Adams v. Davison-Paxon Co.
| Decision Date | 13 February 1957 |
| Docket Number | No. 17261,DAVISON-PAXON,17261 |
| Parties | Mrs. Frances ADAMS, Respondent, v.COMPANY, Appellant. |
| Court | South Carolina Supreme Court |
Whaley & McCutchen, Hoover C. Blanton, Columbia, for appellant.
McLeod & Singletary, John I. Rice, Columbia, for respondent.
Respondent recovered judgment against appellant in tort for negligence in the maintenance of the basement stairway of its building. The evidence developed that she was an employee of Emporium World Millinery Company which operated that department of appellant's department store in Columbia. There are several grounds of appeal but the sustention of the ground which will be discussed requires reversal of the judgment and the other grounds need not be considered. It is that respondent is confined to her remedy under the Workmen's Compensation Act, particularly Section 72-111 of the Code of 1952, which follows:
'When any person, in this section and §§ 72-113 and 72-114 referred to as 'owner', undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and §§ 72-113 to 72-116 referred to as 'subcontractor') for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if the workman had been immediately employed by him.'
As indicated, appellant operates a general retail department store which includes departments of men's and ladies' ready-to-wear, shoes, hats, etc., but its ladies' hat department, on the second floor, is operated through the agency of Emporium, based upon a contract which arose in the following manner.
Emporium was already operating the millinery department in appellant's Atlanta store and after negotiations relating to a similar operation in the Columbia store, Emporium addressed a letter, dated August 21, 1947, to appellant in Atlanta, which the latter formally accepted and agreed to the terms of it, as follows:
'Following telephone discussion between your Mr. Frank J. O'Gara and our Mr. J. Altman, this letter is to set out the arrangements for millinery operations in your store at Columbia, South Carolina, as follows:
'A--The Davison-Paxon Company (hereinafter referred to as the Store) agrees to the operation of the millinery department by the Emporium World Millinery Company (hereinafter referred to as the Millinery Company) in its store at Columbia, South Carolina;
'B--Commission on sales--Effective July 14, 1947, the Millinery Company will pay to the Store eighteen percent (18%) of the net sales made in said millinery department to and including October 31, 1947, and beginning November 1, 1947, the commission shall be twenty-four percent (24%) of the net sales in said millinery department.
'C--Terms of contract--It is understood that this agreement shall continue to December 31, 1950, subject to automatic extension to December 31, 1952, unless cancelled by the Store by notice in writing sixty days prior to December 31, 1950, such cancellation is then to be effective December 31, 1950.
'D--The floor location, area, etc., for selling space, workroom, office and stockroom are to be as arranged by the store;
'It is understood that the operating condition of the agreement between the Millinery Company and the Store in the Columbia, South Carolina location, including window space provision, fixture depreciation provision, and all other operating arrangements not specifically otherwise mentioned herein, shall be under the same general provisions, and run current with the other arrangements in effect between the Millinery Company and the Stores at Atlanta, Georgia; Macon, Georgia and Augusta, Georgia.'
The agreement in respect to the Atlanta store, to which the foregoing letter makes reference, was also admitted in evidence, with irrelevant omissions. The material portions of it follow, appellant being the 'party of the first part' and Emporium the 'party of the second part:'
'(a) It is understood and agreed that the party of the second part shall use the space above described for a work room, designing room, and for the sale of millinery and kindred lines of women and misses, which kindred lines shall include millinery trimmings and accessories, and it is understood that the party of the second part shall have the exclusive right to sell millinery and said kindred lines for women and misses in the aforementioned building; provided, however, that the party of the first part shall have the right to sell hats and caps for children.
'(b) The party of the first part agrees, at its own cost and expense, to furnish the necessary light, gas, power, heat, cashier and porter service for all of said space, including light for display cases and fixtures, elevator service, charge and sales books, address cards, sign writing service, stationery, wrapping paper and twine, toilet facilities, and water for ordinary uses in said described space, and delivery service for all merchandise sold by the party of the second part in said building. All necessary fixtures and carpets in the premises shall be kept in condition comparable to the rest of the building by the party of the first part.
'(c) The party of the second part agrees to carry at all times during the tenancy under this agreement a first class stock of millinery and to sell the same at as low prices as the lowest prices prevailing for equal quality merchandise in the City of Atlanta, and to maintain a one-price system as is maintained throughout the rest of the store. Party of the first part shall have the right, from time to time, to examine and criticise and recommend to the party of the second part, based on the judgment of the store executives of the party of the first part, any improvements or changes which in their opinion should be made in the stock of merchandise carried in this department. In other words, the operation of this department shall be under the direct supervision of the staff executives of the party of the first part just as any other department in the store owned and operated by the party of the first part receives such supervision.
'(d) It is further agreed by and between the parties hereto that the party of the second part will pay, during each year of this lease, to the party of the first part * * * dollars per annum in twenty-four equal installments on the first and fifteenth days of each month, as heretofore. In addition thereto, the party of the second part shall also pay to the party of the first part the difference between said guaranteed rental of * * * dollars a year and twenty-three per cent of the actual sales made in said department during the period from December 1, 1940, to November 30, 1941, and in the second year of said lease, that is, from December 1, 1941 to November 30, 1942, shall pay, in addition to said guaranteed annual rental of * * * dollars the difference between said guaranteed rental and twenty-four per cent of the actual sales made in said department. These payments in excess of said guaranteed rental of * * * dollars annually shall be made by the party of the second part four times each year, that is, at the end of February, May, August and November.
'(e) It is further agreed that settlement for sales made in said department shall be made on Thursday of each and every week for the sales of the previous week ending on Saturday, and the party of the first part will pay to the party of the second part on said day the amount of said sales less the rent above stated, on the basis of * * * dollars per annum, and any money advanced by the party of the first part during the week preceding and less any money advanced by the party of the first part to the party of the second part and then unpaid. It is understood and agreed that the party of the first part will consider items of sales which have been charged to the customer and items which have been sent out C.O.D. as cash, and shall include the same in the weekly settlement; however, adjustments of claims on goods returned to the store on which the customer is allowed a refund shall be allowed as a credit to the party of the first part. In case the amount due by the party of the first part to the party of the second part is not equal to the amount of rent accrued due by the party of the second part to the party of the first part, as herein otherwise provided, then the balance of such rent shall be carried forward into future settlements. Settlement for 23% or 24% of the actual sales shall be made as previously described, four times each year.
'The party of the second part shall pay the following expenses in addition to the other obligations hereinbefore expressed, to wit:
'(a) Salaries of all employees employed by the party of the second part in and about the business to be conducted in said Millinery Department.
'(b) All premiums for fire insurance on all merchandise and fixtures in said building owned by the party of the second part and Workmen's Compensation and Public Liability insurances, Social Security and any and all other taxes that may be imposed from time to time by City, State or Federal Government similar to that which is carried by and applies to the balance of the store.
'(c) Said party of the second part will pay for advertising ordered by it from the party of the first part at the same rates paid by the party of the first part, provided such rates can be obtained for it. There shall be included in the cost of such advertising the pro rata cost of the general headings and footings of the advertisements in which the party of the second part has agreed to take space and as well the cost of the space which is devoted to exclusive advertising of said millinery department.
'(d) The full amount of the personal property tax and all...
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