
    A. MOULTON McNUTT, ADMINISTRATOR, RESPONDENT, v. ADAMS EXPRESS COMPANY, APPELLANT.
    Submitted March 22, 1920
    Decided June 14, 1920.
    1. In an action to recover damages for injuries under section 1 of the Workmen’s Compensation act, the plaintiff must aver and prove, in order to avoid the application of section 2 of the act, that there was an agreement in writing, or a written notice given prior to tile accident, that the employe’s contract of hiring was not made subject to section 2; otherwise all such contracts are to be presumed to have been made with reference to it.
    2. It is not necessary to plead an existing legal presumption.
    On appeal from the Camden County Circuit Court.
    "For the appellant. Joseph IL. Gaskill.
    
    For the respondent, Joseph Beck Tyler.
    
   The opinion of the court was delivered by

Bergen, J.

The plaintiff seeks to recover damages arising from tlie death of his intestate resulting from an accident while in the employ of the defendant, and rests his right on section '1 of our Workmen’s Compensation act. He has a judgment entered on the verdict of the jury from which the defendant has appealed. The plaintiff in, his complaint avers that the deceased was in the employ of the defendant; that it was a part of the decedent’s duty as employe to assist in pulling a fire truck down an Incline, in the ferry-house at Camden, Slew Jersey, in case of a fire alarm, and in preparation for such duty to take part in a fire drill whenever required ; that in performing this duty, under the order of the defendant, he fell and suffered injuries which caused his death. The plaintiff proved sufficient facts to support these allegations. The answer of the defendant was a general denial of the averments in the complaint, except that deceased was in the employment of the defendant when the accident occurred, which was admitted. At the opening of the case the defendant moved for permission to- amend its answer by specifically averring that the contract of employment was subject to- section 2 of our Workmen’s Compensation act because there was ho express contract, or notice given, that the agreement of employment was not made with reference to the terms of section 2 of the act, but this the court denied. At the close of plaintiff’s case the defendant moved -for a non-suit, and at the close of the entire case asked for a direction for the defendant upon the ground that there was no proof to sustain the action under the first section of the act, upon which the plaintiff replied, urging that where-there is no proof of an express contract, or of notice given which relieves the plaintiff from'the effect of' section 2, the exclusive jurisdiction to determine the compensation to an employe for injuries arising out of and in the course of the employment was vested in the Court of Common Pleas when the accident, the basis of this suit, happened. The statute has since been altered {Pamph. L. 1918, p. 429), establishing the Workmen’s Compensation Bureau, which, was amended. Pamph. L. 1919, p. 200. The only question presented by this record is whether, on July 24th, 1917, the date of the injury of plaintiff’s intestate, the plaintiff, as administrator of the injured employe, can maintain an action under section 1 of the Workmen’s Compensation act without showing that his contract of employment is not governed by seqtion 2, because there was an express contract to the contrary, or that the required notice had been given. Section 9 of the Workmen’s Compensation act {Pamph. L. 1911, p. 136) provides that “every contract of hiring made subsequent to the time provided for this act to take effect shall be presumed to have been made with reference to the provisions of section 2 of this act, and unless there he as a part of such contract an express statement in writing, prior to any accident, either in the contract itself or b}r a written notice from either party to the other, that the provisions of section 2 of this act are not intended to apply, then it shall be presumed that the parties have accepted the provisions of section 2 of this act, and have agreed to be bound thereby.” Some testimony was taken- upon the question of whether defendant should be allowed to amend its plea, and a witness testified that he had talked over the telephone with the claim agent of the defendant who said that the defendant did not work under section 2 of the Workmen’s Compensation act. But this evidence was not introduced to sustain the issue, still if it had been, there is no proof that the person talking over the telephone had any authority to make any such statement, and if he had, it took place long after the accident and is not the contract or notice intended hy the statute, for it was not expressed in any writing prior to the accident, or hy a written notice. It is also urged by the plaintiff that a written receipt for wages, signed by the decedent, tended to show that his employment was casual. The receipt contained a notice that the employes of the company were not engaged for a particular length of time, and that the company reserved the right to- terminate the service at pleasure; and the party executing the receipt agreed to accept the employment, subject to being discharged at any time. There is nothing in this writing which indicates that the person who executed it accepted a casual employment, for under it the services might continue for an indefinite period. The trial court refused the nonsuit, or to direct, principally upon the ground that it was for the jury to say whether the employment was casual or not, and instructed the jury that if it was casual then the plaintiff could not recover. We fail to find in this ease any evidence that would justify an inference that the employment was casual. When the plaintiff instituted his action he was subject to the statutory presumption that his intestate was, at the time of his death, working under a contract governed by section 2 of the .compensation act, and could not recover under section 1 unless he was able to overcome that presumption by showing an express contract or a notice in writing made before the accident that section 2 did not apply. And the fact that the defendant did' not plead the want of these requisites does- not help the plaintiff, because it is not necessary to plead a presumption of law. Bennington Iron Co. v. John Rutherford, Jr., 18 N. J. L. 105. The present case is substantially like that passed on by this court in Gregutis v. Waclark Wire Works, 86 Id. 610, in which Mr. Justice Trenchard says: “Since the complaint does not aver that the contract contained any express statement, in writing, that section 2 of the act was not intended to apply, nor that any written notice to that effect was given, it is presumed that the parties accepted and were bound by the provisions - of that section.” The effect of that case is, that in an action by an employe for injuries suffered in the course of, and growing out of, his employment, he must aver if he wishes to avoid the application of section 2 of the Workmen’s Compensation act, an agreement in writing, or a written notice given, such as is- required by the statute, and what he was bound to aver as a cause of action he must prove, and if he fails in this, he has not made out his right to recovery. Not having done that, in this case, defendant was entitled to a direction in its favor, and, therefore, the refusal to accede to the defendant’s request was an error for which this judgment must be reversed, and it is .so- ordered.

For mffhnnmice-—Minturn, J. 1.

For reversal—The Chief Justice, Swayzb, Trenci-iard, Parker, Bergen, Kalisci-i, Black, Heppeni-ieimer, Williams, Taylor, Gardner, Ackerson, JJ. • 12.  