Hanks v. Southern Public Utilities Co.

Beogdek, J.

Tbe defendant contended that tbe injury occurred subsequent to tbe enactment of tbe Workmen’s Compensation law, and that as a result tbe cause was cognizable by tbe Industrial Commission. Tbe plaintiff contended that tbe Workmen’s Compensation Act was unconstitutional for that it impaired tbe right of trial by jury, guaranteed by tbe Constitution of North Carolina.

Tbe constitutionality of tbe Workmen’s Compensation Act was upheld in Heavner v. Lincolnton, 202 N. C., 400 , 162 S. E., 909 . See, also, Hagler v. Highway Commission, 200 N. C., 733 , 158 S. E., 383 .

Tbe plaintiff alleges in paragraph 10 of tbe complaint that bis intestate bad not accepted tbe provisions of tbe Workmen’s Compensation Act. However, this is immaterial for tbe reason that O. S., 8081 (k) provides in substance that every employer and employee coming within tbe purview of tbe act is presumed to have accepted tbe provisions thereof.

However, tbe demurrer was properly overruled. It does not appear upon tbe face of tbe complaint that tbe Workmen’s Compensation Act applies to tbe defendant. C. S., 8081 (u) provides in subsection (b) that tbe Workmen’s Compensation Act does not apply to casual employees, “nor to any person, firm or private corporation that has regularly in service less than five employees in tbe said business within this State,” etc.

Aycock v. Cooper, 202 N. C., 500 , 163 S. E., 569 . Tbe face of tbe complaint does not disclose that tbe defendant employs more than five men. A demurrer cannot be sustained unless tbe vitiating defect appears upon tbe face of tbe pleadings assailed.

Justice v. Sherard, 197 N. C., 237 , 148 S. E., 241 .

Affirmed.