#### CLYDE BEACH, Employee, v. R. E. McLEAN and/or LONG SHOALS COTTON MILLS, Employer, and AMERICAN MUTUAL LIABILITY INSURANCE COMPANY, Carrier.

(Filed 7 May, 1941.)

1. Master and Servant § 55d—

The Industrial Commission is the body designated by statute to find the facts in proceedings for compensation, and its findings of fact, when supported by competent evidence, are conclusive and are not subject to review by the Superior Court or by the Supreme Court.

3.Same—

A conclusion of law of the Industrial Commission is reviewable on appeal.

3. Master and Servant § 4d—

Whether the relationship between the parties is that of master and servant or principal and independent contractor involves a mixed question of law and of fact, the terms of the contract being a question of fact, and the relationship created by the contract being a question of law.

4. Master and Servant § 55d—

While the findings of the Industrial Commission as to the terms of the contract between the parties is final, its conclusion as to the relationship created by the contract is a conclusion of law which is reviewable on appeal.

5. Master and Servant § 4a—

An independent contractor is one employed to do a specific job or piece of work who is not under the control or supervision of the employer as to the methods or manner used, but who is responsible to the employer solely for the results.

6. Same — Contract held to create relationship of principal and independent contractor and not that of master and servant.

Findings that defendant corporation purchased certain machinery located in another mill, that it was its duty under the contract of sale to dismantle and move the machinery, that thereafter the corporation entered into a contract with an individual to dismantle and move the machinery, *522unclcr which agreement the individual was to furnish the labor and trucks to do the work, was to be paid on the basis of the machinery actually dismantled and salvaged and not on the basis of the work done, without evidence that the corporation undertook to supervise or direct the work, *is held*to establish the relationship of principal and independent contractor and not that of master and servant between the corporation and the individual.

7. Same—

The reservation by the employer of the right to terminate the agreement under which he employs an independent, contractor is not a reservation of control and supervision over the work *so*as to make the relationship that of master and servant.

8. Same—

While insolvency of the purported independent contractor may be considered upon the question of the relationship between the parties when the evidence is conflicting as to whether the employer actually retained control and supervision over the work, where there is no evidence tending to support an inference that the contract was used merely as a front to avoid liability, insolvency of the contractor is immaterial in determining the relationship.

9. Master and Servant § 55d—

Where the Industrial Commission makes a conclusion involving a mixed question of law and fact, without finding the ultimate facts upon which the conclusion is founded, the courts on appeal can review the conclusion only to ascertain whether there was sufficient competent evidence to support the factual element involved therein, but where the commission finds all of the facts, the findings supported by evidence are final, but the courts can review the conclusion of law based thereon.

10. Master and Servant § 39b—

Upon the findings of fact and the uncontradicted evidence before the Industrial Commission as to the terms of the contract between the parties, *it is held*that the contract created the relationship of principal and independent contractor and not that of master and servant between the person employing claimant and the defendant corporation, and judgment of the Superior Court reversing the award of the Industrial Commission granting compensation against the corporation is affirmed.

11. Master and Servant § 4a—

The fact that the work let is intrinsically dangerous does not affect the relationship of principal and independent contractor existing between the parties, but only enlarges the legal duty and liability of the principal to the employees of the independent contractor.

12. Master and Servant § 39b—

It would seem that an employee of an independent contractor may not hold the principal liable under the Compensation Act upon the doctrine that the work let was intrinsically dangerous, since he could not establish the relationship of master and servant between himself and the principal, the liability of the principal to him in such cases being founded upon the common law doctrine of negligence.

*52313. Same—

Section 19, chapter 120, Public Laws of 1929, relates to contractors and subcontractors and not to employers and independent contractors.

Appeal by plaintiff from *Clement, J.,*at September Term, 1940, of GastoN.

Affirmed.

Claim for compensation under tbe Workmen’s Compensation Act filed by plaintiff, alleged employee of tbe Long Sboals Cotton Mills. Tbe defendant, American Mutual Liability Insurance Company, is a carrier for tbe alleged employer.

