Defendant in error in his motion for rehearing declares that:
“If Morris was not an independent' contractor and had employed Chancellor to assist him, and if Wattinger exercised control over Morris and Chancellor, then Chancellor by virtue of his employment by Morris was an employee of Wat-tinger and the doctrine of master and servant applied.”
And he then strenuously attacks our decision, upon the ground that it virtually overrules former decisions of the Supreme Court, especially Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399, wherein we said:
“It would not follow that, if Morris was not an independent contractor, then he was the agent of Wattinger, to employ Chancellor. He may have been a mere employee himself.”
Counsel for defendant in error have misjudged the scope of our holding. The decision in this case in nowise is contrary to that announced in Wallace v. Southern Cotton Oil Co. We were careful of our words at this point, and pointed out that the finding that Morris was not an independent contractor would not be equivalent to a finding that he was the agapt of Wattinger to employ Chancellor. Of course, the mere fact that Morris was not an independent contractor would not necessarily show that he was not an employee of Wattinger with authority expressed or implied to employ Chancellor. The latter relation might exist, and may have existed in this case,, but the point of decision is that such relation does not necessarily follow from the finding upon the issue of independent contractor, and therefore was not submitted nor requested to be submitted, and is,' under the authorities cited by us, waived. The Wallace v. Southern Cotton Oil Company Case itself makes clear that these two issues are separate and distinct, and a reversal by the Supreme Court was ordered because of a nonobservance of such distinction by the trial court. It will be observed from an examination of that case that the universal test of employer and employee — that is, control — was recognized as applied to the issue of employer and employee, and whatever the facts in this case that issue was not submitted nor requested to be submitted in any form. Our opinion is not only not in conflict, but is in exact accord, with the Wallace Case.
We recommend that the motion for rehearing be overruled.