Carter v. City of Greensboro

106 S.E.2d 564 (1959)

249 N.C. 328

Jimmy CARTER by his Next Friend Fred Clapp, v. CITY OF GREENSBORO.

No. 603.

Supreme Court of North Carolina.

January 14, 1959.

H. J. Elam, III, City Atty., H. L. Koontz, Holt, McNairy & Harris, Greensboro, for defendant, appellant.

Jordan, Wright & Henson, by Welch Jordan, Greensboro, for plaintiff, appellee.

HIGGINS, Justice.

The legal dispute involves the question of law whether the facts in evidence make out a case for the jury. The defendant contends the cause should have been withdrawn from the jury upon either of three grounds: (1) The plaintiff failed to file his claim within the time required by the city charter as a condition precedent to the institution of this action; (2) the defendant is immune from liability for negligence in this case in that the injury occurred incident to the performance of a necessary governmental function; (3) the defendant was the local managing agent for the United States under the terms of the contract, and, therefore, any action for tort must be brought in the Federal court which is given exclusive jurisdiction. The defenses interposed do not involve the question of negligence, the character of the injuries, or the amount of the verdict.

1. The evidence discloses the plaintiff was horribly burned on December 2, 1946, *567 under the circumstances alleged in the complaint. He was then three years old, living with his father and mother in one of the rental units. Later the father and mother separated, then were divorced. The plaintiff remained with the mother. She was a witness in the case. It is apparent from her testimony that she was of very limited education. She testified the plaintiff had difficulty in remembering things; that "he can work around the house; he waters and feeds dogs, and he helps in the garden a little." From the time of the injury until the last day of December he was treated in the hospital at Greensboro and then transferred to Duke Hospital in Durham where he remained until June, 1947. At Duke Hospital he underwent six different skin grafting operations; was given 17 blood transfusions; and submitted to anesthesia 41 times during the course of his treatment. He testified he goes to school, is in the 7th grade, but is crippled and handicapped in his movements. One of his school teachers, called as a witness by the defendant, testified: "He is below average a dull, slow student." He was without guardian. His family consisted of his mother, his stepfather, and a sister two years older than he. He remembers very little about the accident, his stay in the hospital, or his return home. So far as the record discloses, he was first advised of his legal rights by Mr. Jordan, now of counsel, who immediately gave notice and filed his claim. The plaintiff was then twelve.

Ordinarily, the giving of timely notice is a condition precedent to the right to maintain an action, and nonsuit is proper unless the plaintiff alleges and proves notice. Wallace v. City of Asheville, 208 N.C. 74, 179 S.E. 18; Dayton v. City of Asheville, 185 N.C. 12, 115 S.E. 827, 30 A.L.R. 1186; Pender v. City of Salisbury, 160 N.C. 363, 76 S.E. 228. However, there is an exception to the rule. The plaintiff may relieve himself from the necessity of giving notice by alleging and proving that at the time notice should have been given he was under such mental or physical disability as rendered it impossible for him by any ordinary means at his command to give notice; and that he actually gave notice within a reasonable time after the disability was removed. Barnett v. Elizabeth City, 222 N.C. 760, 24 S.E.2d 264; Webster v. City of Charlotte, 222 N.C. 321, 22 S.E.2d 900; Foster v. City of Charlotte, 206 N.C. 528, 174 S.E. 412; Hartsell v. City of Asheville, 166 N.C. 633, 82 S.E. 946; Terrell v. City of Washington, 158 N.C. 281, 73 S.E. 888.

In this case the plaintiff, as a part of his cause of action, alleged his failure to file the notice within the time fixed by the defendant's charter and at the same time he alleged facts which, if true, brought his case within the exception. The evidence offered was sufficient to support the finding the plaintiff, the three-year-old son of one of the distressed tenants, was horribly burned; that he spent more than six months in the hospital, underwent six skin grafting surgical operations, was given 17 blood transfusions, and submitted to anesthesia 41 times. He was without guardian; his mother of limited education, later divorced, and his father in parts unknown. Under such circumstances is it not the policy of the law and the duty of judges to guard his rights with jealous care and to see that the door of the courthouse is not closed to him when he is without fault? The evidence required the court to submit the second issue to the jury. Its answer is conclusive. Failure to give earlier notice does not justify nonsuit.

In order properly to understand the defendant's second and third grounds for nonsuit, we quote a few pertinent provisions of the contract between the United States (FPHA) and the defendant (the Local Body): "This contract entered into this 21st day of February, 1946, by the United States (FPHA), * * * and the City of Greensboro * * * The FPHA will provide * * * 96 family dwelling units * * * all of which undertakings * * * shall be at its cost and expense. The local *568 body * * * shall select and provide a site * * * deemed suitable by FPHA. * * * The local body shall prepare a plan of management for the project * * * consisting of standards for * * * adjustment of rents and an estimate of * * income and expense. * * * The Project Management Plan shall be prepared (by the local body) in accordance with a form prescribed by FPHA * * * and submitted * * * for review and approval. * * * The local body shall manage and operate the project * * * in accordance with the provisions of this contract (including the approved Project Management Plan) and in accordance with such further rules * * * as may be deemed appropriate by the local body * * *"