Tbe essential facts are set forth in tbe opinion of tbe bearing commissioner, tbe material parts of wbicb are as follows:

“Tbe Commissioner finds it a fact tbat some time prior to October 28, 1931, tbat tbe Duke Power Company, wbicb is tbe owner of tbe Tucka-seegee Plant located in Gaston County, bad sold to tbe Long Sboals Cotton Mills of Lincoln County, North Carolina, certain machinery tbat bad previously been used by tbe Tuckaseegee Cotton Mill; and tbe Commissioner further finds tbat under tbe contract of sale to tbe Long Sboals Cotton Mills it was tbe duty of tbe buyer to dismantle said machinery and move tbe same from tbe Tuckaseegee Mill to tbe Long Sboals Cotton Mills in Lincoln County, and after tbe sale bad been consummated tbe Long Sboals Cotton Mills entered into an agreement with one R. E. McLean to move said machinery from tbe plant of tbe Duke Power Company to tbe plant of tbe Long Sboals Cotton Mills; and under tbe contract and agreement between tbe Long Sboals Cotton Mills and R. E. McLean, McLean was to furnish bis labor and trucks and move tbe machinery from tbe Tuckaseegee Mills to tbe Long Sboals Cotton Mills, and tbat in pursuance of said understanding and agreement R. E. McLean approached tbe plaintiff, Clyde Beach, who was a regular employee of tbe Tuckaseegee Mill as a machine room mechanic, in an effort to procure tbe services of tbe plaintiff, Clyde Beach, to assist in dismantling tbe machinery consisting of generators and water wheels, and after some conferences between McLean and Beach and tbe superintendent over Mr. Beach, it was agreed tbat tbe Tuckaseegee Mill would release Mr. Beach temporarily and allow him to assist Mr. McLean in dismantling tbe machinery; so, on Monday morning about 10 o’clock preceding tbe day of tbe injury tbe plaintiff temporarily severed bis relations with tbe Tuckaseegee Mill and became an employee of R. E. McLean during tbe time required to move tbe machinery in question; and on Thursday morning tbe plaintiff was engaged in hammering some machinery in tbe course of his employment for R. E. McLean and a piece of steel flew and hit tbe plaintiff in tbe left eye, and that as a result of said injury tbe plaintiff has lost tbe total vision of bis left eye, and in addition *524thereto was disabled for a period of six weeks. And the Commissioner finds as a fact that *this*injury *a*rose 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 Tucka-seegee 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 and W. B. McGuire, Jr., for plaintiff, appellant..*

*J. Laurence Jones for defendants, appellees.*

Babnhill, J.

Ch. 120, Public Laws 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 *525award a statement of tbe finding of fact, rulings of law and other matters pertinent to tbe question at issue. Hence, under tbe statute tbe commission is made a fact-finding body. Tbe finding of facts is one of its primary duties and it is an accepted rule witb us tbat wben tbe facts are found tbey are, wben supported by competent evidence, conclusive on appeal and not subject to review by tbe Superior Court or by tbis Court. *Cloninger v. Bakery Co.,*218 N. C., 26, and cases cited; *McGill v. Lumberton,*218 N. C., 586.

Is tbe “finding” of tbe bearing Commissioner, as affirmed by tbe Full Commission, to tbe effect tbat McLean was not an independent contractor but was an employee or agent of tbe Long Sboals Cotton Mills and tbat tbe employment of tbe claimant by McLean constituted an employment by tbe *Long*Sboals 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 tbe element of fact involved. If a question of law only, it is subject to review.

Tbis finding, or conclusion, tbat McLean was an employee of Long Sboals 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 tbe answer to two questions: (1) What were tbe terms of tbe agreement — that is, what was the contract between tbe parties; and, (2) what relationship between tbe parties was created by tbe contract — was it tbat of master and servant or tbat of employer and independent contractor? Tbe first involves a question of fact and tbe second is a question of law.

Wben, however, tbe Commission finds tbe facts, as it is required to do under tbe statute, thus answering tbe first question, then tbe conclusion becomes strictly a question of law reviewable by tbe Superior Court and, upon appeal, by tbis Court.

Tbe Commission having found tbe facts in respect to tbe terms and conditions upon which McLean undertook tbe work of dismantling and salvaging tbe machinery purchased by defendant from Superior Yarn Mills, it settled tbe question of fact involved in tbe “finding” or conclusion as to tbe nature and extent of tbe contract. Hence, tbe element of fact involved in tbe conclusion is settled. Both tbe court below and this Court are bound thereby. Tbe only question presented is tbe legal status of McLean under tbe contract. Tbe Commission’s conclusion in tbis respect is reviewable. *Thomas v. Gas Co.,*218 N. C., 429.

In addition to tbe facts found by tbe Commission it appears from uncontroverted testimony, much of which was offered by tbe claimant, tbat tbe claimant worked under tbe exclusive supervision and control of McLean; tbat the corporate defendant reserved no right of control *526or direction in respect to the work; that McLean was to be paid not upon the basis of work done but for the machinery actually dismantled and salvaged; that McLean, in fact, did considerable work for which he received no pay, some of the machinery he attempted to dismantle having fallen into the river; and that McLean was not regularly employed by the corporate defendant but was engaged in the business of dismantling, salvaging and moving heavy machinery.

Was the court below correct in concluding, upon the facts found, as supported by the other testimony, that McLean was an independent contractor ?

