Winslow v. Carolina Conference Ass'n of the Seventh Day Adventists, 211 N.C. 571 (1937)

May 19, 1937 · Supreme Court of North Carolina

211 N.C. 571

GROVER C. WINSLOW, JR., v. CAROLINA CONFERENCE ASSOCIATION OF THE SEVENTH DAY ADVENTISTS and LUMBERMEN’S MUTUAL CASUALTY COMPANY.

(Filed 19 May, 1937.)

1. Master and Servant § 37 — Compensation Act should he administered so that employer and employee receive benefits and protection of the act.

Under the Workmen’s Compensation Act the employer, in exchange for exclusive and limited liability under the act, N. C. Code, 8081 (r), consents to pay claims where no liability existed before, and the employee, in return for certainty and celerity in obtaining the compensation provided in the act, consents to give up trial by jury and the possibility of a larger recovery, and the act should be administered by the Industrial Commission to the end that both the employer and employee, in view of their mutual concessions, shall receive the benefits and enjoy the protection of the act.

2. Master and Servant § 46d—

The Industrial Commission has power to make rules governing the administration of the Compensation Act, and to construe and apply its rules. Compensation Act, section 54.

3. Master and Servant § 55d—

The construction and application of rules of administration of the Compensation Act, duly made and promulgated by the Industrial Commission in proceedings before it, ordinarily are final and conclusive and not subject to review by the courts on appeal.

4. Same—

The findings of fact by the Industrial Commission in a proceeding before it are final and conclusive on appeal when supported by evidence, the review by the Superior Court being limited to matters of law appearing in the record as certified by the Commission. Compensation Act, section 60.

5. Master and Servant § 55c — Notice of appeal may be served on adverse parties within thirty days from award or receipt of notice thereof.

Either party may appeal from the award of the Industrial Commission within thirty days from the date of the award or within thirty days from the receipt of notice of the award by registered mail, and where appellant causes notice of appeal to be served on the adverse parties within the thirty-day period, the notice and service are sufficient. N. C. Code, 8081 (ppp).

6. Same—

An appeal from an award of the Industrial Commission may be docketed in the Superior Court at any time before or during the next ensuing regular term of the Superior Court.

7. Same—

Statutory provisions with respect to appeals from judgments of justices of the peace do not control appeals from awards of the Industrial Commission.

8. Master and Servant § 47 — Requirement that claim be filed within one year is condition precedent to the right to compensation.

The provision of the Compensation Act, N. C. Code, 8081 (fC), that claim for compensation must be filed with the Commission within one year from the accident is a condition precedent to the right of compensation and not a statute of limitation, and where claim has not been filed or the Commission has not acquired jurisdiction within the one-year period, the right to compensation is barred.

9. Master and Servant § 55d — Superior Court held without authority to modify finding that proceeding was not begun or claim filed in time.

The evidence tended to show that the employer did not give notice of the accident to the insurance carrier until more than eleven months after its occurrence, that the insurance carrier did not transmit said notice to the Industrial Commission until more than a year after the accident, and that claim for compensation was not filed with -the Commission by the employee until some eighteen months after the accident. The Commission found as facts that the proceeding was not begun nor claim for compensation filed within the one-year period prescribed by the act, N. C. Code, 8081 (ff). On appeal, the Superior Court modified the findings and concluded as a matter of law that the filing of notice with the insurance carrier, under the rules of the Commission, constituted filing of the claim with the Commission. Held: The Superior Court was without authority to modify or change the findings of fact of the Commission, the construction and application of rules of administration by the Commission being ordinarily conclusive.

Appeal by defendant Lumbermen’s Mutual Casualty Company from Harris, J., at January Term, 1937, of Wayne.

Reversed.

