dissenting. The case of Washington v. State (Supreme Court, Appellate Division, Third Department, Nov. 15, 1950) 100 N. Y. S. 2d 620, decided a question of law quite similar to1 the question before the Court here. The Per Curiam opinion is as follows:
“Per Curiam. Claimant has had judgment against the State for injuries sustained by him while an inmate of Great Meadow Prison when he was thrown from a load of hay which he was helping to load. The horses drawing the load, driven and controlled by a fellow inmate, started suddenly, causing claimant to lose his balance. The Court of Claims has found .that claimant’s injuries resulted solely from the negligence of the driver and without contributory negligence on the part of the claimant.
“On this appeal the appellant does not question the findings as to negligence or lack of contributory negligence, but asserts that the Court of Claims was without jurisdiction under subd. 2, Sec. 9 of the Court of Cl aims Act, because a fellow inmate is not an 'officer or employee’ of the State and that therefore the State is not responsible for the negligence of such inmate.
“Both claimant and the driver of the hay wagon were under the immediate control, supervision and direction of a prison guard who was an employee of the State. They were directed to perform their particular assignments. The guard was present when the injuries occurred. No one contends that an inmate of a state prison is an employee of the *335State under ordinary circumstances. However, when the State undertakes to perform one of its functions through the medium of such inmates and directs them, as it did here, to perform certain duties under the immediate supervision of a State employee, then the State makes such inmates its agents and employees while in the performance of such duties, at least to the extent of rendering the State liable for their tortious acts in the performance of such duties. The responsibility of the State under such circumstances has been recognized before. Sullivan v. State of New York, 257 App. Div. 893, 12 N.Y.S. 2d 504 (3rd dept.), affirmed 281 N.Y. 718, 23 N.E. 2d 543.
“Judgment unanimously affirmed, with costs.”
Sullivan v. State, supra, is reported as follows in the Court of Appeals of New York:
“Appeal from Supreme Court, Appellate Division, Third Department, 257 App. Div. 893, 12 N.Y.S. 2d 504.
“Action by Henry Sullivan against the State of New York for injuries sustained by claimant whose right thumb, index, middle, and ring fingers were amputated when he was cleaning a bread slicing machine while a convict imprisoned in Great Meadow Prison.
“A civilian official had control of an electric switch that motivated the device, and a convict directed claimant’s activities. The machine could be stopped by a switch thereon and also by one located on the general switchboard in another room. Claimant was injured during the first day he worked at bread slicing. On several prior occasions the machine had stopped without known cause, and the convict then in charge ha'd notified the civilian guard. On the day of the injury the machine again ceased to function without known cause, and the convict in charge directed claimant to clean the machine, but did not turn off the switch thereon nor instruct the claimant to do so. During the cleaning it started without known cause, and the injuries resulted.
“From a judgment of the Appellate Division, 257 App. Div. 893, 12 N.Y.S. 2d 504, reversing a judgment of the Court of Claims which dismissed the claim and awarding claimant $6,000, defendant appeals. Affirmed.”
G.S. 148-49.3 reads:
“Employment and supervision of prisoners. — Prisoners received at Camp Butner Prison shall be employed in work on the farm, workshops, the upkeep and maintenance of the property located at Camp Butner or in such other similar work as may be determined by the State Hospitals Board of Control and the State Highway and Public Works Commission. The said prisoners to be under the general supervision of the agents and employees of the State Highway and Public Works Com*336mission or of sucb employees of tbe State Hospitals Board of Control as may be agreed upon by the two State agencies.”
I think that the legislative attitude in enacting a Tor.t Claims Act, or waiving a State’s immunity from suit, is accurately reflected by Oardozo, J.’s statement in Anderson v. John L. Hayes Constr. Co., 243 N.Y. 140, 147, 153 N.E. 28 (quoted with approval by Vinson, C. J., in the opinion he wrote for the U. S. Supreme Court in U. S. v. Aetna Gas. & Sur. Co., 338 U.S. 366, 94 L. Ed. 171) : “The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.”
The current trend of legislative policy and of judicial thought is toward the abandonment of the monarchistic doctrine of governmental immunity, as exemplified by Tort Claims Acts enacted by the Congress and the Legislatures of various states. The purpose of such acts is to relieve the legislative branch of the government from the judicial function of passing upon tort claims against the State.
In the case here it was stipulated that Jestes, an inmate of the Umstead Youth Center, a State agency, was operating a State owned vehicle, and acting at the time in performing duties assigned to him by his superiors, and while doing so he negligently inflicted’ injury upon claimant, who was not guilty of contributory negligence. By virtue of G.S. 148-49.3 the State employed him to do this work. The caption of this statute is “Employment and Supervision’’ and the words used by the General Assembly in the act are “shall be employed.” Webster’s New International Dictionary defines employee: “One employed by another; one who works for wages or salary in the service of an employer; - disting. from official or officer.” When the State employed Jestes to do this work, it necessarily made him a State employee, while in the performance of such duties, at least to the extent of rendering the State liable for his tortious act in the performance of such duties under the State Tort Claims Act.
I vote to
Affirm.