#### MRS. TEMPIE AYCOCK, Widow and Dependent of W. H. AYCOCK, a Deceased Employee, v. GEORGE H. COOPER.

(Filed 6 April, 1932.)

1. Master and Servant F a — Workmen’s Compensation Act does not apply to business hiring less than five regular employees.

The North Carolina Workmen’s Compensation Act provides that it. shall not apply to employers and employees where there are less than five employees regularly employed in the business within this State unless the employer and employees shall elect to he bound by the act. N. C. Code of 1931, 8081 (u).

*5012. Same — Evidence held insufficient to support finding that employer hired as many as five employees in the business.

Where, in a proceeding under the Workmen’s Compensation Act to recover compensation for the death of a deceased employee, the evidence fails to show an election by the employer and employees to be bound by the act, and upon appeal to the Superior Court from an award by the Industrial Commission, the court finds from the evidence that the employer owned a planing mill and a wood or wagon shop, on adjoining land, one operated by steam and the other by electricity, but that they were operated as separate and distinct businesses, each with a distinct patronage, and without connection with each other, that the deceased employee was employed in the planing mill only, and that there were less than five employees regularly in service in the planing mill: *Meld.,*the evidence is insufficient to support the jurisdictional finding of the Industrial Commission that the employer had as many as five employees in the same business, and there is no errori in the judgment of the Superior Court dismissing the proceeding on the ground that the Industrial Commission was without jurisdiction.

3. Master and Servant F i — Jurisdictional findings of fact by Industrial Commission are reviewable by Superior Court on appeal.

Where the Industrial Commission has jurisdiction of a proceeding for compensation under the Workmen’s Compensation Act, its findings of fact supported by any sufficient evidence, with respect to whether an injured employee is entitled to compensation and, if so, the amount, are conclusive upon the parties and upon the Superior Court on appeal, but the findings of fact of the Industrial Commission upon which its jurisdiction is based are not conclusive on the Superior Court, and upon appeal to it the court has the power to approve, modify or set aside such findings in accordance with the findings of the court from all the evidence appearing in the record. N. C. Code, 8081 (pp).

Appeal by the dependent of the deceased employee from *Harris, J*at August Term, 1931, of FeaNKLIN.

Affirmed.

This is a proceeding begun and prosecuted before the North Carolina Industrial Commission for compensation under the provisions of the North Carolina Workmen’s Compensation Act.

The proceeding was first heard by Commissioner Dorsett, on 24 January, 1930, at Louisburg, N. C.

At this hearing it was agreed by the parties to the proceeding that at the date of his death, to wit: 31 December, 1929, W. EL Aycock was an employee of George H. Cooper, at his planing mill in the town of Louisburg, N. C.; that the death of said employee was the result of an accident which arose out of and in the course of his employment; and that the claimant is the dependent of the deceased employee, as defined in the North Carolina Workmen’s Compensation Act.

The employer, George H. Cooper, contended at said hearing that he was not bound by the provisions of the North Carolina Workmen’s Com*502pensation Act, for the reason that he did not have in his employment, at the date. of the death of his deceased employee, as many as five employees at his planing mill, and that he had not voluntarily elected to be bound by the provisions of said act. Upon these contentions, the said employer denied that the North Carolina Industrial Commission had jurisdiction of the proceeding, and contended that the same should be dismissed.

Commissioner Dorsett heard the evidence and on the facts found by him held that the Commission had jurisdiction of the proceeding, for the reason that the employer had in his employment in the business in which the deceased employee was employed at the date of his death, as many as five employees. He awarded compensation to the dependent of the deceased employee, and directed that the employer pay the same to her. The employer appealed to the full Commission. Upon the hearing of this appeal, the findings of fact and conclusions of law made by Commissioner Dorsett were approved, and his award affirmed. The employer appealed from the award of the full Commission to the Superior Court of Wake County. Upon the hearing of this appeal, the court found from the evidence certified to it by the Commission, and appearing in the record, that at the date of the death of his employee, W. H. Aycock, the employer, George H. Cooper, did not have in his employment, in the business in which his deceased employee was employed, as many as five persons, and on this finding of fact held that the North Carolina Industrial Commission did not have jurisdiction of this proceeding.

