Short v. Slane Hosiery Mills, Inc. , 1969 N.C. App. LEXIS 1487 ( 1969 )

Brock, J.

Is the determination of the Hearing Commissioner, as affirmed by the Full Commission, to the effect that, in assisting Adams, deceased was not acting for the benefit of his employer to any appreciable extent 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 upon us. If a mixed question of fact and law, it is likewise conclusive, provided there is sufficient evidence to sustain the element of fact involved. If a question of law only, it is subject to review Beach v. McLean, 219 N.C. 521, 14 S.E. 2d 515.

Clearly such a determination by the Commission is not a strict conclusion of law; and considered in the view most favorable to plaintiff’s request for review, it would be, at most, a mixed question of fact and law. Proceeding in this light for purposes of this appeal, the determination by the Commission is conclusive provided there is sufficient evidence to support the factual element.

Plaintiff takes no exception to the specific findings of fact by the Commission, but argues that the facts found and the inferences from the facts found compel a determination that deceased was acting for the benefit of his employer to an appreciable extent, and argues it would follow that his injury arose out of and in the course of his employment.

In our view the findings of fact, and legitimate inferences to be drawn therefrom, support the Commission’s determination that deceased was not acting for the benefit of his employer to any appreciable extent. And such a determination compels a ruling that deceased’s injuries did not arise out of and in the course of his employment. Guest v. Iron & Metal Co., 241 N.C. 448, 85 S.E. 2d 596. Compensation was properly denied.

Affirmed.

Campbell and MoRRis, JJ., concur.