Givens v. Sellars

159 S.E.2d 530 (1968) 273 N.C. 44

Robert O. GIVENS
v.
J. O. SELLARS, William Hoffler, Jerry Timmons and Sikes Brothers, Inc.

No. 27.

Supreme Court of North Carolina.

February 28, 1968.

Aydlett & White, Elizabeth City, for defendant appellants J. O. Sellars and William Hoffler.

Philip P. Godwin, Gatesville, for defendant appellants Jerry Timmons and Sikes Brothers, Inc.

Small, Small & Watts, Elizabeth City, for plaintiff appellee Robert O. Givens.

HUSKINS, Justice.

"The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of factual averments well stated and such relevant inferences of fact as may be deduced therefrom. Furthermore, pleadings challenged by a demurrer are to be construed liberally with a view to substantial justice between the parties. G.S. 1-127. G.S. 1-151. McKinley v. Hinnant, 242 N.C. 245, 87 S.E.2d 568." Jacobs v. State Highway Commission, 254 N. C. 200, 118 S.E.2d 416. "The facts alleged, but not the pleader's legal conclusions, are deemed admitted when the sufficiency of the complaint is tested by demurrer." Gillispie v. Goodyear Service Stores, 258 N.C. 487, 128 S.E.2d 762. But if the complaint merely alleges conclusions, it is demurrable. Broadway v. Town of Asheboro, 250 N.C. 232, 108 S.E.2d 441. On the other hand, "if in any portion of it or to any extent it presents facts sufficient to constitute a cause of action the pleading will stand * * *." Snotherly v. Jenrette, 232 N.C. 605, 61 S.E. 2d 708. See also Cannon v. City of Wilmington, 242 N.C. 711, 89 S.E.2d 595.

Plaintiff sues for damages for destruction of an outdoor advertising sign located upon his leasehold estate and seeks to recover on the theory of (1) negligence, and (2) willfully tortious conduct of defendants. It thus becomes necessary to examine pertinent legal principles pertaining to plaintiff's theory of his case.

1. An employee of a governmental agency such as the North Carolina State Highway Commission is personally liable for his negligence in the performance of his duties proximately causing injury to the property of another even though his employer is clothed with immunity and not liable on the principle of respondeat superior. Lewis v. Hunter, 212 N.C. 504, 193 S.E. 814; Miller v. Jones, 224 N.C. 783, 32 S.E. 2d 594; Hansley v. Tilton, 234 N.C. 3, 65 S.E.2d 300; Smith v. Hefner, 235 N.C. 1, 68 S.E.2d 783.

2. A contractor employed by the State Highway Commission who is negligent in the performance of his work proximately causing injury to the property of another is personally liable to the owner. Broadhurst v. Blythe Bros. Co., 220 N.C. 464, 17 S.E.2d 646; State Highway Commission v. L. A. Reynolds Co., 272 N.C. 618, 159 S.E.2d 198. Absent negligent or willfully tortious conduct, however, an independent contractor is not liable for injury to another's property caused by the performance of his contract with a governmental instrumentality in accordance with its plans and specifications. State Highway Commission v. L. A. Reynolds Co., supra.

3. Conversely, one who willfully, wantonly and maliciously destroys the personal property of another is personally liable for the injury inflicted. "* * * [W]hile it is true that if a person is doing a lawful thing in a lawful way his conduct is not actionable, though it may result in damage to another, still, * * * when a person goes outside of his line of duty and acts corruptly or with malice he becomes personally liable for consequent damages." Betts v. Jones, 203 N.C. 590, 166 S.E. 589. "* * * [I]f he acted wantonly, doing what any man of reasonable intelligence must have known to be contrary to his duty, and purposely prejudicial and injurious to another, the law will imply malice. This form of malice is also sometimes referred to as malice in law, or legal malice." 34 Am.Jur., Malice, § 3, citing Betts v. Jones, 208 N.C. 410, 181 S.E. 334.

