Borders v. Cline

• Decision Date: 24 November 1937
• Docket Number: 309.
• Citation: 193 S.E. 826,212 N.C. 472
• Parties: BORDERS v. CLINE, Sheriff, et al. ROSS v. SAME. BYERS v. SAME.
• Court: North Carolina Supreme Court

193 S.E. 826

212 N.C. 472

BORDERS v. CLINE, Sheriff, et al.

ROSS v. SAME.

BYERS v. SAME.

No. 309.

Supreme Court of North Carolina

November 24, 1937

Appeal from Superior Court, Cleveland County; Felix E. Alley, Judge.

Proceeding under the Workmen's Compensation Act by John T. Borders alleged employee, by Hey Ross, alleged employee, and by Lon Byers, alleged employee, opposed by John R. Cline, Sheriff of Cleveland County, alleged employer, and the American Employers Insurance Company, insurer. On appeal to the Superior Court from the Industrial Commission, the three cases were consolidated for hearing. From judgments affirming the award of the Industrial Commission as to each of the claimants, the employer and insurer appeal.

Reversed.

DEVIN CLARKSON, and SCHENCK, JJ., dissenting.

Proceeding under North Carolina Workmen's Compensation Act, Code 1935, § 8081(h) et seq., to determine liability of defendants to claimants, respectively.

The commissioner hearing the cases found the following facts which were later adopted and approved by the full commission As to claimant, John T. Borders:

"1. J. R. Cline is the high sheriff of Cleveland County. He has more than five deputy sheriffs and other helpers in connection with his office as Sheriff of the County. He has purchased Workmen's Compensation insurance to cover his compensation liability. The American Employers' Insurance Company is the carrier.

2. John T. Borders is a deputy sheriff duly appointed by J. R. Cline, the high Sheriff of Cleveland County. He was instructed by the high Sheriff to transport to Goldsboro, North Carolina, two insane negro women. He was allowed five cents a mile for the use of his automobile and for the payment of his time for services rendered.

3. He suffered an injury by accident which arose out of and in the course of his employment and has been totally disabled since the date of the accident.

4. He was earning as wages less than $10.00 a week as deputy sheriff.

5. He received his compensation for services rendered as a deputy sheriff in the form of fees for serving papers, for attending trials in criminal cases, and doing other services that a deputy sheriff is ordinarily called upon to do on a fee basis.

6. It was the duty of the Sheriff to transport the two insane negro women to Goldsboro, North Carolina. The Sheriff was paid for this transportation by the County Commissioners and the Sheriff, in turn, turned the money over to the deputy sheriff, John T. Borders."

As to claimants Hey Ross and Lon Byers the same facts were found, except that the two were specially deputized to assist John T. Borders in transporting the two insane negro women to Goldsboro.

Upon these findings the commissioner and the full commission concluded that each of these claimants as deputy sheriff is an employee of the sheriff under the provisions of the Workmen's Compensation Act, and entitled to the protection of law. Thereupon an award was made to each of the claimants.

On appeal to the superior court the three cases were consolidated for hearing. Judgment was signed affirming the findings of fact and conclusions of law and award of the North Carolina Industrial Commission as to each of the claimants.

From judgment thereon in accordance therewith the defendants appealed to the Supreme Court, and assigned error.

King & King and J. A. Cannon, Jr., all of Greensboro, for appellants.

B. T. Falls, of Shelby, for appellees.

WINBORNE Justice.

The question here involved: Is a deputy sheriff an employee of the sheriff, by whom he is appointed, within the meaning of the North Carolina Workmen's Compensation Act? We hold that he is not.

This specific question has not been passed upon by this court. However, in the case of Starling v. Morris, 202 N.C. 564, at page 568, 163 S.E. 584, 586, Connor, J., stated: "The question as to whether the relation between the sheriff of a county in this state and one who has been appointed by him as a deputy sheriff is that of employer and employee, within the meaning of those words as used in the North Carolina Workmen's Compensation Act, is not presented by this appeal. In view, however, of the definitions in the statute of the words 'employment,' 'employer,' and 'employee,' as used therein, it may well be doubted that a deputy sheriff is an employee of the sheriff by whom he was appointed, within the meaning of those words as used in the act."

In considering the question it is necessary to interpret the pertinent sections of the Compensation Act under appropriate rules.

