Valevais v. City of New Bern

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178 S.E.2d 109 (1970)

10 N.C. App. 215

Azilee Parker VALEVAIS, Charles N. Parker, John R. Parker and Edgar L. Parker, Jr. v. The CITY OF NEW BERN.

No. 703SC504.

Court of Appeals of North Carolina.

December 30, 1970.

*111 Robert G. Bowers, New Bern, for plaintiff appellants.

Barden, Stith, McCotter & Sugg by Laurence A. Stith and A. D. Ward, Ward & Ward, New Bern, for defendant appellee.

GRAHAM, Judge.

It is universally recognized that in the absence of statutory provision, there can be no recovery against a municipal corporation for injuries resulting from its negligence or nonfeasance in the exercise of functions essentially governmental in character. In the exercise of such functions, the municipal corporation is acting for the general public as well as the inhabitants of its territory, and in such capacity represents the general sovereignty of the state. Metz v. Asheville, 150 N.C. 748, 64 *112 S.E. 881; Stone v. City of Fayetteville, 3 N.C.App. 261, 164 S.E.2d 542; 38 Am.Jur., Municipal Corporations, § 572, p. 261. The maintenance and operation of a fire department is a function which a municipality undertakes in its governmental capacity. Mabe v. Winston-Salem, 190 N.C. 486, 130 S.E. 169.

Plaintiffs do not dispute these principles, but contend they are not applicable here because their complaint alleges a breach of contract action rather than an action grounded in tort.

We examine first the question of whether a valid contract existed between the defendant and plaintiffs. Although the complaint does not specifically show the location of plaintiffs' property with respect to the corporate limits of defendant, for purposes of this opinion we treat the complaint, as did the parties in their briefs and upon oral argument, as sufficient to show that: (1) at the time of the execution of the easement, the enactment of the ordinance, and the fire which is the subject of this suit, plaintiffs' property was located outside defendant's corporate limits and (2) defendant's duty to afford fire protection to plaintiffs' property arose, if at all, out of its acquisition of the easement and the subsequent resolution or ordinance.

The resolution or ordinance adopted by the Board of Aldermen specifically acknowledged that the granting of the easement by plaintiffs was conditioned upon the City's promise to afford them fire protection. The City had plenary authority to acquire an easement over plaintiffs' property for water and sewer purposes by purchase or condemnation. G.S. §§ 160-204 and 160-205. It also had the obligation to justly compensate plaintiffs for the property rights acquired. U.S.Const. amend. XIV, § 1; N.C.Const. art. 1, § 17. We know of no law or public policy which would have precluded the City from compensating plaintiffs for the property rights acquired by agreeing to furnish them fire protection. The legislature has authorized municipalities to agree to furnish and to furnish fire protection outside their corporate limits within certain specified areas. G.S. § 160-238. No contention is made by the defendant that the resolution or ordinance authorizing the protection of plaintiffs' property was ultra vires. We therefore hold that the City was obligated, by contract, to furnish fire protection to plaintiffs' property.

It does not follow, however, that plaintiffs' complaint states a claim for relief based upon breach of contract. There are no allegations that defendant has ever denied the obligation it assumed by resolution or ordinance to provide fire protection to plaintiffs' property. This action, insofar as the record shows, has never been rescinded. The alleged claim is based upon the failure of the members of the Fire Department to promptly respond to the fire call in spite of their duty to do so which arose under the direction of the resolution or ordinance. The members of the Fire Department were not the governing body of the City. They could not extend or withhold from plaintiffs a right to have the benefit of their fire protection services. Their failure to comply with the direction of defendant's ordinance would constitute, not a breach of contract, but a negligent omission. This negligent conduct, arising out of a governmental function, cannot be imputed to the City.

Plaintiffs further contend that the obtaining of the easement by the City was profitable in that it permitted the City to sell water at a profit. This, plaintiffs say, makes the furnishing of fire protection given in exchange for the easement a proprietary function rather than a governmental function. We do not agree.

In point is the case of Bagwell v. City of Gainesville, 106 Ga.App. 367, 126 S.E.2d 906. There plaintiff alleged that he owned a hatchery and other equipment located just beyond the defendant's corporate limits and that he purchased water from the *113 City and the City agreed "to furnish all necessary water for the use of his hatchery and to extinguish any fire which might originate therein." (Emphasis added). Plaintiff's suit sought recovery for damages occasioned in part by the defendant's refusal to permit any of its available fire equipment to extinguish a fire at plaintiff's hatchery. In affirming the sustaining of a demurrer to plaintiff's petition, the Court of Appeals of Georgia recited the general principles relating to the immunity of a municipality for damages arising out of the performance of a governmental function and concluded: "It necessarily follows that so much of the petition as sought to impose liability upon the city for refusal to dispatch its fire-fighting equipment to extinguish the fire did not delineate any actionable liability." In accord: Banks v. City of Albany, 83 Ga.App. 640, 64 S.E.2d 93. See also 63 C.J.S. Municipal Corporations § 776, p. 84.

We also reject plaintiffs' contention that the agreement of the City in this case constituted a waiver of its immunity. "Every incorporated city or town * * * shall have the powers prescribed by statute, and those necessarily implied by law, and no other." G.S. § 160-1. In the absence of statutory authority, a municipality has no authority to contract away or waive its governmental immunity in respect to torts committed in the exercise of its governmental function. 5 Strong, N.C. Index 2d, Mun.Corp., § 12, pp. 634, 635, and cases therein cited. We know of no statute, and none has been cited to us, which authorizes a city to waive its governmental immunity with respect to torts committed in connection with the maintenance and operation of a fire department.

We conclude that defendant's plea in bar was properly sustained and the action dismissed.

Affirmed.

MALLARD, C. J., and PARKER, J., concur.