WiNboene, J.
Two questions are presented on tbis appeal: (1) Wben tbe defendants in tbeir answer failed to plead tbe North Carolina Workmen’s Compensation Act as a bar to tbe jurisdiction of tbe Superior Court, is evidence competent on trial in tbe Superior Court to prove facts which show tbe parties to be subject to tbe provisions of tbe act? (2) Is tbe judgment of nonsuit valid? We answer both in tbe affirmative.
1. Failure to take objection by answer to tbe jurisdiction of tbe court does not waive tbe right to object to tbe jurisdiction. C. S., 518. There can be no waiver of jurisdiction, and objection may be made at any time.
Johnson v. Finch,
93 N. C., 205, 208;
Hunter v. Yarborough,
92 N. C., 68;
Tucker v. Baker,
86 N. C., 1;
Clements v. Rogers,
91 N. C., 63;
Knowles v. R. R.,
102 N. C., 59, 9 S. E., 7;
Cherry v. R. R.,
185 N. C., 90, 116 S. E., 192.
Tbe court will take judicial notice of a public statute of tbe State, and such statute need not be pleaded.
Wikel v. Comrs.,
120 N. C., 451, 27 S. E., 117;
Hancock v. R. R.,
124 N. C., 222, 32 S. E., 769;
Carson v. Bunting,
154 N. C., 530, 70 S. E., 923;
Mangum v. R. R.,
188 N. C., 689, 125 S. E., 549.
A statute which relates to persons and things as a class is a general law.
R. R. v. Cherokee, 177
N. C., 86, 97 S. E., 758.
Tbe purpose of tbe North Carolina Workmen’s Compensation Act, as disclosed by its language, shows it to be a public statute.
Hancock v. R. R., supra; Webb v. Port Commission,
205 N. C., 663.
In tbe
Hancock case, supra,
it is held tbat it was not incumbent upon tbe plaintiff to plead tbe Fellow Servant Act, a public statute, in order to derive tbe benefit of tbe provisions of tbat act on trial in Superior Court. In tbe
Mangum case, supra,
it was held tbat tbe Federal Em
ployers’ Liability Act, a public statute, enacted by Congress, did not have to be pleaded.
The Superior Court has the duty and power to find
&
jurisdictional fact.
Aycock v. Cooper,
202 N. C., 500, 163 S. E., 569;
Young v. Mica Co., post,
243.
In
Aycock v. Cooper, supra,
speaking to the question as to whether findings of fact by the North Carolina Industrial Commission on jurisdiction are conclusive and binding upon the Superior Court,
Mr. Justice Connor
writes: “The question has not heretofore been presented to this Court, and we, therefore, have no decision which may be cited as an authority, but both a proper construction of the language of the statute, and well settled principles of law lead us to the conclusion that where the jurisdiction of the North Carolina Industrial Commission to hear and consider a claim for compensation under the provisions of the North Carolina Workmen’s Compensation Act, is challenged by an employer, on the ground that he is not subject to the provisions of the act, the findings of fact made by the Commission, on which its jurisdiction is dependent, are not conclusive on the Superior Court, and that said court has both the power and the duty, on the appeal of either party to the proceeding, to consider- all the evidence in the record, and find therefrom the jurisdictional facts, without regard to the finding of such facts by the Commission.”
The plaintiff alleges that the relationship of master and servant existed between the defendants and her intestate, and that the defendants were engaged in sawmill and lumber operations in North Carolina.. It was, therefore, proper and competent to receive evidence upon which to determine the jurisdictional fact.
2. The parties, under the fact situation of the instant case, are presumed to have accepted the North Carolina Workmen’s Compensation Act, and, nothing else appearing, are bound by its terms.
Pilley v. Cotton Mills,
201 N. C., 426, 160 S. E., 479;
Hanks v. Utilities Co.,
204 N. C., 155, 167 S. E., 560.
We have in the instant case the existence of the relationship of employer and employee in a sawmill operation in North Carolina in which there were fifteen or more employees regularly employed. In considering challenge to judgment as of nonsuit, on facts as they appear, it is well to refer to pertinent sections of the Workmen’s Compensation Act. C. S., 8081 (i) (a), provides: “The term 'employment’ includes employment by . . . all private employments in which five or more employees are regularly epiployed in the same business or establishment, except . . . sawmills and logging operators in which less than fifteen employees are regularly employed.”
Sec. 8081 (m) provides: “Every contract of service between any employer and employee covered by this article, written or implied, now in operation or made or implied prior to the taking effect of this article, shall, after the act has taken effect, be presumed to continue, subject to the provisions of this article;.and every such contract made subsequent to the taking effect of this act shall be presumed to have been .made subject to the provisions of this article, unless either party shall give notice, as provided in see. 8081 (1), to the other party to such contract that the provisions of this act . . . are not intended to apply.”
Sec. 8081 (k) provides: “. . .
