#### JOE BAKER, Employee, v. STATE OF NORTH CAROLINA, Self Insurer.

(Filed 27 January, 1931.)

1. Master and Servant F a — Employee within meaning of the act is person engaged in *employment*under any appointment of contract or hire.

Whether one is an employee within the meaning of the Workmen’s Compensation Act does not solely rest upon the existence of the technical relation of master and servant, but a person- is an employee thereunder if he is engaged in employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, and includes all employees of the State or its political subdivisions except-such as are elected by the people or the General Assembly or appointed by the Gov-ezmor.

S. Same — AYorkmen’s Compensation Act should he liberally construed to effectuate the legislative intent.

The legislative intent should be ascertained and given effect in construing the Workmen’s Compensation Act, and its benefits should not be denied upon technical, narrow or strict construction.

3. State E a — The State has consented to liability for injuries to its employees compensable under the Workmen's Compensation Act.

The State of North Carolina has consented to liability, for injuries to its employees other than the employees elected by the people or the General Assembly, or appointed by the Governor, whose injuries are com-pensable under the Workmen’s Compensation Act.

4. Master and Servant P a — Private in National Guard held entitled to compensation for injury sustained while performing duty.

By statute the State has provided for payment in a certain manner to privates who have enlisted in the North Carolina National Guard, and a private therein who has taken the prescribed oath is an employee of the State within the meaning of the Workmen’s Compensation Act, and where he has sustained an injury arising out of and in the course of the performance of his duties as an enlisted man he is entitled to the compensation prescribed by the statute. N. C. Const., Art. XII, sec. 2; C. S., 6821. 6823. 6864. 6889.

*233Appeal by defendant from *Gowper, Special Judge,*at September Term, 1930, of Waice, affirming an award of the Industrial Commission.

Joe Baker was a duly enlisted private in Battery A, 113th Field Artillery, North Carolina National Guard, and at the time of his injury, was regularly employed in executing the lawful commands of his superior officers and under the orders issued by the office of the Adjutant General of the North Carolina National Guard. At the time of the injury, he was cranking a tractor in connection with his duties as a member of the maintenance section of the battery. The engine “kicked” and the crank struck his right kneecap, chipping off a part of the bone. As an enlisted man in Battery A, the plaintiff received from the State fifty cents (50c) per drill, and was required to drill by the State of North Carolina once a week, the drill night being designated as Monday night of each week, from eight to nine-thirty p.m. For the same drill period the Federal Government paid one dollar a drill. At the time of the injury, the plaintiff was employed in a cafe in Greenville, North Carolina, at a salary of $20.00 per week, and board and lodging.

The plaintiff took the following oath of enlistment: “I do hereby acknowledge to have voluntarily enlisted this 26 August, 1927, as a soldier in the National Guard of the United States and of the State of North Carolina, for a period of three years, under the conditions prescribed by law, unless sooner discharged by proper authority, and I do agree to accept from the United States and the State of North Carolina such pay, rations, and clothing or other allowances as are or may be established by law; and I do solemnly swear that I will bear true faith and allegiance to the United States of America and the State of North Carolina, and that I will serve them honestly and faithfully against all their enemies whomsoever, and that I will obey the orders of the President of the United States and of the Governor of the State of North Carolina, and of the officers appointed over me according to law and the rules of war.”

The Industrial Commission found the facts to be as follows:

1. That the State of North Carolina has, by legislative enactment, waived its sovereign rights and its exemption of liability in so far as these rights and exemptions apply to injuries to its employees by accidents that arise out of and in the course of their employment; that neither the State nor its employees may reject the act and that the State is a self-insurer of its compensation liability.

2. That the plaintiff was a regular and duly enlisted militiaman of Battery A, 113th Field Artillery, North Carolina National Guard, and as such was an employee of the State when engaged upon the regular duties of his employment as a member of the National Guard of the State.

*2343. That on 10 February, 1930, while engaged upon bis duties as National Guardsman, the plaintiff sustained an injury by accident that arose out of and in the course of bis employment; and that the plaintiff at the time of the bearing was disabled as a result of such injuries, which have not assumed a permanent status.

4. The plaintiff’s average weekly wage paid by the State of North Carolina for service as a militiaman was fifty cents (50c) and his average weekly wage paid by the Federal Government was $1.00, and that the average weekly wage earned in civilian employment was $27.00.

5. That the employment was not casual, but was in the usual course of the business of the State.

Upon the foregoing facts the Industrial Commission awarded compensation to the plaintiff and the defendant appealed to the Superior Court and on appeal the award was affirmed. The defendant then appealed to the Supreme Court upon assigned error.

*Attorney-General Brummitt and Assistant Attorney-General Nash for the State, appellant.*

*J. G. Lanier and W. T. Joyner for appellee.*

Adams, J.

At the time of his injury the plaintiff was an enlisted private in the North Carolina National Guard. In determining his legal relation to the State we may observe that the National Guard is an organization of the State militia, which does not become a part of the United States Army until the Congress declares an emergency to exist which calls for its services in behalf of the nation. *Bianco v. Austin,*204 App. Div. (N. Y.), 34; *S. v. Johnson,*202 N. W. (Wis.), 191; 32 U. S. C. A., sec. 1, *et seq.;*U. S. Compiled Sts., Supplement, 1925, sec. 1715a, *et seq.;*N. C. Code, 1927, sec. 6808, *et seq.*The National Guard being a State institution or agency, the decisive question is whether the plaintiff was an employee of the State and as such entitled to an award under the Workmen’s Compensation Law. P. L., 1929, ch. 120.

