#### Wegley, Appellant, *v.*Snyder et al., Appellees.

(No. 1886

Decided April 14, 1945.)

*Mr. John F.*Edwards, for appellant.

*Mr. John B. Harshman,*for appellee M. G. Snyder.

*Mr. Thomas J.*Herbert, attorney general, for appellee Industrial Commission.

Geiger, J.

This case is before this court on appeal on questions of law from a judgment of the Court of Common Pleas sustaining a motion of a defendant to require the plaintiff to elect against which of the two defendants, M. G. Snyder and the Industrial Commission of Ohio, she will proceed. The final order from which appeal is made is:

“It is further ordered that this plaintiff elect whether she will proceed against the defendant, M. G. Snyder, or against the defendant, the Industrial Commission of Ohio.”

Briefly, the facts are as follows:

*242Oil February 6, 1942, and prior thereto, defendant M. G. Snyder, an appellee herein, was the owner of and operated a filling station and lubritorium in Montgomery county, Ohio. On such date and prior thereto, Snyder was also the owner and operator of a gravel business located near the filling station and lubritorium. The filling station and the gravel business adjoined the same highway. Snyder’s employees performed services for the mutual benefit of both the filling station and the gravel pit, the two enterprises were operated substantially as the same business, and no separate office for the transaction of the gravel pit business was maintained. An office for the transaction of the business of the filling station and the gravel pit was maintained in the filling station. At the entrance to the gravel pit, a large sign advertised the fact of the proximity of the filling station and that the employees of the filling station received and transmitted orders for gravel.

The plaintiff’s decedent, Bernard Wegley, was employed by defendant Snyder and worked continuously in the filling station business until his death. His duties were the performance of services generally of a filling station and lubritorium attendant, and the performance of certain duties for the sand and gravel business in taking care of the cars and trucks, servicing the same, taking the calls and orders for sand and gravel and accepting money for the payment of same.

Snyder kept two of the dump trucks used in the sand and gravel business at the filling station during the night or whenever they were not in use. It was the duty of Wegley to drive such trucks into the filling station and place them in position for storage. In order to get the trucks in the filling station into position, it was necessary to drive one-of them onto a ramp *243which was part of the lubricating hoist. Wegley, on the 6th day of February 1942, while in the performance of his duties, had driven one of the trucks into the lubritorium upon the ramp and had closed the door, when the truck ran off the ramp and caught the decedent between the truck and the door, killing him instantly.

Plaintiff, Gertrude Wegley, filed her application, as widow of the decedent, with the Industrial Commission of Ohio, on a form prescribed by the commission for claims against noncomplying employers. The application and an application for rehearing were denied, and the claim was appealed to the Court of Common Pleas of Montgomery county, Ohio. Snyder and the Industrial Commission were made parties defendant. The Industrial Commission was made a party defendant on the claim of the plaintiff that it was a necessary party for the complete determination of the questions involved. It is claimed that Snyder did not pay into the state insurance fund on his employees at the filling station and lubritorium, but did pay into the fund on his employees engaged in the operation of the sand and gravel pit, that is, those actually working at the pit. It is asserted that he did not pay into the fund on the employees of the filling station and lubritorium who performed certain duties for the said sand and gravel pit, and did not pay on the defendant’s decedent, Bernard Wegley.

It is claimed by the plaintiff that the decedent was employed in performing services both at the filling-station and at the gravel pit. The original claim was filed with the Industrial Commission, and evidence was tendered in support of this contention without any objection on the part of the commission or the other defendant to the manner in which the claim was filed.

Snyder filed no answer denying that the decedent *244was employed by bim at the time of the injury causing death.

The specifications of error by the plaintiff are briefly that the court erred in sustaining the defendants’ motion for an order requiring plaintiff to elect whether she would proceed against Snyder or the Industrial Commission, the point being urged that Snyder and the Industrial Commission are necessary parties defendant for the full, and complete determination of plaintiff’s lights in the matter, and that unless objection is made to the form» used in the presentation of the claim, the same is waived.

