#### MRS. LAWRENCE GOWENS, Widow of LAWRENCE GOWENS, Deceased; MARY RUTH GOWENS, THEO GOWENS, ALFRED GOWENS, JUANITA GOWENS and CAROL GOWENS, Children, v. ALAMANCE COUNTY, H. J. STOCKARD, Sheriff of ALAMANCE COUNTY; and HARTFORD ACCIDENT & INDEMNITY COMPANY.

(Filed 16 June, 1939.)

1. Sheriffs § 2—

While the office of sheriff is provided for by Art. IY, sec. 24, of the State Constitution, the right of the sheriff to appoint deputies is a common law right and deputies appointed by the sheriff are public officers, but their duties and authority relate only to ministerial duties imposed by law upon the sheriff, in the performance of which they act for the sheriff in his name and right.

2. Jails § 1—

The duties of a jailer are those prescribed by statute and those recognized by common law, and he has no authority by virtue of his office to serve processes or make arrests except, perhaps, in preventing an escape.

3. Same — Positions of deputy sheriff and jailer are separate and distinct.

Where a person appointed by the sheriff as a deputy is also appointed by him as jailer, and subsequent to an act authorizing the county commissioners to designate the jailer (Public-Local Laws of 1935, ch. 201) the commissioners permit him to continue his employment as jailer and pay him the salary fixed by the commissioners, such person necessarily acts either in his capacity as deputy sheriff by appointment of the sheriff or as jailer by virtue of his employment by the county, the two positions being separate and distinct.

4. Master and Servant § 39d — Evidence held insufficient to support finding that employee was injured and killed in the course of his employment as jailer.

The evidence tended to show that the deceased employee had been appointed by the sheriff as a deputy and had been employed by the county as jailer, that while in the jail he was advised that a man in the vicinity of the jail had shot his wife, that he left the jail and was killed while attempting to arrest- the man as he was preparing to flee. *Held,:*In attempting to make the arrest the employee was acting in his capacity as deputy sheriff, such act being outside the scope of his employment as jailer, and the evidence is insufficient to support a finding by the Industrial Commission that he was fatally injured in an- accident arising out of and in the course of his employment as jailer.

Clarkson, J., dissenting.

Devin, J., dissenting.

Schenok, J., concurs in the dissenting opinion of Devin, J.

Appeal by defendants from *Sinclair, Emergency Judge,*at January-February Term, 1939, of AlamaNCE.

Reversed.

*108Proceeding under North Carolina Workmen’s Compensation Act to determine liability of defendants to plaintiff, an employee of Alamance County.

This cause was here at the Spring Term, 1938, and was remanded, with directions that the Industrial Commission clarify an alternative finding that the deceased either as a deputy sheriff or as jailer, or in the dual capacity of deputy sheriff-jailer, suffered an injury by accident arising out of and in the course of his employment resulting in his death, by definitely finding whether the deceased suffered such injury by accident arising out of and in the course of his employment as jailer.

Pursuant to an order of remand by the court below in accord with the opinion of this Court, *Gowens v. Alamance County,*214 N. 0., 18, and after notice to the parties, the Industrial Commission entered its opinion in which it is stated :

“The full commission, after reviewing the evidence and file in this case, now finds as a fact that the said Lawrence Gowens did suffer an injury by accident arising out of and in the course of his employment as jailer on July 31, 1936, resulting in his death.

“This finding is made as a supplement and in addition to the findings heretofore made and set out in the record.” Thereupon an award was made and the defendants appealed. When the cause came on to be heard in the Superior Court the court below sustained the finding of the commission and affirmed the judgment awarding compensation to plaintiffs. Defendants excepted and appealed.

*Long, Long & Barrett for plaintiffs, appellees.*

*George D. Taylor and B. M. Bobinson for defendants, appellants.*

Barnhill, J.

Upon the rehearing the Industrial Commission adopted and reaffirmed its former findings. They now stand as the findings in this cause except as they are modified by the conclusion of the Commission that the deceased at the time of his injury and death was acting as jailer.