This is a proceeding for compensation, under the provisions of tlie Uorth Carolina Workmen’s Compensation Act, for an injury by accident arising out of and in the course of the employment of the plaintiff by the defendant Carolina Conference Association of the Seventh Day Adventists. The defendant Lumbermen’s Mutual Casualty Company was the insurance carrier of its codefendant at the date of the accident. The accident and resulting injury to the plaintiff occurred on 4 June, 1934. The first report of the accident was filed with the Uorth Carolina Industrial Commission by the defendants on 28 June, 1935. Uo claim for compensation had been filed with the Industrial Commission by the plaintiff prior to that date.

The proceeding was begun before the Uorth Carolina Industrial Commission. Thereafter, on 3 December, 1935, the Industrial Commission received from the plaintiff an application, in writing, for a hearing of the proceeding. Pursuant to said application, and after due notice to all parties, the proceeding was heard by Commissioner Jurney, at Golds-boro, U. C., on 24 March, 1936. On the findings of fact and conclusions of law made by Commissioner Jurney, an award was made in the proceeding on 2 June, 1936. At the request of the defendants, duly made as provided by statute, this award was reviewed by the Eull Commission on 3 September, 1936. An award was made by tbe Pull Commission on 16 October, 1936. Tbe findings of fact, conclusions of law, and award of tbe Pull Commission are as follows:

“Tbe Pull Commission directs tbat tbe findings of fact, conclusions of law, and award of Commissioner Bure'n Jurney be stricken out and that there be substituted in lieu thereof tbe following:

“Findings of Pact.

“1. Tbe parties to this proceeding are bound by tbe provisions of tbe North Carolina "Workmen’s Compensation Act. Tbe Lumbermen’s Mutual Casualty Company is the insurance carrier of tbe defendant employer, Carolina Conference Association of tbe Seventh Day Adventists.

“2. Tbe plaintiff Grover C. Winslow, Jr., suffered an injury by accident arising out of and in tbe course of bis employment by tbe defendant employer on 4 June, 1934, resulting in a long period of temporary total disability, and in all likelihood resulting also in some permanent disability.

“3. Tbe defendant employer bad notice of tbe accident and resulting injury suffered by tbe plaintiff employee immediately after tbe occurrence of tbe same. Tbe defendant insurance carrier, however, bad no notice of tbe accident and resulting injury for some eleven months after tbe occurrence of tbe same.

“4. No report of tbe accident and tbe resulting injury suffered by tbe plaintiff employee was filed with tbe Industrial Commission until after tbe expiration of one year from tbe date of tbe accident and resulting injury.

“5. A report of tbe accident and tbe resulting injury suffered by tbe plaintiff was made by tbe defendant employer to tbe defendant insurance carrier some seven or eight days before tbe expiration of one year from tbe date of tbe accident and resulting injury.

“6. A claim for compensation for bis injury was filed with tbe Industrial Commission by tbe plaintiff on 3 December, 1935, more than one year after tbe date of tbe accident and bis resulting injury.

“7. Tbe defendant insurance carrier received a report of tbe accident from tbe defendant employer on Form 19, as approved by tbe Industrial Commission, on 28 May, 1935. Tbe defendant employer talked with tbe defendant insurance carrier for tbe first time on 17 May, 1935.

“Conclusions of Law.

“Tbe provisions of section 24 of tbe North Carolina Workmen’s Compensation Act (N. C. Code of 1935, section 8081 [if]), are mandatory, and no claim having been filed with tbe Industrial Commission in this proceeding within one year from the date of the accident, and the resulting injury suffered by the plaintiff, unless something appears to change the result, the claim of the plaintiff for compensation is forever barred. Wray v. Woolen Mills, 205 H. C., 782, 172 S. E., 487.

“Whether the provision of section 24 is a condition annexed to and forming a part of the right to maintain a claim for compensation, or is a statute of limitations, has not, so far as we are aware, been finally determined by the courts of this State, and we will not go into a discussion of that subject at this time.

“If, however, compliance with section 24 be considered as a condition annexed to and forming a part of the right to maintain a claim for compensation, it must be borne in mind that such right did not exist at common law, and exists solely by virtue of the Workmen’s Compensation Act, and is analogous to O. S., 160, giving a cause of action for wrongful death. In that case, the effect of section 24 would be determined by decisions of the courts of this State as to the effect of C. S., 160, by virtue of which an action to recover damages for wrongful death may be maintained only if begun within one year from the date of the death. Otherwise, there is no right of action.

