These are the assigned reasons for the dissent:
(1) That the trial court was correct in holding that the issue of whether or not the appellee was an independent contractor, under the evidence, was one for the jury.
This was a case arising under our Workmen's Compensation Law, hence this definition of an "employee," as therein made in section 1 of R.S. article 8309, is the starting point: "`Employee' shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written, except masters of or seamen on vessels engaged in interstate or foreign commerce, and except one whose employment is not in the usual course of trade, business, profession or occupation of his employer."
It is here apprehended that this enactment changed the judge-made concept at common-law of what an employee generally is, as the holdings in Maryland Casualty Co. v. Kent (Tex.Com.App.) 3 S.W.2d 414, and United States Fidelity Guaranty Co. v. Lowry (Tex.Civ.App.) 231 S.W. 818, reflect, rather than still permitted a harking back to the rules and standards of that system, as appears to have been done, without, however, an approval of the opinion by the Supreme Court, in Shannon v. Western Indemnity Co. (Tex.Com.App.) 257 S.W. 522.
Appellant's position and this court's holding in adopting it is that the undisputed evidence showed as a matter of law that the appellee was an independent contractor, wherefore no question was left for the jury concerning it; so that, the appellee's suit being predicated on the averment that he was an employee, it is only necessary to inquire into whether or not an issue of fact about the matter was raised, and, as held by this court in Stinnett v. G., C. S. F. Ry. Co., 38 S.W.2d 615, 617, that is determinable upon this principle: "Under the now well-settled rule laid down by our Supreme Court in Wininger v. Fort Worth D.C. Railway Co., 105 Tex. 56, 143 S.W. 1150, that inquiry must be answered in the affirmative `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.' See, also, Texas P. R. Co. v. Cox, 145 U.S. 593, 12 S. Ct. 905, 36 L. Ed. 829; Brown v. Griffin,71 Tex. 654, 9 S.W. 546; Texas P. R. Co. v. Ball, 96 Tex. 622,75 S.W. 4; International G. N. Ry. Co. v. Tinon (Tex.Civ.App.)117 S.W. 936."
So viewing this record, it seems clear that the issue was raised whether the statutory definition of an employee, supra, be literally applied, or the broader one sanctioned under common-law criteria.
This conclusion is not to be defeated by the conceded fact that there is evidence showing (1) that Blankenship was paid by the job and not by the day; (2) that he had discretion concerning his hours of labor; (3) that he furnished his own tools; (4) that he hired his own men to help him, and paid them not by the day, but in a share of the gross amount to be paid for carpenter labor on the job by the appellant. These enumerated features, at most, are only matters of evidence tending toward a conclusion that he was an independent contractor, but, under our decisions, are far short of being conclusive, as appellants contend, under such cases as Shannon v. Western Indemnity Co. (Tex.Com.App.) 257 S.W. 522, before cited; indeed, the holding in Maryland Casualty Company v. Kent (Tex.Com.App.) 3 S.W.2d 414, 415, supra, expressly determines that question as to the first three of these details the other way in this declaration: "True it is that Kent's compensation was determinable with reference to a quantitative standard, that he had some discretion as to his hours or quantity of *Page 331 labor, and that he was to furnish some of the appliances for accomplishing the results contemplated. But those things are but evidentiary, with probative value according to other elements, and are not at all conclusive of an independent contractorship or other relation foreign to that of `employer' and `employee.'"
In other words, no one fact or feature of the arrangement between the parties is controlling, the ultimate effect of them all as showing whether or not the one exercises "control" over the other in the prosecution of the precise thing to be done under it being the test, as the court thus declared three years subsequent to the cited Shannon decision in Texas Employers' Ass'n v. Owen (Tex.Com.App.) 298 S.W. 542, 543: "There are many features shown by the evidence and stated by the Court of Civil Appeals [291 S.W. 940], wherein the McKnight Company had and exercised control over the deceased in the prosecution of his work. This is the test. As early as Cunningham v. International Railroad Co., 51 Tex. 503, 32 Am.Rep. 632, the Supreme Court, quoting from Sherman and Redfield on Negligence, said: `He is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents not merely in the ultimate result of the work, but in all its details.' This `control' refers to the services to be performed under the contract; that is, it pertains to the precise thing to be done. It, of course, does not relate to those things excluded from the service through the operation of the contract by reservations, limitations, or the like. It relates only to the service within the contract. There is no reason why one who undertakes to serve another may not stipulate for conditions in that service such as the furnishing of tools, the limitation of hours, and the like, thus in a measure controlling the details of the service, without in any wise becoming an independent contractor. This, for the simple reason he has not undertaken a service in which the employer is interested only in the result of his work and not as to the means by which it is accomplished which feature enters into all the definitions submitted by the courts." See, also, King v. Galloway (Tex.Com.App.) 284 S.W. 942, 943.
