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Guthrie v. North Carolina State Ports Authority

Filed: February 16, 1982.

FRED GUTHRIE, JR. AND KATHY GUTHRIE
v.
NORTH CAROLINA STATE PORTS AUTHORITY



Appeal by defendant from Brown, Judge. Order entered 12 March 1981 in Superior Court, Craven County. Heard in the Court of Appeals 8 December 1981.

Hill, Judge. Judges Vaughn and Webb concur in result.

Hill

This appeal arises from the trial judge's denial of defendant's motions to dismiss. "Ordinarily, there is no right of appeal from the refusal of a motion to dismiss. The refusal to dismiss the action generally will not seriously impair any right of defendant that cannot be corrected upon appeal from final judgment." Godley Auction Co. v. Myers, 40 N.C. App. 570, 573, 253 S.E.2d 362, 364 (1979). Although appeal from an order denying motions to dismiss is fragmentary, our cases allow "the appellate courts [to] entertain an appeal from [such an order] in some cases and elect

to review some cases on their merits . . . ." Shaver v. N.C. Monroe Construction Co., 56 N.C. App. 68, 69, 283 S.E.2d 526, 527 (1981) (emphasis original). Thus, because of the importance of the question presented and our ultimate disposition, we elect to review this case on its merits.

The sole question for our review is whether defendant is an agency of the State of North Carolina under the Act, G.S. 143-291, such that tort claims against it must be instituted exclusively in the Industrial Commission. For the following reasons, we hold that defendant is an agency of the State under the Act, plaintiffs' claims are applicable to the Act, and the trial judge's conclusions of law to the contrary are not supported by his findings of fact.

The Act states that "[t]he North Carolina Industrial Commission is hereby constituted a court for the purpose of hearing and passing upon tort claims against the State Board of Education, the Department of Transportation, and all other departments, institutions and agencies of the State." G.S. 143-291 (emphasis added). Generally, our cases have not been very helpful in construing the emphasized portion of the statute, except to say that "[t]he Tort Claims Act embraces claims only against State agencies." Givens v. Sellars, 273 N.C. 44, 50, 159 S.E.2d 530, 535 (1968). See also Writh v. Bracey, 258 N.C. 505, 128 S.E.2d 810 (1963). However, in Turner v. Gastonia City Board of Education, 250 N.C. 456, 463, 109 S.E.2d 211, 216 (1959), our Supreme Court stated the following:

Under the ordinary rules of construction, "departments, institutions, and agencies of the State." must be interpreted in connection with the preceding designation, "State Board of Education and State Highway & Public Works Commission." Where words of general enumeration follow those of specific classification, the general words will be interpreted to fall within the same category as those previously desginated. The maxim ejusdem generis applies especially to the construction of legislative enactments. It is founded upon the obvious reason that if the legislative body had intended the general words to be used in their unrestricted sense the specific words would have been omitted.

In this light, we will compare the organization and powers of the State Board of Education and the Department of Transportation

with defendant to determine whether the three are ejusdem generis.

"The State Board of Education shall consist of the Lieutenant Governor, the State Treasurer, and 11 members appointed by the Governor, subject to confirmation by the General Assembly in joint session." G.S. 115C-10. The Governor may fill vacancies on the Board for unexpired terms without legislative confirmation. Id. G.S. 115C-12 vests in the State Board of Education "[t]he general supervision and administration of the free public school system . . . ." For its financial powers, "[t]he Board shall have general supervision and administration of the educational funds provided by the State and federal governments," excepting certain local funds. G.S. 115C-408. Specifically, the State Board of Education has the power or duty, inter alia, to alter the boundaries of certain administrative units, to appoint a controller to manage the fiscal affairs of the public school fund, to apportion State and federal school funds, to provide for certain programs or projects, to purchase liability insurance, and to provide certain school personnel functions. See generally G.S. 115C-12. The superintendent of public instruction, elected to a four year term by the qualified voters of the State, is the chief administrative officer of the State Board of Education. G.S. 115C-18 and -19.

"The general purpose of the Department of Transportation is to provide for the necessary planning, construction, maintenance, and operation of an integrated statewide transportation system for the economical and safe transportation of people and goods as provided for by law." G.S. 143B-346. The Board of Transportation, however, is the department's governing body analogous to the State Board of Education. "The Board of Transportation shall have 21 members appointed by the Governor. . . . The Governor shall have the authority to remove for cause sufficient to himself, any member appointed by the Governor." G.S. 143B-350(c). Two additional members are appointed, one from the membership of the Senate by the Lieutenant Governor, and one from the membership of the House of Representatives by the Speaker of the House of Representatives. G.S. 143B-350(d). "Vacancies in each office shall be filled ...


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