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
award 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
or 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.
But, 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.
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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
award 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
or 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.
But, 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
party 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.