■ To determine plaintiff’s right to recover it is neééssary, I think,- to see what rights he possessed at common law and hoW 'those rights may have been enlarged by statute.
At common'law-an Employee who was negligently injured by ano-therhad a {right of --action-- against the party causing the injury. The common-law: held--an-.-employer liable for the acts of his employees when-done in'.the course of their employment. Hence when an employee -was-" hegligently injured by another employee, not a fellow servant,-he had a.right-of action against the employee who inflicted the injury or-against the employer .or against both.
The rule' of respondeat superior did not apply when the State or one of its agencies was the employer. The doctrine of governmental immunity forbade the'injured party to sue. This rule! of governmental immunity was applied' -in Clodfelter v. State, 86 N.C. 51, to defeat recovery, by-a convict who'was injured by the negligerice.-of his super-vivir, -;Thé-\rule of governmental immunity declared in' the Clodfelter casé 'has" been 'applied-'indiscriminately in denying claims made by employees'. of the 'Prison ’Depártnient-ánd by prisoners. Moody v. State *621Prison, 128 N.C. 12; Gentry v. Hot Springs, 227 N.C. 665, 44 S.E. 2d 85.
In 1929 a new public policy was declared by the State with respect to compensation of workers for injuries sustained in the performance of tasks to which they were assigned. The Legislature enacted our Workmen’s Compensation Act, c. 120, P.L. 1929. After 1 July 1929,! the effective date of that Act, an employee working for an employer who had not rejected the provisions of the Act was not required to prove negligence proximately causing his injuries. Common law defenses of contributory negligence, assumption of risk, and fellow' servant could no longer be used to defeat his claim. It was sufficient to show injury arising out of and in the course of his employment. The amount to be paid was fixed by statute to provide fair- compensation based on the nature and extent of the injuries. The original Act with the subsequent amendments now appears as c. 97 of the General Statutes.
By express language the word “employer” included the State and all its political subdivisions. Sec. 2(c), c. 120, P.L. 1929, G.S. 97-2(3). This section likewise defined employment and employee. Doubtless because of the breadth of these definitions and the single reason of governmental immunity assigned for denying liability in the Ciodfelter and Moody cases, supra, the Legislature deemed it wise to make it clear that the Act was not intended to permit a prisoner to claim compensation even though he might be assigned to work with free labor. Hence the Act expressly provided in sec. 14(c), (G.S. 97-13 (c)): “This act shall not apply to State prisoners nor to County convicts;!!' ’
Court decisions and legislative history establish beyond peradventure that a prisoner could not, prior to 1941, collect compensation from the State or its subdivisions for injuries negligently inflicted while serving his sentence. The Legislature of 1941, as it had a right to do, elected to permit certain prisoners.-to receive compensation for disabilities which continued after the prison term had expired.
C. 295, P.L. 1941, is entitled: “AN ACT TO AMEND CHAPTER ONE HUNDRED AND TWENTY OF THE PUBLIC LAWS OF ONE THOUSAND NINE HUNDRED AND TWENTY-NINE, SO AS TO PROVIDE CERTAIN BENEFITS OF THE WORKMEN’S COMPENSATION ACT FOR PRISONERS INJURED WHILE ENGAGED IN HIGHWAY WORK.” It rewrote subsection (c) of section 14 of the original Act and made it read:' “This act shall not apply to prisoners being worked' by the State or any subdivision thereof, except to the following extent: Whenever any prisoner assigned to the State Highway -and Public Works Commission shall suffer ac-*622oidental injury -arising out of and in the course of the. employment to which he had been assigned, if the results of such injury continue until after the date of the lawful discharge- of such prisoner to such an extent as to amount to a disability as -defined in this act, then such discharged prisoner may have the benefit of this act by applying to the Industrial Commission as any other employee . . .”
The language of both the caption and the statute itself are important. The original statute made no distinction between prisoners who were -assigned to work and those confined without such assignment, this for the sound reason that a right did not accrue to any -worker unless the injury .aróse out of and in the course of employment. The intent of the Legislature is, I think, plain. It said that the mere fact that one was a prisoner did not defeat his right to compensation for injuries sustained when under like circumstances a worker not a prisoner would be entitled to recover; but it made it equally plain that no right to compensation existed so long as the worker was serving his prison term. .The benefits accrue only in the event the disability continues beyond the .prison term. Governmental immunity was waived in a limited area.
