Hollowell v. North Carolina Dep't Of Conservation
| Decision Date | 21 March 1934 |
| Docket Number | No. 370.,370. |
| Citation | 173 S.E. 603,286 N.C. 206 |
| Court | North Carolina Supreme Court |
| Parties | HOLLOWELL . v. NORTH CAROLINA DEPARTMENT OF CONSERVATION AND DEVELOPMENT. |
Appeal from Superior Court, Wake County; Cranmer, Judge.
Proceeding under the Workmen's Compensation Act by Mollie Bunch Hollowell, claimant, for the death of John W. Hollowell, deceased, opposed by the North Carolina Department of Conservation and Development, employer. From a judgment of the superior court which reversed the award of the Industrial Commission awarding compensation and dismissed the proceeding, claimant appeals.
Affirmed.
See, also, 201 N. C. 616, 161 S. E. 89.
Proceeding under Workmen's Compensation Act (Pub. Laws 1929, c. 120) to determine liability of defendant to dependents or next of kin of John W. Hollowell, deceased employee.
The hearing commissioner found the following essential facts, which were later adopted and approved by the full commission:
1. That the parties are bound by and subject to the provisions of the Workmen's Compensation Act.
2. That the claimant, Mollie Bunch Hollowell, is the widow and sole dependent of John W. Hollowell, deceased.
3. That the deceased at the time of his death was in the employ of the North Carolina Department of Conservation and Development as a deputy forest warden and ex officio game warden, on a commission contract, charged with the duty of enforcing the fishing laws and regulations.
4. That the injury by accident, which resulted in deceased's death, arose out of and in the course of his employment.
Upon these findings, compensation was awarded.
On appeal to the superior court, the award of the commission was reversed and the proceeding dismissed upon the evidence which shows:
1. That John W. Hollowell was appointed deputy forest warden January 11, 1929, and became ex officio game warden by virtue of chapter 278, Pub. Laws 1929.
2. That some time prior to August 30, 1930, John W. Hollowell reported to his superior, H. T. Layton, a violation of the fishing laws by Levi and Kermit Nixon, with the result that upon complaint made by the said Lay-ton a warrant was issued against the said Nixons, charging them with violation of the fishing laws.
3. That a trial of the matter was had on August 30, 1930, and the said John W. Hollowell appeared as a witness for the state, being under subpoena to do so.
4. That upon the conclusion of the trial, and after adjournment of court, the said John W. Hollowell, who had departed from the courtroom and had gone out into a public street, was assaulted and killed by the said Levi and Kermit Nixon.
5. That the deceased was receiving no compensation from the defendant, or any other agency of the state, other than the paymentof a fee of $5 allowed for reporting violations of the fishing laws.
Upon this evidence, the judge of the superior court concluded that the deceased was not in the employ of the defendant at the time of the assault, and that the injury by accident, which resulted in his death, did not arise out of and in the course of his employment as a warden of the Department of Conservation and Development.
Plaintiff appeals, assigning errors.
Privott & Privott, of Edenton, for appellant.
Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell and T. W. Bruton, Asst. Attys. Gen., for appellee.
It is manifest the assault, which resulted in Hollowell's death, was occasioned by the testimony given by him as a witness for the state on the trial of the two Nixons. The question then occurs: Is a witness, who appears at a judicial hearing and gives evidence under the court's precept, an employee of the party litigant in whose behalf he testifies? The answer is: No.
[I] The liability of one to pay, and the right of another to receive, compensation, under the North Carolina Workmen's Compensation Act (Pub. Daws 1929, c. 120, as amended), depends, in the first instance, upon some appointment or the existence of the relation of employer and employee, which latter is essentially contractual in its nature, and is to be determined by the rules governing the establishment of contracts, express or implied. Creswell v. Pub. Co., 204 N. C. 380, 168 S. E. 408; Wilson v. Clark, 110 N. C. 364, 14 S. E. 962.
There is no contractual relation between a party litigant and one who testifies in his behalf at a judicial inquiry. The only compensation a witness at such a hearing is entitled to receive is the witness fee allowed by law, or by order of court, and to be paid as a part of the costs; but in no sense is the witness a servant, employee, or agent of the party in whose behalf he testifies. Compare Birchfield v. Dept. of Con. and Dev., 204 N. C. 217, 167 S. E. 855.
As presently applicable, the Workmen's Compensation Act provides that the term "employee, " as used in the act, means "every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written * * * excluding persons whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer." (Section 2.)
The courts of other jurisdictions have had occasion, under a variety of circumstances, to examine the tests for determining the relation of employer and employee, within the meaning of acts of similar import.
Thus, in West Salem v. Ind. Com., 162 Wis. 57, 155 N. W. 929, L. R. A. 191SC, 1077, one temporarily engaged in assisting a village marshal in suppressing a breach of the peace was held to be employed as a policeman of the village, and an employee within the Wisconsin Workmen's Compensation Act, which provides that policemen and firemen shall be deemed employees.
And in County of Monterey v. Rader, 199 Cal. 221, 248 P. 912, 47 A. L. R. 359, a bystander summoned by the sheriff to assist in making an arrest was held to be within the operation of the California Workmen's Compensation Act declaring an employee to be every person in service under any appointment.
To like effect is the decision in Millard County v. Ind. Com., 62 Utah, 46, 217 P. 974, holding that one employed by the sheriff to help in capturing an escaped convict was in the service of the county and therefore an employee within the meaning of the Utah Workmen's Compensation Act.
On the other hand, in Ind. Com. of Ohio v. Henderson, 43 Ohio App. 20, 182 N. E. 603, one engaged to rebuild a highway bridge for a stipulated sum, according to plans and specifications prepared by county engineer, was held to be a...
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