An independent contractor is one who undertakes to produce a given result, but so that in the actual execution of the work he is not under the order or control of the person for whom he does it, and may use his own discretion in things not specified. Pollock, Torts, 78; Barrows on Negligence, 160. The vital test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Stated as a general proposition, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor. 14 R. C. L., pp. 67, 68; *Aderholt v. Condon,*189 N. C., 748, 128 S. E., 337; *Russell v. Oil Co.,*206 N. C., 341, 174 S. E., 101.

An independent contractor has been defined as one who exercises an independent employment, contracts to do a piece of work according to his own judgment and methods, and without being subject to the employer except as to the results of the work, independently of such employer and freed from any superior authority in him to say how the specified work shall be done or what the laborers shall do as it progresses. *Greer v. Construction Co.,*190 N. C., 632, and cases cited; *Drake v. Asheville,*194 N. C., 6, 138 S. E., 343; *Teague v. R. R.,*212 N. C., 33, 192 S. E., 846; *Craft v. Timber Co.,*132 N. C., 151, 43 S. E., 597.

Measured by the standard of these definitions the conclusion of the court below was clearly correct. This conclusion is not affected by evidence tending to show that at times an agent of the defendant was present while the work progressed. None of the testimony tends to show that he undertook to supervise or to direct the work. Nor is the fact that one of the trucks of the defendant was used in moving a small part of the machinery material, since it does not appear under what conditions it was so used or that the defendant reserved any right in respect thereto. The suggestion in the testimony that defendant reserved the right to discharge McLean is not proof of a reservation of a right to supervise and direct. It was, if made, merely a reservation of the privilege to terminate the agreement without incurring any liability for breach of contract.

*527But, says claimant, McLean is insolvent and tbis alters the relationship and sustains the conclusion of the Commission. Insolvency, where the evidence is conflicting, may be considered in determining the relationship created by the contract. *Keech v. Lumber Co.,*166 N. C., 503, 82 S. E., 836. Here, however, where all the evidence tends to show that he was an independent contractor and there is no testimony to support an inference that he was used merely as a front to avoid liability, McLean’s insolvency, while unfortunate, is immaterial.

It is true that in a certain line of decisions of this Court, involving compensation cases, we have said that where the Commission makes a conclusion as a basis for an award we will review the testimony to ascertain whether sufficient evidence appears to support the element of fact involved in the conclusion. *Berry v. Furniture Co.,*201 N. C., 847, 161 S. E., 552; *Webb v. Tomlinson,*202 N. C., 860, 164 S. E., 341; *Parrish v. Armour & Co.,*200 N. C., 654, 158 S. E., 188; *Michaux v. Bottling Co.,*205 N. C., 786, 172 S. E., 406; *Singleton v. Laundry Co.,*213 N. C., 32, 195 S. E., 34; *Lockey v. Cohen, Goldman & Co.,*213 N. C., 356, 196 S. E., 342; *Moore v. Sales Co.,*214 N. C., 424, 199 S. E., 605. It is upon this line of cases that the claimant now relies. He contends that inasmuch as the conclusion involved an element of fact the court below was without authority to reverse it.

It must be noted in this connection that in the cases cited and relied upon by the claimant the Commission found only the ultimate fact or conclusion without finding the .evidential and probative facts upon which the conclusion was based. We are required, in those instances, to review the testimony to ascertain whether there was sufficient competent evidence to support the factual element involved in the conclusion. Here the Commission has found the facts which constitute the contract. The facts as thus found are conclusive. *Moore v. Sales Co., supra.*

If the difference in the question presented, when only the ultimate fact is found on the one hand, and when all the facts are found on the other, is considered it becomes apparent that the line of cases relied on by claimant are distinguishable and are not in point.

The claimant contends here that if McLean was an independent contractor the evidence tends to show that the work contracted to be done was intrinsically dangerous and that the defendant could not, by a delegation of such perilous operations to McLean as an independent contractor, escape liability for the plaintiff’s injury. This was not the theory of the trial below. The Commission found or concluded that claimant was an employee and not an independent contractor. Even so, this is a common law doctrine under the law of negligence. That work is intrinsically dangerous does not affect the relationship of the parties. It merely enlarges and extends the legal duty and liability of the other *528party to the contract in respect to the employees of the independent contractor.

It is doubtful that plaintiff could seek relief before the Industrial Commission under this rule of law for the reason that he could not establish the relationship of employer and employee. Apparently his remedy, if any, based on this theory, must be enforced in an action *ex delicto.*

Sec. 19, ch. 120, Public Laws 1929, has no application here. That section relates to contractors and subcontractors — not to employers and independent contractors.

The judgment below is

Affirmed.