Every employer
and
employee, except as herein stated, shall be presumed to have accepted the provisions of this article
respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and
shall be bound thereby, unless he shall have given, prior to any accident resulting in injury or death, notice to the contrary in the manner herein provided.”
(Italics ours.)
Sec. 8081 (1) provides: “. . . Notice of nonaceeptance of the provisions of this article and notice of waiver of exemption heretofore referred to shall be given thirty days prior to any accident resulting in injury or death. . . . The notice shall be in writing or print, in substantially the form prescribed by the Industrial Commission, and shall be given by the employer by posting same in a conspicuous place in the shop, plant, office, room, or place where the employee is employed, or by serving it personally upon him; and shall be given by the employee by sending the same in registered letter, addressed to the employer at his last known residence or place of business, or by giving it personally to the employer or any of his agents upon whom a summons in civil action may be served under the laws of the State. A copy of the notice in prescribed form shall also be filed with the Industrial Commission.”
Sec.
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WiNboene, J.
Two questions are presented on tbis appeal: (1) Wben tbe defendants in tbeir answer failed to plead tbe North Carolina Workmen’s Compensation Act as a bar to tbe jurisdiction of tbe Superior Court, is evidence competent on trial in tbe Superior Court to prove facts which show tbe parties to be subject to tbe provisions of tbe act? (2) Is tbe judgment of nonsuit valid? We answer both in tbe affirmative.
1. Failure to take objection by answer to tbe jurisdiction of tbe court does not waive tbe right to object to tbe jurisdiction. C. S., 518. There can be no waiver of jurisdiction, and objection may be made at any time.
Johnson v. Finch,
93 N. C., 205, 208;
Hunter v. Yarborough,
92 N. C., 68;
Tucker v. Baker,
86 N. C., 1;
Clements v. Rogers,
91 N. C., 63;
Knowles v. R. R.,
102 N. C., 59, 9 S. E., 7;
Cherry v. R. R.,
185 N. C., 90, 116 S. E., 192.
Tbe court will take judicial notice of a public statute of tbe State, and such statute need not be pleaded.
Wikel v. Comrs.,
120 N. C., 451, 27 S. E., 117;
Hancock v. R. R.,
124 N. C., 222, 32 S. E., 769;
Carson v. Bunting,
154 N. C., 530, 70 S. E., 923;
Mangum v. R. R.,
188 N. C., 689, 125 S. E., 549.
A statute which relates to persons and things as a class is a general law.
R. R. v. Cherokee, 177
N. C., 86, 97 S. E., 758.
Tbe purpose of tbe North Carolina Workmen’s Compensation Act, as disclosed by its language, shows it to be a public statute.
Hancock v. R. R., supra; Webb v. Port Commission,
205 N. C., 663.
In tbe
Hancock case, supra,
it is held tbat it was not incumbent upon tbe plaintiff to plead tbe Fellow Servant Act, a public statute, in order to derive tbe benefit of tbe provisions of tbat act on trial in Superior Court. In tbe
Mangum case, supra,
it was held tbat tbe Federal Em
ployers’ Liability Act, a public statute, enacted by Congress, did not have to be pleaded.
The Superior Court has the duty and power to find
&
jurisdictional fact.
Aycock v. Cooper,
202 N. C., 500, 163 S. E., 569;
Young v. Mica Co., post,
243.
In
Aycock v. Cooper, supra,
speaking to the question as to whether findings of fact by the North Carolina Industrial Commission on jurisdiction are conclusive and binding upon the Superior Court,
Mr. Justice Connor
writes: “The question has not heretofore been presented to this Court, and we, therefore, have no decision which may be cited as an authority, but both a proper construction of the language of the statute, and well settled principles of law lead us to the conclusion that where the jurisdiction of the North Carolina Industrial Commission to hear and consider a claim for compensation under the provisions of the North Carolina Workmen’s Compensation Act, is challenged by an employer, on the ground that he is not subject to the provisions of the act, the findings of fact made by the Commission, on which its jurisdiction is dependent, are not conclusive on the Superior Court, and that said court has both the power and the duty, on the appeal of either party to the proceeding, to consider- all the evidence in the record, and find therefrom the jurisdictional facts, without regard to the finding of such facts by the Commission.”
The plaintiff alleges that the relationship of master and servant existed between the defendants and her intestate, and that the defendants were engaged in sawmill and lumber operations in North Carolina.. It was, therefore, proper and competent to receive evidence upon which to determine the jurisdictional fact.
2. The parties, under the fact situation of the instant case, are presumed to have accepted the North Carolina Workmen’s Compensation Act, and, nothing else appearing, are bound by its terms.
