McDuffie v. Nash Neon Sign Co.

HALLEY, J. Homer D. McDuffie, claimant, filed his claim stating that he sustained an accidental injury arising out of and in the course of his employment with the Nash Neon Sign Company on August 24, 1941, and in said proceeding sought to hold the Nash Neon Sign Company and B. Johnson Garage. The State Industrial Commission entered an award in favor of claimant against Nash Neon Sign Company, but released B. Johnson Garage from liability. The award against Nash Neon Sign Company has become final. This proceeding is brought to review the award, and claimant raises the single issue that the State Industrial Commission erred as a matter of law in releasing B. Johnson Garage. The evidence discloses without substantial conflict that the claimant was [569] the employee of the Nash Neon Sign Company, owned and operated by J. B. Nash. He, together with another employee, was sent to the premises of the B. Johnson Garage, a partnership operated by B. Johnson, the father, and Leo F. Johnson, the son. B. Johnson Garage had operated said premises for a number of years as a garage and repair shop. In connection with the business there was a large sign made of metal, weighing around 1,000 pounds, eight feet in width and eighteen feet long. The employees of the Nash Neon Sign Company were sent to reconstruct this sign and place neon letters on certain portions thereof. It was while they were attempting to repair and reconstruct the sign that the claimant sustained the accident in question. Claimant cites and relies upon Diamond Ice Co. et al. v. Seitz, 188 Okla. 54, 105 P. 2d 784, and Green v. State Industrial Commission, 121 Okla. 211, 249 P. 933. These cases are authority for the rule that where the principal employer is engaged in a hazardous business as defined by the Workmen’s Compensation Law, 85 O.S. 1941 §1 et seq., and employs an independent contractor, likewise coming within the Workmen’s Compensation Law, to do anything incident to and connected with the business, occupation, or trade of the principal employer, it is the duty of such principal employer to see that the independent contractor carries insurance or has otherwise complied with the Workmen’s Compensation Law. There is nothing in Amerada Petroleum Corporation v. Vaughan, 200 Okla. 226, 192 P. 2d 639, to the contrary. In Diamond Ice Co. et al. v. Seitz, supra, we said: “An employer carrying on for pecuniary gain a trade, business or occupation recognized and designated in the Workmen’s Compensation Act of this state (O.S. 1931 §13348 et seq., 85 Okla. St. Ann. §1 et seq.) as being hazardous, is legally bound to exact of an independent contractor a compliance with said law, in instances wherein manual or mechanical work or labor, which is a part of, or process in, such business, trade or occupation, is to be performed by the independent contractor and his employees.” Therein the principal employer, engaged in the manufacture of ice, had hired an independent contractor, likewise coming within the Workmen’s Compensation Law, to make constructions and repairs incident to and connected with the manufacture of ice. However, there is nothing in the record to show that B. Johnson Garage had two or more employees, as required by Title 85 O.S. 1941 §11, and construed in Carper v. Brandon et al., 195 Okla. 192, 156 P. 2d 623, or that this particular garage came under the Workmen’s Compensation Law as being a “workshop”, as defined in Title 85 O.S. 1941 §2, as was held in Gooldy v. Lawson et al., 155 Okla. 259, 9 P. 2d 22. The trial commissioner who made the findings in this case and released the B. Johnson Garage did not state on what grounds it was being released. We think that this should have been done, for the reason that if the B. Johnson Garage employed two or more persons and was a garage, that came under the Workmen’s Compensation Law as being a “workshop”, and the petitioner in this case was engaged in a hazardous employment for an independent contractor, the B. Johnson Garage would be secondarily liable under Title 85 O.S. 1941 §11. It is the duty of the State Industrial Commission to make specific findings of ultimate facts responsive to the issues, as well as conclusions of law, upon which an order is made granting or denying an award of compensation to a claimant. Adams v. City of Anadarko, 198 Okla. 484, 180 P. 2d 159; Corzine v. Compress, 196 Okla. 259, 164 P. 2d 625. The respondents urge that this was a purchase of a new sign, but the facts [570] in the case reveal that it was not a purchase and installation of a new sign, but that it was the repair and reconditioning of a sign already in place and owned by B. Johnson Garage. The trial commissioner found, we think correctly, that J. B. Nash, d/b/a Nash Neon Sign Company, at the time this sign was being repaired, was engaged in a hazardous employment. The sign business is not specifically covered by the Workmen’s Compensation Act, but no one has raised the question on appeal. However, we held in Switzer Advertising Co. v. White, 188 Okla. 567, 111 P. 2d 815, that while the business of outdoor advertising does not appear eo nomine in those employments enumerated in Title 85 O.S. 1941 §2, the business of outdoor advertising, as this was held, would be “construction work” under subd. 14, sec. 3, Title 85, O.S. 1941, and as such would be under the Workmen’s Compensation Law. The authorities offered by the respondents to sustain their position are cases in which the principal employer was not engaged in a hazardous occupation, but they do not cite a case that relieves the principal employer from liability where he is engaged in a hazardous employment, and the independent contractor is likewise engaged in a hazardous employment. This case is being sent back to the Industrial Commission for it to determine whether or not B. Johnson Garage employed two or more persons, and whether or not the garage was a “workshop” within the meaning of the Workmen’s Compensation Act. Order vacated. DAVISON, C.J., and WELCH, LUT-TRELL, and JOHNSON, JJ., concur. ARNOLD, V.C.J., and CORN, GIBSON, and O’NEAL, JJ., dissent.