In the opinion of the hearing commissioner, ajiproved by the full commission, we find the following resume of the evidence, to wit: “The evidence discloses that on the day Lawrence Gowens was killed he was at the jail about his duties, and was called to come immediately to the home of one Bob Campbell, who lived just two doors from the jail, nearly in the back yard of the jail, and was advised that the said Campbell had shot his wife. The deceased went immediately to the home of said Bob Campbell where the wife of Campbell had been seriously wounded by a gunshot inflicted upon her by her husband, Bob Campbell, and he, Deputy Sheriff Gowens, the deceased, thereupon found Campbell armed with a shotgun and in the act of leaving his home, and when *109the deceased attempted to arrest the said Campbell and deter him from fleeing, he was fatally shot by Campbell, from which injuries he died within a short while thereafter.”

In the original award the commission held that deceased acted in a dual capacity and undertook to treat the positions held by him as one. It concluded that he acted either in the capacity of deputy sheriff,in charge of the jail or as jailer authorized to perform the duties of a deputy sheriff.

While these two offices, or positions, are usually held by one person for convenience and efficiency, they are separate and distinct. The Constitution provides for the office of sheriff. N. C. Const., Art. IV, sec. 24. There is no constitutional authority for' appointment of deputies sheriff. The right of the sheriff to appoint deputies is a common law right. “The deputy is an officer coeval in point of antiquity with the sheriff.” *Lanier v. Greenville,*174 N. C., 311, 93 S. E., 850; *Borders v. Cline,*212 N. C., 472, 193 S. E., 826. He is the deputy of the sheriff, one appointed to act ordinarily for the sheriff and not in his own name, person or right, and although ordinarily appointed by the sheriff, is considered a public officer. 57 C. J., 731, Sec. 4. The duties and authority of a deputy sheriff relate only to the ministerial duties imposed by law upon the sheriff. *Borders v. Cline, supra.*

Likewise, the position of jailer is one of common law origin and has existed from time immemorial. The statute, C. S., 3944, provides that: “The sheriff shall have the care and custody of the jail in his county; and shall be, or appoint, the keeper thereof.” The duties of the jailer are those prescribed by statute and such as were recognized at common law.

In Alamance County, until 1935, the sheriff had the right to appoint the jailer under the provisions of C. S., 3944, and of ch. 559, Public-Local Laws 1927. The Legislature, by ch. 201, Public-Local Laws 1935, repealed ch. 559, Public Laws 1927, and vested in the Board of Commissioners of Alamance County “full power and authority to name and designate the jailer and such other assistants as in the opinion of said board shall be necessary to properly maintain, operate and supervise the said jail and the inmates therein, and to prescribe the rules and regulations and general policies of such operation, maintenance and supervision of said jail, and to prescribe the duties of the said jailer and his assistants.”

After the enactment of eh. 201, Public-Local Laws 1935, the commissioners of Alamance County permitted the deceased, who had theretofore been appointed jailer by the sheriff, to continue his employment as such without any new appointment. They paid him his salary fixed by the commissioners and the turnkey fees allowed by law. The mere fact that they did not specifically reappoint him did not affect his posi*110tion as an employee of tbe county from and after tbe enactment of tbe recited statute.

We have been unable to find in tbe common law, or in tbe decisions or statutes of tbis State, any declaration or provision wbicb could be interpreted as vesting in tbe jailer any authority to serve process or make arrests. Whenever be undertook to do so, except perhaps in attempting to recapture a prisoner who bad escaped from bis custody, of necessity, be was acting in bis capacity as deputy sheriff, and not as jailer.

There is no such position as deputy sheriff-jailer known to tbe law. When tbe deceased undertook to act in given instances be was acting either as jailer by virtue of bis employment by tbe county, or as deputy sheriff under bis appointment by tbe sheriff.

As stated in tbe original findings of tbe commission, when tbe deceased went to tbe scene of tbe shooting and found Campbell, tbe man who bad shot bis wife, armed with a shotgun and in tbe act of leaving bis home, “Deputy Sheriff Gowens, tbe deceased,” attempted to arrest him. In so doing he was acting in bis capacity as a deputy sheriff. If be was undertaking to act in bis capacity as jailer, then bis act in attempting to arrest Campbell was entirely outside tbe scope of bis employment as jailer, and tbe injuries be received in attempting to make tbe arrest did not arise out of or in tbe course of bis employment by tbe county as such. No other conclusion is permissible.

