Davis v. North Carolina State Highway Commission , 271 N.C. 405 ( 1967 )

156 S.E.2d 685 (1967) 271 N.C. 405

T. T. DAVIS and wife, Velma Ann Jones Davis
v.
NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 118.

Supreme Court of North Carolina.

September 20, 1967.

Cecil C. Jackson, Jr., Asheville, for plaintiff appellants.

Thomas Wade Bruton, Atty. Gen., Harrison Lewis, Deputy Atty. Gen., Andrew McDaniel, Asst. Atty. Gen., Gudger & Erwin, Associate Attys., Asheville, for defendant appellee.

SHARP, Justice.

Defendant moved to strike from the complaint and reply the allegations that it had unnecessarily and fraudulently deprived plaintiffs of their property two years before it was required for highway purposes, and that plaintiffs were entitled to compensatory and punitive damages for the loss of its use. This was equivalent to a demurrer to that purported cause of action, and the effect of Judge Martin's order allowing the motion was to sustain the demurrer. Nationwide Mutual Insurance Co. v. Canada Dry Bottling Co., 268 N.C. 503, 151 S.E.2d 14; Williams v. Union County Hospital Asso., 234 N.C. 536, 67 S.E.2d 662. Rule 4(a) of this Court has no application to such orders for they come within the provisions of G.S. § 1-277. Etheridge v. Carolina Power & Light Co., 249 N.C. 367, 106 S.E.2d 560.

The North Carolina State Highway Commission is an agency of the State. It is, therefore, not subject to suit except in the manner provided by statute. It may be sued in tort only as authorized in the Tort Claims Act, G.S. § 143-291. Teer Co. v. North Carolina State Highway Commission, 265 N.C. 1, 143 S.E.2d 247. The Tort Claims Act empowers the Industrial Commission to pass upon tort claims against the State Highway Commission which "arose as a result of a negligent act" of an agent of the State while acting within the scope of his employment by the State. G.S. § 143-291. Neither intentional misrepresentation nor conspiracy to defraud is negligence, and injuries intentionally inflicted are not compensable under the Tort Claims Act. Jenkins v. North Carolina Department of Motor Vehicles, 244 N.C. 560, 94 S.E.2d 577.

"Fraud is distinguishable from mistake or negligence. ``Deceit excludes the idea of mistake, and fraud has been termed a grosser species of deceit. Deceit is a fraudulent misrepresentation, by which one man deceives another, to the injury of the latter.' * * *

"``Fraud is a malfeasance, a positive act resulting from a willful intent to deceive; negligence is strictly nonfeasance, a wrongful act resulting from inattention and not from design. * * * Negligence, whatever be its grade, does not include a purpose to do a wrongful act.'" Walter v. State, 208 Ind. 231, 241, 195 N.E. 268, 272, 98 A.L.R. 607, 613; 37 C.J.S. Fraud § 1.

In no forum is the State Highway Commission liable for fraudulent misrepresentations. Teer v. North Carolina State Highway Commission, supra; see Price v. Board of Road Trustees of Goldsboro Tp., 172 N.C. 84, 89 S.E. 1066. Furthermore, it is "the general rule that ordinarily exemplary, punitive, or vindictive damages are not recoverable in an action for fraud. 37 C.J.S., Fraud, § 144"; Wilkins v. Commercial Finance Co., 237 N.C. 396, 404, 75 S.E.2d 118, 124; accord, Nunn v. Smith, 270 N.C. 374, 154 S.E.2d 497; Swinton v. Savoy Realty Co., 236 N.C. 723, 73 S.E.2d 785.

Even, however, if the allegations contained in plaintiffs' reply were sufficient to state a cause of action the reply was properly stricken; the reply is a defensive pleading. A plaintiff's cause of action must be stated in the complaint—not in the reply. Gilliam Furniture, Inc. v. Bentwood Inc., 267 N.C. 119, 147 S.E.2d 612; Nix v. English, 254 N.C. 414, 119 S.E.2d 220; Phillips v. Hassett Mining Co., 244 N.C. 17, 92 S.E.2d 429; Miller v. Grimsley, 220 N.C. 514, 17 S.E.2d 642; 3 Strong, N.C. Index, Pleadings § 11 (1960).

When, under its power of eminent domain, the State Highway Commission takes private property which it is entitled to condemn, it is liable for the fair market value of the property "as of the date of the taking, and unaffected by any subsequent change in the condition of the property." DeBruhl v. State Highway & Public Works Commission, 247 N.C. 671, 676, 102 S.E.2d 229, 233. Where the payment of compensation is delayed, the condemnee is entitled to interest on that sum at the rate of six per cent from the date of the taking. City of Winston-Salem v. Wells, 249 N.C. 148, 105 S.E.2d 435; DeBruhl v. State Highway & Public Works Commission, supra.

Plaintiffs were not legally required to leave their home on 14 January 1965, the date defendant advised them it would require the property. G.S. § 136-104. However, in deference to defendant's notice to vacate, they acceded to the request, acquired another residence, and moved. They allege that defendant took their property on that date. Defendant, meeting the requirement of elemental justice, admitted the taking on 14 January 1965 and its liability to pay plaintiffs the sum determined to be the fair market value of the property plus interest from that date.

No doubt the property, while standing vacant from 14 January 1965 to 10 March 1966 (the date on which plaintiffs went back into possession), deteriorated in value. Although they retained it until 10 March 1967, and defendant did not take actual possession of the property until 2 May 1967, defendant seeks neither to penalize plaintiffs for their occupancy nor to change the time of taking from 14 January 1965.

Plaintiffs are not entitled to recover any damages—other than interest—for the loss of use of their property between the time they vacated it and the time defendant deposited its estimate of just compensation for the property appropriated. Its fair market value as of the day of the taking is the full measure of plaintiffs' damages. Atlantic Coast Line Railroad Co. v. State Highway Commission, 268 N.C. 92, 150 S.E.2d 70; Williams v. State Highway Commission, 252 N.C. 141, 113 S.E.2d 263.

The allegations contained in the reply and those stricken from the complaint were clearly improper and correctly stricken. Spain v. Brown, 236 N.C. 355, 72 S.E.2d 918. The issue determined by the judge is the only issue which arises upon the pleadings.

The order of the court below is, in all respects,

Affirmed.