#### MRS. FLOYD E. SMITH, Daughter of GEORGE BRADSHAW McPHERSON, Deceased, v. SOUTHERN WASTE PAPER COMPANY, Employer, and GENERAL ACCIDENT FIRE & LIFE ASSURANCE CORPORATION, Carrier.

(Filed 31 January, 1946.)

1. Master and Servant § 55d—

While the findings oí fact by the Industrial Commission, when supported by competent evidence, are conclusive, the rulings of the Commission are subject to review on questions of law, (a) whether the Industrial Commission has jurisdiction, (b) whether the findings are supported by the evidence, (c) whether upon the facts established the decision is correct.

2. Master and Servant §§ 4a, 39b—

The generally accepted definition of an independent contractor is that he is one who exercises an independent employment and contracts to do a piece of work according to his own judgment and method, without being subject to his employer except as to the results of his work.

3. Master and Servant § 39b — Finding of Industrial Commission that deceased was employee and not independent contractor held supported by evidence.

The evidence tended to show that deceased was a machinist and contracted to construct a conveyor in accordance with a rough sketch furnished by defendant for defendant’s waste paper plant, the conveyor to be constructed from materials furnished by defendant on the premises of another corporation, that no definite payment was set but that deceased was to be paid $1.00 per hour, that deceased would send in a weekly statement of the hours he had worked and the amount he had spent for incidentals, and cheeks for labor and expense, if any, were issued to him each week, that deceased worked regularly each week for five eight-hour days and one four-hour day, and had been working for five or six weeks at the time of the injury. There was no evidence that any instructions as to the work were given while the conveyor was under construction, but an employee, of defendant testified that he made a suggestion about the location of grease cups which was complied with by deceased. *Held,:*The parties appear to have treated the contract as one of employment, and considering all the evidence, it was sufficient to sustain the Commission’s finding that deceased was an employee and not an independent contractor.

*484. Contracts § 8—

It is a well settled principle of law in the interpretation of contracts that in determining the meaning and effect of the terms of a contract, where its nature and intent are not clear, the construction 'placed upon the contract by the parties themselves will usually be adopted by the court.

5. Master and Servant § 39h—

Employment continuously for five or six weeks in construction of facilities for handling material in defendant’s plant may not be held to be either, casual or *not in the*course *of*defendant’s business.

Barnhill and Winboene, JJ., dissent.

Appeal by plaintiff from *Alley, J.,*at September Term, 1945, of Guilbobd. Reversed.

Claim for compensation tinder the Workmen’s Compensation Act for the death of George Bradshaw McPherson.

The Industrial Commission found that the deceased was an employee of defendant Southern Waste Paper Company, and that his injury by accident, resulting in his death, arose out of and in the course of his employment by the defendant.

Upon appeal to the Superior Court, the award of the Industrial Commission was reversed upon the ground that on the facts found and established by the record the deceased was an independent contractor.

Plaintiff excepted and appealed.

*Wm. E. Corner for plaintiff.*

*Armistead W. Sapp for defendants.*

Devin, J.

The plaintiff’s appeal presents the question whether, upon the facts shown by the record, and found by the Industrial Commission, the plaintiff’s intestate was, with respect to the work in which he was engaged at the time of his fatal injury, an employee of the defendant Waste Paper Company, or an independent contractor. The court below held that he was not an employee, but an independent contractor, and on that ground reversed the award of the Industrial Commission, and denied compensation.

While the findings of fact by the Industrial Commission, when supported by competent evidence, are conclusive, the rulings of the Commission are subject to review on questions of law, (a) whether the Industrial Commission has jurisdiction, (b) whether the findings are supported by the evidence, (c) whether upon the facts established the decision is correct. *Aycock v. Cooper,*202 N. C., 500, 163 S. E., 569; *Buchanan**49*v. Highway Com.,*217 N. C., 173, 7 S. E. (2d), 382; *Logan v. Johnson,*218 N. C., 200, 10 S. E. (2d), 653; *Rader v. Coach Co.,*225 N. C., 537.

