Claim
for compensation under the Workmen's Compensation Act
Code 1939, § 8081(h) et seq., filed by plaintiff, alleged
employee of the Long Shoals Cotton Mills. The defendant
American Mutual Liability Insurance Company is a carrier for
the alleged employer.
The
essential facts are set forth in the opinion of the hearing
commissioner, the material parts of which are as follows:
"The
Commissioner finds it a fact that sometime prior to October
28, 1937, that the Duke Power Company, which is the owner of
the Tuckaseegee Plant located in Gaston County, had sold to
the Long Shoals Cotton Mills of Lincoln County, North
Carolina, certain machinery that had previously been used by
the Tuckaseegee
Cotton Mill; and the Commissioner further finds that under
the contract of sale to the Long Shoals Cotton Mills it was
the duty of the buyer to dismantle said machinery and move
the same from the Tuckaseegee Mill to the Long Shoals Cotton
Mills in Lincoln County, and after the sale had been
consummated the Long Shoals Cotton Mills entered into an
agreement with one R. E. McLean to move said machinery from
the plant of the Duke Power Company to the plant of the Long
Shoals Cotton Mills; and under the contract and agreement
between the Long Shoals Cotton Mills and R. E. McLean, McLean
was to furnish his labor and trucks and move the machinery
from the Tuckaseegee Mills to the Long Shoals Cotton Mills
and that in pursuance of said understanding and agreement R
E. McLean approached the plaintiff, Clyde Beach, who was a
regular employee of the Tuskaseegee Mill as a machine room
mechanic, in an effort to procure the services of the
plaintiff, Clyde Beach, to assist in dismantling the
machinery consisting of generators and water wheels, and
after some conferences between McLean and Beach and the
superintendent over Mr. Beach, it was agreed that the
Tuckaseegee Mill would release Mr. Beach temporarily and
allow him to assist Mr. McLean in dismantling the machinery;
so, on Monday morning about 10 o'clock preceding the day
of the injury the plaintiff temporarily severed his relations
with the Tuckaseegee Mill and became an employee of R. E.
McLean during the time required to move the machinery in
question; and on Thursday morning the plaintiff was engaged
in hammering some machinery in the course of his employment
for R. E. McLean and a piece of steel flew and hit the
plaintiff in the left eye, and that as a result of said
injury the plaintiff has lost the total vision of his left
eye, and in addition thereto was disabled for a period of six
weeks. And the Commissioner finds as a fact that this injury
arose out of and in the course of the plaintiff's
employment.
"The
main question in this case is to determine who the plaintiff,
Clyde Beach, was working for at the time of the alleged
injury. The Commissioner finds as a fact that the plaintiff
was not an employee of the Tuckaseegee Mill, which is owned
by the Superior Yarn Mills, Inc., or the Duke Power Company.
There is no question but that the plaintiff was employed by
R. E. McLean and he was paid for his labor by R. E.
McLean's check, and said Clyde Beach never had any
contractual relation with anyone in connection with his
employment except R. E. McLean, and the Commissioner has
heretofore found that R. E. McLean did not have as many as
five employees and is not subject to the North Carolina
Workmen's Compensation Act; then we arrive at the
proposition to determine whether R. E. McLean was an
independent contractor for the Long Shoals Cotton Mills or
whether he was an employee of the Long Shoals Cotton Mills.
The Commissioner finds as a fact from the evidence that the
said R. E. McLean was not an independent contractor but was
an employee or agent of the Long Shoals Cotton Mills employed
by them for the purpose of removing the machinery in question
from the Tuckaseegee Mill to the mill of the defendant Long
Shoals Cotton Mills; therefore, the said R. E. McLean, being
an agent of the Long Shoals Cotton Mills for the purpose of
doing the work in question, the plaintiff, Clyde Beach, when
employed by said R. E. McLean as agent of the Long Shoals
Cotton Mills, became an employee of the Long Shoals Cotton
Mills and, therefore, the plaintiff's injury arose out of
and in the course of his employment for the defendant Long
Shoals Cotton Mills."
Having
made the foregoing findings and having arrived at the
conclusion stated, the hearing commissioner directed an award
against the corporate defendant and it appealed to the full
commission, which affirmed the findings of fact and the
award. Upon appeal to the Superior Court the Judge below
concluded that upon the facts found McLean was an independent
contractor, and that the claimant was an employee of said
independent contractor and not of the Long Shoals Cotton
Mills. Judgment was thereupon entered, reversing the award
and dismissing the appeal. Claimant excepted and appealed to
this Court.
George
B. Mason, of Gastonia, and W. B. McGuire, Jr., of Charlotte,
for plaintiff-appellant.
J.
Laurence Jones, of Charlotte, for defendants-appellees.
BARNHILL
Justice.
Ch.
120, P.L., 1929, known as the North Carolina Workmen's
Compensation Act, in section 58 thereof, requires the
Commission not only to make an award
but to likewise file with the award a statement of the
finding of fact, rulings of law and other matters pertinent
to the question at issue. Hence, under the statute the
commission is made a fact-finding body. The finding of fact
is one of its primary duties and it is an accepted rule with
us that when the facts are found they are, when supported by
competent evidence, conclusive on appeal and not subject to
review by the Superior Court or by this Court. Cloninger
v. Bakery Co., 218 N.C. 26, 9 S.E.2d 615, and cases
cited; McGill v. Lumberton, 218 N.C. 586, 11 S.E.2d
873.
Is the
"finding" of the hearing commissioner, as affirmed
by the full commission, to the effect that McLean was not an
independent contractor but was an employee or agent of the
Long Shoals Cotton Mills and that the employment of the
claimant by McLean constituted an employment by the Long
Shoals Cotton Mills a finding of fact, a mixed question of
fact and law or a conclusion of law? If a finding of fact it
is conclusive and binding on us. If it is a mixed question of
fact and law it is likewise conclusive, provided there is
sufficient evidence to sustain the element of fact involved.
If a question of law only it is subject to review.
This
finding, or conclusion, that McLean was an employee of Long
Shoals Cotton Mills and not an independent contractor
standing alone and nothing else appearing, would involve a
mixed question of fact and law. Its correctness would depend
upon the answer to two questions; (1) What were the terms of
the agreement--that is, what was the contract between the
parties; and (2) what relationship between the parties was...
