The considerations prompting the dissent are these:
1. Since this court's judgment of rendition holding that the evidence established as a matter of law that Bright was an independent contractor sets at naught the verdict and judgment rendered below upon findings on special issues to the effect that Robertson, the driver of the truck in question, was an employee of the Haden Company, and that Bright, the owner of the truck, was not an independent contractor, the sole question is whether or not the evidence for the plaintiff below raised the issue of Robertson's being such an employee.
2. The rule of law by which this question must be resolved is that the appellate court, "could not render the judgment, if, discarding all adverse evidence, and giving credit to all evidence favorable to the plaintiff, and indulging every legitimate conclusion favorable to the plaintiff which might have been drawn from the facts proved, a jury might have found in favor of the plaintiff." Wininger v. Ft. Worth D.C. Ry. Co., 105 Tex. 56, 143 S.W. 1150; Ladies', etc., Soc. v. Magnolia Cemetery Co. (Tex.Civ.App.) 268 S.W. 198; Joske v. Irvine, 91 Tex. 574,44 S.W. 1059; Owen v. Al. Parker Securities Co. (Tex.Civ.App.)296 S.W. 620; Harrison v. Orr (Tex.Com.App.) 10 S.W.2d 381; Harpold v. Moss et al., 101 Tex. 540, 109 S.W. 928; Rogers-Hill Co. v. San Antonio Hotel Co. (Tex.Civ.App.) 7 S.W.2d 601; Bowman v. Texas Brewing Co., 17 Tex. Civ. App. 446, 43 S.W. 808.
3. In this instance, there was no definite, defined contract between Bright and the Haden Company — none of it being in writing, but all resting in parol — upon consideration of which the court could determine as a matter of law whether or not it established the relation of independent contractor between Bright and the Haden Company; that is, the establishment of just what the relation between them was had to be determined from the evidence as to how the actual relationship between them was executed and carried out. This being the situation, many of the authorities relied upon by the appellant wherein the court determined that the contracts involved, as a matter of law, established the relation as that of an independent contractor are obviously inapplicable.
When, therefore, the whole body of the testimony upon both the nature of the contract itself and the manner in which it was understood, executed, and carried out by the parties is considered, it seems plain that it did not as a matter of law exclude the reasonable conclusion that Robertson through Bright was, in fact, an employee of the Haden Company; at any rate, it is amply sufficient to have clearly raised an issue of fact that was properly submitted to the jury.
4. As thus appraised, the testimony which justified the able trial court in submitting the special issues to the jury may fairly be summarized as follows:
Bright's trucks at the time of the accident in question and for two or three years prior thereto had been hauling exclusively for the Haden Company, and there is no evidence in the record that he ever hauled for any one else; Bright had been making and was making all the Haden Company's deliveries unless there was too much for such trucks to handle; on the instructions from the Haden Company, Bright had sent his trucks to the paintshop where the sign of the Haden Company was painted on it at the Haden Company's cost and expense; the Haden Company, under Bright's agreement with it, had the right to and did designate the number of loads to be hauled by such trucks, and had the right to and did determine the time for the haul, and the amount of the loads that were to be hauled; the drivers of Bright's trucks were instructed by Bright to travel the route designated by the Haden Company; the Haden Company picked the driver it desired to haul each load; if there were early deliveries to be made, the drivers of Bright's trucks were required by the Haden Company to be at the Haden Company's plants early, and such drivers were also required by the Haden Company to *Page 796 work as long as the Haden Company wanted them to; Bright had nothing at all to do with where the trucks were sent by the Haden Company, nor did he have anything to do with where or how the trucks dumped the materials hauled by them, McDow, the manager of the Haden Company's south end plant being the man in charge of the trucks at that plant.
On the day in question, Robertson, the driver of Bright's truck which killed the plaintiff's minor son, and who had been delivering for the Haden Company nearly three years prior thereto, had reported at the Haden Company's plant at 7 a. m., and, just prior to the collision in question, on instructions from this Mr. McDow, the Haden Company's manager, had had a load of shell loaded by one of the Haden Company's employees on the truck Robertson was driving that had "the Haden Company's" sign thereon; then, in accordance with such instructions, he was on his route to deliver the shell to one of the Haden Company's customers when he ran over and killed plaintiff's minor son.
