
    WOODROW CALAHAN, by His Next Friend, J. H. CALAHAN, v. TOM ROBERTS and Wife, ELIZABETH ROBERTS.
    (Filed 20 November, 1935.)
    Master and Servant F a — Where complaint alleges that defendants were not operating under Compensation Act, demurrer on ground that Industrial Commission has exclusive jurisdiction is bad.
    Where the complaint alleges that defendants employed more than eight employees, but that defendants were not operating under the Workmen’s Compensation Act, a demurrer on the ground that it appeared upon the face of the complaint that the case is within the exclusive jurisdiction of the Industrial Commission should be overruled, since plaintiff may offer evidence under the allegations of the complaint that the employers and employees had exempted themselves for the operation of the act under the provisions of sees. 8081 (1), (v), (x), notwithstanding the provisions of sec. 8081 (k).
    Devin, J., took no part in the consideration or decision of this case.
    Appeal by plaintiff from Phillips, J., at July Term, 1935, of Mitchell.
    Reversed.
    
      Watson & Fonts and M. L. Wilson for plaintiff, appellant.
    
    
      W. 0. Berry and Charles Hutchins for defendants, appellees.
    
   ScheNck, J.

In tbis action, instituted to recover damages for personal injuries alleged to bave been proximately caused by tbe negligence of tbe servant and agent of tbe defendants, tbe plaintiff alleged that tbe defendants employed from “nine to tbirty-five men as laborers in tbe operation” of tbeir sawmill, whereupon tbe defendants demurred to tbe jurisdiction of tbe court on tbe ground that it appeared from tbe face of tbe complaint that tbe ease was cognizable by tbe North Carolina Industrial Commission. Tbe court sustained tbe demurrer and plaintiff excepted and appealed to tbe Supreme Court.

Paragraph 6th of tbe complaint, in part, is as follows: “That as plaintiff is advised, informed, and now alleges, tbe defendants, at tbe time of tbe injuries complained of, and for more than six months prior thereto, were not operating under tbe Workmen’s Compensation Act. . . .”

Notwithstanding O. S., 8081 (k), provides that employers and employees shall be presumed to bave accepted tbe provisions of tbe North Carolina Workmen’s Compensation Act, there are provisions in tbe act whereby employers, as well as employees, may except themselves from tbe operation thereof, O. S., 8081 (1), 8081 (v), 8081 (x), and other sections, and tbe presumption of acceptance may be rebutted by tbe proof of nonaeceptanee, and the plaintiff has laid the foundation for such proof by alleging that the “defendants . . . were not operating under the Workmen’s Compensation Act.” We think this allegation was sufficient to carry the case to the jury, and that his Honor erred in sustaining the demurrer.

Beversed.

Deviu, J., took no part in the consideration or decision of this case.  