#### ELMA BEACH v. TOWN OF TARBORO and JOHN F. BREWER.

(Filed 28 February, 1945.)

1. Municipal Corporations § 12—

It is tbe general rule in this jurisdiction that municipal corporations, when engaged in tbe exercise of powers and in tbe performance of duties conferred and enjoined upon them for tbe public benefit, may-not be beld liable for torts and wrongs of tbeir employees and agents, unless made so by statute.

2. Same—

Tbe mission of tbe town’s employee, out of which tbe alleged injury to tbe plaintiff arose, is tbe determining- factor as to liability — not what such employee was called upon to do at other times and places, but what be was engaged in doing at the particular time and place alleged.

3. Same—

In an action against a town to recover'damages for alleged negligent injury to plaintiff by reason of a collision of a taxicab in which plaintiff was riding with a truck of the town, where all of tbe evidence tended to show that the collision occurred when tbe truck was being driven by tbe town’s employee for tbe purpose of repairing five street lights in tbe town lighting system maintained for tbe public good and benefit, tbe court erred in refusing to grant defendant’s motion for judgment as of nonsuit, made at tbe close of plaintiff’s evidence and again at tbe close of all tbe evidence.

Appeal by defendant town of Tarboro from Carr, J., at October Term, 1944, of Edgecombe.

This is a civil action to recover damages for personal injuries to tbe plaintiff alleged to bave been caused by the negligence of tbe defendants. A judgment as of nonsuit was entered at tbe close of tbe plaintiff’s evidence as to tbe defendant Brewer, from which no appeal was taken.

It is alleged by tbe plaintiff that she was a passenger in a taxicab owned by defendant Brewer which was in a collision with a truck owned by tbe defendant town, and that as a result thereof she received personal injuries. ■

It is not denied by tbe defendant town that tbe plaintiff received injuries from a collision between a taxicab in which she was a passenger and a truck of tbe defendant town operated by its employee, but liability for any negligent act of its employee is denied by it upon tbe ground that said act was performed in its behalf in tbe exercise of its governmental function.

Tbe evidence of tbe plaintiff tends to show that tbe truck of tbe town involved in tbe collision under investigation was being operated by one Yernon Pitt, who testified as a witness for tbe plaintiff to tbe effect that *27be, Pitt, was employed by tbe town in tbe light-and power department as service man, light repair and general maintenance for electric lights and street lighting; the town sells electricity to customers for lighting and beating purposes and that be read meters when be cut off or cut on customers; that he got his instructions either at the power plant or tbe City Hall; that be was driving tbe truck from tbe power plant at tbe time of tbe collision, and was going to stop at tbe City Hall to see if anything urgent bad happened before he went to put on tbe street lights be bad on tbe truck; bis first destination was tbe City Hall to find out if any emergency existed, be left tbe power plant with instructions to repair five overhead street lights, and was going to stop at tbe City Hall to see if any line bad broken, or if anybody wanted lights cut on or off; he did not have any instructions to work on any commercial lines at this particular time, and there was none at tbe City Hall when be went there; it was necessary to follow tbe course be did to get to tbe City Hall, and when be left tbe power plant with instructions to repair five street lights he decided to go by tbe City Hall to see if there were any .instructions in regard to emergencies; there was no difference in the course be pursued if be hadn’t needed to go to tbe City Hall; he was using tbe truck be generally used about tbe city repairing any kind of electrical trouble; tbe town sold electricity to homes, places of business and mills and had its own electricity connected with tbe streets and municipal ball; tbe town’s biggest maintenance job is keeping lines clear and banging transformers, it has lines that serve paying customers and lines that serve street lights. One George Earnhardt testified as a witness for tbe plaintiff to tbe effect that be is tbe City Clerk, and kept tbe records, and that tbe town operates a power plant and Mr. Pitt’s salary was paid from tbe utilities fund, line and repair operation, expense of tbe power plant.

When the plaintiff bad introduced her evidence and rested her case tbe defendant town moved to dismiss tbe action and for a judgment as in case of nonsuit, tbe motion was refused, and exception was preserved; when all the evidence on both sides was in said defendant renewed its motion for dismissal and for judgment as in case of nonsuit, which motion was again refused, and defendant preserved exception. G. S., 1-183.

Issues were submitted to tbe jury and were answered in favor of the plaintiff, and from judgment predicated on tbe verdict tbe defendant town appealed, assigning errors.

George M. Fountain and V. F. Fountain for plaintiff, appellee.

Henry 0. Bourne for defendant town, appellant.

*28Schenck, J.

Tbe third and fourth exceptive assignments of error, which, relate to the court’s refusal of defendant’s motion to dismiss the action and for judgment as in ease of nonsuit lodged when the plaintiff had introduced her evidence and rested her case and renewed when all the evidence on both' sides was in, pose the determinative question as to whether the driver of the town’s truck was engaged in the performance of a governmental function at the time of the collision between said truck and the taxicab in which the plaintiff was a passenger. If .such driver was so engaged the motion to dismiss and for judgment as in case of nonsuit should have been allowed, if not so engaged it may be •conceded that the motion was properly disallowed.

“It is the general rule in this jurisdiction that a municipal corporation, when engaged in the exercise of powers and in the performance of duties conferred and enjoined upon them for the public benefit, may not be held liable for torts and wrongs of their employees and agents, unless made so by statute. Snider v. High Point, 168 N. C., 608; Harrington v. Greenville, 159 N. C., 632; McIlhenney v. Wilmington, 127 N. C., 146; Moffitt v. Asheville, 103 N. C., 237; White v. Comrs., 90 N. C., 437." Price v. Trustees, 172 N. C., 84, 89 S. E., 1066.

Upon the facts which the evidence tends to establish, we are constrained to hold that the acts of the defendant employee, which the plaintiff alleges were actionable negligence, were performed by him in behalf of the defendant town in the-exercise of governmental power conferred upon it. The maintenance of a street lighting system is a separate function from the sale of electricity from the same power plant. Just as in Parks-Belk Co. v. Concord, 194 N. C., 134, 138 S. E., 599, the rule of nonliability was held applicable to damages caused by the water used to flush the street which came from the same water main which the city used to convey water for sale to customers.

The mission of the town’s employee, out of which the alleged injury to the plaintiff arose is the determining factor of the case at bar — not what such employee was called upon to do at other times and places, but what he was engaged in doing at the particular time and place alleged. Plaintiff’s evidence shows that the purpose of the trip was to repair five street lights in the lighting system maintained for the public good and benefit — that is what he drove the truck from the power plant to do, and that is what he was proceeding to do at the time of the collision.

Holding as we do that the mission on which the town’s employee had embarked was in the performance of a governmental function, “to put on the street lights which he (I) had on the truck,” it becomes unnecessary for us to consider the other interesting questions presented in the briefs relative to the evidence and the charge.

*29We are of the opinion and so hold that the defendant’s motion for dismissal of the action and for a judgment as in case of nonsuit lodged when the plaintiff rested her case and renewed when all the evidence •on both sides was in should have been allowed and the refusal so to do by ■the court was error for which the judgment below must be

Reversed.