160 S.E. 479 | N.C. | 1931
The plaintiff brought suit against the defendant to recover damages caused by the alleged negligence of the defendant. The complaint contains the following paragraph: "The North Carolina Industrial Commission upon plaintiff's application for compensation dismissed the same as an accident not sustained in the course of and arising out of his employment."
The defendant demurred to the complaint; the trial judge sustained the demurrer, and the plaintiff excepted and appealed. The complaint sets out the plaintiff's residence, his contract of employment, his duties, and his injury. It contains an averment that the Industrial Commission dismissed his application for compensation for the reason that the plaintiff was not injured by accident arising out of and in the course of his employment. From this judgment there was no appeal.
Under the Workmen's Compensation Law 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 this presumption. P. L., 1929, ch. 120, sec. 4. It follows by the express terms of the statute (sec. 11) that the rights and remedies thus granted to an employee exclude all other rights and remedies of such employee as against his employer at common law, or otherwise, on account of injury, loss of service or death. The appellant's suggested distinction between an injury by accident and an injury resulting from a negligent act cannot avail him. By mutual concession between the employer and employee who are subject to the compensation law the question of negligence is eliminated. Conrad v.Foundry Co.,
Affirmed. *428
