The opinion of the court was delivered by: Stukes, Chief Justice.
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.
"(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 ...