The generally accepted definition of an independent contractor is that le is one wbo exercises an independent employment and contracts to do .a piece of work according to his own judgment and method, without being subject to his employer except as to the results of his work. *Aderholt v. Condon,*189 N. C., 748, 128 S. E., 337; *Greer v. Construction Co.,*190 N. C., 632, 130 S. E., 739. In the recent case of *Hayes v. Elon College,*224 N. C., 11, the distinction between an employee entitled to benefits under the Workmen’s Compensation Act and an independent contractor was discussed and the incidents of those relationships analyzed by *Justice Barnhill,*with citation of numerous authorities. The principles of law therein stated seem now to be well settled, but difficulty frequently arises in the application of these general principles to the particular facts of individual cases.

In the case at bar it appears from the evidence and findings of fact reported by the- Industrial Commission that defendant’s business was that of handling and processing waste paper, and that the defendant engaged the services of the deceased, who was a machinist or millwright, to construct a metal conveyor belt to be used in defendant’s plant, in the course of its business, to convey waste paper to a paper press or baler; that the conveyor, which was 30 feet long and 5 feet wide, was to be constructed from materials obtained from, and on the premises of, the Southern Converting Company, a separate corporation dealing in scrap metal. Defendant’s president had formerly been vice-president of the Converting Company. The deceased had not theretofore done any work for or been employed by the defendant, but had worked for the Converting Company.

As bearing on the question at issue the Industrial Commission reported the testimony of a witness, a brother-in-law of the deceased, to the effect that deceased was working by the hour at $1.00 an hour, and was employed there 5 or 6 weeks before his injury, “that deceased had no written contract with the Southern Waste Paper Company, and that there was no verbal. contract.” It appeared, however, that this witness was not present when the contract for the construction of the conveyor was made, and that he had seen the deceased at work on the conveyor belt on only one occasion.

The Industrial Commission also included in its report the substance of the testimony of the president of defendant Waste Paper Company to the effect that he made the agreement with the deceased; that he outlined to him what he wanted done by a rough sketch of the plans, length, width and purpose of the conveyor, and worked out the basis on which deceased would take the job; no definite sum was set, but the deceased agreed to *50do tbe work for $1.00 per hour, tbe defendant to furnish tbe materials, tbe work to be done on tbe yard of tbe Converting Company. Tbis witness testified tbat be bad no agreement witb deceased, nor did be give directions, as to tbe number of hours a day be should work, when be should start or quit, or when be should do specific pieces of work, or what help, if any, be should employ; tbat all be was interested in was to have tbe job done as expeditiously as possible, and tbat be did not attempt to direct tbe deceased as to details of tbe work.

It also appeared from tbe testimony tbat tbe defendant bad not bad occasion to employ a full-time mechanic, and did not keep a social security sheet for tbe deceased. Tbe method of payment under tbe agreement was tbat deceased would send in each week a statement of tbe number of hours be bad worked and tbe amount be bad spent for incidentals which were entered on tbe books, and checks for bis labor and expense, if any, were issued to him each week. Most of tbe materials purchased by deceased for tbe job were billed directly to defendant. Deceased worked regularly each week for five eight-hour days and one four-hour day. Tbis continued for five or six weeks. After bis death check was sent claimant for $40, marked “payment in full for labor by George B. McPherson from Dec. 30, 1944, to date of injury.” Tbe injury occurred 3 :15 p.m. Friday, January 5, 1945. Tbe work was not finished at tbe time of bis death. While there was no evidence tbat any instructions as to tbe work were given deceased while tbe conveyor was under construction, an employee of defendant testified be made a suggestion about tbe location of grease cups which was complied witb by deceased. Defendant’s president also testified be was around where tbe work was being done but did not recall giving any instructions as to tbe construction; tbat be may have talked to deceased about various designs but did not recall any specific changes be bad suggested to him; may have helped him some in picking up parts for him; did not know tbat deceased employed any help, but tbe understanding was be would be paid for any disbursements for help or material. There was no evidence tbat deceased bad employed any help.

It also was found by tbe Industrial Commission tbat tbe deceased maintained no office or organization as a contractor, and tbat prior to bis work for tbe defendant on tbe conveyor be bad worked on several defense jobs as an employee for wages.

We have stated tbe evidence appearing in tbe record in greater detail than is embraced in tbe specific findings of tbe Industrial Commission, but in substantial accord therewith. Upon tbis evidence tbe Commission found and concluded as a matter of law tbat tbe deceased was an employee of tbe defendant and not an independent contractor, and awarded compensation to tbe plaintiff under tbe statute.