In Foster v. Hyman, 197 N.C. 189, 148 S. E. 36, this Court said:

"An act is done wilfully when it is done purposely and deliberately in violation of law (State v. Whitener, 93 N.C. 590; State v. Rowland Lumber Co., 153 N.C. 610, 69 S.E. 58), or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason. McKinney v. Patterson, supra [174 N.C. 483, 93 S.E. 967]. ``The true conception of wilful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law.' Thompson on Negligence (2 Ed.), § 20, quoted in Bailey v. North Carolina R. R. Co., 149 N.C. 169, 62 S.E. 912.

"An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. Everett v. Receivers of Richmond & D. R. Co., 121 N.C. 519, 27 S.E. 991; Bailey v. North Carolina R. R. Co., supra. A breach of duty may be wanton and wilful while the act is yet negligent; the idea of negligence is eliminated only when the injury or damage is intentional. Ballew v. Asheville & E. T. R. R. Co., 186 N.C. 704, 706, 120 S.E. 334, 335." (Quoted with approval by Parker, J. (now C. J.) in Blevins v. France, 244 N.C. 334, 93 S.E.2d 549.)

4. Injuries intentionally inflicted by employees of a State agency are not compensable under the North Carolina Tort Claims Act. Intentional acts are legally distinguishable from negligent acts. G.S. § 143-291 et seq.; Jenkins v. North Carolina Department of Motor Vehicles, 244 N.C. 560, 94 S.E.2d 577; Davis v. North Carolina State Highway Commission, 271 N.C. 405, 156 S.E.2d 685.

The Tort Claims Act embraces claims only against State agencies. Recovery against the State agency involved must be based upon the actionable negligence of an employee of such agency while acting in the scope of his employment; but recovery, if any, against the negligent employee must be by common law action. Wirth v. Bracey, 258 N.C. 505, 128 S.E.2d 810. "Prior to the enactment of the Tort Claims Act the Highway Commission, as an agency or instrumentality of the State, enjoyed immunity to liability for injury or loss caused by the negligence of its employees. Even so, then as now, an employee of such agency was personally liable for his own actionable negligence." Wirth v. Bracey, supra.

5. "A lessee as tenant of an estate for years takes and holds his term in the same manner as any other owner of realty holds his title, subject to the right of the sovereign to take the whole or any part of it for public use upon the payment to him of just compensation." 26 Am.Jur.2d, Eminent Domain, § 79. When such leasehold estate is taken under the power of eminent domain, the ownership of personalty kept on the premises taken, but not permanently affixed thereto, is not affected; and the owner is entitled to remove same at his own expense. Williams v. State Highway Commission, 252 N.C. 141, 113 S.E.2d 263. "[T]he Highway Commission has no authority to appropriate personal property for public use. G.S. 136-19." Midgett v. North Carolina State Highway Commission, 260 N.C. 241, 132 S.E.2d 599. "No allowance can be made for personal property, as distinguished from * * * fixtures, located on the condemned premises. * * *" 29A. C.J.S. Eminent Domain § 175(1), p. 740.

Plaintiff alleges his leasehold estate has not been condemned by the State Highway Commission. Whether the sign maintained thereon was a part of the realty for which the State Highway Commission must pay just compensation when the leased estate is condemned, may not be raised by demurrer and is not now before us. That is a matter dehors the complaint. Wright v. Fidelity & Casualty Co., 270 N.C. 577, 155 S.E.2d 100; 3 Strong's N. C. Index, Pleadings, § 15. Even so, this is not to say that the measure of damages in this case is correctly reflected in paragraphs 17 and 18 of the complaint. Compensatory damages for injury to personal property is the difference between its fair market value immediately before and immediately after the injury. If the property has no market value the measure of damages may be gauged by the cost of repairs. United States Fidelity & Guaranty Co. v. P. & F. Motor Express, 220 N.C. 721, 18 S.E.2d 116; 3 Strong's N. C. Index 2d, Damages § 4.

Tested in light of these legal principles, and liberally construed with a view to substantial justice between the parties, the complaint is sufficient to survive the demurrers. A complaint must be fatally defective before it will be rejected as insufficient. Gillispie v. Goodyear Service Stores, supra, 258 N.C. 487, 128 S.E.2d 762; Woody v. Pickelsimer, 248 N.C. 599, 104 S. E.2d 273.

For the reasons stated the judgments of the learned trial judge overruling the demurrers are

Affirmed.