ON MOTION FOR REHEARING
On' motion for rehearing, the majority.of this Court concludes the evidence raised an issue on the question of employment for the jury to determine, which they djd, favorably to the plaintiff. One of the important elements, suggesting employment, was the- testimony pf Baker, as follows:
' Question“Did they (Cariker) ever have anybody' coiné over, other than this foreman, come or' to hélp you all with anything there?”.. ■
Answer: “The only time he was interested was if I got behind on cutting the sticks'why, he would come over and shut me down on the stickmill, and he would tell me he would put a man up there that would cut enough strips for him, in other words, I would have to go home.”
The majority of the Court are of the opinion that this testimony indicates that Cariker hail control of the machinery and that he could fire plaintiff; and this, with the other evidence in the case was of such nature that the issue was properly submitted to and resolved by the jury.
Appellant also contends the finding of the jury that plaintiff was Cariker’s employee was against the great weight and preponderance of the evidence. After considering all of the evidence, both favorable to and contrary to the verdict, it is concluded by the majority that the verdict is not' so against the weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.
The majority have further concluded that the testimony of plaintiff, both on the stand and in his deposition, was consistent with plaintiff’s'theory of the case that he was Mrs. Moore’s general employee, but Cariker’s special employee at the time of cutting stacking strips; the statement made by plaintiff did not constitute such unexplained judicial admission of fact as to make him an employee solely of, Mrs. Moore, and prevent his recovery herein. U. S. Fidelity and Guaranty Co. v. Carr, Tex.Civ.App., 242 S.W.2d 224.
In connection with the trial court’s definition of “employee”, the jury was instructed as follows:
“You are instructed that, for the ptir poses of the Workmen’s Compensation Law, a worker may have the status of employee in relation to a part of the work being ’ performed.” Defendant objected to this" portion of the charge for the reason it was ’ too broad and general, a comment on the weight of the evidence, a general charge, and failed to place the burden of persuasion upon the proper party. It is concluded that this instruction was not erroneous, and in ' any event the effect could not have been harmful to the defendant.
A careful consideration of the record reveals the findings of the jury that plaintiff had worked in the employment in question for the same or another employer for substantially the whole of -the year preceding the date of his injury,- and that plaintiff’s average weekly wage was $40.00 per week, and that plaintiff sustained total and permanent disability, were supported by the evidence.
The writer of this opinion is convinced that there was no evidence to sustain the finding of the jury that plaintiff was Cariker’s employee, and that such finding is so against the weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Flowever, the writer is *301in agreement with the disposal of the appellant’s other points on this motion for rehearing. ■ ■
The judgment of the trial court is affirmed.