That be was undertaking to act as deputy sheriff is not only supported by tbe specific findings of fact by tbe commission, but by other evidence in tbe record wbicb tends to show that a person nearby called to tbe wife of tbe deceased, informed her of tbe shooting, and inquired for the sheriff. In consequence of tbe information and tbe inquiry for tbe sheriff, bis deputy, tbe deceased, as it was bis duty to do as deputy sheriff, responded.

In tbe liability policy issued by tbe defendant tbe deceased was named as an employee of tbe county. He received an injury wbicb caused bis death. If tbe fact that, although tbe deceased was insured, be cannot recover, makes tbis appear as a bard case, we must bear in mind that tbe defendant Indemnity Company contracted to pay only in tbe event tbe defendant county was liable.

As there is no evidence in tbe record to support tbe conclusion that tbe deceased suffered an injury by accident arising out of and in tbe course of bis employment as jailer, tbe judgment below must be

Reversed.

Clarkson, J.,

dissenting: In tbe judgment of Sinclair, J., in tbe court below is tbe following: “And it further appearing to tbe court, *111pursuant to tbe direction of tbe Supreme Court, tbe said Industrial Commission bas made tbe following finding of fact, to wit:

> “ 'Tbe Supreme Court remanded tbis cause to tbe Industrial Commission asking: “Did Lawrence Gowens suffer injury by accident arising out of and in tbe course of bis employment as jailer?”

> “ 'Tbe Full Commission, after reviewing tbe evidence and file in tbis case, now finds as a fact that tbe said Lawrence Gowens did suffer an injury by accident arising out of and in tbe course of bis employment as jailer on July 31, 1936, resulting in bis death.’

> “And it appearing to tbe court, upon reviewing all of tbe evidence set out in tbe record, that tbe deceased, Lawrence Gowens, was duly and regularly employed as jailer in Alamance County, and tbat be was serving in tbat capacity at tbe time of bis fatal injury and death, and tbat for more tban 20 years it bad been tbe custom in Alamance County for tbe jailer to be deputized by tbe sheriff, and tbat pursuant to tbe said custom tbe said Lawrence Gowens as jailer was so deputized: And it further appearing to tbis court tbat there is sufficient evidence in tbe record in tbis cause to support tbe said finding of fact by tbe Industrial Commission, and being of tbe opinion tbat tbis constitutes tbe only question of law before tbis court on tbis appeal, it is therefore considered, ordered and adjudged tbat tbe several assignments of error of tbe defendants on appeal be and they are hereby overruled, and tbe said supplemental award, finding of fact and conclusion of law by tbe Industrial Commission are hereby approved and affirmed. It is further considered, ordered and adjudged tbat the defendants pay tbe compensation to tbe dependents of tbe said Lawrence Gowens, all in accord with as set out in tbe award and supplemental award heretofore entered in tbis cause by tbe said Industrial Commission, together with all costs of tbis action.”

N. C. Code, 1935 (Micbie), sec. 4544, is as follows: “Every sheriff, coroner, constable, officer or police, *or other officer,*entrusted with tbe care and preservation of tbe public peace, who shall know or have reasonable ground to believe tbat any felony bas been committed, or tbat any dangerous wound bas been given, and shall have reasonable ground to believe tbat any particular person is guilty, and shall apprehend tbat such person may escape if not immediately arrested, shall arrest him without warrant, and may summons all bystanders to aid him in such arrest.”

In *S. v. Pugh,*101 N. C., 737 (740), is tbe following: “The jury ought not to weigh the conduct of tbe officer as against him in 'gold scales’; tbe presumption is be acted in good faith. Tbis is tbe rule applicable in such cases as tbe present one, as settled in *S. v. Stalcup,*2 Ired., 50; *S. v. McNinch,*90 N. C., 696.” (Tbe F. A. McNinch in *112tbe above ease was tbe father of Hon. E. A. McNineh, who was chairman of the Federal Power Commission and now chairman of the Federal Communications Commission.) *S. v. Jenkins,*195 N. C., 747.

Lawrence Gowens was performing his duty in the jail as jailer. “Other officer” in the above act includes “jailer.” Immediately back of the jail “nearly in the back yard of the jail” a shot rang out, someone was shot (Robert Campbell had shot his wife). Mrs. Gowens, the jailer’s wife, testified: “I ran in the house and called him (her husband) and he went right on down.” In calling distance of the jail was Campbell and when Gowens attempted to arrest him, Campbell, who had shot his wife immediately before, killed Gowens. Lawrence Gowens was an employee of the county of Alamance. The premium had been paid to the Hartford Accident and Indemnity Co., and the company had compensation coverage for the county.