“There is a clear distinction between a statute conferring a right, with a condition annexed to and forming a part of the right, and a statute of limitation which affects the remedy only. The former is not subject to disabilities and excuses which are applicable to an ordinary statute of limitation, and is not affected even by fraud. 37 Corpus Juris, sec. 5, page 686; Taylor v. Iron Go., 94 H. C., 525; Best v. Kinston, 106 H. O., 205; Sanie v. Penland, 193 H. C., 800; Curlee v. Power Go., 205 H. O., 644.

“If the provisions of section 24 of the Workmen’s Compensation Act be considered a statute of limitation, nothing else appearing, and no claim having been filed with the Industrial Commission within one year from the date of the accident, the right of the plaintiff to proceed under the provisions of the Workmen’s Compensation Act is barred. However, the plaintiff contends that the carrier defendant is by its act and conduct estopped to plead the provisions of section 24, but under the facts as found we do not concur in this contention. There was no express agreement on the part of the carrier defendant not to plead the statute of limitation, nor was there anything in the acts or conduct of the carrier or employer, or any of their agents, which would in our opinion make a plea of the statute of limitation inequitable. Wilson v. Clement Go., 207 N. O., 541.

“For the reasons stated, we are of the opinion that any right which the plaintiff may have had to compensation is forever barred by the provisions of section 24 of the Horth Carolina Workmen’s Compensation Act, and that an award of compensation cannot be made in this proceeding by the North Carolina Industrial Commission. The claim is therefore denied.

“There seems to be much merit in the claim for compensation in this case, and it is unfortunate that the plaintiff has slept on his rights.”

The plaintiff appealed from the award of the Full Commission to the Superior Court of Wayne County.

In apt time, the defendant Lumbermen’s Mutual Casualty Company entered a special appearance in the Superior Court of Wayne County and moved that the appeal be dismissed, on grounds set out in its motion, which was in writing. The motion was heard at January Term, 1937, of said court, when an order was made denying the motion, as follows :

“This cause coming on to be heard at January Term, 1937, of the Superior Court of Wayne County, before his Honor, W. C. Harris, Judge, upon the special appearance and motion to dismiss plaintiff’s appeal from the award of the North Carolina Industrial Commission, denying compensation in this proceeding, of the defendant Lumbermen’s Mutual Casualty Company, through its attorneys, Ruark & Ruark, and being heard, the court finds the following facts:

“1. The award of the North Carolina Industrial Commission from which this appeal was taken was promulgated by the said Industrial Commission on 16 October, 1936.

“2. Said award was forwarded to Messrs. Langston, Allen & Taylor, attorneys for the plaintiff Grover 0. Winslow, Jr., by registered mail, and was delivered to the said Langston, Allen & Taylor on 17 October, 1936.

“3. Notice of appeal from said award was first served on defendant Lumbermen’s Mutual Casualty Company on 31 October, 1936.

“4. The record of appeal as certified by the Industrial Commission was docketed in the Superior Court of Wayne County on 12 December, 1936.

“5. Service of the notice of appeal was accepted and further notice and all time waived on 9 November, 1936, by the defendant Carolina Conference Association of the Seventh Day Adventists.

“6. The first term of the Superior Court of Wayne County subsequent to the award of the North Carolina Industrial Commission in this proceeding, from which the plaintiff appealed to said court, convened on 30 November, 1936, same being a two weeks term for the trial of both criminal and civil actions.

“7. Before the judgment in this appeal was signed, but after the court had announced at the conclusion of the argument on the motion to dismiss, that it would deny said motion, the appeal was argued before the court on its merits.

“8. No motion to dismiss tbe appeal from tbe award of tbe North Carolina Industrial Commission in this proceeding bas been made by tbe defendant Carolina Conference Association of Seventh Day Adventists.