As concerns the fourth and last of these conceded features, it plainly is so colorless as to tend either way according to the individual viewpoint; it was undisputedly shown to have been customary for the foreman on a job of constructing a house to select his own helpers and pay them by inter sese agreements out of the sum he himself received from his employer; further, that in this instance the amount to be paid to Blankenship was arrived at by calculating the hours of labor necessary and allowing him a living wage for such time for the carpenter work, leaving to him the privilege of selecting and paying those under him, substantially just as is usually done where an employer leaves it to his foreman to engage such men as may be needed to assist him in a given task, and to fix their compensation within named limits; here, moreover, as before appears, the added circumstance of Superintendent Brace's having directly threatened to fire one of these employees because he was not doing his work in a satisfactory manner to Brace counterbalances any effect the other way, and strongly tends to indicate that nothing really different in this respect from the customary practice between employer and employee existed here.
Turning now from these legal rules and principles that must control to the case as actually made, it seems apparent that the trial court was justified in submitting it to the jury, because, not only were there irreconcilable conflicts in the testimony as to what agreements were made (expressly or impliedly) and what was done by each of the parties in the performance thereof, but further, ample evidence to raise an issue over whether their actual engagement was merely for the rendition of personal services in carpenter work by the appellee to appellant, under the control and direction of Brace not alone in simply building the house for it, but also as to how that should be done, rather than one for the construction of it as an entirety according to detailed requirements mutually agreed upon in advance.
To demonstrate that such is the state of the testimony, this epitome of it, taken in the main from the appellee's brief, will be found to be a fair résumé from the statement of facts:
Blankenship testified that he did not talk to Mr. Brace about any contract that had been made, but just went to work with Mr. Brinkley, dealing with Brace through Brinkley. Brace was vice president of the Crain Ready-Cut House Company, and was at that time actively in charge of the company, of its company's office in Southside place, and actively engaged in supervising the work of Blankenship and Brinkley.
After Blankenship had begun work on this job Brace wanted a man that was head of the job to sign the bills and collect the money paid for the job, and asked Brinkley and Blankenship which one he was to go to for those things, and Blankenship took the job; it being customary in the building of houses for one man to act as a "straw-boss" under the superintendent or foreman.
On this job Mr. Brace was there looking over Brinkley's work. Blankenship continued working on this house, but before it was completed Brace came to the house he was working on and took him off and put him on another house, which was in the same neighborhood of the house where Brinkley and *Page 332 Blankenship had been working; the same being in Southside place.
During the time the house on which Brinkley was working was being constructed, Brace came to the job and superintended the work almost every day, and, on the occasions when he did come, superintended the details of the work, and one day, after Blankenship had gone to the other job, Brace came up to the job where Brinkley was working and threatened to fire a man because he was not laying the floor to suit him; on another occasion Brace and Mr. Miller, an agent of the company, being unable to work out certain details with respect to the plan of the roof of this house, arranged a way to frame the roof and put it up, but Mr. Brace came out and objected, and Brace and the architect figured out a different way to frame it, and Brinkley had to take the roof down and reframe it. There were no written specifications on this job.
One evening while Blankenship was working on the above-mentioned job with Brinkley, Brace came over there and told Blankenship he had another house he wanted Blankenship to start — maybe a couple of days later, and Blankenship went over there Monday morning, and the concrete foundation was in already, and some of the material was on the ground, sills, and one stuff and another, but Blankenship did not have any specifications, nor any plans, and went down to the office and was told that they did not quite have the plans blueprinted; so about 10 o'clock he got the plans and went out to work on the house. At that time no agreement or arrangement had been made as to what Blankenship would be paid for doing this work, and the next day, or maybe the next morning, after all of the foundation was in, and the subfloor was on, and the carpenters were fixing to raise the walls, Brace came along and Blankenship asked him what Brace was going to give him for building the house, and Brace said $385; Blankenship agreed to build the house for that. Brace set the figure at this amount in order that he might pay Blankenship enough to get daily wages out of it. Blankenship had no other contract with Brace about building the house. Before Blankenship went to work, there was no agreement as to how the money agreed upon was to be paid, but at the end of the first week Brace came on the job and Blankenship asked Brace if he would let him have so much money, and Brace said: "I have got it figured out at $6.00 a day with a 20% hold-back." There were three men on the job, and he figured out $18 a day for the labor for the three men, and held back 20 per cent., and paid $6 a day for each man, less 20 per cent., until the work was finished. Blankenship went after the pay for the men, but it was divided between them; Blankenship selected the men to work with him, but regardless of whether the work was being done by an independent contractor or not, it was customary for a foreman on a job in building a house to pick the men he wanted to work under him. Blankenship furnished his own tools, but it is the general custom among carpenters to always furnish their own tools on contract work, as well as on journeyman work.
There was no definite agreement as to when the house was to be completed.
It was the practice of the Crain Company, when constructing houses under contract, to submit plans and specifications for bids, receive bids, let the contract on such bids, and draw up a written contract with the contractor to whom the job was awarded; but this practice was not followed in the company's dealings with Blankenship.
