#### MRS. ARMETTA RANKIN, Widow of BENNIE RANKIN, Employee, v. BROWN MANUFACTURING COMPANY, Employer, and TRAVELERS’ INSURANCE COMPANY, Carrier.

(Filed 3 November, 1937.)

Master and Servant § 55g — While Superior Court may remand proceedings for necessary findings, it is error to remand for immaterial findings when appeal may he determined by review of conclusions of law.

The Industrial Commission found that the employee was hilled in a fight following an altercation with defendant employer’s gateman when the employee attempted to enter the plant without a pass. The Industrial Commission concluded as a matter of law that the injury was by accident but that the accident did not arise out of and in the course of the employment. *Held,:*The Superior Court on appeal should have passed upon the conclusions of law of the Industrial Commission, and accordingly affirmed or reversed the award, and it was error to remand the proceedings to the Industrial Commission for specific findings as to who was the aggressor in the fight and whether the gateman used excessive force, and was acting within the scope of the employment, such findings being immaterial.

Appeal by defendants from *Pless, J.,*at June Term, 1937, of Cabar-rus. Error.

Tbis was a proceeding for compensation under tbe provisions of tbe North Carolina 'Workmen’s Compensation Act.

Tbe proceeding was begun before tbe North Carolina Industrial Commission, and was first beard by Commissioner Burén Jurney at Concord, N. C., on 16 June, 1936.

On bis finding that tbe death of plaintiff’s husband, Bennie Eankin, was tbe result of an injury by accident which arose out of and in tbe course of bis employment by tbe defendant, Brown Manufacturing Company, Commissioner Burén Jurney awarded compensation to tbe plaintiff, as tbe sole dependent of her deceased husband, to be paid by tbe defendants.

On tbe application of tbe defendants for a review, tbe proceeding was beard by tbe Full Commission at Ealeigb, N. C., on 4 September, 1936.

At said bearing the Full Commission found:

1. That at tbe date of bis death, to wit, 15 March, 1935, plaintiff’s husband, Bennie Eankin, was an employee of tbe defendant, Brown Manufacturing Company, at its factory in Concord, N. C.; that both tbe said Bennie Eankin, as employee, and tbe said Brown Manufacturing Company, as employer, were subject to tbe provisions of tbe North Carolina 'Workmen’s Compensation Act, and that tbe defendant Travelers’ Insurance Company was tbe insurance carrier for tbe said Brown Manufacturing Company, employer.

*3582. That at about 2 o’clock p.m. on 15 March, 1935, while he was standing outside the fence which encloses the factory of the Brown Manufacturing Company at Concord, N. C., near the gate, quarreling with the gateman who had refused to let him enter upon the premises through the gate without a pass as required by the rules of said company, Bennie Rankin was assaulted by the gateman, who cut his throat with a knife, thus causing an injury from which he died almost immediately; that the death of the said Bennie Rankin was the result of an injury by accident, but that the accident did not arise out of and in the course of his employment by the defendant, Brown Manufacturing-Company.

On these findings of fact the Full Commission set aside the award of Commissioner Burén Jurney and made an award denying claimant any compensation for the death of her husband.

The plaintiff appealed from the award of the Full Commission denying compensation to the Superior Court of Cabarrus County.

The appeal was heard by the judge presiding at the June Term, 1931, of the Superior Court of Cabarrus County.

At said hearing it was ordered by the court that the proceeding be and it was remanded to the North Carolina Industrial Commission, with direction that said Commission make specific findings (1) as to whether the deceased or the gateman was the aggressor; (2) as to whether the gateman used excessive force in cutting the deceased, and causing his death, and (3) as to whether the action of the gateman was within the scope of his employment by the defendant, Brown Manufacturing Company.

From this order the defendants appealed to the Supreme Court, assigning error in the order.

*W. S. Bogle and E. J ohnston Ervin for plaintiff.*

*Guthrie, Pierce & Blalceney for defendants.*

CoNnoe, J.

In proper cases, the judge of the Superior Court has the power to remand a proceeding for compensation under the North Carolina Workmen’s Compensation Act, pending in the Superior Court on an appeal from the award of the North Carolina Industrial Commission, to said Commission for further hearing, before passing upon the award. Otherwise an injustice may be done, because of an inadvertence on the part of the Industrial Commission. See *Butts v. Montague Bros.,*208 N. C., 186, 179 S. E., 799.

However where, as in the instant case, the Industrial Commission is directed by the court only to make specific findings as to matters which are manifestly immaterial, *Conrad v. Foundry Co.,*198 N. C., 723, 153 *359S. E., 266, it is error for tbe judge to remand tbe proceeding to tbe Industrial Commission. Tbe court should ordinarily consider and pass upon conclusions of law made by tbe Industrial Commission in support of its award, and accordingly affirm or reverse tbe award.

Tbe order of tbe judge of tbe Superior Court in tbis case is reversed and set aside.

Error.