Lawson v. North Carolina State Highway & Public Works Commission
103 S.E.2d 366
N.C.
1958
Check Treatment
*279 Bobbitt, J.

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. Foundry Co., 198 N.C. 723, 153 S.E. 266. 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 statute, no private action for tort can be maintained against the State.” (Our italics) Scales v. Winston-Salem, 189 N.C. 469, 127 S.E. 543. 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 Prison, 128 N.C. 12, 38 S.E. 131. 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; 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 Oh. 295, Public Laws of 1941, which substituted therefor the provisions now codified as G.S. 97-13 (c).

*280 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. Oh. 1059, Session Laws of 1951. It .did not except any prisoners from its provisions. In Gould v. Highway Com., 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 Olaims 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 tine 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 1957 General Assembly at the time it enacted the Tort Claims Act, and on that question the 1957 Act casts ho light.

Defendant’s further contention, is that plaintiff cannot recover un *281 der the Tort Claims Act because Barefoot’s negligence-, if any, consisted of omissions, not acts.

Plaintiff’s right to recover depends upon the provisions of G.S. 143-291 prior to the 1955 amendments. She was entitled to recover if the death of her intestate was caused by the negligent act(s) of a designated State employee while acting within the scope of his employment and there was no contributory negligence on the part of her intestate. Flynn v. Highway Com., 244 N.C. 617, 94 S.E. 2d 571; also, see Tucker v. Highway Com., 247 N.C. 171, 100 S.E. 2d 514.

In the Flynn case, the alleged negligence was'the failure to repair a hole in the highway caused by ordinary public travel. Recovery was denied. In the Tucker case, “The 'accident occurred during that 55-day period when the law permitted recovery ‘when the claim arose as the result of a negligent act or omission on the part of a State employee.’ ” Chapters 400 and 1361, Session Laws of 1955.

Plaintiff’s intestate “was working under the instruction, direction and supervision of . . . Barefoot (the designated State employee) at the time of his death.” True, his special job was that of water boy; but when not so engaged he performed other tasks and gave assistance to the other prisoners.

While the findings of fact established Barefoot’s negligent failure to ascertain whether the prisoners under his supervision could work in safety in the area to which he assigned them, his omissions in this respect constituted the circumstances under which he acted, not the cause of Lawson’s death. The basis of plaintiff’s claim is Barefoot’s act, in the light of such circumstances, in putting the prisoners, including Lawson, to work in an area of hidden danger when he should have reasonably foreseen that they might and probably would unwittingly come in contact with a live wire. In our view, the findings support the Commission’s composite conclusion of fact and law, set forth in its Conclusions of Law, that the negligence of Barefoot was the proximate cause of Lawson’s death.

Greene v. Board of Education, 237 N.C. 336, 75 S.E. 2d 129, and Lyon & Sons v. Board of Education, 238 N.C. 24, 76 S.E. 2d 553, involved proceedings under G.S. 143-291 et seq., where injury was inflicted by the negligent operation of a school bus. In each, plaintiff recovered. The driver’s failure to exercise due care to observe the child in front of the bus {Greene case) or the the automobile behind the bus (Lyon case) did not proximately cause the injury or damage. The fact that the driver operated the bus under such circumstances was the negligent act that proximately caused the injury or damage.

For the reasons stated, plaintiff’s assignments of error to the court’s rulings are sustained. The judgment of the court below is reversed and *282 the cause remanded for the entry of judgment implementing the Commission’s said award.

Reversed and remanded.