majority"> WiNBORNe, J.

Accepting the allegations in the complaint in this action to be true, and construing them “with a view to substantial justice between the parties,” as we must do when testing their sufficiency upon challenge by demurrer, we are of opinion and hold that the allegation that “defendants at time of the wrongful death of plaintiff’s intestate . . . were not operating under the Workmen’s Compensation Act of North Carolina” is sufficient to admit of proof. Calahan v. Roberts, 208 N. C., 768, 182 S. E., 657.

While under the provisions of the Workmen’s Compensation Act of North Carolina, it is true that both employer and employee, coming within the definitions therein set forth, are presumed to have accepted the provisions of the Act respectively to pay and accept compensation for personal injury, or death resulting from injury by accident arising out of and in the course of the employment and, nothing else appearing, are bound by its terms, Public Laws 1929, ch. 120, sec. 4; Michie’s Code, sec. 8081 (k), Pilley v. Cotton Mills, 201 N. C., 426, 160 S. E., 479; Hanks v. Utilities Co., 204 N. C., 155, 167 S. E., 560; Miller v. Roberts, 212 N. C., 126, 193 S. E., 286, and that the Industrial Commission of North Carolina has exclusive original jurisdiction to hear and determine matters of compensation for personal injury or death, sec. 11, Michie’s Code, 8081 (r), subject to review by appellate courts as to matters of law, the Act provides in sec. 5 a method by which both employer and employee may effect a nonacceptance of the provisions of the Act. Michie’s Code, 8081 (1). See Miller v. Roberts, supra.

In the Calahan case, supra, in opinion by Schench, J., it is said that “the presumption of acceptance may be rebutted by the proof of nonacceptance, and the plaintiff has laid the foundation for such proof by alleging that the ‘defendants . . . were not operating under the Workmen’s Compensation Act.’ ” In the present case the allegation is in substantially the same language.

However, it is earnestly contended in behalf of appellee that here there is no allegation of fact, to wit, notice of nonacceptance as contemplated by the statute and as was alleged in the Calahan case, supra, as shown by the record there, and that here the allegation that “defendants . . . were not operating under the Workmen’s Compensation Act” is a mere allegation of a conclusion of law. With this, we are unable to agree. Whether “defendants were not operating under the Workmen’s Compensation Act” involves both law and fact. We think *729 tbe allegation is sufficient to admit of proof witb regard thereto. Whether plaintiff shall be able to support his allegation with sufficient proof is a matter not now before us. Upon the facts found by the court upon competent evidence, when offered, the question of law as to whether defendant Standard Oil Company of New Jersey was not operating under the Act will then arise. Aycock v. Cooper, 202 N. C., 500, 163 S. E., 569; Young v. Mica Co., 193 S. E., 285.

For the reasons stated, we hold that the court below erred in ruling that, as a matter of law, upon the face of the complaint, it appears that the Superior Court is without jurisdiction. Hence, it is unnecessary to discuss the question as to whether or not the court, for the reason assigned, properly denied motion to amend.

The judgment below is

Eeversed.

Citation profile

How this case has been treated — in progress