PARKER, J., dissenting.

BOBBITT, J., concurring.

Proceeding instituted before North Carolina Industrial Commission under State Tort Claims Act, Article 31 of Chapter 143 of General Statutes, on claim of plaintiff, Alliance Company, for damages in sum of $73.19 against State Hospital at Butner, a State agency, because of negligence of one Isaac Robert Jestes, an inmate at Umstead Youth Center, in operation of a hospital truck.

Upon hearing before the Deputy Hearing Commissioner the parties stipulated and agreed as follows:

"(1) That the accident giving rise to this claim occurred in Granville County, Butner, North Carolina, at the new Youth Center construction site, on 22 April, 1952, at 10:30 a.m.

"(2) That the State-owned vehicle involved therein was operated at the time by Isaac Robert Jestes, an inmate of the Umstead Youth Center, an agency of the State of North Carolina. Said person was acting at the time in performing the duties assigned to him by his superiors.

"(3) That the damages sustained by the claimant arose as a result of the negligence of said person at the time and place set forth above.

"(4) There was no contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted.

"(5) That the claimant has been damaged in the amount of $73.19 as a result of such negligent act of such person.

"(6) That this claim was filed with the Industrial Commission within the time prescribed by law.

"(7) The only question for determination being: Was said Isaac Robert Jestes, an inmate of the Umstead Youth Center, a State employee acting within the scope of his employment at the time of the accident?"

Thereupon the Deputy Hearing Commissioner found the facts to be in accord with the facts above stipulated, and entered the conclusion of law: That "Isaac Robert Jestes, inmate of the Umstead Youth Center, was not, at the time of the accident giving rise hereto, a `State employee', `acting within the scope of his employment', as such terms are used in G.S. 143-291 which makes the State of North Carolina liable for negligent acts of a `State employee while acting within the scope of his employment.' Therefore, there was no negligence on the part of a State employee."

And in accordance therewith the Deputy Hearing Commissioner entered an order denying the claim. Thereupon claimant appealed to the North Carolina Industrial Commission, sitting as the Full Commission, assigning specific error on the part of the Hearing Commissioner. And the Commission, so sitting upon such appeal, adopted as its own the findings of fact and conclusions of law of the Hearing Deputy, and affirmed the order denying the claim.

The claimant appealed to Superior Court, assigning specific error as on appeal from Hearing Deputy.

The cause being heard in Superior Court upon the record of the Industrial Commission, and arguments of counsel for the respective parties, the Presiding Judge sustained exceptions to the failure of the Full Commission to find that Isaac Robert Jestes was a "State employee" within the meaning of G.S. 143-291. And then, after briefing his view on question as to whether Isaac Robert Jestes was a "State employee" within the meaning of G.S. 143-291, upon the facts in this case, the Judge ordered and adjudged that plaintiff recover of defendant the amount claimed and the cost of "the action."

Defendant excepted to the judgment, and particularly to the rulings of the court sustaining exceptions to rulings of the Industrial Commission, and appeals to Supreme Court and assigns error.

WINBORNE, J.

The question involved on this appeal, as stated in briefs of appellant and of appellee, substantially the same, as framed by appellant, reads: "Is an inmate of the Umstead Youth Center, who performs duties assigned to him, a State employee within the meaning of the language used in the Tort Claims Act, codified as Article 31 of Chapter 143 of the General Statutes of North Carolina?"

In this connection it is noted that the Tort Claims Act, Section One of Chapter 1059, of 1951 Session Laws, codified as above stated, constitutes the North Carolina Industrial Commission a court for the purpose of hearing and passing upon claims against the State Board of Education, the State Highway and Public Works Commission, and all other departments, institutions, and agencies of the State, and prescribes the machinery by which claims may be presented, considered and determined, and describes claims which are recognized as enforceable against such State agencies. And "when the State gives statutory consent to be sued, it may prescribe such modes, terms and conditions as it sees fit, subject of course, to any limitation or restriction in this regard in its own Constitution. It may . . . limit the right to sue to certain specific causes, and when it does so it can be sued only in the manner and upon the terms and conditions prescribed." 49 Am. Jur. 315, States, Territories and Dependencies, Sec. 97.

