delivered the opinion of the court.
*3983. Workmen’s Compensation Act, § 12*—when plaintiff must show in pleadings that either of parties not under. In an action to recover for the death of an employee, the burden is on the plaintiff to assert in his pleadings and to prove that either the employer or the employee is not hound hy the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. V 5475(1) et seq.].
■ 4. Workmen’s Compensation Act, § 14*—duty of plaintiff in action for death to prove that employment is hut casual. In the. provision in section 5 of the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. If 5475(5)] that the term “employee” shall be construed to mean “every person in the service of another under any contract of hire, * * * but not including any person whose employment is hut casual,” the concluding words constitute an exception, and, in an action to recover for the death of an employee, the plaintiff, to bring himself within the exception, must affirmatively prove it
5. Workmen’s Compensation Act, § 12 * —what is essential allegation in action to recover for death of employee. If, in an action to recover for the death of an employee, plaintiff does not, in his declaration, negative the presumption .that the parties are under the Workmen’s Compensation Act [Callaghan’s 1916 St. Supp. If 5475(1) et seq.h, he has failed to state an element, the existence of which is essential to entitle him to recover.