I dissent.
As I understand the majority opinion it holds that the evidence shows, as a matter of law, that the leveling work done on defendant’s land was by an independent contractor, and, therefore, the sum paid to him by defendant was not a part of defendant’s payroll, and hence plaintiff cannot recover on the basis of the law applicable to a person subject to the workmen’s compensation laws who has failed to carry workmen’s compensation insurance. I do not agree with this holding.
It is clear that under the circumstances of this case, as pointed out by the majority opinion, the plaintiff is entitled to recover, and the judgment should be affirmed, if defendant and his employees were subject to the workmen’s compensation laws, for under those laws there is a presumption of negligence, and contributory negligence is no defense where *132the employer fails to carry such insurance. The jury was instructed that that was the law, and because of claimed error in those instructions the majority reverses the judgment for plaintiff. In so doing it is necessary for them to say that, as a matter of law, the evidence was insufficient to show that defendant came under the workmen’s compensation laws. It is true that an employer of agricultural labor may not be subject to those laws but he may agree to subject himself to them, and if he fails to give notice of rejection of their provisions he is conclusively presumed to have accepted them—made himself subject to them. (Lab. Code, § 4250.)
Here there is no dispute that defendant failed to give notice of such rejection and the only issue is whether defendant fell within the terms of the last sentence of section 4250 of the Labor Code, reading: “This section shall not apply to any person, or to those employed by him, whose payroll for the preceding calendar year has not exceeded $500.” In applying this provision to the case at bar, the majority fails to consider three basic rules of law which are clearly applicable. They are:
(1) Under the above-mentioned section and the quoted portion thereof the burden of proof rests upon the employer to show that he had a payroll of less than $500 for the preceding calendar year. Once it is shown (as it was here) that an employer is within the terms of the section (4250), and thus an employer subject to the workmen’s compensation laws, then it devolves upon him to prove that he was taken out by reason of having a payroll of less than $500 for the preceding,year as provided in the above quoted last sentence thereof. This is in accordance with the well established rule that one who claims to fall within an exception in a statute has the burden of proving such claim. (Owens v. Luckett, 192 Okla. 685 [139 P.2d 806]; Barringer v. Dinkler Hotels Co., 61 F.2d 82; 31 C.J.S., Evidence, §104, p. 712.) This is in harmony with the general rule that the burden of proof rests upon the one in the superior position to produce evidence on the subject. (31 C.J.S., Evidence, § 113, p. 721.) Obviously the employer has complete control of and access to his own payrolls. His employees do not. Thus, as the jury was the exclusive judge of the credibility of witnesses, it was for it to decide whether the burden had been sustained—the testimony believed. This court cannot say properly, as does the majority here, that as a matter of law, the evidence could not be disbelieved.
*133(2) The evidence on the subject of whether the payment for the leveling job was made as a part of the defendant’s payroll or constituted payment made pursuant to a contract with an independent contractor was sufficient from which the jury could determine that it was the former and not the latter. Defendant, Mr. Bratlie, testified on cross-examination: “Q. How many acres did Jones Brothers level for you? A. I would not know that without looking up the record. Q. Jones Brothers were going to charge you $40 an acre for doing that work, weren’t they? A. They worked by the hour. Q. Originally they intended to charge you $40 an acre, but you would not agree to that, and then you, hired them by the hour, isn’t that right? A. That is right.” [Emphasis added.]
(3) Inasmuch as the issue is whether defendant émployer was subject to the workmen’s compensation laws, from the showing of performance of services as appears from the testimony above quoted, it follows that a presumption arises that the supplier of those services was an employee and not an independent contractor. (See, Industrial Ind. Exch. v. Industrial Acc. Com., 26 Cal.2d 130 [156 P.2d 926]; Schaller v. Industrial Acc. Com., 11 Cal.2d 46 [77 P.2d 836]; Skillman v. Industrial Acc. Com., 131 Cal.App. 493 [21 P.2d 658]; Hartford A. & I. Co. v. Industrial Acc. Com., 93 Cal.App. 313 [269 P. 733].) It was a question for the jury and properly submitted to them, whether defendant had overcome that presumption.
It is clear that we have here presented nothing more than a factual issue which should have been and was submitted to the jury and decided by it. The majority opinion makes that issue one of law and usurps the function of the arbiter of fact contrary to the settled law of this state as provided in our Constitution and statutes and declared by our courts. Under our system of jurisprudence the weighing of the evidence and the determination of the effect of the inferences to be drawn therefrom is solely for the trier of fact (Estate of Bristol, 23 Cal.2d 221 [143 P.2d 689]; Eagles v. Samuels, 329 U.S. 304 [67 S.Ct. 313, 91 L.Ed. 308]; Tennant v. Peoria & P.U.R. Co., 321 U.S. 29 [64 S.Ct. 409, 88 L.Ed. 520]; Ellis v. Union Pacific Ry. Co., 329 U.S. 649 [67 S.Ct. 598, 91 L.Ed. 572]; Labor Bd. v. Hearst Publications, 322 U.S. 111 [64 S.Ct. 851, 88 L.Ed. 1170]; Commissioner v. Scottish Amer. Co., 323 U.S. 119 [65 S.Ct. 169, 89 L.Ed. 113]; Unemployment Compensation Commission v. Aragon, 329 U.S. 143 [67 S.Ct. *134245, 91 L.Ed. 136] ; Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469 [67 S.Ct. 801, 91 L.Ed. 1028]).
In my opinion the judgment should be affirmed.
Edmonds, J., concurred.
Respondent’s petition for a rehearing was denied December 20, 1948. Edmonds, J., and Carter, J., voted for a rehearing.