#### MRS. J. C. McNEILL, Widow of J. C. McNEILL, Deceased Employee, v. C. A. RAGLAND CONSTRUCTION COMPANY, Employee, and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Carrier.

(Filed 3 January, 1940.)

Master and Servant §§ 40e, 55d — Finding of Industrial Commission that fatal injury was not caused by accident arising out of and in course of the employment is conclusive when supported by evidence.

Evidence tending to show that a night watchman employed to watch over one section of a highway under construction came over to a night watchman employed to watch over another section thereof, and engaged in an altercation relating to matters foreign to the employment, and that one of them *killed the other*as a result thereof, *is held*sufficient to support the finding of the Industrial Commission that the deceased’s death was not the result of an accident arising out of and in the course of the employment, and therefore such finding is conclusive on the courts, and judgment of the Superior Court that the facts found established as a matter of law the right of the dependents of the deceased employee to recover, is error.

Appeal by defendants from *Alley, J.,*at July Term, 1939, of Ashe.

*Bowie & Bowie for claimant, appellee.*

*Sapp & Sapp for defendants, appellants.*

*745Per Curiam.

Tbis is a claim for compensation under tbe Workmen’s Compensation Act filed by tbe widow of a deceased employee.

Tbe claimant’s decedent was a nigbt watchman over a certain section of a highway being constructed by the defendant construction company, and during tbe nigbt of 2 May, 1939, engaged in an acrimonious colloquy with one Horton Woodie, another night watchman of tbe defendant company, who at tbe time bad left tbe section oyer which he was watching and come to the section over which the decedent was watching, and as a result of tbe colloquy, which related to matters foreign to the duties of a night watchman, Woodie shot and fatally wounded said decedent.

Tbe bearing Commissioner found that tbe injury to the employee, J. C. McNeill, resulting in his death, was not tfaused by an accident arising out of and in the course of bis employment and denied compensation. Upon appeal to it tbe Full Commission affirmed tbe findings of fact, conclusions of law and tbe award of tbe bearing Commissioner denying compensation. Tbe claimant appealed from the decision of the Full Commission to tbe Superior Court.

Tbe judge of tbe Superior Court, after adopting tbe findings of fact of the Full' Commission, madg “the following conclusions of law: (1) That J. C. McNeill came to his death by accident arising out of and in the course of his employment,” and reversed tbe award of tbe Full Commission and adjudged that the claimant recover the statutory compensation and death benefits to be awarded by tbe Industrial Commission as provided by law.

From the judgment of the Superior Court the defendants appealed to the Supreme Court, assigning error.

Tbe trial judge concluded that the facts found by the Commission established as a matter of law the right of the claimant to recover. In tbis there was error. Even if it be conceded that the facts found would support the conclusion that tbe claimant’s decedent’s fatal injury resulted from an accident arising out of and in the course of bis employment, this is not tbe only reasonable conclusion that may be drawn therefrom. This being true, and the Commission being the judge of tbe credibility, weight and sufficiency of tbe testimony, its conclusion must stand. The finding of tbe Commission that the fatal injury of the decedent was not caused by an accident arising out of and in the course of his employment, being supported by some evidence, was conclusive upon tbe Superior Court, *Lockey v. Cohen, Goldman & Co.,*213 N. C., 356, and his Honor’s reversal thereof was without authority, and for that reason tbe judgment below must be

Reversed.