This is a proceeding begun before the North Carolina Industrial Commission for an award of compensation to be paid to the dependents of Fred Poole, deceased, by the defendant, D. T. Sigmon, pursuant to the provisions of the North Carolina Workmen's Compensation Act.
The proceeding was heard in the Superior Court of Catawba County upon the appeal of the defendant, D. T. Sigmon, from the award made by the Industrial Commission. This award was made by the Commission *Page 173 upon its findings of fact and conclusions of law as appear in the record. The award was approved by the judge of the Superior Court.
From judgment affirming the award, the defendant, D. T. Sigmon, appealed to the Supreme Court. We find no evidence in the record certified to this Court on defendant's appeal from the judgment of the Superior Court, tending to support the finding by the North Carolina Industrial Commission, that Fred Poole, deceased, at the date of his fatal injuries, was an employee of the defendant, D. T. Sigmon. All the evidence shows that he was an employee of the defendants, Allen and Mathis. Nor do we find any evidence tending to support the finding that at said date the defendant, D. T. Sigmon, had in his employment, for any purpose not less than five employees. For this reason there was error of law in the findings of fact made by the said Industrial Commission, upon which the said Commission made its award in this proceeding, and in the judgment of the Superior Court affirming said award.
The findings of fact made by the North Carolina Industrial Commission, in a proceeding pending before the said Commission, are conclusive on an appeal from said Commission to the Superior Court, only when there was evidence before the Commission tending to show that the facts are as found by the Commission. Otherwise, the findings are not conclusive, and the Superior Court, on an appeal from the award of the Commission, has jurisdiction to review all the evidence for the purpose of determining whether as a matter of law there was any evidence tending to support the finding by the Commission. West v. Fertilizer Co., 201 N.C. 556. If the fact as found by the Industrial Commission is jurisdictional, as in the instant case, and there was no evidence tending to support the finding, the award should be set aside and vacated.
As there was no evidence at the hearing of this proceeding by the Industrial Commission tending to show that the deceased was an employee of the defendant at the date of his fatal injuries, or that at such date the defendant had in his employment five or more employees (N.C. Code of 1931, sec. 8081(u), there was error in the award made by the Industrial Commission against the defendant. The award should have been set aside and vacated by the Superior Court. The judgment affirming the award is
Reversed. *Page 174