I am unable to agree that the testimony taken before the Commission does not justify its conclusions.
There is a mass of incompetent testimony found in the record and much contradiction of witnesses on details, but, in my judgment, there is ample testimony, not only by the applicant and his foreman, Mr. Leatham, but by the foreman of Mr. Angel, the contractor, a Mr. Bertoll, to support the Commission's finding that the contractor retained such supervision and control over the work as to bring the applicant within the Workmen's Compensation Act. The mere fact that he was a subcontractor and had the right to employ and discharge men is not conclusive of his right to compensation. The statute does not so state. The right to compensation is dependent, not upon the fact of the applicant being a subcontractor, but upon the other fact that the work he was doing was under the supervision of the contractor. That seems to be the test that the statute has established. This may be a close case, but, in my opinion, there was ample competent testimony before the Commission which justified it in making the award.