Under the arrangement made between the parties, Blankenship had nothing to do with the brickwork, or the plumbing, and did only the carpenter work, and this was done in such a way that Brace could do whatever he wanted done there. The Crain Company furnished all the material on the job, and Blankenship did not know what material was to be used in the house until it was hauled out to the job. Brace would order the lumber sent out there, the Crain Company furnished it all, and Blankenship did not know what to put in the house, except what they told him, and what they sent.
The company furnished Blankenship plans, but no specifications, and Brace told Blankenship that he did not have any specifications, and that he (Brace) would be the specifications. When a house is built under contract, a set of specifications is always given, and these specifications state the material and workmanship. In doing the work thus agreed upon, Blankenship followed the blueprint, or plans, in a general way, but changes were made in these plans as the work progressed, and when they were made and any directions as to the details of the work given, Brace did it. Brace was on the premises every day while Blankenship was doing this work, sometimes two or three times a day, and would come around on the job and give instructions as to what to do.
On one occasion, while Blankenship was working on this house, Brace told Blankenship to build a garage. There were no plans given Blankenship for this garage, and it did not appear on the plans given him, but Brace told Blankenship what he wanted, and how to build it, and Blankenship was busy putting it up, having proceeded far enough to have the studdings up, but not the walls, when Brace came around and told him that the sills had to be creosoted; Blankenship told him: "Why, Mr. Brace, that is lots of trouble to tear that down; why not get a brush like we have done in times past on lots of jobs — just like painting it on." Brace said, "No, you can't do it, *Page 333 it has to be taken down — you can't rub it under the bottom," and Blankenship then did it the way Brace told him and under Brace's direction.
On another occasion, some of the men on the Job were working on a little front porch, and some were working on the back, and Brace came along and said: "Put the rest of these men on that front, and get that front done today; I want to commence with the brick tomorrow." Brace wanted to get the porch done that evening, so the brick men could commence at that particular place the next day. It was not necessary in this instance for Blankenship to take his men from one part of the job and put them on the other in order to get it ready more quickly for the bricklayers, because they might have been started at any other place on the house; but Brace insisted on starting them where the chimney was going to be built, which was right where the little porch was.
The next day Brace came out to the house and found that the carpenters had left an overhang on the porch that was about six inches too far out, and were in the act of sawing it off; Brace came up and seemed pretty sore and said to Blankenship that, if he had done what Brace had told him, it would have been all right. When Brace saw that Blankenship had lost some time because of getting this wrong and was delaying the bricklayers, he reprimanded Blankenship.
In another part of the house Brace had some shiplap left off in one of the closets, right off the left of another vacant place where the stove or ice box was supposed to set. This was done without Blankenship knowing anything about it, and when he inquired about it he was told that Brace had said to leave it off, that he wanted to make a little cupboard over this vacancy; Miller, Brace's assistant, came out there and Blankenship tried to get him not to build it that way, but Miller made Blankenship do it just like he wanted it. This particular detail was not shown on the plans.
On another occasion, Brace instructed Blankenship how the shiplap should be nailed on the house. A boy who was doing it would saw off several pieces of shiplap at a time, and put up one with a couple of nails in it, and then nail all of them at one time, but Brace required that each plank be nailed up solid before another was put up; Blankenship told him he would nail it like Brace said, because he was working for Brace and naturally had to do work like he wanted it.
On another occasion Brace got after Blankenship about working longer hours.
When the house was about to be finished, Brace came out and told the men that the house had to have weather strips. The plans they had did not call for weather strips. Brace did not have the weather strips then, and after that he called them at home and told them to come out and put them up; they went out and Brace showed them how the weather strips went, and directed the details of putting them on. Blankenship did not know how Brace wanted them put on, and Brace told him.
The witness Tedford testified that Brace gave the carpenters instructions on how to nail the lumber, how many nails to put in, about hurrying up, and made them change from one place to another. He further testified that Mr. Brace was supposed to be the plans and specifications for these jobs, and was supposed to tell the carpenters what to do.
Tedford further testified that on another occasion Blankenship started to order the flooring, and spoke to Brace about it; Brace said he did not want to put it in yet — to leave it off until he got ready, and that Blankenship told Brace he wanted the flooring right away, and Brace said that he was not ready for the flooring.
On direct examination Brace testified as follows:
"Q. Do you recall the occasion of Mr. Blankenship getting hurt out there? A. Yes, sir.
"Q. What was he doing with the Crain Ready-Cut House Company at that time? A. He had a contract for the carpenter-labor on the job.
"Q. Will you please relate to the jury the circumstances leading up to that contract? A. The contract was oral.
"Q. Made between you and him? A. Yes.
"Q. Mr. Morris: May I ask, was that contract oral or in writing? A. The contract was oral.
"Q. Made between you and him? A. Yes.
"Q. Mr. Butts: You simply hired him? A. Yes."
On cross-examination the witness Brace testified that he reserved the right to control the details of the job on which Blankership was working wherever it was necessary.
(2) Neither do appellant's other assignments appear to point out reversible error; wherefore the learned trial court's judgment should have been affirmed; this protest against the refusal here of that order is respectfully entered. *Page 334