Miller v. Jones

Sea well, J.

In tbe court below tbe defendants did not challenge tbe sufficiency of tbe evidence to go to tbe jury or to. support tbe allegation of negligence, except in one respec1&wkey;that it did not show any willfulness, malice or corruption on tbe part of tbe defendants. It will be seen that at a former bearing, tbe demurrer to tbe complaint for that it did not charge that tbe acts of tbe defendants were done maliciously, was sustained; and instead of appealing therefrom, tbe plaintiff amended bis complaint by so charging. That became tbe theory upon which tbe case was tried below, and upon which it was beard here. , See appellees’ brief, p. 2: “Tbe case came on for trial, and upon tbe conclusion of tbe plaintiff’s evidence, the defendant moved for judgment of nonsuit, for that there was no evidence to sustain tbe allegation of 'wilful, wrongful, wanton, and malicious’ negligence. Tbe Court sustained tbe motion of nonsuit and dismissed tbe action, and the plaintiff appealed to this Court.”

A further reading of tbe brief shows that tbe defense was based entirely on a misconception of Wilkins and Ward v. Burton, 220 N. C., 13, 16 S. E. (2d), 406, and tbe postulate that “it is there established that employees and agents of tbe State Highway and Public Works Commission cannot be held personally liable for negligence in tbe discharge of their governmental functions except upon allegation and proof of wanton-ness or corruption.”

Prefacing our further discussion with tbe statement, which will further receive attention, that there is plenary evidence to sustain tbe allegation of negligence in any aspect of tbe case, we first pay attention to tbe theory advanced by tbe defendants themselves.

It is a rule of law that an officer charged with tbe performance of a governmental duty involving discretion cannot be held for mere negli*787gence with respect thereto, but, on. the contrary, is not liable unless his act, or his failure to act, is corrupt or malicious. Hipp v. Ferrall, 173 N. C., 167, 91 S. E., 831; Templeton v. Beard, 159 N. C., 63, 74 S. E., 735. The act or omission then, for all practical purposes, takes on the guise of a malicious tort. The immunity thus extended to officers in the performance of a public duty- grows out of a public policy which is fully explained in the two cases cited. Hipp v. Ferrall, supra; Temple-ton v. Beard, supra, and cases cited. One reason for the existence of such a rule is that it would be difficult to find those who would accept public office or engage in the administration of public affairs if they were to be held personally liable for acts or omissions involved in the exercise of discretion and sound judgment which they had performed to the best of their ability, and without any malevolent intention toward anyone who might be affected thereby. However, in proper cases even public officers may be liable for misfeasance in the performance of their ministerial duties where injury has ensued. Whether such liability would extend to omissions, as well as to acts of commission, in the absence of imperative legal duty, we need not now determine. Hipp v. Ferrall, 173 N. 0., 167, 91 S. E., 831; Hudson v. McArthur, 152 N. C., 445, 67 S. E., 995; Hathaway v. Hinton, 46 N. 0., 243; Rowley v. Cedar Rapids, 203 Iowa, 1245, 212 N. W., 158, 53 A. L. B., 375.

The suggested immunity has never been extended to a mere employee of a governmental agency upon this principle, although employed upon public works, since the compelling reasons for the nonliability of a public officer, clothed with discretion, are entirely absent. Of course, a 'mere employee doing a mechanical job, as were the defendants here, must exercise some sort of judgment in plying his shovel or driving his truck — but he is in no sense invested with a discretion which attends a public officer in the discharge of public or governmental duties, not ministerial in their character. In short, the defendants were not public officers, nor were they in the performance of • any discretionary act. The mere fact that a person charged with negligence is an employee of others to whom immunity from liability is extended on grounds of public policy does not thereby excuse him from liablity for negligence in the manner in which his duties are performed, or for performing a lawful act in an unlawful manner. The authorities generally hold the employee individually liable for negligence in the performance of his duties, notwithstanding the immunity of his employer, although such negligence may not be imputed to the employer on the principle of respondeat superior, when such employer is clothed with a governmental immunity under the rule. Lewis v. Hunter, 212 N. C., 504, 507, 508, 193 S. E., 814; Florio v. Jersey City, 129 Atl., .470, 40 A. L. E., 1353 (anno.); Sherry v. Rich, 228 Mass., 462, 17 N. E., 824; Anno. 40 A. L. E., 1358.

*788Tbe State of North Carolina has adopted this view in Lewis v. Hunter, supra, and any extension of immunity in that respect is a matter of legislative action.

It is proper to say, however, that it is a broad general rule that any person who violates a legal duty he owes to another is liable for the natural and probable consequences of his act or omission, and exceptions to that rule should not, by mere judicial rationalization, be extended beyond the recognized public policy out of which they spring.

While the defendants have not so contended, it has been suggested that they were under the direction of superiors, who required the work to be done in a particular way. In support of this view, we have cited to us Dorsey v. Henderson, 148 N. C., 423, 62 -S. E., 547, in which the city was held not to be liable in damages for the act of cutting down the level of the street in front of plaintiff’s store. That case merely decided that a municipal corporation “has authority to grade its streets and.is not liable for consequential damage, unless the work was done in an unskillful and incautious manner ” citing Meares v. Wilmington, 31 N. C., 73. The case proceeds entirely upon the principle that a municipality is under no liability to adjacent owners for changing the grade of the street, in the absence of a statute fixing such liability, and that any injury arising from this cause is damnum absque injuria. No question of negligence is involved, and there was no consideration of the doctrine of immunity as we have discussed it, the nonliabilty of the defendant town dependng upon an entirely different principle.

There is no evidence in the record whatever that the defendants were in the actual supervision of their employers, the Highway Commission, or any superior officer or agent thereof, or that any such person was present. The inferences from the whole evidence are directly contrary to such assumption. They were in the performance of a mechanical task, in which it is to be supposed that they were skilled, and were in direct charge of operations. The exigencies of the affair in Hiddenite were not to be controlled from Raleigh or by any officer or functionary whatever two hundred miles from the scene of action; and the presumption that any of those officers had directed the defendants to perform a lawful act in an unlawful or negligent manner is too rash to be indulged in, and, if true, would afford no immunity to any party participating.

The defendants could avoid liability not by any supposed immunity, but only upon the same principle that any other person might be protected in the doing of a lawful act, and that is, that they had not done it negligently, to the injury of another. Meares v. Wilmington, supra; Lewis v. Hunter, supra.

Plaintiff alleges that the defendants’ negligence in failing to use any protection to keep the dust, dirt and other accumulations which were *789blown from the highway by the road sweeper operated by the defendants, out of his store, resulted in substantial damage to him. The evidence in support of this allegation is sufficient to carry the case to the jury.

The judgment of nonsuit erroneously entered by the court below is

Reversed.