Increasing governmental activity in the broad field of communications — the construction and maintenance of highways and the transportation of school children — partly performed by private contractors and partly by the State with prisoners or hired labor, inevitably resulted in injuries to citizens other than those at work. Each session of the Legislature was confronted with an increasing number of claims with respect to which it was requested to waive governmental immunity and pay for losses sustained resulting from the negligence of some agent or employee of the State.
By 1951 the number of such claims so presented to the Legislature exceeded 200. Its: committees did not have time to investigate the facts on which the obligation to pay was based. Hence the enactment of c. 1059, Session Laws 1951, the so-called Tort Claims Act.
That Act authorized -the Industrial Commission to investigate the claims there listed, in excess of 200, and if the injuries asserted “arose as a result of a'negligent act of a State employee while acting within the scope of his employment” to award compensation. Not only was the Commission authorized to investigate the claims listed, but it was authorized to determine if claims subsequently asserted were the result of negligent, acts of- a State employee.
To properly determine the character of claims thereafter arising as to "which the Commission was authorized to invéstigate and award compensation,'it-is, I think, important to look at the character of the *623claims expressly referred to the Commission for determination. A casual examination of the claims listed in the Act of 1951 will show their nature and character. There is no suggestion in those claims that the State should compensate a prisoner for injuries sustained by him. I do not believe the Legislature would give to the Industrial Commission authority to award compensation to a prisoner for injuries sustained by the negligence of his supervisor without clearly and expressly so stating.
My thought that the Legislature did not intend that the Tort Claims Act should have the sweeping effect attributed to it is fortified, I think, by the provisions of c. 1314, Session Laws 1953, where it expressly declared that the Tort Claims Act did not apply to claims based on the negligence of doctors, surgeons, nurses, and other employees where medical or surgical treatment is given.
Alliance Co. v. State Hospital, 241 N.C. 329, 85 S.E. 2d 386, involved the liability of the State for damage sustained by plaintiff when struck by a motor vehicle operated by a prisoner on business for the State. Except for the fact that the driver was a prisoner, the claim fell squarely in the class of claims expressly referred to the Industrial Commission by the Legislature in 1951. When claim was presented, the State denied liability because the driver of the State’s motor vehicle was a prisoner and because a prisoner was not an employee. Hence, said the State, the Tort Claims Act had no application. This Court held no liability existed. Justice Bobbitt, in concurring in the opinion written by the present Chief Justice, said: “In my opinion, our Tort Claims Act should be strictly construed. This is in accord with the rulings of most courts. 49 Am. Jur., States, Territories, and Dependencies, sec. 97; 81 C.J.S., States, sec. 215. Waiver of immunity beyond the provisions of the Act as strictly construed is a matter for determination by the General Assembly.” This rule of construction was given express approval by the entire Court in Floyd v. Highway Com., 241 N.C. 461, 85 S.E. 2d 703.
The Legislature was in session when the case of Alliance v. State Hospital, supra, was decided. It disagreed with the conclusion of this Court that the operator of the State’s vehicle was not an employee within the meaning of the Tort Claims Act. Hence it enacted c. 400, Session Laws 1955, ratified 31 March 1955.
The original Act authorizing compensation where the “result of a negligent act of a State employee acting within the scope of his employment” was by the 1955 Act changed to authorize compensation for injuries which “arose as a result of a negligent act or omission of any'officer, employee, voluntary or involuntary servant or agent of *624the State.” The Legislature clearly expressed its intent to enlarge the class for whose acts the State would be liable and for the character of the acts, whether acts of commission or omission, but it did not intimate that it intended to enlarge the class of those entitled to receive compensation and to shift those entitled to compensation under the workmen’s Compensation Act to claimants under the Tort Claims Act. It is, I think, important to note the distinction which Justice Bobbitt points to in the case of Alliance Co. v. State Hospital, supra, between agents and employees. Fearful that these two words might not suffice to cover all who acted for the State, the Legislature expressly included officers and servants.
This Act was amended later in the session to delete the provision making the State liable for acts of omission and the words “voluntary or” as applied to servants. C. 1361, S.L. 1955.
It will be noted that no exemption is madie for injuries resulting from the negligence of surgeons, nurses, and other employees at hospitals at Chapel Hill, Raleigh, Morganton, or other places where surgical and medical treatment is rendered. Notwithstanding this omission, recalling the reason which led to the enactment of c. 400, S.L. 1955,1 doubt if the Legislature intended to repeal the exemption expressly declared in 1953.
