Flynn v. NORTH CAROLINA STATE HIGHWAY, ETC.

94 S.E.2d 571 (1956)

244 N.C. 617

Ethel Agnes FLYNN, Administratrix of the Estate of Terry Eugene Flynn, deceased, v. NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION.

No. 94.

Supreme Court of North Carolina.

October 17, 1956.

*572 William J. Cocke, Sam M. Cathey, Asheville, for plaintiff, appellant.

Kenneth Wooten, Jr., Raleigh, Harkins, Van Winkle, Walton & Buck, by O. E. Starnes, Jr., Asheville, for defendant, appellee.

HIGGINS, Justice.

The claim in this case is based on the alleged negligent failure of the named employees of the State Highway & Public Works Commission to repair a hole or break in the surface of the Cane Creek Road caused by public travel over it. In passing another vehicle, the father of plaintiff's intestate drove his pickup truck into the hole, lost control of it, wrecked it, with the result that Terry Flynn, age four years, was killed and the remaining seven occupants were injured. The claimant contends the break in the road surface was of such size and had existed for such length of time as to give the defendant's agents, naming them, constructive notice of its existence; and their failure to repair it was negligence. The claimant further contends she has the right to prosecute a claim for damages against the defendant under the Tort Claims Act, G.S. § 143-291. The pertinent part of the Act in effect at the time the claim arose is here quoted:

"The Industrial Commission shall determine whether or not each individual claim arose as a result of a negligent act of a State employee while acting within the scope of his employment and without contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted. If the Commission finds there was such negligence on the part of a State employee while acting within the scope of his employment which was the proximate cause of the injury and that there was no contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, the Commission shall determine the amount of damages which the claimant is entitled to be paid, including medical and other *573 expenses, and by appropriate order direct the payment of such damages by the department, institution or agency concerned, but in no event shall the amount of damages awarded exceed the sum of eight thousand dollars ($8,000.00)."

In order to authorize the payment of compensation, the Industrial Commission's findings must include (1) a negligent act, (2) on the part of a State employee, (3) while acting in the scope of his employment, etc. The first requirement is that the claimant show a negligent act. Is a failure to repair a hole in the highway caused by ordinary public travel a negligent act? The requirement of the statute is not met by showing negligence, for negligence may consist of an act or an omission. Failure to act is not an act. We think it was the intent of the Legislature to permit recovery only for the negligent acts of its employees, for the things done by them, not for the things left undone. If the intent had been otherwise, it would have been easy to permit recovery for the negligent acts and omissions of State employees. The Industrial Commission then would be authorized to award damages resulting from a negligent act or from a negligent failure to act.

That the interpretation here given is correct, we think, is shown conclusively by subsequent legislative enactments. Chapter 400, Session Laws of 1955, ratified March 31, 1955, amended the Tort Claims Act by inserting after the words, "negligent act," the words, "or omission." By inserting the additional words the conclusion is inescapable the Legislature did not consider they were already included. However, on May 16, 1955, Chapter 1361, an amendment to Chapter 400, was passed, striking out the words, "or omission." By taking these words out, the conclusion is likewise inescapable that it was the legislative intent they should not be included.

From the foregoing we conclude the claim of damages as the result of failure to repair Cane Creek Road is not compensable under G.S. § 143-291 and amendments thereto. Consequently, the judgment of the Superior Court of Buncombe County is

Affirmed.

JOHNSON, J., not sitting.

PARKER, J., concurs in result.