Branch Banking & Trust Co. v. WILSON COUNTY BD. OF ED.

111 S.E.2d 844 (1960)

251 N.C. 603

BRANCH BANKING & TRUST COMPANY, Administrator of the Estate of Robert Alkie WILLIAMS, deceased, v. WILSON COUNTY BOARD OF EDUCATION.

No. 249.

Supreme Court of North Carolina.

January 14, 1960.

*848 Carr & Gibbons, Wilson, for plaintiff.

Gardner, Connor & Lee, Wilson, for defendant.

DENNY, Justice.

No formal pleadings are required in a proceeding under our State Tort Claims Act. It is only necessary in order to invoke the jurisdiction of the Industrial Commission for the claimant or person in whose behalf the claim is made to file with the Industrial Commission an affidavit in duplicate setting forth the material facts, as required by G.S. § 143-297. This statute does not require the use of legal, technical or formal language, and the claimant is not held to the strict rules of pleadings applicable to common law actions. However, the claimant must have in his affidavit, among other things, "A brief statement of the facts and circumstances surrounding the injury and giving rise to the claim." This the plaintiff has done on behalf of its intestate.

The appellant assigns as error the ruling of the court below to the effect that the hearing commissioner and the full Commission were correct in dismissing the plaintiff's claim upon the conclusion of law that the plaintiff's affidavit and the stipulations of the parties affirmatively show that the negligence of Geraldine Buzby insulated the negligence of the defendant's bus driver.

Plaintiff contends that its affidavit and stipulations stated facts which affirmatively show that the negligence of the defendant's bus driver was either the sole proximate cause or a joint and concurring proximate cause of the death of Robert Alkie Williams, and that it should have been permitted to introduce evidence of its claim as set forth in its affidavit.

We are inclined to the view that this assignment of error is not without merit. It was stipulated that the Wilson County Board of Education had adopted certain rules and regulations governing the operation of its school buses; that such rules and regulations were in effect at the time of this accident. However, we are not given the benefit of the requirements of those rules. What do the rules require of a bus driver in a situation like that described in the affidavit? We are not advised. The plaintiff was not permitted to introduce any evidence, not even the rules about which the parties stipulated. In our opinion, in an informal proceeding like that provided in our Tort Claims Act, the plaintiff is entitled to have its evidence heard, and the evidence, together with the informal pleadings, considered by the hearing commissioner in making his findings of fact and conclusions of law.

The factual situation here is wholly unlike that which existed in Turner v. Gastonia Board of Education, 250 N.C. 456, 109 S.E.2d 211. In the Turner case it made no difference what the evidence disclosed since the accident occurred prior to the effective date of Chapter 1256 of the Session Laws of 1955. Hence, at the time the accident occurred, the Gastonia Board of Education was clothed with governmental immunity and had not been authorized by law to waive it.

The second assignment of error is directed to the affirmance of the court below of the allowance by the hearing commissioner of the motion to dismiss the proceeding, which motion was based on the ground that the Tort Claims Act applies only to claims arising solely from the negligence of a State employee or by an employee of a public agency covered by the Act.

The motion to dismiss the proceeding was based on the legal conclusion that no public agency covered by the Tort Claims Act can be held liable for the negligent acts of its employee unless the negligence of such employee was the sole proximate cause of the claimant's injuries and damages. In our opinion this is not a correct interpretation of the Tort Claims Act.

*849 G.S. § 143-291 provides: "The North Carolina Industrial Commission is hereby constituted a court for the purpose of hearing and passing upon tort claims against the State Board of Education, the State Highway Commission, and all other departments, institutions and agencies of the State. The Industrial Commission shall determine whether or not each individual claim arose as a result of a negligent act of any officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, under circumstances where the State of North Carolina, if a private person, would be liable to the claimant in accordance with the laws of North Carolina. (Emphasis added.) If the Commission finds that there was such negligence on the part of an officer, employee, involuntary servant or agent of the State while acting within the scope of his office, employment, service, agency or authority, which was the proximate cause of the injury and that there was no contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, the Commission shall determine the amount of damages which the claimant is entitled to be paid, including medical and other expenses * * *."

The legal limitation on the right to allow a claim under the provisions of G.S. § 143-291 is limited to the same category with respect to tort claims against the agency covered as if such agency were a private person and such private person would be liable under the laws of North Carolina.

It is not necessary to cite authorities in support of the fact that in a tort action the negligence of a private person need not be the sole proximate cause of the injury, but, in the absence of contributory negligence, such party is liable if his negligence was one of the proximate causes of such injury. In our opinion, it was not the intent of the Legislature to limit liability under the Tort Claims Act to situations where the negligence of an employee was the sole proximate cause of the injury or damages inflicted.

The defendant further cites in support of its position the case of Flynn v. North Carolina State Highway and Public Works Commission, 244 N.C. 617, 94 S.E.2d 571, which held that the State Highway and Public Works Commission could not be held liable for acts of omission on the part of one of its employees but only for acts of commission. The defendant points out that the plaintiff's brief concedes that all save one of the charges of negligence on the part of the school bus driver are directed toward failure omission. Be that as it may, with respect to a claim against a county school board, G.S. § 143-300.1 provides: "The North Carolina Industrial Commission shall have jurisdiction to hear and determine tort claims against any county board of education or any city board of education, which claims arise as a result of any alleged negligent act or omission of the driver of a public school bus who is an employee of the county or city administrative unit of which such board is the governing board, and which driver was at the time of such alleged negligent act or omission operating a public school bus in the course of his employment by such administrative unit or such board. * * *"

In view of the conclusion we have reached, the order dismissing this proceeding is set aside and the cause is remanded to the Superior Court to the end that it be remanded to the Industrial Commission for further proceedings in accord with this opinion.

We express no opinion on the merits of the plaintiff's claim or of the defendant's defenses.

Remanded.