The project was made possible by the Act of Congress known as the Lanham Act, 42 U.S.C.A. § 1521 et seq. The purpose was to furnish temporary low rent housing accommodations for distressed families of servicemen in congested areas. The contract provided that the local body should collect the rent, retain a fixed amount per unit for ground rental, for water, for taxes, for insurance, for management expenses, and to account to the FPHA for any balance. "Notwithstanding any other provisions hereof (contract) * * * any annual deficit, resulting from the operation and management of the project * * *" shall be the sole obligation of the local body. This contract required the local body (Greensboro) to remove the (dwelling accommodations) units two years after the termination of the emergency. "* * * such disposition and removal * * * shall be at the sole cost * * * of the local body and any salvage or proceeds * * * may be retained by the local body." Under the terms of the contract the city received a substantial sum of money, all of which was charged against and deducted from rents received from the tenants.

The question presented by the defendant's second ground for nonsuit is whether the defendant acted in its governmental or in its proprietary capacity in carrying out its contract with the FPHA. If the city, in operating the housing project for a limited class of tenants in which it received a substantial ground rental and other benefits, and the salvage upon removal of the structures, was engaged in one of its governmental activities, then the motion for nonsuit upon the second ground should have been sustained. If the city acted in its proprietary capacity, it would be liable for the negligent act of its employees, and motion for nonsuit upon the second ground was properly denied.

Whether specific acts of a city are governmental or proprietary has been the subject of many of this Court's decisions. Glenn v. City of Raleigh, 248 N.C. 378, 103 S.E.2d 482; Glenn v. City of Raleigh, 246 N.C. 469, 98 S.E.2d 913; Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371; Klassette v. Liggett Drug Co., 227 N.C. 353, 42 S.E.2d 411; Hunt v. City of High Point, 226 N.C. 74, 36 S.E.2d 694; Millar v. Town of Wilson, 222 N.C. 340, 23 S.E.2d 42; Broome v. City of Charlotte, 208 N.C. 729, 182 S.E. 325; Parks-Belk Co. v. City of Concord, 194 N.C. 134, 138 S.E. 599; Henderson v. City of Wilmington, 191 N.C. 269, 132 S.E. 25. "Any activity of the municipality which is discretionary, political, legislative, or public in nature and performed for the public good in behalf of the State rather than for itself comes within the class of governmental functions. When, however, the activity is commercial or chiefly for the private advantage of the compact community, it is private or proprietary." Britt v. City of Wilmington, 236 N.C. 446, 73 S.E.2d 289, 293. The cases of Cox v. City of Kinston, 217 N.C. 391, 8 S.E.2d 252; Wells v. Housing Authority, 213 N.C. 744, 197 S.E. 693; and Webb v. Port Commission, 205 N.C. 663, 172 S.E. 377, do not help the defendant in its attempt to classify the activities here involved as governmental and not proprietary.

The duties the city assumed and the purposes it sought to accomplish, the special *569 and limited class of tenants who could qualify for occupancy, and the substantial financial returns the city received under the contract placed the city's management of the project in the category of proprietary activity. The employees of the city who ignited and abandoned the trash fire were not engaged in cleaning streets or disposing of garbage. They were engaged in maintaining the housing project. The defendant's motion for nonsuit on the ground the injury resulted from the acts of an employee engaged in one of the city's governmental functions was properly denied.

The defendant contends the City of Greensboro was the local managing agent of the FPHA project and as such agent is immune from suit except in the Federal court, and the motion to nonsuit on the third ground should have been allowed. The specific contention is: "* * * being merely a managing agent for the Federal Government under the contract, * * the persons employed to maintain and operate the housing project, such as the workmen who allegedly set the fire, are employees of the Federal Government and not of the City of Greensboro. * * * and the United States and not the City of Greensboro is liable, if there is any liability * * *"

Title 28 U.S.C.A. § 1346(b), gives Federal courts exclusive jurisdiction in tort cases resulting in injury or loss caused by employees of the government. Section 2671 provides: "`Employee of the government' includes officers or employees of any federal agency, * * * and persons acting on behalf of a federal agency in an official capacity, * * * in the service of the United States * * *" The same section provides: "`Federal agency' includes the executive departments and independent establishment of the United States, and corporations primarily acting as, instrumentalities or agencies of the United States but does not include any contractor with the United States." (Emphasis added.)

There was evidence the employees of the defendant serviced the housing project, cleaned up the grounds, destroyed the rubbish which in some cases was carried off and in some cases burned on the ground. There was evidence the employees were using the city's trucks and equipment, set the fire, left it, and that they were paid for their services by the city, probably from the operating fund charged against the rents from the project.

Defendant's motion to dismiss on the ground the action should have been brought in the Federal court against the United States, or against the defendant as its agent, was properly denied.

The charge is omitted from the record. It must be assumed, therefore, that the court gave the defendant the full benefit of accurate instructions as to the principles of law applicable to the evidence in the case. No valid reason is made to appear why the verdict and judgment should be disturbed.

No error.