“9. Special appearance was made and motion to dismiss tbe appeal entered by tbe defendant LumbernjLen’s Mutual Casualty Company on 8 January, 1937, as appears in tbe record.

“On tbe foregoing facts, tbe court being of opinion that tbe notice of appeal was properly served and that tbe appeal was duly and properly docketed in this court, in apt time, and that tbe plaintiff was not guilty of laches in perfecting bis appeal, and that said appeal is properly constituted in this court, it is therefore ordered and adjudged that tbe motion to dismiss tbe appeal be and tbe same is denied.”

Tbe defendant Lumbermen’s Mutual Casualty Company duly excepted to tbe order denying its motion that tbe appeal of tbe plaintiff be dismissed.

Thereafter judgment was rendered as follows :

“This cause coming on to be beard at tbe January Term, 1937, of tbe Superior Court of Wayne County, upon tbe appeal herein of tbe plaintiff Grover 0. Winslow, Jr., from tbe award of tbe North Carolina Industrial Commission, before bis Honor, W. C. Harris, Judge bolding tbe courts of tbe Fourth Judicial District, and being beard, tbe plaintiff being present through and represented by bis counsel, Berkeley & Colton, attorneys, and Langston, Allen & Taylor, attorneys, and tbe defendant Lumbermen’s Mutual Casualty Company being present through and represented by its counsel, Ruark & Ruark, attorneys, tbe court modifies and amends certain findings of fact made by tbe North Carolina Industrial Commission in this proceeding, and strikes out and substitutes in lieu thereof, certain other findings of fact and conclusions of law, so that tbe findings of fact and conclusions of law as made by this court are as follows :

“1. Tbe defendant Carolina Conference Association of tbe Seventh Day Adventists, employer, bas not appealed from any finding of fact or conclusion of law, or from tbe award in this proceeding made by tbe North Carolina Industrial Commission since tbe institution of this proceeding before tbe said Industrial Commission.

“2. Tbe parties to this proceeding are bound by tbe provisions of tbe North Carolina Workmen’s Compensation Act, and tbe Lumbermen’s Mutual Casualty Company is tbe insurance carrier of tbe defendant employer.

“3. Tbe plaintiff suffered an injury by accident arising out of and in tbe course of bis employment by tbe defendant Carolina Conference Association on 4 June, 1934, resulting in disability for a long period of time.

“4. Tbe defendant employer bad notice of tbe accident and tbe resulting injury suffered by tbe plaintiff employee immediately after tbe occurrence of the same. Tbe defendant insurance carrier, however, bad no notice of tbe accident other than such constructive notice as it may have bad through tbe notice to tbe defendant employer, for some eleven months after tbe occurrence of tbe accident.

“5. No actual physical report or claim was filed with tbe North Carolina Industrial Commission, other than tbe report'filed with tbe defendant insurance carrier on behalf of tbe plaintiff employee, for transmission by tbe said carrier pursuant to tbe instructions and rules of said Industrial Commission; but tbe defendant employer bad due and actual notice of tbe accident and resulting injury to tbe plaintiff employee on 5 June, 1934, and the defendant insurance carrier bad such notice on 22 May, 1935. Form 19 (being Exhibit 5, appearing in tbe record of this proceeding as certified by tbe North Carolina Industrial Commission) was received by tbe defendant insurance carrier from tbe defendant employer, at Greensboro, N. 0., on 28 May, 1935, and was transmitted by said insurance carrier to tbe North Carolina Industrial Commission on 21 June, 1935.

“6. Prior to tbe date of tbe accident and resulting injury to tbe plaintiff employee, to wit: 4 June, 1934, tbe North Carolina Industrial Commission bad prescribed and promulgated a rule requiring that tbe report of an accident and injury to an employee on Form 19 must be transmitted by tbe employer through bis insurance carrier to tbe Industrial Commission. (See Exhibit 5, appearing in tbe record in this proceeding.)

