dissenting: Tbe Industrial Commission found tbat no contract existed between Elkins and "Wall Brothers and tbat Elkins was, in reality, a foreman for Wall Brothers and tbat claimant, employed by Elkins, was in fact an employee of Wall Brothers. It was on this theory tbat compensation was allowed.
Tbe majority opinion concludes tbat tbe judgment below should be affirmed on two theories: (1) tbat Elkins was a foreman employed by Wall Brothers' and tbat, therefore, tbe claimant was an employee of Wall Brothers as found by tbe Commission; and (2) tbat Elkins was a subcontractor who bad not complied with tbe Workmen’s Compensation Act, thus imposing liability on Wall Brothers, tbe general contractors, under tbe terms of sec. 19, cb. 120, Public Laws 1929. I am unable to concur on either theory.
Wall was tbe general contractor employed to make alterations in tbe Plaza Theatre in Asheville. Tbe general contractor called for bids from electrical contractors for subcontracting tbe electrical part of tbe project. Elkins (found by tbe Commission to be an electrical contractor) sent in bis bid. It was accepted. Tbat this contract as thus entered into constituted Elkins a subcontractor seems to be conceded — and it is in substance so found by tbe Commission. In any event, it cannot be successfully debated tbat this was not tbe effect of tbe contract thus made.
Tbe claimant contends, however, and tbe Commission found, tbat this contract was abrogated and a new contract was entered into; and tbat under tbe general contract Elkins became a foreman of tbe general contractor. Later, it inconsistently found tbat no contract existed between tbe general contractor and Elkins. Tbat claimant was employed by Elkins is not controverted. But claimant takes tbe position tbat when Elkins assigned him to this job be automatically became an employee of tbe general contractor and not of Elkins.
Tbe record, in my opinion, fails to disclose any evidence to sustain claimant’s position or to support tbe findings based thereon. All tbe evidence is contra. To so bold we must disregard tbe testimony of every interested party, including claimant, or else place a strained and unnatural interpretation thereon.
Tbe only change or alteration made in tbe original contract — and it cannot be denied tbe original contract was made — was as to tbe amount, *93manner and method of payment for tbe electrical work to be performed by Elkins. Exclusive control of bis employees remained witb bim and be was still accountable only for tbe proper performance of tbe subcontract. Tbe general contractor’s authorization of changes in location of light bulbs and switches was bis prerogative and is not evidence of control over either Elkins or bis employees.
When Elkins discovered that be bad underestimated tbe cost’ of tbe fixtures be immediately went to see Wall. Wall testified that be “made tbe proposition that if I would let bim continue and go ahead witb tbe job that all we would have to pay would be actual cost of tbe job. In other words, be give us tbe invoices from electrical supply and we were to pay these plus tbe labor that it cost to put it in and we agreed to that.” He further testified that be did not exercise any control over Elkins or bis employees and did not carry Elkins’ employees on bis pay roll, keep their time or pay them anything for their labor; that be did not release Elkins from bis original contract; that “Elkins was to do tbe work in bis own way and I was to pay bim tbe cost of tbe work to bim. I bad nothing to do with bringing any electricians there at all. I simply advanced bim money on tbe contract from time to time. Tbe only difference in this contract and tbe original contract was be agreed not to charge me any commission or profit on account of tbe fact be got me in a bole there. He agreed not to charge anything for bis time or supervision since be got us into a bid at too low a figure. He agreed to pay all labor bills as such were incurred, and be has done so to this date.”
Tbe testimony of Elkins was to tbe same effect. It is unnecessary to give any detailed recital thereof. In addition be said “We agreed that I should buy tbe fixtures and when tbe invoices came in be would advance tbe money to pay for them ... I bad some other contract or work going on at other places. I bad Mr. Graham at some other place working for me. I told Mr. Graham tbe day before tbe 16th of November to come up there that morning and start on this job .. . . I was doing that work up there in my own way just like I always did my contracts.”
Tbe claimant Graham testified: “I bad been working for Mr. Elkins somewhere in tbe neighborhood of six months prior to tbe date I got hurt. I was working witb bim tbe day before. He told me to report here this morning. All that I knew was that I was working for Mr. Elkins. I was under Mr. Elkins’ orders . . . Wall Brothers only instructed me as to changes in tbe location of some light bulbs or switches. They told me nothing about going to work or quitting or anything of that kind.”
