Baker v. . State

Adams, J. At the time of his injury the plaintiff was an enlisted private in the North Carolina National Guard. In determining his legal relation to the State we may observe that the National Guard is an organization of the State militia, which does not become a part of the United States Army until the Congress declares an emergency to exist which calls for its services in behalf of the nation. Bianco v. Austin, 204 App. Div. (N. Y.), 34; S. v. Johnson, 202 N. W. (Wis.), 191; 32 U. S. C. A., sec. 1, et seq.; U. S. Compiled Sts., Supplement, 1925, sec. 1715a, et seq.; N. C. Code, 1927, sec. 6808, et seq. The National Guard being a State institution or agency, the decisive question is whether the plaintiff was an employee of the State and as such entitled to an award under the Workmen’s Compensation Law. P. L., 1929, ch. 120. The word “employment,” as used in this act, includes employment by the State and all its political subdivisions. Section 2(a). The word “employee” means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, and as to those employed by the State all officers and employees of the State except such as are elected by the people or the General Assembly or are appointed by the Governor. In Moore v. State of North Carolina, post, 300, we said that the phrase, “engaged in an employment under any appointment or con *235 tract of Lire,” embodies tbe two notions of an employment under an appointment and an employment under a contract of Lire. It is contended by tbe appellant that a contract of bire imports a contractual relation or an agreement to labor for a stipulated wage or compensation, and that to give effect to tbis pbrase it is necessary to sbow that tbe relation of master and servant must bave been established in accordance with recognized legal standards. It may not be amiss to examine some of tbe cases cited in tbe appellant’s brief in support of tbis position. In Sibley v. State, L. R. A., 1916-0 1087, tbe Connecticut Supreme Court of Errors beld that a duly elected sheriff while performing tbe duties of bis office was not working under a contract with tbe State, tbe statutory definition of “employee” in that commonwealth being “any person who has entered into or works under any contract of service or apprenticeship with any employer.” In Hillestad v. Industrial Insurance Commission, 141 Pac. (Wash.), 913, Ann. Cas., 1916-R 789, tbe question was whether a boy under tbe age of fourteen years bad been employed by tbe respondents who owned and operated a shingle mill, and tbe Court said that under tbe statute in effect tbe law contemplated that tbe relation between tbe employer and tbe employee should possess some element of certainty. Tbe opinion delivered in Hinds v. Department of Labor and Industries, 62 A. L. R. (Wash.), 225, declares that an air pilot associated with tbe owner of an airplane and flying field, who takes up passengers and receives a percentage of tbe gross compensation from flights, is a workman within tbe meaning of a statute which recognizes that tbe relation of employer and employee may exist, even though payment may be piecemeal or an allowance in tbe way of profit sharing. These and other cited cases are illustrative but are not conclusive in tbe ease before us. Unquestionably an agreement between master and servant for tbe payment of a fixed wage for tbe performance of work may be a contract of bire, but are these tbe only conditions under which tbe relation of employer and employee may exist as contemplated by tbe Compensation Law? We think not. It has been beld that a person who is procured by an employee to act as bis substitute, or to assist him in bis duties, tbe employer assenting, occupies tbe position of an employee, Carter v. Woods Bros. Const. Co., 244 Pac. (Kan.), 1; that an employee “loaned” by one company to and subject to tbe control of another, is a temporary employee of tbe latter, though tbe wages are not fixed, Tarr v. Hecla Coal & Coke Co., 109 At. (Pa.), 224, Sgattone v. Mulholland, 58 A. L. R. (Pa.), 1463; and that an agreement between two farmers for mutual assistance in filling their silos and ice bouses, although their compensation was working one for tbe other, is a contract of service and employment. Smith v. Jones, 43 A. L. R. (Conn.), 952. *236 These and similar decisions accord with the theory that the compensation act “should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation.” Johnson v. Hosiery Co., 199 N. C., 38. So, it seems to have been assumed or conceded that, under the provisions of an act analogous to ours, a member of the National Guard injured while at target practice, if at the time in the service of the State and not of the United States, was entitled to compensation from the State under the Wisconsin Workmen's Compensation Act, and being in the service of the State he was given compensation. S. v. Johnson, supra. See Rector v. Cherry Valley Timber Co., 13 A. L. R., 1247, in which it was held that whether the plaintiff entered the army voluntarily or was drafted, his presence there must be viewed as a voluntary service in the performance of a duty he owed the government. Two facts may be regarded as established: the plaintiff when injured was in the service of the State and his service was voluntary. Was his status contractual? It is provided by statute that enlisted men shall not be recognized as members of the National Guard until they shall have signed an “enlistment contract” and taken an oath of enlistment. The General Assembly shall provide for paying the militia when called into active service. Constitution, Art. XII, sec. 2. The contract of service is one made under the conditions prescribed by law. C. S., 6821. Discipline must conform to the system prescribed for the regular army, and training to the provisions of an act of the Congress. C. S., 6823. The State furnishes enlisted men with uniform and equipment, pays them when called into the service of the State or in aid of the civil authorities, and provides compensation for each armory drill. C. S., 6824, 6864, 6889. Whether such remuneration may or may not be adequate is immaterial. That the “enlistment contract” is binding seems generally to be granted. United States v. Grimley, 137 U. S., 147, 34 L. Ed., 636; In re Morrissey, ibid., 157, 34 L. Ed., 644; S. v. Long, 66 So. (La.), 375; Acker v. Bell, 57 So. (Fla.), 356. The record shows, in any event, that the plaintiff was voluntarily in the service of the State and subject to its direction and control. This is one of the tests of employment; and under the liberal interpretation given to the Compensation Law we should hesitate to hold that there can be no employment within the meaning of the act unless there happens to exist the technical relation of master and servant. By waiving the immunity of the State with respect to all its officers and employees, excepting those specifically excluded, did not the General Assembly intend to make provision for their compensation when injured in the service contemplated in their contract of enlistment? In their brief the Attorney-General and his assistant intimate that sound policy *237 may warrant tbe State’s assumption of this burden, but they do not agree tbat under tbe present law tbe burden bas been assumed. After an examination of tbe authorities considered in view of tbe several compensation laws wbicb they interpret we are of opinion tbat tbe plaintiff’s case is witbin tbe provisions of tbe act in question and tbat tbe judgment of tbe Superior Court should be affirmed. Affirmed.