On Motion for Rehearing. The very earnest motion for rehearing filed by counsel for appellee forcibly presents the contention that the majority of this court erred in holding that there was no evidence in the case sufficient to raise an issue against the appellant's evidence showing that the owner of the truck, whose employee negligently caused the truck to strike and kill the minor son of appellee, was an independent contractor and not an employee of appellant.
After full and careful reconsideration of the record, the majority of the court adhere to the conclusions expressed in their original opinion, and the motion has been ordered overruled.
Since appellee's argument on the motion places so much stress upon the alleged change of views of the writer from those concurred in by him in the opinion of the majority of this court in the case of Smith Bros., Inc., v. J. R. O'Bryan, 62 S.W.2d 505, he deems it not improper to say that the record shows that he played a small part in "messing up" the case by the opinions in the Smith Bros. Case if there was such messing. However, as he recalls the record in that case, which is now in the Supreme Court, he was led to concur in the majority opinion because there was evidence tending to show that the appellant in that case had full direction and control of the movements of all the trucks engaged in making deliveries of its products to its customers, and claimed and exercised the right to discharge any of the drivers of these trucks. Whether or not I was mistaken in my fact conclusions or in my conclusions of law thereon in that case does not seem to me to be at all material in the decision of appellee's motion in this case.
There is, in my opinion, no evidence in this case that raises any issue as to whether the driver of the truck, who negligently caused the injury complained of, was an employee of appellant. The material portion of the testimony of all the witnesses in this case is set out in Justice LANE'S opinion and need not be repeated. In goes without saying that if O. F. Bright, the owner of the truck, was an independent contractor, the driver of the truck employed by him and under his exclusive direction was not an employee of appellant.
The fact that the name "The Haden Company" was painted on all the trucks used by Bright, who had a contract with appellant to make deliveries of its products, is of no significance, since the undisputed evidence shows that Bright agreed with appellant when the contract was made to haul and deliver appellant's products, that for advertising purposes the appellant might paint on the sides of the trucks used by Bright under his contract the words "We haul for The Haden Company." *Page 798
It cannot be said merely because the contract between Bright and appellant was not in writing that its terms could not be definite. The evidence as to what the parol contract was is clear, certain, and definite, and such being the case the contract is entitled to the same consideration as one in writing.
Nor does the fact that appellant's business was so large that all of the trucks owned and operated by the contractor Bright were required to carry out his contract with appellant and that for two years Bright's trucks were exclusively used in carrying out this contract tend to show that Bright was not an independent contractor.
The trucking business and the business conducted by appellant were wholly separate and independent business enterprises, and it cannot be held that because Bright's contract with appellant required the use of all of his trucks for two years that Bright ceased to be an independent contractor.