Seibold v. City of Kinston , 268 N.C. 615 ( 1966 )

151 S.E.2d 654 (1966) 268 N.C. 615

Lucille W. SEIBOLD
v.
CITY OF KINSTON and County of Lenoir.

No. 360.

Supreme Court of North Carolina.

December 14, 1966.

Turner & Harrison, Kinston, for plaintiff appellant.

Wallace, Langley & Barwick, by F. E. Wallace, Jr., Kinston, for defendant appellee City of Kinston.

Whitaker, Jeffress & Morris, by A. H. Jeffress, Kinston, for defendant appellee County of Lenoir.

PARKER, Chief Justice.

PLEA IN BAR OF GOVERNMENTAL IMMUNITY BY THE CITY OF KINSTON AND THE COUNTY OF LENOIR

The city of Kinston is a municipal corporation. Municipal corporations have only those powers expressly conferred upon them by the General Assembly, and those necessarily implied from those expressly conferred, and those powers which are essential and indispensable to, and not merely convenient for, the accomplishment of the declared objects of the corporation. 3 Strong's N.C. Index, Municipal Corporations, § 4, and the same section of Municipal Corporations in Supplement to Vol. 3 of Strong's N.C. Index.

G.S. § 160-191.1 reads as follows:

"The governing body of any incorporated city or town, by securing liability insurance as hereinafter provided, is hereby authorized and empowered, but not required, to waive its governmental immunity from liability for any damage by reason of death, or injury to person or property, proximately caused by the negligent operation of any motor vehicle by an officer, agent or employee of such city or town when acting within the scope of his authority or within the course of his employment. Such immunity is waived only to the extent of the amount of the insurance so obtained. Such immunity shall be deemed to have been waived in the absence of affirmative action by such governing body." (Emphasis ours.)

G.S. § 160-191.4 provides that a municipality may incur liability pursuant to this article only with respect to a claim arising after such city or such municipality has procured liability insurance pursuant to this article and during the time when such insurance is in force. G.S. § 160-191.5 reads as follows:

"No part of the pleadings which relate to or alleges facts as to a defendant's insurance against liability shall be read or mentioned in the presence of the trial jury in any action brought pursuant to this article. Such liability shall not attach unless the plaintiff shall waive the right to have all issues of law or fact relating to insurance in such an action determined by a jury and such issues shall be heard and determined by the judge without resort to a jury and the jury shall be absent during any motions, arguments, testimony or announcement of findings of fact or conclusions of law with respect thereto unless the defendant shall ask for a jury trial thereon.

"No plaintiff to an action brought pursuant to this article nor counsel, nor witness therefor, shall make any statement, ask any question, read any pleadings or do any other acts in the presence of the trial jury in such case so as to indicate to any member of the jury that the defendant's liability would be covered by insurance, and if such is done order shall be entered of mistrial."

On 14 November 1963 plaintiff instituted an action ex delicto against the Kinston-Lenoir County Public Library, and against its Trustees, Thomas Hewitt, W. A. Allen, Alex Howard, T. J. Turner, Mrs. Wooten Moseley, and Mrs. John Roland, seeking damages for personal injuries on the ground that when descending the steps of the public library on 11 May 1962 the heel of her shoe became lodged in a crack in one of the steps causing her to fall. Defendants demurred because, as they alleged, it affirmatively appears that the library is a governmental agency, and the individual defendants are public officials performing a governmental duty. This came on for hearing on defendants' demurrer at the September 1964 Session of Lenoir. The demurrer was sustained, and plaintiff excepted and appealed. The decision in this case, filed 28 April 1965, and reported in 264 N.C. 360, 141 S.E.2d 519, held the operation of a public library is a governmental function, and its officers are protected against plaintiff's claim of tort liability, and affirmed the judgment entered below. The instant case is to recover damages for the same fall as in her former case, and the allegations of fact in her complaint in respect to her fall are substantially the same as in the instant case.

Governmental immunity of the city of Kinston applies, under such circumstances as presented in the instant case, unless waived by the city of Kinston under the provisions of G.S. § 160-191.1 et seq., and then such immunity is waived only to the extent of the insurance so obtained and in force at the time. G.S. § 160-191.1; Clark v. Scheld, 253 N.C. 732, 117 S.E.2d 838; Moore v. Plymouth, 249 N.C. 423, 106 S.E.2d 695; 29 N.C. Law Rev. 421.

The provisions of G.S. § 160-191.1 provide that the city of Kinston is authorized and empowered, but not required, to waive its governmental immunity from liability for any damage by reason of death, or injury to person or property, proximately caused by the negligent operation of any motor vehicle by an officer, agent or employee of such city, etc. The General Assembly of North Carolina has not authorized and empowered the city of Kinston to waive its governmental immunity from liability for any injury to a person proximately caused by the negligent operation of the Kinston-Lenoir County Public Library. Further, in the hearing of the pleas in bar by Judge Bundy, there is no evidence of any liability insurance policy purchased by the city of Kinston. The plea in bar of the city of Kinston of governmental immunity is good, as Judge Bundy held in his judgment.

In Keenan v. Commissioners, 167 N.C. 356, 83 S.E. 556, it is said: "It is well settled that counties are instrumentalities of government, and are given corporate powers to execute their purposes, and are not liable for damages for the torts of their officials in the absence of statutory provisions giving a right of action against them."