The Workmen's Compensation Act should be liberally construed so as to effectuate the Legislature's intent or purpose which is to be ascertained from the wording of the act. 71 C.J. 341. Johnson v. Asheville Hosiery Co., 199 N.C. 38, 153 S.E. 591; Rice v. Panel Co., 199 N.C. 154, 157, 154 S.E. 69; Reeves v. Parker-Graham-Sexton, 199 N.C. 236, 154 S.E. 66; Williams v. Thompson, 200 N.C. 463, 157 S.E. 430; West v. East Coast Fertilizer Co., 201 N.C. 556, 160 S.E. 765.

Again, "The rule has been said to be to construe a compensation statute so as to include all services which can reasonably be said to come under the provisions; thus, with regard to the employments to which they apply, the acts are to be construed liberally. * * * Even such a provision, however, will not permit a forced construction to be given to their wording; and, apart from such provisions, the rule of liberal construction cannot be carried to the point of applying an act to employments not within its stated scope, or not within its intent or purpose, or of supporting a strained construction to include an occupation or employment not falling within it." 71 C.J. 359.

The words used in the statute must be given their natural or ordinary meaning. 71 C.J. 353; Asbury v. Albemarle, 162 N.C. 247, 78 S.E. 146, 44 L.R.A. (N.S.) 1189; Com'rs. of Vance County v. Henderson, 163 N.C. 114, 79 S.E. 442; Whitford v. North State Life Ins. Co., 163 N.C. 223, 79 S.E. 501, Ann.Cas.1915B, 270; McCanless Motor Co. v. Maxwell, 210 N.C. 725, 188 S.E. 389; State v. Whitehurst, 212 N.C. 300, 193 S.E. 657.

With these rules for guidance we find as the definitions of the words "employment," "employee," and "employer," as used in the North Carolina Workmen's Compensation Act, in so far as pertinent to facts of instant case, Code 1935, § 8081 (i) subds. (a), (b) and (c), that: "(a) The term 'employment' includes employment by the State and all political subdivisions thereof, and all public and quasi-public corporations therein and all private employments in which five or more employees are regularly employed in the same business or establishment, except agriculture and domestic service and sawmills and logging operators in which less than fifteen employees are regularly employed. (b) The term 'employee' means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written. * * * (c) The term 'employer' means * * * every person carrying on any employment."

In reading these three sections it is seen that the word "employment" is the basic factor in determining who are "employees" and "employers" within the meaning of the act. Hence, the question: Is the position of deputy sheriff an "employment" as defined in that part reading: "All private employments in which five or more employees are regularly employed in the same business or establishment." Section 8081 (i), subd (a). Analyzing that clause, it is seen that the word "employments" is limited by the adjective "private," and further by the words "business or establishment." In Webster's New International Dictionary, (2nd Ed.), we find the word "private" defined: "Belonging to, or concerning, an individual person, company or interest; peculiar to oneself; unconnected with others; personal; one's own; not public; not general; separate; as a man's private opinion; private property; a private purse; private expenses or interests; a private secretary; opposed to public. Not invested with, or engaged in, public office or employment; not public in character or nature; as a private citizen." The word "business" is defined as: "A commercial or industrial establishment or enterprise." "Establishment" is defined as: "An institution or place of business, with its fixed or organized staff,-as a manufacturing establishment." These words, when given the natural or ordinary meaning, clearly indicate reference to commercial or industrial employment of a private character as contradistinguished from public office.

The office of sheriff is constitutional. N.C. Constitution, art. 4, § 24. It is a public office. Public office is not private property. Mial v. Ellington, 134 N.C. 131, at page 162, 46 S.E. 961, 65 L.R.A. 697. A sheriff takes office, not by contract, but by commission subject to the power of the Legislature to fix fees and compensation for which the Constitution does not provide. Com'rs. v. Stedman, 141 N.C. 448, 54 S.E. 269; Bunting v. Gales, 77 N.C. 283; Mills v. Deaton, 170 N.C. 386, 87 S.E. 123. The office of sheriff is one of public confidence and fidelity to a public trust, and cannot be a matter of bargain and sale. Cansler v. Penland, 125 N.C. 578, 34 S.E. 683, 48 L.R.A. 441. In the main the duties of the office are prescribed by statute, Com'rs. v. Stedman, supra, and are ministerial in character, and, as to such ministerial duties, it is implied, when not so provided by statute, that he may act by a substitute or deputy. Yeargin v. Siler, 83 N.C. 348; Jamesville & W. R. Co. v. Fisher, 109 N.C. 1, 13 S.E. 698, 13 L.R.A. 721.

There is no statutory authority for appointment of deputies sheriff. However, "the deputy is an officer coeval in point of antiquity with...