Jenkins v. North Carolina Department of Motor Vehicles

94 S.E.2d 577 (1956) 244 N.C. 560

Mary Ruth JENKINS, Administratrix of the Estate of D. C. Jenkins,
v.
NORTH CAROLINA DEPARTMENT OF MOTOR VEHICLES.

No. 21.

Supreme Court of North Carolina.

October 10, 1956.

William B. Rodman, Jr., Atty. Gen., Claude L. Love, Asst. Atty. Gen., Harvey W. Marcus, Staff Atty., Raleigh, for the State.

George H. Ward, Asheville, Felix E. Alley, Jr., Waynesville, for plaintiff, appellee.

HIGGINS, Justice.

Presented here for decision is the question whether recovery under the Tort Claims Statute for the negligent act of a State agent is authorized where the negligent act complained of is the intentional shooting of a prisoner by a member of the State Highway Patrol who had him in custody. That the unjustified shooting under such circumstances is a tort is not open to serious question. If the Act, G.S. § 143 291, authorized recovery for torts committed by employees of the State there would be little difficulty in sustaining the judgment of the Superior Court. While the North Industrial Commission is constituted a court to hear and pass on tort claims, the Act specifically sets out the essentials necessary to be shown by evidence and found by the Commission in order to permit recovery: "The Industrial Commission shall determine whether or not each individual claim arose as a result of a negligent act [emphasis added] of a State employee while acting in the scope of his employment and without contributory negligence on the part of the claimant". As of the date this claim was filed, the absence of contributory negligence had to be shown by the claimant as a part of his case. Floyd v. North Carolina State, etc., Highway Commission, 241 N.C 461, 85 S.E.2d 703. Chapter 400, Session Laws of 1955, amended the original Act and made contributory negligence a matter of defense. The amendment, however, did not become effective until March 31, 1955, and provided that it should relate only to claims arising after that date.

The Commission found "that Jenkins continued to come toward Murrill, whereupon the patrolman struck Jenkins, knocking him sideways; that Murrill then fired again and the bullet grazed the deceased's chest; that the deceased then turned back towards the patrolman but lost his footing and fell; and as the deceased's back was turned toward the patrolman, Murrill fired again and the fatal bullet struck the deceased in the back." The deceased was unarmed. Thus we have an unarmed, intoxicated boy, 23 years of age, five feet seven inches tall, and weighing 130 pounds, a prisoner in the custody of an armed officer weighing 185 pounds. It was the duty of the officer to take the boy to jail alive to answer for a misdemeanor. Instead, the boy was taken to the morgue, shot in the back. There was sufficient competent evidence before the Commission to permit and justify the finding and conclusion that the shooting in this case was intentional.

While the courts of the several states are not in agreement as to the various acts and omissions which may be included in the term "negligence," there is, however, general agreement that an intentional act of violence is not a negligent act.

At common law, actions for trespass and trespass on the case provided remedies for different types of injuries: The former "for forcible, direct injuries, whether to persons or property," and the latter "for wrongful conduct resulting in injuries which were not forcible and not direct." Law of Torts, Prosser, Ch. 2, pp. 26, 27. In the former, the injury was intended. In the latter, injury was not intended but resulted from the careless or unlawful act. Negligence, in all its various shades of meaning, is an outgrowth of the action of trespass on the case and does not include intentional acts of violence. For example, an automobile driver operates his car in violation of the speed law and in so doing inflicts injury as a proximate result, his liability is based on his negligent conduct. On the other hand, if the driver intentionally runs over a person it makes no difference whether the speed is excessive or not, the driver is guilty of an assault and if death results, of manslaughter or murder. If injury was intended it makes no difference whether the weapon used was an automobile or a pistol. Such willful conduct is beyond and outside the realm of negligence.