From judgment dismissing the proceeding, the dependent of the deceased employee appealed to the Supreme Court.

*O. B. Moss and Edward F. Griffin for appellant.*

*Yarborough <& Yarborough and Biggs & Broughton for appellee.*

CoNNOR, J.

The North Carolina Workmen’s Compensation Act, by its express provisions, does not apply to casual employees, farm laborers, or Federal Government employees in North Carolina; nor does it apply “to any person, firm or private corporation that has regularly in service less than five employees in the same business within this State, unless such employees and their employer voluntarily elect, in the manner hereinafter specified, to be bound by the act.” N. C. Code of 1931, section 8081 (u), (b). Section 14, chapter 120, Public Laws of North Carolina, 1929. In the absence of an election by both employer and employee to be bound by its provisions, the act applies only to employers, who have in their service, in the same business within this State, as many as five employees. In the instant case, there was no evidence tending to show *503that tbe employer and bis deceased employee bad elected to be bound by tbe provisions of tbe act. Tbe North Carolina Industrial Commission, therefore, bad no jurisdiction of this proceeding for compensation to be paid by tbe employer to tbe dependent of bis deceased employee, under tbe provisions of tbe act, unless tbe employer bad regularly in bis employment, at tbe date of tbe death of bis employee, and in tbe business in which said employee was employed, as many as five employees.

Tbe North Carolina Industrial Commission found from tbe evidence at tbe bearing before Commissioner Dorsett, as • a jurisdictional fact, that at said time, tbe employer bad as many as five employees in tbe same business as that in which tbe deceased employee was employed. On this finding, tbe Commission held that it -bad jurisdiction of tbe proceeding, and on tbe facts admitted, awarded compensation to tbe dependent of tbe deceased employee. At tbe bearing of tbe employer’s appeal from tbe award of tbe full Commission, tbe Superior Court of Franklin County, found from tbe evidence that tbe employer did not at any time from tbe date at which tbe North Carolina "Workmen’s Compensation Act became effective to tbe date of tbe accidental injury which resulted in tbe death of tbe employee, have regularly in bis employment at tbe planing mill, at which tbe deceased employee was employed, as many as five employees, but that' be did have in bis employment at tbe planing mill as many as four employees; that tbe employer bad in bis employment during said time at tbe wood or wagon shop owned and operated by him two and at times three employees; that tbe deceased employee was not employed to work and did not work at any time in tbe wood or wagon shop, but worked only at tbe planing mill. Tbe planing mill at which' tbe deceased employee was employed is located in a shed which adjoins tbe building in which the wood or wagon shop owned and operated by George H. Cooper, is located. Tbe planing mill and tbe wood or wagon shop are both owned and operated by George H. Cooper, but are operated as separate and distinct businesses. Tbe planing mill is operated by steam, while tbe wood or wagon shop is operated by electricity. Each business has a separate and distinct patronage. Neither is operated in any respect in connection with tbe other.