The word “employment,” as used in this act, includes employment by the State and all its political subdivisions. Section 2(a). The word “employee” means every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, and as to those employed by the State all officers and employees of the State except such as are elected by the people or the General Assembly or are appointed by the Governor.

In *Moore v. State of North Carolina, post,*300, we said that the phrase, “engaged in an employment under any appointment or con*235tract of Lire,” embodies tbe two notions of an employment under an appointment and an employment under a contract of Lire. It is contended by tbe appellant that a contract of bire imports a contractual relation or an agreement to labor for a stipulated wage or compensation, and that to give effect to tbis pbrase it is necessary to sbow that tbe relation of master and servant must bave been established in accordance with recognized legal standards.

It may not be amiss to examine some of tbe cases cited in tbe appellant’s brief in support of tbis position. In *Sibley v. State,*L. R. A., 1916-0 1087, tbe Connecticut Supreme Court of Errors beld that a duly elected sheriff while performing tbe duties of bis office was not working under a contract with tbe State, tbe statutory definition of “employee” in that commonwealth being “any person who has entered into or works under any contract of service or apprenticeship with any employer.” In *Hillestad v. Industrial Insurance Commission,*141 Pac. (Wash.), 913, Ann. Cas., 1916-R 789, tbe question was whether a boy under tbe age of fourteen years bad been employed by tbe respondents who owned and operated a shingle mill, and tbe Court said that under tbe statute in effect tbe law contemplated that tbe relation between tbe employer and tbe employee should possess some element of certainty. Tbe opinion delivered in *Hinds v. Department of Labor and Industries,*62 A. L. R. (Wash.), 225, declares that an air pilot associated with tbe owner of an airplane and flying field, who takes up passengers and receives a percentage of tbe gross compensation from flights, is a workman within tbe meaning of a statute which recognizes that tbe relation of employer and employee may exist, even though payment may be piecemeal or an allowance in tbe way of profit sharing. These and other cited cases are illustrative but are not conclusive in tbe ease before us. Unquestionably an agreement between master and servant for tbe payment of a fixed wage for tbe performance of work may be a contract of bire, but are these tbe only conditions under which tbe relation of employer and employee may exist as contemplated by tbe Compensation Law? We think not. It has been beld that a person who is procured by an employee to act as bis substitute, or to assist him in bis duties, tbe employer assenting, occupies tbe position of an employee, *Carter v. Woods Bros. Const. Co.,*244 Pac. (Kan.), 1; that an employee “loaned” by one company to and subject to tbe control of another, is a temporary employee of tbe latter, though tbe wages are not fixed, *Tarr v. Hecla Coal & Coke Co.,*109 At. (Pa.), 224, *Sgattone v. Mulholland,*58 A. L. R. (Pa.), 1463; and that an agreement between two farmers for mutual assistance in filling their silos and ice bouses, although their compensation was working one for tbe other, is a contract of service and employment. *Smith v. Jones,*43 A. L. R. (Conn.), 952.

*236These and similar decisions accord with the theory that the compensation act “should be liberally construed to the end that the benefits thereof should not be denied upon technical, narrow, and strict interpretation.” *Johnson v. Hosiery Co.,*199 N. C., 38. So, it seems to have been assumed or conceded that, under the provisions of an act analogous to ours, a member of the National Guard injured while at target practice, if at the time in the service of the State and not of the United States, was entitled to compensation from the State under the Wisconsin Workmen's Compensation Act, and being in the service of the State he was given compensation. *S. v. Johnson, supra.*See *Rector v. Cherry Valley Timber Co.,*13 A. L. R., 1247, in which it was held that whether the plaintiff entered the army voluntarily or was drafted, his presence there must be viewed as a voluntary service in the performance of a duty he owed the government.

Two facts may be regarded as established: the plaintiff when injured was in the service of the State and his service was voluntary. Was his status contractual? It is provided by statute that enlisted men shall not be recognized as members of the National Guard until they shall have signed an “enlistment contract” and taken an oath of enlistment. The General Assembly shall provide for paying the militia when called into active service. Constitution, Art. XII, sec. 2. The contract of service is one made under the conditions prescribed by law. C. S., 6821. Discipline must conform to the system prescribed for the regular army, and training to the provisions of an act of the Congress. C. S., 6823. The State furnishes enlisted men with uniform and equipment, pays them when called into the service of the State or in aid of the civil authorities, and provides compensation for each armory drill. C. S., 6824, 6864, 6889. Whether such remuneration may or may not be adequate is immaterial. That the “enlistment contract” is binding seems generally to be granted. *United States v. Grimley,*137 U. S., 147, 34 L. Ed., 636; *In re Morrissey, ibid.,*157, 34 L. Ed., 644; *S. v. Long,*66 So. (La.), 375; *Acker v. Bell,*57 So. (Fla.), 356. The record shows, in any event, that the plaintiff was voluntarily in the service of the State and subject to its direction and control. This is one of the tests of employment; and under the liberal interpretation given to the Compensation Law we should hesitate to hold that there can be no employment within the meaning of the act unless there happens to exist the technical relation of master and servant.

By waiving the immunity of the State with respect to all its officers and employees, excepting those specifically excluded, did not the General Assembly intend to make provision for their compensation when injured in the service contemplated in their contract of enlistment? In their brief the Attorney-General and his assistant intimate that sound policy *237may warrant tbe State’s assumption of this burden, but they do not agree tbat under tbe present law tbe burden bas been assumed. After an examination of tbe authorities considered in view of tbe several compensation laws wbicb they interpret we are of opinion tbat tbe plaintiff’s case is witbin tbe provisions of tbe act in question and tbat tbe judgment of tbe Superior Court should be affirmed.

Affirmed.