The case is thus stated by Justice Blair of the Court of Civil Appeals (2 S. W.[2d] 495):
“Appellee sued in the manner provided by statute to set aside an award of the Industrial Accident Board in favor of appellant for loss of an eye, which, he alleged, resulted from an injury sustained while in the employ of H. E. Wattinger, who was under contract to construct three buildings, in connection with the State Feeble-Minded Colony, at Austin, and insured at the time by appellee, under provision of the-Workmen’s Compensation Act (Rev. St. 1925, art. 8306 et seq.). Appellee resisted the claim and pleaded that Wattinger sublet the particular work at which appellant was engaged when injured to one J. R. Morris, an independent contractor, who employed appellant, and therefore-he was not covered by the policy issued by ap-pellee to Wattinger. Appellant replied that, if' Wattinger sublet the work, which he denied, he still retained control of it, and that Morris and all his employees were under orders and control of Wattinger in doing the actual work of construction, and further pleaded that the contract between Wattinger and Morris was made in fraud of his .right to compensation.
“The jury was asked to find, first, if Morris was an independent contractor; and, second, if’ the contract between Wattinger and Morris was executed in fraud of appellant’s right to-compensation. The jury answered the first issue in the affirmative, and the second in the-negative, and upon these answers the court rendered judgment for appellee.”
The Court of Civil Appeals reversed the-judgment and remanded the cause for another trial upon the grounds that the trial1 court erred in placing the burden upon the-defendant, W. A. Chancellor, to show by a preponderance of the evidence that Morris-was not an independent contractor, and that the explanation accompanying the charge, defining the effect of the contract between Wattinger and Morris with respect to the issue of independent contractor, was erroneous. 2 S.W.(2d) 495.
We are of the opinion the judgment of the-trial court should have been affirmed by the. Court of Civil Appeals for the following reasons:
Under the Workmen’s Compensation Act it was indispensable that defendant in error prove that he was an employee of Wat-tinger, the original contractor with the board *495of control. It was upon this theory only that he predicated his right of recovery in any event. Now this issue was under the evidence a contested one. It was denied by the plaintiff in error that Chancellor was an employee of Wattinger, and on the contrary it was alleged that he was an employee of Mor- • ris, who was an independent contractor under a subcontract with Wattinger. There was evidence to support these respective contentions. This vital issue of whether or not defendant in error was an employee of Wat-tinger was not submitted by the court, nor was it requested by either party to be submitted. Under these circumstances, such issue was waived, and the presumption cannot be indulged that the trial court found it in such way as to support his judgment. Ormsby v. Ratcliffe (Tex. Sup.) 1 S.W.(2d) 1084; Bulin v. Smith (Tex. Com. App.) 1 S. W.(2d) 591. If it should be that the submission of the issue whether or not Morris was an independent contractor was in effect in part a submission of the issue of whether or not defendant in error was an employee of Wattinger, so as to preclude the inference of waiver of the latter issue, then under the statute as interpreted) by the authorities above cited the trial court will be presumed to have found such latter issue in such a way as to support his judgment. But the submission of the issue of independent contractor did no't necessarily involve the submission of the issue of employee or not. It would not follow that, if Morris was not an independent contractor, then he was the agent of Wat-tinger, to employ Chancellor. He may have been a mere employee himself. The contract between Wattinger and_ Morris was not conclusive upon that issue, since Chancellor was not a party to it. So that, in any event, the judgment of the trial court should have been affirmed as conclusively finding against defendant in error, on the indispensable issue- . of his being an employee of Wattinger.
We therefore recommend that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the trial court he affirmed.
CURETON, C. J. Judgment of the Court of Civil Appeals reversed, and judgment of the district court affirmed.