The evidence of the control (and right of control) by the hirer of the truck over the driver in the instant case is as strong, if not stronger, than that in Smith Bros. v. O'Bryan (Tex.Civ.App.) 62 S.W.2d 505, in which the majority of this court — including the writer hereof — held that such testimony presented an issue for the jury to pass upon as to whether or not the driver was an employee, or an independent contractor. Writ of error has been granted in the case, on application of both parties to the cause, but the Supreme Court has not as yet decided the question.
The opinion of the majority in the present case seems squarely in conflict with the opinion of the Commission of Appeals in Texas Emp. Ins. Ass'n v. Owen, 298 S.W. 542, 543. There the commission held the question as to whether the driver of the truck was an employee or an independent contractor to be one for the determination of the jury, notwithstanding the facts were clearly not so strong as those above shown to have existed here.
In the Owen Case, 291 S.W. 940, 942, this is quoted from the Court of Civil Appeals' opinion:
"The McKnight Company, before employing deceased, demanded to know what class of truck he would use, and advised him of the mileage from the pit to San Jacinto and from the pit to Glenwood, for which he would be paid, what hours he could work, directed him where to drive his truck in the pit to be loaded, directed the character of gravel to be hauled each load, loaded the truck and issued him a ticket at the pit, and directed him whether such load should be delivered at Glenwood or at San Jacinto Heights; and on reaching such destination McKnight Company measured his load, punched his ticket, and directed him where it should be dumped; he was not required to haul any specific number of cubic yards, but he was paid weekly on a basis of the number of cubic yards per mile he had hauled; and, if his truck failed to pull the load out of the pit McKnight Company hauled it out with a team. The deceased was performing unskilled work — manual labor; he was neither building nor producing anything. * * *
"That the deceased was furnishing his own truck, was paid so much per cubic yard per mile, was not required to travel any specific route, nor to haul any certain number of cubic yards, nor to travel at any definite rate of speed, nor to operate his truck in any particular gear, are the facts relied on to show that, as a matter of law, the deceased was an independent contractor, and appellant entitled to a directed verdict * * *
"Under the facts recited and other circumstances in the record, we are not authorized to hold, as a matter of law, that the deceased was an independent contractor (King v. Galloway (Tex.Com.App.) 284 S.W. 942; Missouri, K. T. Ry. Co. v. Romans (Tex.Civ.App.) 114 S.W. 157; Wm. Cameron Co. v. Realmute, 45 Tex. Civ. App. 305, 100 S.W. 194; Geo. McKinstry v. Guy Coal Co. et al., 116 Kan. 192, 225 P. 743, 38 A. L. R. 837, and annotations); but, in our opinion, the court was correct in submitting to the jury as an issue of fact, whether or not the deceased was an independent contractor (Maryland Casualty Co. v. Scruggs (Tex.Civ.App.) 277 S.W. 768, and authorities cited)."
Judge Speer of the Commission of Appeals, on error brought by both parties to the decision of the Court of Civil Appeals, supra, said:
"We agree with the Court of Civil Appeals in its disposition of the association's assignments, complaining that the trial court should have given its summary instruction, and that that court erred in submitting the issue whether or not the *Page 797 deceased was an employee of the McKnight Transfer, Livery Sales Company at the time of the accident in question. We approve what was said by Associate Justice Jackson upon these questions. The facts of this case certainly do not bring the deceased within the accepted definition of an `independent contractor.' * * *
"Practically the only indicium of employer and independent contractor is that the deceased owned and furnished the truck for hauling the gravel that he was engaged to deliver. But this circumstance is no more controlling than if he had insisted upon furnishing his own shovel for loading the gravel when he was otherwise employed as a common laborer by the day. There is lacking here the indispensable feature of an `undertaking to do a specific piece of work.' There was not contemplated any completed job. It was a mere service at the will of the parties. There are many features shown by the evidence and stated by the Court of Civil Appeals, wherein the McKnight Company had and exercised control over the deceased in the prosecution of his work. This is the test. * * *
"There being evidence, then, tending to show that the deceased was an employee of the McKnight Company rather than an independent contractor, and the contract being oral, there was no error in submitting that issue to the jury. Likewise, since the court could not say as a matter of law that the deceased was an independent contractor, the plaintiff in error cannot complain that he submitted that issue also to the jury. We think all assignments of error by Texas Employers' Insurance Association should be overruled."
If the conclusions stated be sound, it follows that the judgment of rendition was erroneous.