Deputies and jailers, since 30 March, 1939, by act of the General Assembly, have been clearly brought within the purview of the Workmen’s Compensation Act. See ch. 277, Public Laws 1939. In view of this liberal extension of coverage, the present decision seems unwarranted.

The Industrial Commission made an award to the widow and her five children and this was approved and affirmed by the court below. The main opinion reversing the Industrial Commission, I think too narrow and attenuated and sticking in the bark. Must the jailer sit with his hands folded when an emergency arises? In taking prisoners and bringing them back from the jail to the courtroom or courthouse to be tried, if an escape is attempted, shall the jailer do nothing? If a mob assembles outside the jail can the jailer not go out of the jail and attempt to disperse them? In the shadow of the jail there was an emergency call, a man had shot his wife. The jailer, on the call of his wife, ran out to arrest the offender and was killed. Surely she and her five children should not be barred on a technicality from an award. He acted as an officer in good faith. This emergency call should not be used against him and his conduct weighed in “gold scales.” A finespun argument should not prevail in a case like this. The Workmen’s Compensation Act' should be construed liberally in the interest of humanity. The Industrial Commission and court below should not be overruled.

Devin, J.,

dissenting: The Industrial Commission found as a fact that the deceased suffered an injury by accident arising out of and in the course of his employment as jailer, resulting in his death. If there is any evidence to support this finding the judgment below should be affirmed. An examination of the testimony in the record discloses that the witness H. J. Stockard testified that the deceased had gone to arrest *113Campbell, but it does not appear that Stoekard was present on tbe occasion or bad any personal knowledge of wbat took place. Tbe only witness testifying of personal knowledge was Mrs. Lawrence Gowens, tbe wife of deceased. Sbe said: “On tbe date my husband was killed I was at borne at tbe jail. ... I beard a sbot and I went to tbe front porcb. There was a man working on tbe telephone post and be called me and asked if tbe sheriff was there — said somebody bad a gun down street and bad sbot somebody. I ran in tbe bouse and called him (deceased) and be went right on down. Tbe jail bouse is on tbe corner of Maple Avenue and Elm Street. The Campbell bouse is two doors below tbe jail — tbe second door below tbe jail, on Elm Street, immediately back of tbe jail.” That is all the testimony in the record relating to tbe circumstance of bis death. It was admitted that be was killed by a gunshot fired by Campbell.

While tbe original bearing commissioner made findings of fact as to tbe manner in which tbe deceased came to bis death (quoted in tbe majority opinion), tbe case on appeal agreed to by counsel, constituting tbe record before us, contains no testimony to support such finding. Tbe only witnesses on this record whose testimony referred in any way to tbe manner of bis death were H. J. Stoekard and Mrs. Lawrence Gowens, herein above quoted.

Considering this testimony, it seems unquestionable that tbe deceased was on duty as jailer at tbe time of bis injury. He bad charge of tbe jail premises and of tbe prisoners. From Mrs. Gowens’ testimony it appears that be received warning that there was a man with a gun in tbe street immediately back of tbe jail — a man who bad just sbot someone — and that tbe jailer went right out. It was bis duty as jailer to investigate any menace or disturbance in tbe immediate vicinity of tbe premises and prisoners which be bad in charge. Whether bis purpose was to make an arrest or to investigate a happening which might affect bis charge, was a matter of inference to be drawn from tbe facts in evidence. Tbe conclusion that be went out of tbe jail to make an arrest as deputy sheriff does not necessarily follow. Nor does it necessarily follow because be was outside tbe jail at tbe time of bis injury that be was not attempting to perform some duty in connection with bis employment as jailer.

If there be any reasonable inference from tbe testimony to support, tbe finding of tbe Industrial Commission that tbe deceased suffered an injury by accident arising out of and in tbe course of bis employment, as jailer, tbe ruling of tbe court below was correct. I think tbe evi- . dence as reported permits such an inference, and that tbe judgment sustaining tbe award of compensation to tbe widow should be affirmed.

ScheNck, J., concurs in this opinion.