*51The question bere presented is not without difficulty. The testimony of plaintiff’s witness that deceased was working for defendant at an hourly wage without written or verbal contract would have tended to sustain the conclusion that deceased was an employee within the meaning of the Act, but for the fact that this witness was apparently not informed as to the terms of the contract under which the deceased was working.

On the other hand, the testimony of defendant’s president that the deceased, who had never theretofore worked for defendant, had contracted to do a specified piece of construction work according to his own judgment and method without being subject to the defendant except as to the results of his work, and that at the time of his injury he was exercising an independent employment, not on the immediate premises of defendant, would seem to support the ruling of the court below that the relationship of deceased to the work on which he was engaged at the time was that of an independent contractor. However, there are other circumstances appearing in the evidence which might be understood to militate to some extent against this view, in that they tend to show that some control was exercised by defendant over the details of the construction. *Johnson v. Hosiery Co.,*199 N. C., 38, 158 S. E., 591. In this situation and as material to the correct answer to the question at issue, we note that the parties themselves appear to have treated the contract as one of employment only, at- an hourly wage, payable weekly, for an indefinite period, and that deceased gave in his time to the bookkeeper for entry on the books of the number of hours worked each week, and defendant issued to him checks accordingly, marked for labor performed. 'While the conveyor belt was not constructed on the immediate premises of defendant, it was intended for use in the course of the business of the defendant in defendant’s plant to facilitate the conveyance of waste paper to the presser or baler. It is a well settled principle of law in the interpretation of contracts that in determining the meaning and effect of the terms of a contract, where its nature and intent are not clear, the construction placed upon the contract by the parties themselves will usually be adopted by the Court. *Belk's Department Store v. Ins. Co.,*208 N. C., 267, 180 S. E., 63; *Hood v. Davidson,*207 N. C., 329, 117 S. E., 5; *Dick v. Hotel Co.,*197 N. C., 110, 147 S. E., 819; *Wearn v. R. R.,*191 N. C., 575, 132 S. E., 576; *Council v. Sanderlin,*183 N. C., 253 (259), 111 S. E., 365; *Harten v. Loffler,*212 U. S., 397; *National Bank of Burlington v. Fidelity & Casualty Co.,*126 F. (2), 920; *Buden v. New York Trust Co.,*83 F. (2), 168; *Navy Gas & Supply Co. v. Schoech,*105 Col., 374; *Fullerton v. U. S. Casualty Co.,*184 Iowa, 219; Restatement Law of Contracts, sec. 235 (e) ; 12 Am. Jur., 787. As was said by *Chief Justice Stacy*in *Cole v. Fibre Co.,*200 N. C., 484, 157 *52S. E., 857: “In tbe construction of contracts ... no court can go far wrong by adopting tbe *ante litem, motam*practical interpretation of tbe parties, for they are presumed to know best wbat was meant by tbe terms used in tbeir engagements.”

In *Old Colony Trust Co. v. Omaha,*230 U. S., 100, it was said: “Generally speaking, tbe practical interpretation of a contract by tbe parties to it for any considerable period of time before it comes to be tbe subject of controversy is deemed of great, if not controlling, influence.”

In *Meyer & Sons Co. v. Grady,*194 Wis., 615, it was said that in tbe interpretation of a contract of employment weight should be attached to “tbe construction given to tbe contract by tbe parties themselves during tbe period of its execution; and the acts of tbe parties which indicate tbeir relationship to each other.”

In this view we are constrained to bold that there was support in tbe evidence for tbe finding and conclusion of tbe Industrial Commission that tbe deceased was an employee rather than an independent contractor. Nor may tbe claimant be excluded from compensation on tbe ground that tbe employment of tbe deceased was “both casual and not in tbe course of tbe trade, business, profession or occupation of bis employer.” G. S., 97-2 (b). In accord with tbe interpretation of those terms set forth in *Johnson v. Hosiery Co.,*199 N. C., 38, 153 S. E., 591, tbe work on which deceased bad been employed continuously for five or six weeks in tbe construction of facilities for handling material in defendant’s plant may not be held to be either casual or not in tbe course of defendant’s business. *Cf. Burnett v. Paint Co.,*216 N. C., 204, 4 S. E. (2d), 507.

For tbe reasons stated we conclude there was error in tbe ruling of tbe court below, and that tbe judgment must be

Reversed.

Barnhill and Winborne, JJ., dissent.