dissenting: The defendants Charlie Jones and Wes Abernathy were drivers and operators of a truck with blower attachments upon the highways of North Carolina and were employees of the State Highway and Public Works Commission to which said truck with attachments belonged, and said defendants so drove the truck with its attachments by the store of the plaintiff as to cause dirt and filth to be blown on the goods of the plaintiff in said store, to their great damage. While it may be conceded that the operation of said truck with its attachments in the manner in which it was operated might, under certain circumstances, constitute evidence of actionable negligence, still I do not concur in the conclusion that the evidence in this case was sufficient to have been submitted to the jury.
According to the record the defendants were employees and agents of the State Highway and Public Works Commission and any liability which attached to them was due to their public employment. “It is the established law in this jurisdiction that public officers, in the performance of their official and governmental duties involving the exercise of judgment and discretion, may not be held liable as individuals for breach of such duty unless they act corruptly and of malice. Templeton v. Beard, 159 N. 0., 63, 74 S. E., 735. It is also a recognized principle with us that in case of duties plainly ministerial in character, the individual liability of public officers for negligent breach thereof does not attach where the duties are of a public nature, imposed entirely for public benefit, unless the statute creating the office or imposing the duties makes provision for such liability.” Old Fort v. Harmon, 219 N. C., 241, 13 S. E. (2d), 423; Wilkins and Ward v. Burton, 220 N. C., 13, 16 S. E. (2d), 406.
If the plaintiff seeks to hold the defendants liable upon the theory that they were in the performance of official or governmental duties involving the exercise of judgment or discretion his effort should fail for the want of any evidence of corruption or of malice on the part of the defendants. Hipp v. Ferrall, 173 N. C., 167, 91 S. E., 831; Wilkins and Ward v. Burton, supra.
If the plaintiff seeks to hold the defendants liable upon the theory that the defendants’ duties with the relation to driving and operating the truck with sweeper attachments were ministerial in character, it appears that such duties were of a public nature and were imposed for public *790benefit and no provision is made in tbe statute creating such, duties imposing individual liability upon the part of the person upon whom such duties are cast, and the absence of such provision is fatal to the plaintiff’s case. Hudson v. McArthur, 152 N. 0., 445, 67 S. E., 995; Bates v. Horner, 65 Vt., 471, reported with full note in 22 L. R. A., p. 824.
Since the defendants were public employees, I think it is immaterial' whether they were engaged in the performance of official and governmental duties requiring the exercise of judgment and discretion, or were engaged in the performance of duties purely ministerial in character of a public nature and imposed entirely for public benefit, with no provision for personal liability made in the statute creating such duties. In either case, I think the plaintiff should fail in his action.