Pilley v. Cotton Mills,
201 N. C., 426, 160 S. E., 479;
Hanks v. Utilities Co.,
204 N. C., 155, 167 S. E., 560.
We have in the instant case the existence of the relationship of employer and employee in a sawmill operation in North Carolina in which there were fifteen or more employees regularly employed. In considering challenge to judgment as of nonsuit, on facts as they appear, it is well to refer to pertinent sections of the Workmen’s Compensation Act. C. S., 8081 (i) (a), provides: “The term 'employment’ includes employment by . . . all private employments in which five or more employees are regularly epiployed in the same business or establishment, except . . . sawmills and logging operators in which less than fifteen employees are regularly employed.”
Sec. 8081 (m) provides: “Every contract of service between any employer and employee covered by this article, written or implied, now in operation or made or implied prior to the taking effect of this article, shall, after the act has taken effect, be presumed to continue, subject to the provisions of this article;.and every such contract made subsequent to the taking effect of this act shall be presumed to have been .made subject to the provisions of this article, unless either party shall give notice, as provided in see. 8081 (1), to the other party to such contract that the provisions of this act . . . are not intended to apply.”
Sec. 8081 (k) provides: “. . .
Every employer
and
employee, except as herein stated, shall be presumed to have accepted the provisions of this article
respectively to pay and accept compensation for personal injury or death by accident arising out of and in the course of the employment, and
shall be bound thereby, unless he shall have given, prior to any accident resulting in injury or death, notice to the contrary in the manner herein provided.”
(Italics ours.)
Sec. 8081 (1) provides: “. . . Notice of nonaceeptance of the provisions of this article and notice of waiver of exemption heretofore referred to shall be given thirty days prior to any accident resulting in injury or death. . . . The notice shall be in writing or print, in substantially the form prescribed by the Industrial Commission, and shall be given by the employer by posting same in a conspicuous place in the shop, plant, office, room, or place where the employee is employed, or by serving it personally upon him; and shall be given by the employee by sending the same in registered letter, addressed to the employer at his last known residence or place of business, or by giving it personally to the employer or any of his agents upon whom a summons in civil action may be served under the laws of the State. A copy of the notice in prescribed form shall also be filed with the Industrial Commission.”
Sec. 8081 (r) provides: “The rights and remedies herein granted to an employee where he and his employer have accepted the provisions of this act, respectively, to pay and accept compensation on account of personal injury or death by accident, shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, as against his employer at common law, or otherwise, on account of such injury, loss of service, or death.”
In
Pilley v. Cotton Mills, supra,
it is said: “Under the Workmen’s Compensation Act every employer and employee, except as therein stated, is presumed to have accepted the provisions of the act and to pay and accept compensation for personal injury or death as therein set forth. The plaintiff, not being in the excepted class, is bound by the
presumption. Public Laws 1929, cb. 120, sec. 4 (C. S., 8081 [k]). It follows by tbe express terms of tbe statute (sec. 11), C. S., 8081 (r), tbat tbe rights and remedies tbus granted to an employee exclude all other rights and remedies of such employee as against bis employer at common law, or otherwise, on account of injury, loss of service, or death.”
In
McNeely v. Asbestos Co.,
206 N. C., 568, it is stated: “Both parties to tbe controversy are presumed to have accepted tbe North Carolina Workmen’s Compensation Act, and consequently bound by its terms. Moreover, tbe evidence disclosed tbat at all times tbe defendant bad in its employ more than five employees, so tbat tbe jurisdictional question is not involved.”
Tbe Georgia Court goes further than we find it necessary. It bolds tbat in an action in tbe Superior Court for damages for personal injury, where tbe relationship of employer and employee exists, tbe burden is upon tbe employee to prove tbat tbe employer bad rejected the act.
McCoy v. Lbr. Co.,
Ga. App., 251, 143 S. E., 611.
In tbe instant case there is no evidence tending to contradict tbe evidence as to facts upon which tbe Workmen’s Compensation Act creates tbe presumption tbat tbe parties have accepted tbe provisions of tbe act, or rebut tbat presumption. On tbe other band, there is uncon-tradicted testimony tending to show absence of notice of nonacceptance by tbe employer as required by tbe act. (C. S., 8081 [1]). There is no evidence tbat tbe employee gave to employer any notice of nonacceptance.
Taking all tbe evidence in tbe light most favorable to plaintiff, tbe relationship of employer and employee existed between defendant Tom Roberts and plaintiff’s intestate, and tbe accident resulting in tbe death of plaintiff’s intestate arose out of and in tbe course of bis employment. Tbe said parties are within tbe jurisdiction of tbe North Carolina Industrial Commission.
Upon all tbe evidence in tbe light most favorable to tbe plaintiff, tbe plaintiff has failed to carry tbe burden either of showing tbe relationship of employer and employee between tbe defendant Elizabeth Roberts and plaintiff’s intestate, or in establishing tbat defendant Oscar Townsend was agent of defendant Elizabeth Roberts, and for whose negligent acts, in tbe operation of tbe truck, she would be liable.
Tbe judgment below is
Affirmed.