167 S.E. 855 | N.C. | 1933
On 4 November, 1930, C. F. Denton, game warden for Graham County, wrote the State Game Commission in Raleigh, requesting the appointment of the plaintiff, Nath Birchfield, as deputy game warden. Denton requested the plaintiff to go with him and assist in breaking up bear traps, and the plaintiff and the defendant began a three-day trip in the mountains for such purpose. On 7 November the State game warden forwarded from Raleigh to Denton papers of appointment, oath of office, and deputy game warden badge for the plaintiff. On 8 November, before the papers were received, the plaintiff at the request of Denton, was in the mountains assisting in destroying bear traps. Arriving at a large trap Denton directed the plaintiff to shoot the spring thereof, and in *218 response to such request the plaintiff shot the spring and the bullet bounced and struck the plaintiff in the eye, causing severe injury. Denton as game warden for Graham County, had no authority to employ deputy game wardens.
After the injury on 20 November, the plaintiff duly executed the oath of office and returned the same to Raleigh. The cause was submitted to the Industrial Commission and the hearing Commissioner found "that the plaintiff had never been legally employed" by the State, and dismissed the claim. Upon appeal to the full Commission the findings of fact, conclusions of law and award of the trial commissioner were affirmed. Thereupon the plaintiff appealed to the Superior Court and the trial judge found "that there was error in the conclusion of law by the Industrial Commission and that the award disallowing compensation was contrary to law and against the weight of evidence," and remanded the cause to the Industrial Commission to determine the amount of compensation to which the claimant was entitled.
From such judgment the defendant appealed. Was the plaintiff an employee of the State at the time of the injury?
The Industrial Commission found as a fact that he was not an employee, and ordinarily this would end the controversy if there was any competent evidence to support the finding. It is contended, however, that the facts are not in dispute, and, therefore, the question as to whether the plaintiff was an employee is wholly a conclusion of law.
The exercise of the duties and functions of a public office or public employment of an appointive nature, rests upon the concurrence of two essential facts: (1) due appointment, and (2) proper qualification.
The appointment must be duly made by proper authority, communicated to and accepted by the appointee. The qualification consists in the giving of a bond or taking of an oath where such is required or in otherwise complying with the provisions of law. The courts have held generally that if a person assumes the duties or enters upon the discharge of the functions of an office, even under a colorable appointment or election, that he is at least a de facto officer to the extent of incurring liability in the performance of such duties. Lee v. Martin,
Reversed.