“On tbe foregoing facts as found by tbe court, tbe court makes tbe following conclusions of law:

“1. Tbe defendant insurance carrier bad constructive. notice of tbe accident and tbe resulting injury to tbe plaintiff employee from 5 June, 1934, to 22 May, 1935, tbe date at which it bad actual notice of said accident from tbe defendant employer.

“2. Tbe court is of tbe opinion and concludes that tbe filing of Form 19 with tbe defendant insurance carrier by tbe defendant employer on 28 May, 1935, constituted a filing of said Form 19 with tbe North Carolina Industrial Commission as of that date.

“3. Tbe court is of tbe opinion and concludes that tbe filing of said Form 19 with tbe defendant insurance carrier constituted a filing of tbe claim of tbe plaintiff employee for compensation for tbe injury suffered by him on 4 June, 1934, with tbe North Carolina Industrial Commission as contemplated by tbe provisions of tbe North Carolina Workmen’s Compensation Act and tbe rules prescribed and promulgated by said Industrial Commission; and that said claim was filed with tbe North Carolina Industrial Commission within one year from the date of the accident, to wit: 4 June, 1934.

“4. The court is of the opinion that section 24 of the North Carolina "Workmen's Compensation Act (N. C. Code of 1935, section 8081 [ff]), is a statute of limitations and is not a statute prescribing a condition annexed to the right to claim compensation, and that for that reason the requirements of said section can he waived.

“5. The court further finds as a fact and as a conclusion of law that the act of the defendant insurance carrier in holding Form 19 in its possession from 28 May, 1935, until after the expiration of one year from the date of the injury, and in failing to transmit the same to the North Carolina Industrial Commission before the expiration of said year was inequitable and constituted a waiver by the said defendant of its right to plead the statute of limitation in bar of plaintiff’s recovery in this proceeding.

“It is now therefore, on the foregoing findings of fact and conclusions of law, considered, ordered, and adjudged that the claim of the plaintiff employee for compensation in this proceeding was duly filed with the North Carolina Industrial Commission within one year after the accident resulting in injury to the plaintiff employee, and that if it were not so filed the defendant Lumbermen’s Mutual Casualty Company has waived its right to plead the statute of limitations, and is equitably estopped by its conduct to plead said statute. This proceeding is remanded to the North Carolina Industrial Commission for an award in accordance with this judgment.

“It is further adjudged that the defendant insurance carrier pay the costs of this appeal.”

The defendant Lumbermen’s Mutual Casualty Company excepted to the judgment and appealed to the Supreme Court, assigning as error the order of the court denying its motion that the appeal be dismissed, and the judgment as signed by the court.

Langston, Allen & Taylor and Scott B. Berleeley for plaintiff.

Ruarle & Ruarle for defendant.

Connor, J.

A careful study of the provisions of the North Carolina Workmen’s Compensation Act (chapter 120, Public Laws of North Carolina, 1929, as amended, chapter 133-A, N. 0. Code of 1935), shows that it was the purpose of the General Assembly of this State, in providing for compensation for an employee who has suffered an injury, or for the dependents of an employee who has suffered death, by accident arising out of and in the course of his employment, without fault on the part of the employer, where both the employee and the employer have accepted the provisions of the act, and are therefore hound by said provisions, that the RTorth Carolina Industrial Commission, created by the act for that purpose, shall administer its provisions to the end that both employee and employer shall receive the benefits and enjoy the protection of the act. The act contemplates mutual concessions by employee and employer; for that reason, its validity has been upheld, and its policy approved. See Conrad v. Cook-Lewis Foundry Co., 198 N. C., 723, 153 S. E., 266. In the opinion in that case, Adams, J., says:

“In construing the word ‘accident’ as used in the Compensation Act, we must remember that we are not administering the law of negligence. Under that law an employee can recover damages only when the injury is attributable to the employer’s want of due care; but the act under consideration contains elements of mutual concession between the employer and the employee by which the question of negligence is eliminated. Both had suffered under the old system, the employer by heavy judgments, the employee through old defenses or exhaustion in wasteful litigation. Both wanted peace. The master in exchange for limited liability was willing to pay on some claims in the future where in the past there had been no liability at all. The servant was willing not only to give up trial by. jury, but to accept far less than he had often won in court, provided he was sure to get the small sum without having to fight for it. Stertz v. Industrial Ins. Commission, 91 Wash., 588, 158 Pac., 256.”

