Tomlinson v. Town of Norwood

ClaeksoN, J. The question involved: Was the plaintiff, at the time he sustained the injuries complained of, an employee of the town of Norwood, and did such injuries arise out of and in the course of such ■employment? We think so. *718 Tbe defendants introduced evidence: Tbe town charter and ordinances to tbe effect that T. C. Blalock, tbe policeman of tbe town of Norwood, bad not been given authority to deputize anyone to aid him in making arrests. We find a general statute on tbe subject: “A policeman shall have tbe same authority to make arrests and to execute criminal process, within tbe town limits, as is vested by law in a sheriff.” N. 0. Code, 1935 (Micbie), section 2642. N. 0. Code, 1935 (Micbie), section 4379, is as follows: “If any person, after having been lawfully commanded to aid an officer in arresting any person, or in retaking any person who has escaped from legal custody, or in executing any legal process, wilfully neglects or refuses to aid such officer, be shall be guilty of a misdemeanor.” State v. Ditmore, 177 N. C., 592. Section 4547 reads as follows: “Every person summoned by a judge, justice, mayor, intendment, chief officer of any incorporated town, sheriff, coroner, or constable, to aid in suppressing any riot, rout, unlawful assembly, affray, or other breach of the peace, or to arrest the persons engaged in the commission of such offense, or to prevent the commission of any felony or larceny which may be threatened or begun, shall do so.” Blalock, while acting as a policeman, had, under the statute, the same authority as a sheriff to make arrests. He had a legal right to deputize one to aid him in serving the warrant for the offense for which Bunn is charged — a breach of the peace. The plaintiff relies on Moore v. State, 200 N. C., 300. In that case the findings of fact are: “(1) At the time of the accident the claimant was acting as assistant to Everett Bryson, who was duly appointed forest warden for the particular district, and who had summoned the claimant in pursuance of the authority given him by section 6137 of the North Carolina Code. (2) While so engaged the claimant was injured in the eye, which resulted in the complete loss of vision. (3) The claimant was engaged as assistant, under summons, of the forest warden, in the extinguishment of the forest fire for the period of five hours, for which he received compensation at the rate of 20 cents per hour.” Adams, J., writing the opinion, says, at p. 301: “The award of the Industrial Commission is conclusive and binding as to all questions of fact. Workmen’s Compensation Law (P. L. 1929, ch. 120), sec. 60. Whether an injury by accident has arisen out of and in the course of a person’s employment is a mixed question of law and fact, and while the parties to an action or proceeding may admit or agree upon facts, they cannot make admissions of law which will be binding upon the courts.” In the Moore case, supra, an award was affirmed by this Court. It will be noted that in that case the forest warden was given statutory authority to appoint persons between certain ages to assist in fight *719 ing forest fires, and to compensate them. In tbe present case, tbe policeman, Blalock, is given tbe same authority as a sheriff to deputize tbe plaintiff to assist bim to arrest under section 4547, supra, for breach of tbe peace, of which Bunn was charged in tbe warrant. Compensation would follow as a matter of course. N. 0. Code, 1935 (Michie), section 8081 (i), subsec. (b) (f). We think tbe Moore case, supra, is practically on “all fours” with tbe present case. N. C. Code, 1935 (Michie), section 8081 (i), subsection (b), in part, is as follows: “Tbe term 'employee’ means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, including aliens, and' also minors whether lawfully or unlawfully employed, but excluding persons whose employment is both casual and not in the course of the trade, business, profession, or occupation of his employer, ... as relating to municipal corporations and political subdivisions of the State, the term 'employee’ shall include all officers and employees thereof, except such as are elected by the people or elected by the council or other governing body of said municipal corporation or political subdivision, who act in purely administrative capacities, and to serve for a definite term of office,” etc. In Monterey County v. Rader (Cal.), 248 Pac., 912, 47 A. L. R., p. 359 (syllabus), we find: “A bystander summoned by the sheriff to assist in making an arrest is within the operation of a Workmen’s Compensation Act declaring an employee to be every person in service under any appointment.” West Salem v. Industrial Com., 162 Wis., 57; see Sanders v. Allen, ante, 189. It is well settled that the Industrial Commission, having found from competent evidence that the plaintiff was an employee of the town of Norwood at the time of his injury, such finding is binding upon us. For the reasons given, the judgment of the court below is Affirmed. Devin, J., took no part in the consideration or decision of this case.