Stephenson v. City of Raleigh
59 S.E.2d 195
N.C.
1950
Check Treatment
*46 WiNBORNE, J.

Admitting the truth of the allegations of fact set forth in the complaint, as well as relevant inferences of fact necessarily deducible therefrom, as we do in testing the sufficiency of a complaint, challenged by demurrer, Parks v. Princeton, 217 N.C. 361, 8 S.E. 2d 217, and numerous other cases, we are of opinion that the complaint fails to state a cause of action against the defendant, City of Raleigh, a municipal corporation.

Decisions on the subject in this State uniformly hold that, in the absence of some statute which subjects it to liability therefor, a city or town, when acting in its corporate character, or in the exercise of powers for its own advantage, may be liable for the negligent acts of its officers and agents; but when acting in the exercise of police power, or judicial, discretionary, or legislative authority, conferred by its charter or by statute, and when discharging a duty imposed solely for the public benefit, it is not liabile for the tortious acts of its officers and agents. Parks v. Princeton, supra. See also Hill v. Charlotte, 72 N.C. 55; McIlhenney v. Wilmington, 127 N.C. 146, 37 S.E. 187; Harrington v. Greenville, 159 N.C. 632, 75 S.E. 849; Snider v. High Point, 168 N.C. 608, 85 S.E. 15; James v. Charlotte, 183 N.C. 630, 112 S.E. 423; Cathey v. Charlotte, 197 N.C. 309, 148 S.E. 426; Broome v. Charlotte, 208 N.C. 729, 182 S.E. 325; Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814; Hodges v. Charlotte, 214 N.C. 737, 200 S.E. 889; Millar v. Wilson, 222 N.C. 340, 23 S.E. 2d 42.

Applying these principles to the facts alleged in the complaint, if it be conceded that there are allegations of negligence on the part of defendants, through its agents and employees, proximately causing the injury to' and death of plaintiff’s intestate, it appears that the acts in which the agents and employees of defendant were using the truck at the time in question,' — the collecting and removing prunings from shrubbery and trees from homes of citizens and residents of the city, — were in pursuance of authority conferred by law for the public benefit, and come within the principle that unless a right of action is given by statute a municipality may not be held liable to individuals for failure to perform, or negligence in performing duties which are governmental in their nature. See particularly the cases of Snider v. High Point, supra; James v. Charlotte, supra, and Broome v. Charlotte, supra, each of which is of kindred nature to the one in hand.

And the appellee cites, and we know of, no statute imposing liability upon municipalities, cities and towns for torts committed by their officers, agents or employees, in connection with the performance of governmental functions.

Now, in respect of the allegations of paragraph 11 of the complaint, appellee contends that defendant, City of Raleigh, has waived its immu *47 nity to tort liability. If this be conceded, the question arises as to whether the City of Raleigb has the power and authority to do so. In this connection, it must be borne in mind that the Legislature has declared that “every incorporated city or town is a body politic and corporate, and shall have the powers prescribed by statute, and those necessarily implied by law, and no other.” G.S. 160-1. And the decisions of this Court are uniform in applying this statute as it is written. In the recent case of Nash v. Tarboro, 227 N.C. 283, 42 S.E. 2d 209, it is said: “A municipal corporation is a political subdivision of the State and ‘can exercise only such powers as are granted in express words, or those necessary or fairly implied or incident to the powers expressly conferred, or those essential to the accomplishment of the declared objects and purposes of the corporation.’ 37 Am. Jur. 722,” citing cases. And we know of no statute, and none is called to our attention that empowers any city, town or other municipality to waive immunity to tort liability, directly or indirectly. In the absence of such a statute a city, or town, or other municipality has no power to abrogate the rule. the cases relied upon by appellee are distinguishable. the case Taylor v. Knox County Board of Education, 292 Ky. 767, 167 S.W. 2d 700, upon which appellee most strongly relies, is differentiated from the case in band, in that the decision there is hased upon an act of the General Assembly passed in 1940.

Thus we bold that the demurrer to the complaint is well founded, and should have been sustained.

Moreover, plaintiff, appellee, by amending the complaint, has undertaken to spell out the terms of, and the conditions pertaining to the alleged contract, — of waiver of immunity, — an insurance policy. But reference to the quoted portion clearly reveals that the policy is one of indemnity against loss, and protects only the insured, the City of Raleigh, and does not purport to create liability to anyone who may suffer tortious injury as result of acts of officers, agents or employees of the city in the performance of governmental duties. Thus the amendments are deemed to be immaterial and irrelevant to the cause of action attempted to be alleged in the complaint. Hence the motion to strike bas merit, — and should have been allowed.

For causes stated, the judgment from which appeal is taken is

Reversed.