Starling v. . Morris

CONNOR, J. We concur in the opinion of the judge presiding at the January Term, 1932, of the Superior Court of New Hanover County, that there is no sufficient evidence appearing in the record in this proceeding to support the finding of fact by the North Carolina Industrial Commission to the effect that at the time of the accident which resulted in his death, W. P. Starling was regularly employed by John R. Morris,, sheriff of'New Hanover County, as a deputy sheriff, and’ that while so employed he suffered an injury by accident which arose out of and in the course of his employment. All the evidence shows that W. P. Starling was designated by the sheriff as a special deputy, soon after the sheriff qualified for the discharge of the duties of his office, with the understanding between him and the sheriff, that from time to time, at the option of the sheriff, he would be employed to serve process specially delivered.to him by the sheriff for that purpose, and that he would receive the fees allowed by law for the service of such process,. He received no salary or wages from the sheriff or from New Hanover County. W. P. Starling was not a regular deputy sheriff, employed by the sheriff, with authority to act generally for and in behalf of the sheriff, but only a special deputy subject to employment by the sheriff at such times and for such services as the sheriff might determine. *568 At the time of the accident which resulted in his death, W. P. Starling was not engaged in the service of any process specially delivered to him by the sheriff for that purpose, nor was he engaged in the performance of any duty required of him by the sheriff. He was acting solely on his own initiative, and not for or in behalf of the sheriff. He was undertaking with others to stop a truck on a State highway under the apprehension that the driver of the truck was transporting intoxicating liquor, in violation-of the law. Neither he nor any one in his party had a warrant for the arrest of the driver of the truck, or of any other person, or for the seizure and search of the truck. No one in the party had personal knowledge that the driver of the truck was engaged in a violation of the law. There is no error in the judgment setting aside and vacating the award in this proceeding by the North Carolina Industrial Commission. The judgment is affirmed. In Hanie v. Penland, 194 N. C., 234, 139 S. E., 380, it was held by this Court that where a special deputy sheriff, while undertaking to arrest a person charged with the commission of a crime, by virtue of a warrant procured by the special deputy on his own initiative, shot and killed an innocent bystander, the sheriff was not liable in damages to the administratrix of the deceased person, for the reason that at the time he shot and killed the plaintiff's intestate, the deputy sheriff was not acting within the scope of his employment. He was acting entirely and exclusively as a volunteer. The principle on which that case was decided is applicable to and determinative of the question presented by this appeal. The question as to whether the relation between the sheriff of a county in this State, and one who has been appointed by him as a deputy sheriff, is that of employer and employee, within the meaning of those words as used in the North Carolina Workmen’s Compensation Act is not presented by this appeal. In view, however, of the definitions in the statute of the words, “employment,” “employer” and “employee,” as used therein, it may well be doubted that a deputy sheriff is an employee of the sheriff by whom he was appointed, within the meaning of those words as used in the act. See N. C. Code, section 8081 (i) ; section 2, chapter 120, Public Laws, 1929. However that may be, there is no error in the judgment in this proceeding. It is Affirmed.