Appeal
from Superior Court, New Hanover County; Barnhill, Judge.
Proceeding
under the Workmen's Compensation Act by Mrs. W. P
Starling and others for the death of W. P. Starling, opposed
by John R. Morris, Sheriff, and/or New Hanover County, and/or
Royal Indemnity Company. From a judgment vacating an award in
their favor, claimants appeal.
Affirmed.
Death
of special deputy, employed to serve process, resulting from
unauthorized attempt to apprehend supposed prohibition law
violator held not compensable as "accident arising out
of and in course of employment" (Pub.Laws 1929, c. 120).
This is
a proceeding begun and prosecuted before the North Carolina
Industrial Commission for compensation under the provisions
of the North Carolina Workmen's Compensation Act (Pub
Laws 1929, c. 120) upon the contentions of the claimants: (1)
That they are the dependents of W. P. Starling, deceased; (2)
that at the date of his death the said W. P. Starling was an
employee of John R. Morris, sheriff, and/or of New Hanover
County; (3) that the death of the said W. P. Starling was the
result of an accident which arose out of and in the course of
his employment; and (4) that both the said employee and his
said employers were bound by the provisions of the North
Carolina Workmen's Compensation Act.
The
proceeding was first heard at Wilmington, N. C., on June 27
1931, by Commissioner Dorsett, who found from the evidence
the following facts:
"1.
The parties to this cause are all bound by the provisions
of the North Carolina Workmen's Compensation Act.
Sheriff Morris, at the time of the injury by accident
suffered by Deputy Sheriff W. P. Starling, had in his
employ five persons. The County of New Hanover, by the
statute, is bound by the provisions of the Compensation
Act. The Royal Indemnity Company is the insurance carrier
of the county of New Hanover.
"2.
On March 15, 1931, W. P. Starling, while regularly employed
by John R. Morris, Sheriff of New Hanover County, suffered
an injury by accident which arose out of and in the course
of his employment, which resulted in his death.
"3.
W. P. Starling, deceased, was not, at the time of the
accident and of his death, an employee of the County of New
Hanover.
"4.
Sheriff John R. Morris, at the time of the accident
suffered by W. P. Starling, had not complied with the
provisions of the North Carolina Workmen's Compensation
Act by
purchasing compensation insurance or by becoming a
self-insurer. He was an employer subject to the provisions
of the North Carolina Workmen's Compensation Act, but
without compensation insurance.
"5.
The average weekly wage of W. P. Starling at the time of
the accident which resulted in his death was $30.00.
"6.
At the time of the accident and death of W. P. Starling, he
had dependent upon him for support his wife and four minor
children. The wife and minor children were wholly dependent
upon the earnings of W. P. Starling, deceased, for their
support."
In
accordance with his conclusions of law based upon the
foregoing facts found by him, Commissioner Dorsett made an
award as follows:
"It
is directed that the defendant, Sheriff John R. Morris, pay
to Mrs. W. P. Starling, widow of W. P. Starling, deceased,
for her use and the use of her four minor children,
compensation at the rate of $18.00 per week for a period
not to exceed 350 weeks, nor the sum of $6,000.00. The
defendant, John R. Morris, will also pay any hospital or
medical bills incurred because of the accident."
From
this award, John R. Morris appealed to the full commission.
Upon the hearing of said appeal, the findings of fact and
conclusions of law made by Commissioner Dorsett were approved
and adopted by the full commission. The defendant John R.
Morris appealed from the award of the commission to the
superior court of New Hanover county.
Upon
the hearing of the appeal to the superior court, judgment was
rendered as follows:
"This
cause comes on to be heard before Hon. M. V. Barnhill, Judge
Presiding, at this the January Special Term, 1932, of the
Superior Court of New Hanover County, upon the appeal of the
defendant, John R. Morris, from the award of the North
Carolina Industrial Commission against the defendant Morris
in behalf of the plaintiffs. Both plaintiffs and defendant
are represented by counsel.
"The
cause being heard, upon an examination of the evidence, it
appears therefrom that the deceased, W. P. Starling, was duly
deputized by the defendant, John R. Morris, Sheriff of New
Hanover County, as a deputy under said Sheriff; that the
contract of employment did not contemplate the whole time
service of said deceased, but that he was to serve such
process, criminal or civil, which might be delivered to him
for that purpose by the Sheriff, and was to receive as his
compensation for such services such fees as arose out of the
service of such process so delivered to him; that on the
night of his death, he, together with certain other deputies
acting on unconfirmed information that some unknown party was
bringing into New Hanover County a load of...