It is provided in the act that “the rights and remedies herein granted to an employee when he and his employer have accepted the provisions of this act, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representatives, parents, dependents, or next of kin, as against his employer at common law, or otherwise, on account of such injury, loss of service, or death.” Chapter 120, Public Laws of N. C., 1929; section 11, N. C. Code of 1935, section 8081 (r).

To make its purpose that the RTorth Carolina Workmen’s Compensation Act shall be administered exclusively by the RTorth Carolina Industrial Commission effective, the General Assembly has empowered the said Industrial Commission “to make rules, not inconsistent with this act, for carrying out the provisions of the act,” and has provided that “processes and procedure under this act shall be as summary and simple as reasonably may be.” Section 54. The RTorth Carolina Industrial Commission has the power not only to make rules governing its administration of the act, but also to construe and apply such rules. Its construction and application of its rules, duly made and promulgated, in proceedings pending before the said Commission, ordinarily are final and conclusive and not subject to review by the courts of this State, on an appeal from an award made by said Industrial Commission.

Where a proceeding for compensation under the provisions of the North Carolina Workmen’s Compensation Act has been duly instituted before the North Carolina Industrial Commission, and an award has been finally made in the proceeding by the said Industrial Commission, the findings of fact made by the said Commission in support of its award are final and conclusive, where there was evidence sufficient to support the findings. Either party to the proceeding, within thirty days from the date of the award, or within thirty, days after receipt of notice of the award, which may be given by registered mail, may appeal from the award to the Superior Court of the county in which the accident occurred. On such appeal, the Superior Court has no power to review the findings of fact by the Industrial Commission. It can consider only errors of law appearing in the record, as certified by the Industrial Commission. Section 60. The statutory provisions to this effect have been consistently and uniformly recognized by this Court. See Mayze v. Forest City, 207 N. C., 168, 176 S. E., 270; Bryson v. Lumber Co., 204 N. C., 665, 169 S. E., 276; Moore v. Drug Co., 206 N. C., 711, 175 S. E., 96; Kenan v. Motor Co., 203 N. C., 108, 164 S. E., 729; Wimbish v. Detective Co., 202 N. C., 800, 164 S. E., 344; Williams v. Thompson, 200 N. C., 463, 157 S. E., 430. N. C. Code of 1935, section 8081 (ppp).

These statutory provisions are obviously not applicable to a motion by an appellee in the Superior Court, that the appeal be dismissed. In the instant case, however, on the facts found by the judge, there was no error in his refusal to allow the motion.

The award was made on 16 October, 1936. Notice of the award was duly served on attorneys for the plaintiff on 17 October, 1936. Within thirty days thereafter, the plaintiff caused notice of his appeal to be served on each of the defendants. Such notice was in compliance with the provisions of the statute. The contention of the defendant Lumbermen’s Mutual Casualty Company, on this appeal, to the contrary is not supported by the decision of this Court in Higdon v. Light Co., 207 N. C., 39, 175 S. E., 710. In that case it was held that “the carbon copy of a letter from the secretary of the Industrial Commission to the attorney for the defendant cannot be construed as a compliance with the applicable statutes.” In the instant case, it was found by the judge that notice of plaintiff’s appeal was served on the defendant Lumbermen’s Mutual Casualty Company on 31 October, 1936. Both the notice and the service were sufficient.

