#### W. C. HANKS, Administrator of CURTIS HANKS, Deceased, v. SOUTHERN PUBLIC UTILITIES COMPANY.

(Filed 8 February, 1933.)

1. Master* and Servant F a—

Tlie North Carolina Workmen’s Compensation Law is constitutional.

2. Same—

Under the provisions of section 80Sl(k) every employer and employee within the purview of the Compensation Act is presumed to have accepted its provisions.

3. Same: Pleadings D c — Vitiating- defect must appear upon face of complaint in order to he available upon demurrer.

Where a demurrer is interposed in an action by the administrator, of a deceased employee on the ground that the action is cognizable only by the Industrial Commission, and it does not appear from the face of the complaint that the defendant employed more than five men in this State, section S081 (u), the demurrer is properly overruled, it being necessary that the vitiating defect appear on the face of the complaint in order to be available on demurrer.

Civil action, before Moore, J., at June Term, 1932, of Wilkes.

The plaintiff filed a complaint to recover damages for personal injury. A demurrer thereto was sustained, and thereupon the plaintiff filed an amended complaint alleging that his intestate was killed on 6 December, 1929. The cause of death was contact with a guy wire improperly insulated; and it was also alleged that the defendant negligently failed to furnish the deceased with safe and suitable tools and appliances with which to perform his duties. Paragraph 10 of the complaint is as follows: “That at the time of the grievance herein set forth and at no time prior thereto had the plaintiff’s intestate accepted the provisions of the Workmen’s Compensation Act, or by any acts or conduct acquiesced *156in or agreed to become bound by tbe prolusions thereof.” Tbe defendant demurred to tbe amended complaint for that on 6 December, 1929, tbe date of tbe injury and death, plaintiff’s intestate was employed by tbe defendant “in its business in tbe State of North Carolina, and that bis alleged injury occurred in tbe State of North Carolina, and that such employee was subject to tbe provisions of tbe North Carolina 'Workmen’s Compensation Act.” Tbe demurrer was overruled and tbe defendant appealed.

T. C. Bowie and, Wm. M. Allen for plaintiff.

Manly, Hendren and Womble for defendant.

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.