Latham v. State Highway Commission

Stacy, C. J.

Tbis case was before us at a former term ( 185 N. C., 134 ), on plaintiff’s appeal from a judgment sustaining a general demurrer interposed by tbe defendants and wbicb was reversed because of tbe presence of tbe individual defendant and tbe broad allegations of tbe complaint.

Hipp v. Ferrell, 169 N. C., 551 , S. c., 173 N. C., 167 . Doubtless tbe demurrer should bave been sustained as to tbe other defendants, especially tbe State Highway Commission.

Carpenter v. R. R., 184 N. C., 400 . But however tbis may be, in view of tbe evidence offered on tbe bearing, we bave experienced no difficulty in concluding that tbe present judgment of nonsuit should be sustained; not only as it relates to tbe State Highway Commission and its agent, tbe Pasquotank Highway Commission (Jenkins v. Griffith, 189 N. C., 633 ), but also as it concerns tbe individual defendant, T. L. Higgs.

Hyder v. Henderson County, 190 N. C., 663 ;

Noland Co. v. Trustees, 190 N. C., 250 . There is no evidence on tbe instant record sufficient to render any of tbe defendants liable in damages to tbe plaintiff on either cause of action set out in tbe complaint. Tbe State Highway Commission was tbe moving spirit in all that was done, and it is not liable to suit for trespass or tort such as tbe plaintiff has instituted here.

Mabe v. Winston-Salem, 190 N. C., 486 .

In Carpenter v. R. R., supra, it was held (1) that tbe State Highway Commission is not an incorporated body with tbe right to sue ánd be sued generally, but that it is an agency of tbe State, charged with tbe duty of exercising certain administrative and governmental functions (C. S., 3846) ; (2) that a state cannot be sued in its own courts or elsewhere unless it has expressly consented to such suit by legislative enactment or in cases authorized by tbe organic law; and (3) that, generally speaking, a state cannot be held liable for torts committed by its officers or agents in tbe discharge of their official duties unless it has voluntarily assumed such liability. And we may add that where a state agency, like tbe State Highway Commission, is created for certain designated purposes and a statutory method of procedure provided for adjusting or litigating claims against such agency, tbe remedy set out *143 in tbe statute is exclusive and may alone be pursued.

McIntyre v. R. R., 67 N. C., 278 ;

Parks v. Comrs., 186 N. C., 490 ;

Jones v. Comrs., 130 N. C., 452 ;

Dargan v. B. R., 131 N. C., 623 ;

Durham v. Rigsbee, 141 N. C., 128 ;

Luther v. Comrs., 164 N. C., 241 ;

Pharr v. Comrs., 165 N. C., 523 ;

Shute v. Monroe, 187 N. C., 683 ;

Allen v. R. R., 102 N. C., 381 .

Tbe line of cases, beginning witb Mason v. Durham, 175 N. C., 638 , and including among others, Fleming v. Congleton, 177 N. C., 186, Keener v. Asheville, ibid., 1, Sawyer v. Drainage District, 179 N. C., 182 , Rouse v. Kinston, 188 N. C., 1 , strongly relied on by plaintiff, is not at variance witb our present position for tbe very good reason, inter alia, tbat in eacb case going to make up tbis line of decisions, tbe action was against a municipal or gwasvmunicipal board or corporation charged witb tbe exercise of ministerial, as well as governmental, functions, and not against an unincorporated agency of tbe State, as in tbe instant case.

Moody v. State Prison, 128 N. C., 12 ;

Jones v. Henderson, 147 N. C., p. 125. And, too, in tbe Mason case and others, there was a denial of title, making it necessary for plaintiff to resort to tbe Superior Court for a determination of tbe question of ownership and tbe right to claim damages.

On tbe record, tbe defendant’s motion for judgment as of nonsuit, made at tbe close of plaintiff’s evidence, was properly allowed.

Affirmed.