I do not think the Legislature intended to deny to a prisoner the benefit of the Workmen’s Compensation Act because the negligence of the prisoner and a supervisor caused the injury. I think the Legislature meant, as the 1941 amendment to the Workmen’s Compensation Act declared, that a prisoner injured in work which he was assigned to do should have the benefit of that Act.
Eleanor Rush, a prisoner in Women’s Prison, died in August 1954. The administratrix of her estate filed claim for compensation with 'the Industrial Commission, asserting her death was caused by the negligent act of prison officials and employees. The Commission heard the claim, found the asserted negligence, and awarded compensation. The award so made was affirmed by this Court. The right to recover under the Tort Claims Act was not raised or debated. Liability was made to depend on the question of whether there was any evidence of negligence, and if so, did the evidence establish as a matter of law the prisoner’s contributory negligence. This Court sustained the findings of the Industrial Commission on the debated issues of negligence and contributory negligence. See Gould v. Highway Com., 245 N.C. 350, 95 S.E. 2d 910.
Eleanor Rush’s death could not by any stretch of the imagination be said to be an injury “arising out of and in the course of the emú *625ployment to which (s)he had been assigned.” The provisions of the Workmen’s Compensation Act could not possibly apply to her. But that case has importance here only because of the reliance placed on it in the subsequent case of Lawson v. Highway Com., 248 N.C. 276, 103 S.E. 2d 366, holding that -the Tort Claims Act was intended to permit any prisoner to sue for injuries negligently inflicted.
The opinion in the Rush case (Gould v. Highway Com., supra) was published in the Advance Sheets on 1 February 1957. The Legislature then in session enacted c. 809, S.L. 1957. The Act was ratified in May 1957. The caption reads: “AN ACT TO AMEND G.S. 97-13(C) AS IT RELATES TO COMPENSATION TO BE PAID PRISONERS WHO ARE INJURED WHILE PERFORMING ASSIGNED WORK.” Sec. 2 provides: “Subsection (c) of Section 97-13 of the General Statutes is hereby amended by adding at the end thereof the following:
'The provisions of G.S. 97-10 shall apply to prisoners and discharged prisoners entitled to compensation under this subsection and to the State in the same manner as said Section applies to employees and employers.’ ”
I cannot conceive the Legislature intended to give prisoners the right to choose between the Workmen’s Compensation and the Tort Claims Act. If it did not and the Tort Claims Act repealed the right of prisoners to claim the benefit of the Workmen’s Compensation Act, c. 809, S.L. 1957, was and is meaningless. Certainly the Legislature had some purpose in mind when it enacted the quoted statute. To me the statute says this: Prisoners who are assigned to work and while performing the task to which they are assigned are entitled to the basic rights of the Workmen’s Compensation Act. This right is their sole right against the State. They need not establish negligence on the part of the State, nor will contributory negligence defeat the claim. They are not required to wait until the term of confinement has expired. They are entitled to compensation from the díate of disability. The amount of compensation is, however, limited to ten dollars per week.
If the statute does have that meaning, it follows that plaintiff cannot recover under the Tort Claims Act. His intestate was at the time of the injury resulting in his death engaged in work to which he was specifically assigned.
Because recovery under the Workmen’s Compensation Act is limited to funeral expenses is insufficient reason, in my opinion, for casting aside legislative language. I can think of no meaning which can be *626given to the 1957 language unless it is to be read with the 1941 Act and is given the meaning ascribed above.
The views which I have expressed are, I recognize, contrary to what was decided in Lawson v. Highway Com., supra. Further study of the question convinces me we then misinterpreted legislative intent as expressed in enactments prior to 1957. It is to be noted that the opinion in the Lawson case expressly declares that it is based on legislative intent as expressed prior to 1957 and does not undertake to give effect to the 1957 .statute.
The conflict between G.S. 97-13, as amended in 1957, and the Tort Claims Act, as amended in 1955, as interpreted by the majority, is, I think, certain to call for. the ascertainment of legislative intent in cases to arise in the future. .The Legislature may, when it convenes in February, feel the subject justifies a clear and unmistakable expression of its intent. . .
DeNNY, J., joins in dissenting opinion.