Wrape v. North Carolina State Highway Commission

139 S.E.2d 570 (1965)

263 N.C. 499

J. H. WRAPE v. NORTH CAROLINA STATE HIGHWAY COMMISSION.

No. 533.

Supreme Court of North Carolina.

January 15, 1965.

*572 Miller & Beck, by G. E. Miller, Thomas L. O'Briant, Asheboro, for plaintiff appellee.

T. W. Bruton, Atty.Gen., Harrison Lewis, Asst. Atty.Gen., John W. Twisdale, Staff Atty., Andrew McDaniel, Trial Atty., Raleigh, for defendant appellant.

HIGGINS, Justice.

The parties stipulated the construction work on Highway #49 was completed in accordance with the plans and specifications of the Highway Commission and pursuant to its contract. A tort claim, therefore, must be based on faulty plans or faulty specifications. Consequently, a showing of negligence on the part of a designated highway agent in making the plans or in preparing the specifications, is necessary before an award may be made against the State Highway Commission. The Tort Claims Act (G.S. § 143-297) provides: "[T]hat the claim must [contain] * * * (2) the name of the department, institution, or agency of the State against which the claim is asserted and the name of the State employee upon whose negligence the claim is based." Floyd v. North Carolina State Highway & Public Works Commission, 241 N.C. 461, 85 S.E.2d 703.

An omission or failure to act will not support a tort claim. At one time, March 3, 1955, to May 16, 1955, a negligent omission was sufficient, but Chapter 1361, Session Laws of 1955, struck "omission" from the statute. Flynn v. North Carolina State Highway Commission, 244 N.C. 617, 94 S.E.2d 571.

*573 In this case, whose negligent act and what was it that caused the dirt to be carried by water into the claimant's pond? Suber & Co., Inc., the contractor, is let out by the stipulation. The only finding is against W. F. Babcock, Director of Highways, and W. H. Rogers, Jr., Chief Engineer. The finding that Highway #49 was relocated under their direction and as an incident to the relocation a fill was constructed within 500 feet of plaintiff's pond; that silt and dirt were carried by drainage into the pond, are insufficient bases for a finding of negligence. No way is suggested by which rain may be kept from falling on cuts and fills incident to highway construction. Erosion follows as a matter of course. The process may be retarded by grass or vegetation but the growth takes time, careful attention, suitable soil, and favorable weather.

The plaintiff is in the same legal position as other landowners whose property is taken or damaged by the construction of public roads. Negligent planning, or negligent execution of plans may give rise to a tort claims; but in the absence of negligent acts the owner of property is entitled to compensation if the construction of highways amounts to a taking of his property. Eller v. Board of Education, 242 N.C. 485, 89 S.E.2d 144. In this case a State agency, after hearing, has fixed the plaintiff's damage at $12,000.00. If by filing a tort claim rather than a suit in condemnation the plaintiff has permitted the lapse of time to close the door to the courts, nevertheless a coordinate branch of the State Government may be inclined to see the debt is paid.

The findings do not specify any negligent act on the part of either Mr. Babcock or Mr. Rogers. The Superior Court should have sustained Exception No. 6 to finding No. 10 made by the Hearing Commissioner and adopted by the Full Commission. The finding that they were negligent is without support in the evidence.

The judgment of the Superior Court is reversed. This proceeding will be remanded to the North Carolina Industrial Commission for the entry of an award denying the plaintiff's claim.

Reversed.