The Industrial Commission is empowered to "determine whether or not each individual claim arose as a result of a negligent act of a State employee while acting within the scope of his employment and without contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted"; and "if the Commission finds that there was such negligence on the part of a State employee while acting within the scope of his employment which was the proximate cause of his injury and that there was no contributory negligence on the part of the claimant or the person in whose behalf the claim is asserted, the Commission shall determine the amount of damages which the claimant is entitled to be paid . . . and by appropriate order direct the payment of such damages by the department, institution or agency concerned . . . ." G.S. 143-291.

The wording in the statute is clear, certain and intelligible. Therefore, the words used must be given their natural or ordinary meaning. Borders v. Cline, 212 N.C. 472, 193 S.E. 826; Cab Co. v. Charlotte, 234 N.C. 572, 68 S.E.2d 433, and cases cited therein.

In the Cab Company case, Johnson, J., stated that "it is an accepted rule of statutory construction that ordinarily words of a statute will be given their natural, approved, and recognized meaning."

Thus it appears basically that a claim, to be recognizable within the purview of the Tort Claims Act, must arise "as a result of a negligent act of a State employee while acting within the scope of his employment." Manifestly, the word "employee" in the connection used means "one who works for wages or salary in the service of an employer" — Webster's New International Dictionary. The relation of employer and employee is essentially contractual in its nature, and is to be determined by the rules governing the establishment of contracts, express or implied. Hollowell v. Dept. of Conservation and Development, 206 N.C. 206, 173 S.E. 603. And the word "employment" indicates a contractual relationship. These words are found in common use in statutes in this State, and decisions of this Court. Hence, it will be assumed that the General Assembly intended to give to them their ordinary meaning.

The question now arises as to whether an inmate of the "Umstead Youth Center" is an employee of the State. To answer this question it is necessary to determine what is the "Umstead Youth Center." The stipulation of the parties describes it as an "agency of the State of North Carolina." But as to what sort of an agency it is, the record is silent. However, this Court will take judicial notice of the fact that a penal institution, commonly known as "Umstead Youth Center," authorized under and by virtue of Chapter 297 of 1949 Session Laws, was established at Camp Butner, and is maintained by the State.

Turning then to the 1949 Act, codified as Article 3A of Chapter 148 of General Statutes of North Carolina, it is seen that the General Assembly authorized and empowered the State Hospital Board of Control "to convert the old `Prisoner of War' camp, located on its property at Camp Butner, into a modern prison camp or guard-house, with a capacity of one hundred (100) for the purpose of receiving and detaining such youthful and first term prisoners as may be sent it by the State Highway and Public Works Commission under such rules and regulations as may be jointly adopted by the State Highway and Public Works Commission and the North Carolina Hospitals Board of Control." And the General Assembly declared in Section 2 of the Act (G.S. 148-49.2), that for the purposes of this act or article "a `youthful offender' and a `first term offender' is a person (1) who, at the time of imposition of sentence, is less than 25 years of age, and (2) who has not previously served a term in any jail or prison." Furthermore in Section 3 (G.S. 148-49.3) the act described those received at the camp as "prisoners." Therefore, it follows as a matter of law (1) that the State agency, or institution, at Camp Butner, at which a "youthful offender" or a "first term offender" is received, within the meaning of the act, is a prison and (2) that the inmates thereof are prisoners detained there for the purpose for which it was created, and are not employees of the State of North Carolina. Indeed the word "employed," in the sense it is used in G.S. 148-49.3, means to make use of the services of the "prisoners," and not in the sense of hiring them for wages.

It is contended by appellee that under rule of liberal construction the wording of the Tort Claims Act is sufficiently broad to embrace the inmate in question as a State employee. However, this Court, in Borders v. Cline, supra, speaking to the subject under a liberal construction of the North Carolina Workmen's Compensation Act to effectuate the legislative intent and purpose, to be ascertained from the wording of the act, declared that "the rule of liberal construction cannot be carried to the point of applying an act to employments not within its stated scope, or not within its intent or purpose, or of supporting a strained construction to include an occupation or employment not falling within it." What is said there is applicable here. However, it is not here necessary to pass upon the question as to rule of construction in a statute waiving immunity.

The case of Lyon Sons v. Board of Education, 238 N.C. 24, 76 S.E.2d 553, cited and relied upon by appellee is distinguishable in factual situation from case in hand. There the basic claim, on which right of subrogation was predicated, was clearly within the purview of the Tort Claims Act.

Other authorities cited by appellee have been duly considered and, while persuasive, are not deemed controlling.

For reasons stated the judgment from which this appeal is taken is

Reversed.