Allen v. American Cotton Mills, Inc.

175 S.E. 98, 206 N.C. 704, 1934 N.C. LEXIS 284

Opinion

BeogdeN, J.

The demurrer was properly overruled. The identical point involved in this case was decided in Hanks v. Utilities Co., 204 N. C., 155. The Court said: “However, the demurrer was properly overruled. It does not appear upon the face of the complaint that the Workmen’s Compensation Act applies to the defendant. O. S., 8081 (u), provides in subsection (b) that the Workmen’s Compensation Act does not apply to casual employees, 'nor to any person, firm or private cor■poration that has regularly in service less than five employees in the said business within this State/ etc. Aycock v. Cooper, 202 N. C., 500, 163 S. E., 569. The face of the complaint does not disclose that the defendant employs more than five men. A demurrer cannot be sustained unless the vitiating- defect appears upon the face of the pleadings assailed. Justice v. Sherard, 197 N. C., 237, 148 S. E., 241.”

The briefs debate the question as to whether the plaintiff was injured in the course of her employment. If the Workmen’s Compensation Act applies, that question must be determined in the first instance by the Industrial Commission. See Thompson v. Funeral Home, 205 N. C., 801.

Affirmed.

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