*94There is nothing in this or any of the other testimony to indicate an abandonment of the original subcontract agreement or to support a finding that there was any change therein except as to pay. It does not justify a finding that Elkins was anything other than a subcontractor.
Apparently the majority so understands, since a written statement signed by Wall prior to the hearing is quoted and relied upon to support its conclusion.
This statement is not substantive testimony. It was competent and admissible only as it tended to contradict and impeach the witness. It is not sufficient to support the finding that Elkins was a foreman. There must be some competent substantive evidence to support the finding for it to be sustained. Bank v. Motor Co., 216 N. C., 432, 5 S. E. (2d), 318; Logan v. Johnson, 218 N. C., 200, 10 S. E. (2d), 653.
The second theory relied upon by claimant is wholly inconsistent with and diametrically opposed to the first. If Elkins was a foreman, as found by the Commission, he was not a subcontractor, and if he was a subcontractor, certainly he was not á foreman.
It is axiomatic with us that a litigant must be heard here on the theory of the trial below and he will not be permitted to switch horses on his appeal. Nor may he ride two horses going different routes to the same destination.
However, as the majority opinion discusses this belated contention of claimant and assigns it as a further reason why the judgment should be affirmed, I am forced to take issue as to the result.
Under the express terms of the Workmen’s Compensation Act “employer” means a person, firm or corporation regularly employing five or more employees in the same business or establishment, sec. 2, ch. 120, Public Laws 1929, (a) (c); Dependents of Thompson v. Funeral Home, 205 N. C., 801, 172 S. E., 500; Rape v. Huntersville, 214 N. C., 505, 199 S. E., 736. Persons regularly employing less than five employees in the same business are not “employers” within the meaning of the Act and they are expressly excluded. Sec. 14, ch. 120, Public Laws 1929; Miller v. Roberts, 212 N. C., 126, 193 S. E., 286; Dependents of Thompson v. Funeral Home, supra; Hanks v. Utilities Co., 204 N. C., 155, 167 S. E., 560; Aycock v. Cooper, 202 N. C., 500, 163 S. E., 569; Young v. Mica Co., 212 N. C., 243, 193 S. E., 285.
While the principal contractor, under certain conditions, is liable for compensation benefits to injured employees of his subcontractors, see. 19, ch. 120, Public Laws 1929, this liability is limited “to the same extent as such subcontractor.” It is admitted that Elkins employed less than five. It was so found and he was discharged as a party defendant. As he was not liable even though he was working under a subcontract, Wall cannot be held liable under the provisions of sec. 19.
*95But the majority opinion maintains that ch. 358, Public Laws 1941, is not an amendment to sec. 19, but merely expresses the full legislative intent under the existing law. This cannot be. The 1941 Act enlarges the scope of sec. 19 of the original Act. Under the 1929 Act a general contractor, upon failure to comply with the procedure outlined in sec. 19, becomes liable for compensation payments to employees of a subcontractor to the same extent that the subcontractor is liable. A subcontractor is not liable unless he employs five or more. Under the 1941 law it is immaterial whether the subcontractor employs more or less than five. If the principal contractor, under the latter act, fails' to comply with the conditions of sec. 19, he is" liable to the same extent that the subcontractor would be if he had accepted the provisions of the Act “irrespective of whether such subcontractor has regularly in service less than five employees in the same business within the State.”
As the 1941 law makes a substantial change in the act and is prospective in operation it does not aid the claimant even though we dispose of the appeal upon the assumption that Elkins was a subcontractor, in direct conflict with the findings of the Commission.
The Tennessee case cited and relied upon in the majority opinion does not decide the precise question presented. Under sec. 19, as it existed at the time claimant was injured, the liability of Wall was conditional and the circumstances disclose that no liability attached. The Tennessee law-placing liability upon the principal contractor for compensation to employees of subcontractors is positive and unconditional.
For the reasons stated I am of the opinion that the judgment below should be reversed.
Stacy, 0. J., and WiNBOBNE, J., concur in dissent.