G.S. § 153-9(44) provides:

"The board of county commissioners of any county, by securing liability insurance as hereinafter provided, is hereby authorized and empowered to waive the county's governmental immunity from liability for damage by reason of death, or injury to person or property, caused by the negligence or tort of the county or by the negligence or tort of any official or employee of such county when acting within the scope of his authority or within the course of his employment. Such immunity shall be deemed to have been waived by the act of obtaining such insurance, but such immunity is waived only to the extent that the county is indemnified by insurance from such negligence or tort.

* * * * * *

"A county may incur liability pursuant to this subdivision only with respect to a claim arising after the board of county commissioners has procured liability insurance pursuant to this subdivision and only during the time when such insurance is in force.

"No part of the pleadings which relates to or alleges facts as to a defendant's insurance against liability shall be read or mentioned in the presence of the trial jury in any action brought pursuant to this subdivision. Such liability shall not attach unless the plaintiff shall waive the right to have all issues of law or fact relating to insurance in such an action determined by a jury and such issues shall be heard and determined by the judge without resort to a jury and the jury shall be absent during any motions, arguments, testimony or announcement of findings of fact or conclusions of law with respect thereto unless the defendant shall ask for a jury trial thereon." (Emphasis ours.)

G.S. § 153-9(44) provides that the board of county commissioners is authorized and empowered to waive the county's governmental immunity from liability for damages by reason of death, or injury to person or property, caused by the negligence or tort of the county or by the negligence or tort of any official or employee of such county, etc. The same section provides such immunity shall be deemed to have been waived by the act of obtaining such insurance, and such immunity is waived only to the extent that the county is indemnified by insurance from such negligence or tort. In the hearing before Judge Bundy of the pleas in bar, Lenoir County offered in evidence a liability insurance policy, No. XAP137544, issued by the Fidelity and Casualty Company of New York, in favor of "Board of Commissioners, Lenoir County, Kinston, North Carolina," affording protection to it from liability for bodily injury, within certain prescribed limits, caused by the negligence of certain named personnel and employees of Lenoir County and covering certain listed and described premises owned and operated by the insured, but this policy afforded no protection for alleged tortious acts of any employees or officials of the Kinston-Lenoir County Public Library, and said policy of insurance did not include, cover or embrace within its protection the premises known as Kinston-Lenoir County Public Library. This is stated in plaintiff's brief: "The defendant County in support of its Motion to Dismiss and Plea in Bar introduced at the Hearing held in this matter Policy No. XAP137544 issued by Fidelity and Casualty Company, which policy does not afford protection for negligent acts occurring at the Library. However, there is another policy, the premiums of which have been paid with public funds derived from both the County and the City, which said policy does provide protection to both the City and the County for negligent acts occurring at the Library. The defendants have thus far prevented the plaintiff from procuring a copy of such policy. However she will take such means as are necessary to compel the production of this second policy at the trial of this action." Even if there was another policy as plaintiff contends, she had her day in court to compel its production by defendants, and she failed to do so. There is no evidence at the hearing before Judge Bundy that Lenoir County had purchased any other liability insurance policy which protected it from liability under the facts and circumstances of the instant case. Consequently, the plea in bar of governmental immunity by Lenoir County is good, as Judge Bundy held in his judgment.

According to the record before us, the defendants did not ask for a jury trial in respect to the pleas in bar of governmental immunity by each defendant here. Therefore, Judge Bundy had a right under G.S. § 160-191.5 and under G.S. § 153-9(44) to hear and determine without resort to a jury the pleas in bar of each defendant of governmental immunity. Judge Bundy in his judgment did not make any findings of fact and there was no request in the record before us that he make findings of fact. Consequently, it will be presumed that the court on proper evidence found facts sufficient to support the judgment. Greitzer v. Eastham, 254 N.C. 752, 119 S.E.2d 884; Henely Paper Co. v. McAllister, 253 N.C. 529, 117 S.E.2d 431.

"A plea in bar is one that denies the plaintiff's right to maintain the action and which, if established, will destroy the action." 1 Mcintosh, N.C. Practice and Procedure, 2d Ed., Trial Without Jury, § 1394, p. 773; Gillikin v. Gillikin, 248 N.C. 710, 104 S.E.2d 861. Defendants' pleas in bar of governmental immunity, if established, will destroy plaintiff's action.

Plaintiff has one assignment of error: "1. That the court erred in returning and signing the order dismissing the plaintiff's cause of action for that the same is contrary to law." A sole exception and assignment of error to the judgment or to the signing of the judgment presents the face of the record proper for review. Supplement to 1 Strong's N.C. Index, Appeal and Error § 21, p. 32. The effect of Judge Bundy's judgment, among other things, is that defendants established their pleas in bar of governmental immunity in the instant case, and that destroys plaintiff's action, and supports his judgment. Therefore, it is not necessary that we pass on defendants' pleas in bar of contributory negligence, of their pleas in bar that the instant action is barred by the statute of limitations, and their pleas in bar of res judicata. Plaintiff's assignment of error is overruled. No error of law appears on the face of the record proper. The judgment below is

Affirmed.