Nissen v. City of Winston-Salem

BeogdbN, J. Counsel for defendant state in their brief accurately and succinctly the questions of law involved, to wit: (1) Was the chief of the fire department of the city of Winston-Salem, who was killed in a motor vehicle wreck while answering a fire call, an employee within the meaning of the Workmen’s Compensation Law? (2) Is the Supreme Court bound by the findings of the Industrial Commission and the Superior Court in this case? 0. S., 8081 (i), Michie’s Code, 1931, provides: “The term ‘employee’ means every person engaged in an employment under any appointment or contract of hire or apprenticeship ... ; 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.” The deceased was elected or appointed by the board of aldermen as chief of the fire department for the defendant, to hold office for one year, or until his successor is elected and qualified. *892 The defendant asserts tbat tbe deceased was an executive officer of tbe city and tbat the duties prescribed by ordinance were purely administrative. Tbe statute, supra, withdrew from tbe operation of tbe compensation law all officers of a municipality elected by tbe council or other governing body, . . . who “act in purely administrative capacities.” Obviously tbe word “purely” in its ordinary sense means exclusively. No precise and invariable definition of tbe word “administrative” can be given. Tbe meaning given by tbe appellate courts and textwriters depends upon tbe particular facts and circumstances under review. Black’s Law Dictionary (3d ed.), p. 59, defines or rather describes tbe word “administrative” as “pertaining to administration. Particularly, having tbe character of executive or ministerial action. In this sense, administrative functions or acts are distinguished from such as are judicial,” etc. Tbe Michigan Court in People v. Salsbury, 96 N. W., 936, says: “Tbe term ‘administration’ is also conventionally applied to tbe whole class of public functionaries, or those in charge of tbe management of tbe executive department. Mecbem, in bis work on Public Officers (section 655), makes tbe following statement: ‘This class of officers is known by different names. They are sometimes called ‘executive officers,’ sometimes ‘administrative,’ sometimes ‘ministerial,’ and with slight shades of distinction; but for convenience sake, and as may properly be done, they will all be treated here under tbe general beading of ‘ministerial’ officers, and there will be included all officers whose duties are wholly or chiefly ministerial.” See, also, State v. Loechner, 59 L. R. A., 915. McQuillin in bis work on Municipal Corporations (2d ed.), Yol. 2, p. 38, quotes Judge Cooley, as follows: “Tbe officer is distinguished from tbe employee in tbe greater importance, dignity and independence of bis position; in being required to take an official oath, and perhaps give an official bond; in tbe liability to be called to account as a public offender for misfeasance or non-feasance in office, and usually, though not necessarily in tbe tenure of bis position.” So far as tbe record discloses tbe deceased took no oath of office, gave no bond, bad no authority to employ or discharge firemen, and was apparently removable by action of tbe board of aldermen. Moreover, be was subject at all times to tbe control, supervision and direction of said board. Indeed, be could not go out of town without tbe “consent of tbe mayor or tbe fire and building committee.” It would seem tbat tbe position of tbe deceased was in tbe nature of a foreman of tbe ■fire department or bead fireman for tbe city of Winston-Salem. Assuming, however, tbat Nissen was an officer, did be perform “purely administrative acts ?” *893 The evidence discloses that the deceased customarily and habitually performed the duties of fireman, or as one witness declared, “he was a good hand. . . . He would help just the same as the rest of the boys.” The “dual-capacity” doctrine has been adopted in determining the rights of the parties in compensation eases: “that is to say, that executive officers of a corporation will not be denied compensation merely because they are executive officers if, as a matter of fact, at the time of the injury they are engaged in performing manual labor or the ordinary duties of a workman. Hence, one of the fundamental tests of the right to compensation is not the title of the injured person, but the nature and quality of the act he is performing at the time of the injury.” Hodges v. Mortgage Co., 201 N. C., 701. Of course, all of these principles must be construed and considered in the light of reason and common sense. Obviously the mayor of a city would not become an employee merely because he occasionally picked up a piece of hose or occasionally used a shovel or mattock when in the presence of a street force. Desultory, disconnected, infrequent acts of manual labor performed by an administrative officer and not reasonably required by the exigencies of the situation, would not classify such officer as a workman. However, in the ease at bar a consideration of the limited discretion and power of the chief of the fire department and the fact that he customarily and habitually performed the duties of ordinary firemen, and that the very nature of his employment apparently required such work upon his part, lead the court to the conclusion that the deceased did not “act in purely administrative capacities,” and the award is approved. In answer to the second question of law propounded, it is sufficient to observe that both the Supreme and the Superior courts are bound by the findings of the Industrial Commission where there is any competent evidence to support such findings. Of course, if the facts are admitted and only one inference could be reasonably drawn therefrom, such facts present a pure question of law; but in the case at bar the chief of the fire department acted in a supervisory capacity, and also as a workman. Both the Industrial Commission and the trial judge found, upon competent evidence, that the deceased was an employee within the meaning of the Compensation Act, and such finding so made is conclusive. Affirmed.