It is provided in tbe North Carolina Workmen’s Compensation Act that tbe award with respect to compensation under-the provisions of said act, by a member of tbe North Carolina Industrial Commission, if not reviewed in due time by tbe full Commission, or tbe award of tbe full Commission, upon such review, shall be conclusive and binding as to all questions of fact. Either party to a dispute which has become tbe *504subject-matter of a proceeding- before the North Carolina Industrial Commission, for compensation under the provisions of the North Carolina Workmen’s Compensation Act, may appeal from the award of said Commission in said proceeding, to the Superior Court of the county in which the accident resulting in injury to the employee happened, or in which the employer resides or has his principal office, for errors of law under the same terms and conditions as govern appeals in ordinary civil actions. N. C. Code of 1931, section 8081 (pp) ; section 60, chapter 120, Public Laws of North Carolina 1929. The courts of this State, since the enactment of the North Carolina Workmen’s Compensation Act, have uniformly applied this statutory provision with respect to questions of fact involved in a proceeding of which the North Carolina Industrial Commission had jurisdiction, and have held that in such proceedings, where there was evidence of sufficient probative force to support the findings of fact made by the Commission, notwithstanding there was evidence to the contrary, such findings of fact are conclusive and binding, not only on the parties to the proceeding, but also, where either party has appealed from the award of the Commission to the Superior Court, on said court. In such case, the Superior Court has power to review the award of the Commission only as to errors in matters of law appearing in the proceeding. *Cabe v. Parker-Graham-Sexton, Inc., ante,*176, *Dependents of Pool, deceased, v. Sigmon, ante,*172, *Williams v. Thompson,*200 N. C., 463, *Moore v. State,*200 N. C., 300, *Southern v. Cotton Mills,*200 N. C., 165, *Rice v. Panel Company,*199 N. C., 154.

In the instant case, we are of opinion that there was no evidence sufficient to support the findings of fact made by Commissioner Dorsett, and approved by the full Commission, upon which the Commission concluded that it had jurisdiction of this proceeding. To the contrary, all the evidence shows that George H. Cooper, the employer, did not have in his employment in the business in which his deceased employee was employed, at the time of his death, as many as five employees. For this reason, there was no error in the judgment of the Superior Court, dismissing the proceeding.

If, however, it be conceded that there was evidence tending to support the findings of fact on which the Commission concluded that it had jurisdiction of the proceeding, and also that there was evidence to the contrary, tending to support the findings of fact by the Superior Court on which the said court held that the Commission did not have jurisdiction of the proceeding, the question presented for decision by this appeal is, whether the findings of fact made by the Commission were conclusive and binding on the Superior Court, and therefore not subject *505to review on tbe appeal to said court. This question, we tbink, manifestly, must be answered in tbe negative. Tbe question bas not heretofore been presented to tbis Court, and we, therefore, have no decision which may be cited as an authority, but both a proper construction of tbe language of tbe statute, and well-settled principles of law lead us to tbe conclusion that where tbe jurisdiction of tbe North Carolina Industrial Commission to bear and consider a claim for compensation under tbe provisions of tbe North Carolina Workmen’s Compensation Act, is challenged by an employer, on tbe ground that be is not subject to tbe provisions of tbe act, tbe findings of fact made by tbe Commission, on which its jurisdiction is dependent, are not conclusive on tbe Superior Court, and that said court bas both tbe power and tbe duty, on tbe appeal of either party to tbe proceeding, to consider all tbe evidence in tbe record, and find therefrom tbe jurisdictional facts, without regard to tbe finding of such facts by tbe Commission. A contrary bolding might present a serious question as to tbe validity of tbe statutory provision with respect to tbe effect of tbe findings of fact made by tbe Commission.

Tbe law is well settled that where tbe North Carolina Industrial Commission bas jurisdiction of a proceeding for compensation under tbe provisions of tbe North Carolina Workmen’s Compensation Act, its findings of fact with respect to whether or not an injured employee is entitled to compensation, and, if so, in what amount, are conclusive and binding not only on tbe parties to tbe proceeding, but also where either party bas appealed from tbe award of tbe Commission to tbe Superior Court, on said court. Where, however, tbe jurisdiction of tbe Commission is challenged by tbe employer on tbe ground that be is not bound by tbe provisions of tbe North Carolina Workmen’s Compensation Act, tbe findings of fact made by tbe Commission on which its jurisdiction is dependent, are not conclusive on tbe Superior Court. On an appeal to said court, tbe findings of fact made by tbe Commission may be approved, modified or set aside, in accordance with tbe findings of tbe court from all tbe evidence, appearing in tbe record. In tbe instant case, on its findings of fact, which are supported by tbe evidence, tbe Superior Court held that tbe Commission bad no jurisdiction of tbe proceeding and therefore ordered and adjudged that tbe proceedings be dismissed. Tbe judgment dismissing tbe proceeding is

Affirmed.