The first matter that presents itself to our attention is whether the order of the court below, requiring the plaintiff to make an election as to which defendant she would proceed against, was a final order under Section 12223-2, General Code, which describes a final order as being “an order affecting a substantial right in an action, when in effect it determines the action and prevents a judgment, or an order affecting a substantial right made in a special proceeding.”

Without arguing the matter at length, we are of the opinion that the order of the court that the plaintiff elect against whom she is to proceed, Snyder or the Industrial Commission, affects her substantial rights and prevents a judgment. It is true that she may not have a double recovery, but she has the right to bring into court the ones she claims are concerned in the matter that she presents. If Snyder occupied a dual position, one as manager of the filling station, in which capacity he had three or more employees but for whom he paid nothing into the state insurance fund, and if at the same time he occupied the position of manager of the gravel pit where he had three or more employees for whom he paid the prescribed fees into the state insurance fund, and if the decedent, Bernard Wegley, *245gave part of his time to one and part to the other and was killed while he was on the property of the filling station by an instrumentality belonging to the gravel business; the plaintiff should have a right to go forward against both of the possible sources of her compensation for the loss of her husband and try the case on the facts as may be developed. Section 11255, General Code. She should not be obliged to now resort to the exclusive right to recover through Snyder, a noncomplying employer who possibly might have nothing out of which to compensate her after she has recovered a possible judgment. Nevertheless, she has a right of action against him. She should not be obliged at this time, before the trial of the case, to make an election. That is a matter which may easily be determined after the trial has been had and evidence introduced on her behalf. See Section 1465-61, General Code, defining “employee,” and.Section 1465-68, General Code.

One of the jurisdictional grounds which is a basis for a rehearing is the finding that “the employer was not amenable to the law. ’ ’

Section 1465-90, General Code, provides, in part:

“If the claimant is seeking compensation from the slate insurance fund, the defendant in such action shall be the Industrial Commission * * *. If the claimant is seeking compensation from an employer who has qualified to pay compensation direct # * ®, or from an employer who has failed to comply with this act, the defendant in such action shall be such employer % ^ T& *) }*

If there is any evidence tending' to establish the liability of Snyder as proprietor of the filling station, as to which he had not complied by paying into the fund, he clearly is a proper and necessary party de-' fendant.

*246We have held, in *Larimore*v. *Perfect, Admr.,*45 Ohio App., 136, 186 N. E., 739, that in an action for compensation against an administrator of an employer, the Industrial Commission is a proper and necessary party.

In *Sanders v. Industrial Commission,*45 Ohio App., 350, 187 N. E., 185, it was held that the Industrial Commission was a proper party defendant in an action for workmen’s compensdtion, even though the employer did not employ three or more workmen regularly sojas to be amenable to the Workmen’s Compensation Act.

Section 1465-74, General Code, specifically provides for the' procedure against an employer who has failed to make payments to the state insurance fund and refused to pay compensation to the injured person or his dependents.

We find no case on the specific question whether the order requiring a party to elect is a final order, but in *Ghaster*v. *City of Fostoria,*115 Ohio St., 210, 152 N. E., 651, 46 A. L. R., 1439, it was held that a sustaining of a demurrer and dismissal of the suit was a final order. This seems to be analogous, at least, to our question.

*State, ex rel. Galloway,*v. *Industrial Commission,*27 Ohio Law Abs., 697, holds:

“An employee who has sustained two injuries in the same employment, at different times, one of which resulted in permanent disability, but which one may be difficult of proof, may prosecute both claims and is not required to elect one claim as a condition precedent to prosecution of the Other.”

Judge Barnes, at the bottom of page 699, first column of the opinion in that case, discusses subject-matter which is analogous to that in the instant cause.

We are of the opinion that the order of the court *247below is a final order from which appeal can be prosecuted, and we are of the further opinion that the court below was in error in requiring plaintiff to make an election. Sections 1465-74 and 1465-75, General Code.

The judgment of the court below is hereby reversed and the cause remanded.

*Judgment reversed.*

Hornbeck, P. J., and Miller, J., concur.