Clark v. . Sheffield

*378 Clarkson, J. The question involved is whether L. R. Clark received, an “injury by accident arising out of and in the course of the employment” (N. C. Code, 1935 [Michie], sec. 8081 [i] f) as an employee of' the Spray Civic Association, Inc. We think so. The defendants say in their brief: “The Spray Civic Association,. Inc., and L. M. Sheffield, as sheriff, were covered by a policy of insurance issued by the 2Etna Life Insurance Company protecting each, against any liability under the Compensation Act. This action was instituted by the dependents of L. R. Clark, contending that he was-, injured by accident arising out of and in the course of his employment, either as deputy sheriff under the sheriff, L. M. Sheffield, -or for the-corporation, the Spray Civic Association, Inc., of Spray, N. C. The award of the Commissioner is based upon findings of fact indicating, that the employment was.by Spray Civic Association, Inc. However,, both defendants are held liable for the payment of compensation, and the-Full Commission and Superior Court affirmed the findings of fact and award.” Deputies of sheriffs are not employees of sheriffs, within the meaning, of the Compensation Act. Borders v. Cline, 212 N. C., 472. Deputies of sheriffs are not employees of the county, nor of the sheriff, within the.meaning of Compensation Act. Styers v. Forsyth County, 212 N. C., 558. The above decisions were rendered by a divided Court. The General Assembly of 1939, ch. 277, passed “An Act to Amend the N. C. Workmen’s Compensation Act as to Deputy Sheriffs:” “The-term ‘employee’ shall include deputy sheriffs and all persons acting in the-capacity of deputy sheriffs, whether appointed by the sheriff or by the-governing body of the county and whether serving on a fee basis or on a. salary basis, or whether deputy sheriffs serving upon a full-time basis or a part-time basis, and including deputy sheriffs appointed to serve in. an emergency, but as to those so appointed, only during the continuation of the emergency. The sheriff shall furnish to the board of county commissioners a complete list of all deputy sheriffs named or appointed, by him immediately after their appointment, and notify the board of commissioners of any changes made therein promptly after such changes-are made.” “And section two, subsection (c), of said act shall be-amended by adding at the end of subsection (c) the following: ‘The board of commissioners of each county of the State, for the purposes of this law, shall be considered as “employer” of all deputy sheriffs serving, within such county, or persons serving or performing the duties of a deputy sheriff, whether such persons are appointed by the sheriff or by the hoard of commissioners, and whether serving on a fee basis or salary basis. Each county is authorized to insure its compensation liability for deputy sheriffs to the same extent it is authorized to insure other *379 «compensation liability for employees thereof.’ ” There are a few coun•.ties exempted by the act. The present action arose in 1938, prior to the above amendment of «the Workmen’s Compensation Act, therefore this amendment is not .applicable here. From the decisions above quoted, before the amendment of 1939, we hold that the sheriff, L. M. Sheffield, is not liable. We think the evidence sufficient to support the finding that L. E. •Clark was employed by the Spray Civic Association, Inc., as a police •officer. His salary was mostly paid by it. In the certificate of incorporation, among other things, is the following: “(3) That the objects for which this corporation is formed are to promote and encourage civic virtue among the people of the village of Spray to aid in the development of the industrial, educational, religious, charitable, literary and social interests of that community; to collect and diffuse information concerning the resources of Eockingham County, North Carolina, particularly that portion of it in and about Spray; to look after the streets, sidewalks and sanitation of the village of Spray and provide ways and means for their improvement; to provide parks and amusements for the people of Spray; and to employ deputy sheriffs to act as police at Spray, under the provisions of existing laws.” In the record is the following: “The .¿Etna Casualty and Surety Company of Hartford, Conn. — -DOES HEEEBY AGEEE with this Employer, named and described as such in the Declarations forming a part hereof, as respects personal injuries sustained by employees, including death at any time resulting therefrom as follows,” etc. The Declarations attached to and forming a part of the policy: “Item 1. Name of this Employer L. M. Sheffield, Sheriff, and/or Spray Civic Association, Incorporated. P. O. Address Spray, Rockingham County, North Carolina. Item 3. Locations: . . . Spray, Leaksville and Draper and -elsewhere in Eockingham County, North Carolina. . . . It is agreed that the coverage provided in the policy to which this endorsement is attached is limited to the duties performed by those deputies of L. M. Sheffield, Sheriff, whose salaries or fees are paid by the Spray Civic Association, Inc.” The premium was paid to cover the policemen '“whose salaries or fees are paid by the Spray Civic Association, Inc.” In serving a warrant on one Bennett, in Spray, and in the performance of duty, L. E. Clark was killed by Bennett. In West v. Fertilizer Co., 201 N. C., 556, it is held: “The findings of fact of a member of the Industrial Commission in a hearing before him under the Workmen’s Compensation Act, approved by the Full Commission on appeal, are conclusive upon the courts when supported by any «sufficient evidence. Where there is evidence tending to show that the deceased received the injury that caused his death while on duty as a *380 night watchman in defendant’s manufacturing plant, and that he had been robbed by his assailant when the injury was inflicted, is sufficient to sustain a finding by the Industrial Commission that the injury was. received in the course of and arising out of the employment and the award for compensation by the Industrial Commission will be sustained.”' Goodwin v. Bright, 202 N. C., 481. We see no just cause why the carrier should not pay this claim. When the contract was made and the carrier toot the premium, it knew exactly its liability and distinctly agreed to compensate those 'whose salaries and fees were paid by the Spray Civic Association, Inc. For the reasons given, the judgment of the court below is Affirmed as to Spray Civic Association, Inc. Reversed as to L. M. Sheffield, Sheriff.