Pursuant to his notice of appeal, and at the request of the plaintiff, the Industrial Commission caused a transcript of the record in this proceeding to be made, and thereafter transmitted the said transcript, duly certified by its secretary, to the Superior Court of Wayne County, where it was docketed on 12 December, 1936, before the expiration of the next ensuing term of said court. In tke absence of any requirement of tke statute as to tke time witkin wkick a transcript of tke record in a proceeding before tke Industrial Commission must be docketed in tke Superior Court, wken tkere kas been an appeal from tke- award of tke Commission in suck proceeding, as autkorized by tke statute, suck docketing at any time before tke convening of tke next ensuing regular term of tke Superior Court, or before said time kas expired, is sufficient to perfect tke appeal. Wketker in a proper case tke Industrial Commission may by an order in tke proceeding extend tke time for tke transmission of tke transcript and tke docketing of tke appeal in tke Superior Court, need not be considered on tkis appeal. Statutory provisions with respect to appeals from judgments of justices of tke peace to tke Superior Court, wkere tke trial must be de novo, are not controlling witk respect to appeals from awards of tke Industrial Commission to tke Superior Court, wkere only errors of law appearing in tke record may be considered.

Tkere is no error in tke order of tke judge in tke instant case refusing to allow defendant’s motion tkat tke appeal of tke plaintiff from tke award of tke Industrial Commission to tke Superior Court of "Wayne County be dismissed. Tke appeal was duly and properly docketed in tke Superior Court of Wayne County, on 12 December, 1936.

Tke Industrial Commission, in support of its award denying plaintiff compensation in tkis proceeding on tke facts found by tke Commission, concluded as a matter of law tkat by virtue of tke provisions of section 24, ckapter 120, Public Laws of Nortk Carolina, 1929, N. C. Code of 1935, section 8081 (ff), plaintiff’s rigkt to compensation for tke injury wkick ke suffered on 4 June, 1934, was barred for tke reason tkat liis claim for compensation was not filed witk tke Industrial Commission witkin one year after tke accident. On plaintiff’s appeal from tkis award to tke Superior Court of Wayne County, tkis conclusion of law was reversed by tke judge of said court, for tkat (1) if tke provisions of section 24 skall ke construed as annexing a condition precedent to tke rigkt of compensation, and not as a statute of limitation, on tke facts found by kim, tke claim of tke plaintiff for compensation was filed witk tke Industrial Commission witkin one year after tke accident, and was tkerefore not barred; or (2) if tke said provision skall be construed as constituting a statute of limitation, on tke facts found by kim, tke defendant insurance carrier, by its conduct in failing to transmit Form 19, after tke same kad been signed by tke defendant employer, and forwarded to said insurance carrier before tke expiration of one year from tke accident, to tke Industrial Commission, until after tke expiration of one year from tke accident, was estopped to plead tke statute in bar of plaintiff’s rigkt to compensation in tkis proceeding.

Section 24, chapter 120, Public Laws of LTorth Carolina, ÍT. C. Code of 1935, section 8081 (£f), is as follows:

“The right to compensation under this act shall be forever barred unless a claim be filed with the Industrial Commission within one year after the accident, and if death results from the accident, unless a claim be filed with the Commissioner within one year thereafter.”

After careful consideration of the question, which has not been heretofore decided by this Court, we are of the opinion and hold that the provisions of section 24 constitute a condition precedent to the right to compensation, and not a statute of limitation. Eor this reason, where a claim for compensation under the provisions of the LTorth Carolina Workmen’s Act has not been filed with the Industrial Commission within one year after the date of the accident which resulted in the injury for which compensation is claimed, or where the Industrial Commission has not acquired jurisdiction of such claim within one year after the date of such accident (see Hardison v. Hampton, 203 N. C., 187, 165 S. E., 355), the right to compensation is barred.

In the instant case, the Industrial Commission has found as facts (1) that the proceeding was not begun, and (2) that the claim of the plaintiff for compensation was not filed with the Commission until after the expiration of one year from the date of the accident. These findings of fact are final and conclusive. The judge was without power to modify, change, or strike out these findings. On these findings of fact there is error in the judgment remanding the proceeding to the Industrial Commission for an award in accord with the judgment. The award of the Industrial Commission should have been affirmed.

The judgment of the Superior Court on this proceeding is

Reversed.