173 S.E. 603 | N.C. | 1934
Proceeding under Workmen's Compensation Act 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 11 January, 1929, and became ex officio game warden by virtue of chap. 278, Public Laws, 1929.
2. That sometime prior to 30 August, 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 Layton 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 30 August, 1930, and the said John W. Hollowell appeared as a witness for the State, being under subpoena to do so. *208
4. That upon the conclusion of the trial, and after adjournment of court, the said John W. Hollowell, who had departed from the court room 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 payment of a fee of five dollars 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. 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.
The liability of one to pay, and the right of another to receive, compensation, under the North Carolina Workmen's Compensation Act, 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. Publishing Co.,
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.,
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 *209 persons whose employment is both casual and not in the course of the trade, business, profession or occupation of his employer."
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.,
And in County of Monterey v. Rader,
To like effect is the decision in Millard County v. Ind. Co.,
On the other hand, in Ind. Com., of Ohio v. Henderson,
And in Bingham City v. Ind. Com.,
Again, in In re Moore,
To like effect is the decision in Vaivida v. Grand Rapids,
The question has also been the subject of inquiry in this jurisdiction. For example, in Creswell v. Publishing. Co., supra, a newsboy selling newspapers and retaining as his own a part of the proceeds — all over three cents apiece — and injured while engaged in the work, was held not to be an employee of the publishing company.
And in Bryson v. Lumber Co.,
The case of Starling v. Morris,
The sum of the whole matter is, that before the provisions of the Workmen's Compensation Act are called into play, the relation of master and servant, or employer and employee, or some appointment, must exist, and this is the initial fact to be established. An employee is one who works for another for wages or salary, and the right to demand pay for his services from his employer would seem to be essential to his right to receive compensation under the Workmen's Compensation Act, in case of injury sustained by accident arising out of and in the course of the employment. In re Moore, supra; Basham v. County Court (W.Va., 1933),
But even if it be conceded that Hollowell was an employee of the Department of Conservation and Development, charged with the duty of enforcing the fishing laws and regulations, still the question remains as to whether the injury by accident, which resulted in his death, arose out of and in the course of his employment. The conditions antecedent to compensation were considered in Conrad v. Foundry Co.,
Under these authorities, and the principles they announce, we think it must be held that Hollowell was not an employee of the Department *211 of Conservation and Development in appearing at the trial of the two Nixons and giving evidence on behalf of the State, and that his death was not the result of an (1) injury by accident, (2) arising out of and (3) in the course of his employment as an employee of the Department of Conservation and Development. Conrad v. Foundry Co., supra.
The case was here before on a question of procedure,
Affirmed.
