Lawson v. North Carolina State Highway and Public Works Commission

• Decision Date: 30 April 1958
• Docket Number: No. 309,309
• Citation: 103 S.E.2d 366,248 N.C. 276
• Court: North Carolina Supreme Court
• Parties: Harriet LAWSON, Administratrix of the Estate of Cleo Lawson, Deceased, v. The NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION.

Page 366

103 S.E.2d 366

248 N.C. 276

Harriet LAWSON, Administratrix of the Estate of Cleo Lawson, Deceased, v. The NORTH CAROLINA STATE HIGHWAY AND PUBLIC WORKS COMMISSION.

No. 309

Supreme Court of North Carolina.

April 30, 1958

Harvey E. Beech and White & Aycock, Kinston, for plaintiff, appellant.

Atty. Gen. George B. Patton, Asst. Atty. Gen. Kenneth Wooten, Jr., and Parks H. Icenhour, Raleigh, Member of Staff, for defendant, appellee.

BOBBITT, Justice.

The court below did not rule on defendant's exceptions to findings of fact. It appears that, at the hearing in the superior court, defendant abandoned all exceptions except those directed to the two questions of law upon which the court based its judgment. Hence, as the case comes to us, we must consider the facts to be as set out in the stipulations and findings of fact.

Defendant's contention that plaintiff's sole remedy is under the Workmen's Compensation Act, G.S. Ch. 97, Art. 1, requires consideration of G.S. § 97-13(c) and G.S. § 97-10, the specific provisions on which defendant relies.

The Workmen's Compensation Act 'contains elements of a mutual concession between the employer and employee by which the question of negligence is eliminated.' Conrad v. Cook-Lewis Foundry Co., 198 N.C. 723, 153 S.E. 266, 268. Its provisions relate explicitly to employees, employers and employment. G.S. § 97-10. in pertinent part, provides: 'The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this article, * * * shall exclude all other rights and remedies of such employee, his personal representative, * * * as against his employer at common law, or otherwise, on account of * * * injury, loss of service, or death.'

'Negligence cannot be imputed to the sovereign, and for this reason, in the absence of a statute, no private action for tort can be maintained against the state.' (Our italics.) Scales v. City of Winston-Salem, 189 N.C. 469, 127 S.E. 543, 544. Thus, in the absence of statute, it was held that a prisoner, injured by the negligence of the overseer under whom he was placed, had no cause of action against the State, his sole remedy being against the overseer as an individual. Clodfelter v. State, 86 N.C. 51; Moody v. State's Prison, 128 N.C. 12, 38 S.E. 131, 53 L.R.A. 855. It is noted that G.S. § 28-173, which created the statutory cause of action for wrongful death, applies only to causes of action where the injured person, if he had lived, could have recovered. Thus, plaintiff's right to recover on account of the death of her intestate rests solely upon statutes whereby the State has waived its sovereign immunity.

A prisoner is not an employee as defined by G.S. § 97-2(b). He is not a person 'engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written.' Baker v. State, 200 N.C. 232, 156 S.E. 917, 918; Moore v. State, 200 N.C. 300, 156 S.E. 806; also, see Alliance Co. v. State Hospital, 241 N.C. 329, 85 S.E.2d 386. Indeed, when the word 'employee' was defined by Ch. 120, Sec. 2(b), Public Laws of 1929, Sec. 14(c) of said 1929 Act explicitly provided: 'This act shall not apply to State prisoners nor to County convicts.' Sec. 14(c) of the 1929 Act was stricken out by Ch. 295, Public Laws of 1941, which substituted therefor the provisions now codified as G.S. § 97-13(c).

G.S. § 97-13(c) conferred limited rights upon prisoners in a special classification, to wit, those assigned to work under the supervision of the State Highway and Public Works Commission, in the event they suffered 'accidental injury arising out of and in the course of the employment to which * * * assigned.' No provision was made for other prisoners.

While G.S. § 97-13(c) is not free from ambiguity, we assume, for present purposes, that its provisions permitted the establishment of a claim for the burial expenses of a prisoner whose death occurred while a prisoner.

With knowledge, actual or presumed, of the limited rights theretofore conferred upon prisoners in this special classification, the General Assembly of 1951 enacted the Tort Claims Act. Ch. 1059, Session Laws of 1951. It did not except any prisoners from its provisions. In Gould v. North Carolina State Highway Comm., 245 N.C. 350, 95 S.E.2d 910, this Court held that a prisoner not in said special classification was entitled to recover under the Tort Claims Act.

Defendant's contention that, because of G.S. § 97-10, prisoners in the favored classification have only such rights as are conferred by G.S. § 97-13(c) while other prisoners, unimpeded by G.S. § 97-10, have the full benefit of the Tort Claims Act is not, in our opinion, in reasonable accord with the intent of the 1951 General Assembly. Moreover, if it be conceded that the word 'employee' as used in G.S. § 97-10 could be enlarged by interpretation to include a prisoner, this construction would bring about a conflict between G. S. § 97-10 and the statutory rights expressly conferred by the Tort Claims Act. In such case, the Tort Claims Act would prevail. It provides: 'All laws and clauses of laws in conflict with this Act are hereby repealed.'

Defendant directs our attention to Ch. 809, Session Laws of 1957, which amends G.S. § 97-13(c) by adding thereto the following 'The provisions of G.S. § 97-10 shall apply to prisoners and discharged prisoners entitled to compensation under this subsection and to the State in the same manner as said Section applies to employees and employers.'

The 1957 Act reflects the intention of the General Assembly of 1957. Apparently, although the reason therefor is obscure, the 1957 General Assembly concluded that prisoners at work on an assigned task should be denied rights conferred by the Tort Claims Act on other prisoners. Be that as it may, we are concerned with the intent of the 1951 General Assembly at the time it enacted the Tort Claims Act, and on that question the 1957 Act casts no light.

Defendant's further contention is that plaintiff cannot recover under the Tort Claims Act because...