged in tbe performance of duties, governmental in their nature and imposed upon and undertaken by defendant corporation entirely for tbe public benefit. There is no error, and tbe judgment of bis Honor, sustaining tbe demurrer, must be Affirmed.