Moore v. State

• Citation: 156 S.E. 806,200 N.C. 300
• Decision Date: 27 January 1931
• Docket Number: 253.
• Parties: MOORE v. STATE.
• Court: North Carolina Supreme Court

156 S.E. 806

200 N.C. 300

MOORE v. STATE.

No. 253.

Supreme Court of North Carolina

January 27, 1931

Appeal from Superior Court, Wake County; Cowper, Special Judge.

Proceeding under the Workmen's Compensation Act by Harold A. Moore claimant, opposed by the State, self-insurer. The Industrial Commission granted an award, which was affirmed by the superior court, and the State appeals.

Affirmed.

Whether injury arises out of and in course of employment is mixed question of law and fact (Pub.Laws 1929, c. 120).

This is a claim for compensation for loss of the plaintiff's left eye caused by its being struck by a bush while he was helping to extinguish a forest fire. The record contains this entry "It was admitted that the plaintiff was in the employment of the Department of Conservation & Development at the time of the injury; that the accident arose out of and in the course of the employment; leaving for determination only the one question, to-wit: the amount of the average weekly wage of the claimant."

The findings of fact are as follows:

"1. At the time of the accident the claimant was acting as assistant to Everett Bryson, who was the duly appointed Forest Warden for the particular district, and who had summoned the claimant in pursuance of the authority given him by section 6137 of the North Carolina Code.

"2. While so engaged the claimant was injured in the eye, which resulted in the complete loss of vision.

"3. The claimant was engaged as assistant, under summons, of the Forest Warden, in the extinguishment of the forest fire for the period of five hours, for which he received compensation at the rate of 20 cents per hour.

"4. The average weekly wage of the claimant in his civil vocation exceeded $30 per week.

"5. It is impracticable to compute the average weekly wage of this claimant in accordance with the general rule of subsection (e), section 2; and that the application of said rule to the instant case would be unfair to the claimant on account of the exceptional circumstances of his employment."

The Industrial Commission awarded the plaintiff compensation in the sum of $18 a week for one hundred weeks, and all medical and hospital bills, including an artificial eye, as provided by section 25 of the Workmen's Compensation Act. On appeal, the superior court affirmed the judgment of the Industrial Commission. The defendant excepted and appealed.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

M. A. James, of Asheville, for appellee.

ADAMS J.

The award of the Industrial Commission is conclusive and binding as to all questions of fact. Workmen's Compensation Act (Pub. Laws 1929, c. 120) § 60. Whether an injury by accident has arisen out of and in the course of a person's employment is a mixed question of law and fact, and while the parties to an action or proceeding may admit or agree upon facts, they cannot make admissions of law which will be binding upon the courts. Rawlings v. Neal, 122 N.C. 173, 29 S.E. 93; Binford v. Alston, 15 N.C. 351. If therefore the facts as found do not show that the plaintiff was an employee of the state as defined in section 2(b) or that his injury is such as is defined in section 2(f), the admission on these points may be disregarded.

The award was based upon these facts: A forest warden in Buncombe county had summoned the plaintiff to assist others in subduing a forest fire, and the plaintiff, while thus engaged for a period of five hours (for which he received twenty cents an hour), suffered an injury to his left eye which resulted in the total loss of its vision. It is contended by the defendant that these facts do not justify the award for the asserted reason that the plaintiff was not an employee of the state within the meaning of the Workmen's Compensation Act. The act defines "employees" as every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, but excludes persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of the employer. As relating to those so employed by the state, the term "employee" includes all officers and employees of the state, except such as are elected by the people or by the General Assembly, or appointed by the Governor. The words "those so employed by the State" manifestly refer to persons who are "engaged in an employment under any appointment or contract of hire or apprenticeship." With respect to political subdivisions of the state, the term "employee" includes all officers and employees thereof, except such as are elected by the people or by the council or governing body of such political subdivision, who act in purely administrative capacities and are to serve for a definite term of office. Section 2(b).

It will be noted that the inquiry which immediately concerns us is whether the plaintiff at the time of his injury was an employee of the state within the meaning of the law. By the terms of the statute he was an employee if he was ""engaged in an employment under any appointment or contract of hire." This phrase embodies the two notions of an employment under an appointment and an employment under a contract of hire. Disregarding the theory of a contract of hire, we must determine whether the plaintiff was engaged in an employment under an appointment made by a political subdivision of the state.

In 1925 the duties theretofore discharged by the State Geological and Economic Survey were vested in the Department of Conservation and Development....