As was said by Justice Adams in Ballew v. Asheville & E. T. R. Co., 186 N.C. 704, 120 S.E. 334, 335, "The authorities generally hold that the doctrine of contributory negligence as a bar to recovery has no application in an action which is founded on intentional violence, as in the case of an assault and battery; but intentionable violence is not negligence, [emphasis added] and without negligence on the part of the defendant there can be no contributory negligence on the part of the plaintiff." To like effect is the opinion of Justice Bobbitt in Hinson v. Dawson, 244 N.C. 23, 92 S.E. 2d 393, 396: "An analysis of our decisions impels the conclusion that this Court, in references to gross negligence, has used that term in the sense of wanton conduct. Negligence, a failure to use due care, be it slight or extreme, connotes inadvertence. Wantonness, on the other hand, connotes intentional wrongdoing." (Emphasis added.)

In addition to the above, the position here taken finds support in the following cases: Gallegher v. Davis, 7 W.W.Harr. 380, 37 Del. 380, 183 A. 620; Kasnovitch v. George, 348 Pa. 199, 34 A.2d 523; Seaman Store Co. v. Bonner, 195 Ark. 563, 113 S.W.2d 1106; Millington v. Hiedloff, 96 Colo. 581, 45 P.2d 937; Kile v. Kile, 178 Okl. 576, 63 P.2d 753; Haacke v. Lease, Ohio App., 41 N.E.2d 590; Pittsburgh, C., C. & S. L. R. Co. v. Ferrell, 39 Ind.App. 515, 78 N.E. 988, 80 N.E. 425; Walker v. Chicago & A. R. Co., 149 Ill.App. 406; Lockwood v. Belle City St. Ry. Co., 92 Wis. 97, 65 N.W. 866; Louisville & N. R. Co. v. Perkins, 152 Ala. 133, 44 So. 602; Gardner v. Heartt, 3 Denio, N. Y., 232; Pitkin v. N. Y. & N. E. R. Co., 64 Conn. 482, 30 A. 772; Murphy v. Barlow Realty Co., 206 Minn. 527, 289 N.W. 563; Michels v. Crouch, Tex.Civ. App., 122 S.W.2d 211; Gimenez v. Rissen, 12 Cal.App.2d 152, 55 P.2d 292; Gibeline v. Smith, 106 Mo.App. 545, 80 S.W. 961; St. Louis & S. F. R. Co. v. Boush, 68 Okl. 301, 174 P. 1036; Schulte v. Louisville & N. R. Co., 128 Ky. 627, 108 S.W. 943; Kuelling v. Roderick Lean Mfg. Co., 183 N.Y. 78, 75 N.E. 1098, 2 L.R.A.,N.S., 303; Robinson v. Township of Ocean, 123 NJ.L. 525, 9 A.2d 300.

Under our Tort Claims Act, contributory negligence on the part of the plaintiff is a complete defense to the claim. Contributory negligence is no defense to an intentional tort. Stewart v. Yellow Cab Co., 227 N.C. 368, 42 S.E.2d 405; Ballew v. Asheville Fry v. Southern Public Utilities Co., 183 N.C. 281, 111 S.E. 354. That contributory negligence under the wording of the Act will defeat a claim supports the view that it was not the intention of the Legislature to allow recovery for torts involving violence.

In the case of Lowe v. Department of Motor Vehicles, 244 N.C. 353, 93 S.E.2d 448, the Commission found that the patrolman was negligent in using his pistol but that its discharge was an accident. This finding of negligence was sufficient to support the recovery.

The claimant here, in support of recovery, cites cases arising under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq. But that Act, unlike ours, provides for recovery not only for negligent acts, but also for wrongful acts on the part of an employee. After authorizing recovery for wrongful acts, however, the Congress provided that the Act shall not apply to "Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C.A. § 2680. Our Act needs no such exceptions for it does not permit recovery for wrongful acts. That contributory negligence is made a defense lends powerful support to the view that the negligent acts contemplated are those to which contributory negligence would be a defense.

Strong and appealing argument can be advanced why compensation should be allowed in this case, upon the ground that the more grievous the fault on the part of the agent of the State, the more readily the State should compensate for the injury. But the Court must construe the Act as written. The Legislature has power to change the law. The court does not have that power.

The judgment of the Superior Court of Haywood County is

Reversed.

RODMAN, J., took no part in the consideration or decision of this case.

JOHNSON, J., not sitting.

PARKER, J., concurs in result.