Birchfield v. Dep't Of Conservation And Dev. Of North Carolina

• Citation: 167 S.E. 855,204 N.C. 217
• Decision Date: 22 February 1933
• Docket Number: No. 649.,649.
• Court: United States State Supreme Court of North Carolina
• Parties: BIRCHFIELD. v. DEPARTMENT OF CONSERVATION AND DEVELOPMENT OF NORTH CAROLINA.

167 S.E. 855

204 N.C. 217

BIRCHFIELD.

v.DEPARTMENT OF CONSERVATION AND DEVELOPMENT OF NORTH CAROLINA.

No. 649.

Supreme Court of North Carolina.

Feb. 22, 1933.

Appeal from Superior Court, Graham County; Stack, Judge.

Proceeding under the Workmen's Compensation Act by Nath Birchfield, claimant, opposed by the Department of Conservation and Development of North Carolina, employer. From a judgment reversing an award of the Industrial Commission disallowing compensation, and remanding the cause, the employer appeals.

Reversed.

On November 4, 1930, C. F. Denton, game warden for Graham county, wrote the State Game Commission in Raleigh, requesting the appointment of the plaintiff, Nath Birchfield, as deputy game warden. Denton requested the plaintiff to go with him and assist in breaking up bear traps, and the plaintiff and the defendant began a three-day trip in themountains for such purpose. On November 7th the state game warden forwarded from Raleigh to Denton papers of appointment, oath of office, and deputy game warden badge for the plaintiff. On November 8th, before the papers were received, the plaintiff, at the request of Denton, was in the mountains assisting in destroying bear traps. Arriving at a large trap Denton directed the plaintiff to shoot the spring thereof, and in response to such request the plaintiff shot the spring and the bullet bounced and struck the plaintiff in the eye, causing severe injury. Denton, as game warden for Graham county, had no authority to employ deputy game wardens.

After the injury on November 20th, the plaintiff duly executed the oath of office and returned the same to Raleigh. The cause was submitted to the Industrial Commission and the hearing commissioner found "that the plaintiff had never been legally employed" by the state, and dismissed the claim. Upon appeal to the full commission the findings of fact, conclusions of law, and award of the trial commissioner were affirmed. Thereupon the plaintiff appealed to the superior court and the trial judge found "that there was error in the conclusion of law by the Industrial Commission and that the award disallowing compensation was contrary to law and against the weight of evidence, " and remanded the cause to the Industrial Commission to determine the amount of compensation to which the claimant was entitled.

From such judgment the defendant appealed.

T. M. Jenkins, of Robbinsville, for plaintiff.

Dennis G. Brummitt, Atty. Gen., and Walter D. Siler, Asst. Atty. Gen., for Department of Conservation & Development of North Carolina.

BROGDEN, Justice.

Was the plaintiff an employee of the state at the time of the injury?

The Industrial Commission found as a fact that he was not an employee, and ordinarily this would end the...