#### LAQUE RICHEY v. ERLANGER COTTON MILLS and ÆTNA LIFE INSURANCE COMPANY.

(Filed 30 November, 1932.)

¡Vlastea’ and Servant F i — Whether facts necessary for compensation for hernia are satisfactorily proven is for Commission and not for Court.

The North Carolina Compensation Act provides that no compensation shall be allowed for hernia unless the evidence offered at the hearing before the Industrial Commission is sufficient in the opinion of the Commission to prove definitely to the satisfaction of the Commission the five requisite facts set out in the statute, and where the Industrial Commission has denied compensation upon the evidence because the requisite facts were not proven to its satisfaction it is error for the Superior Court on appeal to remand the case for compensation on the ground that the requisite facts were proven to the satisfaction of the trial judge.

Appeal by defendants from *SinJc, J.,*at April Term, 1932, of DavidsoN.

Eeversed.

This is a proceeding begun and prosecuted before the North Carolina Industrial Commission for an award under tbe provisions of the North Carolina Workmen’s Compensation Act of compensation for a hernia suffered by the claimant and resulting from an injury by accident which arose out of and in the course of his employment by the respondent, Erlanger Cotton Mills. The .¿Etna Life Insurance Company is the carrier for said respondent.

The proceedings was heard by the Commission on the appeal of the claimant from an award made by Commissioner Dorsett, who denied compensation. The Commission was of opinion that the evidence offered by the claimant was not sufficient to show by its greater weight the facts with respect to the hernia which are required by the statute for an award of compensation, and for that reason approved the award of Commissioner Dorsett, and denied compensation. The claimant appealed from the award of the Commission to the Superior Court of Davidson County. At the hearing of this appeal judgment was rendered as follows:

“This cause coming on to be heard and being heard before the Honorable H. Hoyle Sink, judge presiding at the April Civil Term, 1932, of the Superior Court of Davidson County, on an appeal from an award of the North Carolina Industrial Commission, affirming an award of the Industrial Commissioner dismissing this claim for compensation for a hernia on the ground that the requirements of section two(r) of the Workmen’s Compensation Act were not complied with, and the court, *596after bearing tbe evidence and tbe argument of counsel, being of tbe opinion tbat tbe five requirements for compensation bave been met, it is, therefore, upon motion of A. J. Newton and Walser & Walser, attorneys, ordered, adjudged and decreed tbat tbe case be remanded to tbe North Carolina Industrial Commission, and tbat an award be entered by tbe said Commission in accordance witb tbe evidence, and tbe judgment of tbis court.”

From tbis judgment, respondents appealed to tbe Supreme Court.

*A. J. Newton and Walser & Walser for*claimant.

*Sapp & Sapp for respondents.*

Connor, J.

It is provided by the North Carolina Workmen’s Compensation Act that “in all claims for compensation for hernia, or rupture, resulting from injury by accident arising out of and in the course of the employee’s employment,” certain facts must be definitely proven to the satisfaction of the Industrial Commission; otherwise, compensation cannot be awarded. In the instant case, these facts were not so proven to the satisfaction of the Commission, and for that reason compensation was denied. On respondent’s appeal from the award of the Commission to the Superior Court, the judge beard the evidence, and concluded therefrom that the five requisite facts were so proven to bis satisfaction. He thereupon remanded the proceedings to the Commission, witb direction that the Commission allow compensation. In tbis there was error.

In *Ussery v. Cotton Mills,*201 N. C., 688, 161 S. E., 307, it is said: “Of course, neither this Court nor the Superior Court, upon appeal from tbe award of the Industrial Commission, can consider tbe evidence and determine therefrom what the facts are. This is a matter exclusively for the Industrial Commission.”

The statute in express language provides that no compensation shall be allowed for a hernia, unless the evidence offered at the bearing before the Industrial Commission is sufficient in the opinion of the Commission to prove definitely to the satisfaction of the Commission the five requisite facts set out in the statute. In view of tbis language, the judge of the Superior Court was without power to find the facts contrary to the conclusions of the Commission, and upon such findings set aside the award of the Commission in the instant case. The award should be affirmed. The judgment is

Reversed.