Dissenting Opinion.
The writer respectfully dissents from the finding of the majority of this court, that the evidence does not conclusively and as a matter of law show that G. E. Henson was at the time of the collision which resulted in the injuries suffered by appellee, J. R. O’Bryan, an independent contractor. I think the evidence does conclusively and as a matter of law show that G. E. Henson was at the time mentioned an “independent contractor” as that term is generally understood and construed by our appellate courts. So believing, I think the trial court should have instructed a verdict for appellant upon its request therefor.
The employment of Henson by appellant is clearly shown by the testimony of Henson, and it is undisputed by any witness. All the testimony of Henson pertinent to the special agreement or contract between himself and appellant is substantially as above stated.
Viewing the entire evidence, it is inescapable that Henson, in the course of his employment with Smith Bros., Inc., furnished his own car, bore the expense incidental to the operation and upkeep of the same, employed his own men, and paid them out of his own funds, chose his own route in making deliveries, the speed at which he would drive the car, and, outside of Smith Bros., Inc., telling him where to receive the material to be hauled and where to deliver it, no control whatsoever was exercised over him in the performance of his duties.
It is made clear from all the testimony that appellant was looking to Henson only for final results of the work, that it was only interested in having the material delivered under the terms of the contract entered into between itself and Henson. . To my .mind, it is absurd to hold that the supervision exercised by appellant over the work in which it was vitally interested, the performance of which it had let to parties regularly engaged in the business of hauling by the load, furnishing their own trucks, equipment, etc., in so doing consti,tuted~Hen-son an employee of appellant. In my opinion, to hold that one who employs a person who is engaged in the special business of hauling by the load, or under any other special contract, is liable for damages which some third person may suffer by reason of the negligence of the owner of the truck or his driver, would indeed establish a dangerous precedent. I surmise that few, if any, responsible persons would employ truckers to haul for them if they understood that they would be held responsible for injuries inflicted upon third persons by reason of the negligence of the owners of the trucks, or of their drivers. Let us apply an illustration: Suppose A has a lot of furniture situated in Houston which he wishes to have removed to Galveston by trucks, and that upon such fact becoming known to those engaged in the business of hauling for others they present themselves to A and make an offer to haul his furniture from Houston and deliver it to a certain place designated by A in Galveston for $10 per load. A accepts such offer under condition that the trucker was to 'furnish a truck capable of properly hauling the furniture and a competent driver. Could it be reasonably held that A would be liable to persons injured by reason of the negligent driving of the trucks by either the owner or the driver of his truck employed by him? A true test of a contractor is that he renders service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. The mere right of a person who has let out a contract to supervise the work in such a way as to see that it is performed according to contract does not make the one accepting the contract an employee of the person who' let the contract. Security Union Ins. Co. v. McLeod (Tex. Com. App.) 36 S.W.(2d) 449, 451; Southern Surety Co. v. Shoemake (Tex. Com. App.) 24 S.W.(2d) 7; Planters’ Cotton Oil Co. v. Woods (Tex. Civ. App.) 25 S.W.(2d) 188 (writ of error refused).
Security Union Insurance Company Case presents very similar facts to those in the present case. The evidence in that case disclosed that one J. L. Menefee, a hauling contractor, owning six trucks, was employed by Whitham & Co., paving contractors, to haul gravel from a point several miles from town to a place in the city where the gravel was needed. Menefee drove one of the trucks himself and employed drivers for the other trucks. All expenses necessary to the operation and upkeep of the trucks, including gas, oil, and repairs thereon, were borne by Menefee, and the drivers of the trucks employed by Menefee were paid by Menefee out of his own funds. The trucks were loaded from a crane owned and operated by Whitham & Co. As a truck was loaded and *511after a signal to “pull out,” the driver left the pit, delivered the load to its destination, where the load was dumped under the supervision of another employee of Whitham & Oo. Menefee was paid on the basis of 75 cents per yard for the gravel he hauled, which was determined from slips given to the drivers of the trucks at the time the same were loaded. Menefee testified that he had told the drivers of his trucks that as long as they pleased Whitham & Oo. they would have a job; if they did not please Whitham & Oo., he (Menefee) would turn them off. In that case the court said:
“The mere right of a person who has let out a contract, to supervise the work in such a way as to see that it is performed according to contract, does not make the employees of the contractor his employees. Simonton v. Perry (Tex. Civ. App.) 62 S. W. 1090; Smith v. Humphreyville, 47 Tex. Civ. App. 140, 104 S. W. 495, writ of.error refused; American Indemnity Co. v. Dinkins (Tex. Civ. App.) 211 S. W. 949, writ of error refused.
“While it may he true that Whitham & Company loaded the trucks and designated where they should he unloaded when they reached their destination, they had .and exercised no other supervision and had nothing to do with the drivers’ employment or the means by which the hauling was done; they were concerned only in seeing that the trucks were loaded, and in the gravel being delivered to them; then and as delivered, they paid Menefee for the hauling on the basis of 75 cents per square yard.”
In 14 R. O. D. p. 71, § 8, it is said: “But the fact that the employer has some incidental powers over the laborers doing the actual manual work, such as the right to compel the contractor to discharge any workman who is incompetent or who commits some wrongful act or depredation, though generally a fact of some importance tending to show his subserviency, does not necessarily require the contractor to be considered a mere servant.”
I think to hold that appellant is liable for the negligent act of Henson under the facts of this case would be a travesty upon justice. So believing, I respectfully enter my dissent from the holding of the majority, that the evidence does not show conclusively and as a matter of law that Henson was not an independent contractor.
However, the majority has ordered that the judgment be reversed and the cause remanded for the reasons pointed out, and it is therefore ordered that such judgment be and the same is reversed, and the cause remanded.
Reversed and remanded.