I dissent from the holding that as a matter of law Bounds was "furnishing . . . drivers" to the Gin within the meaning of Section 1(j) of Article 911b. The expense of the drivers' wages was ultimately borne by Bounds in the sense that the compensation paid him by the Gin on termination of the lease was the excess of the regular rates for hauling the cottonseed over the Gin's direct expenses in operating the trucks (exclusive of social security and payroll taxes on the drivers). There is no finding, and the evidence does not conclusively establish, that Bounds would have been liable to the Gin if its expenses had exceeded its revenues, or that Bounds had any obligation to the drivers respecting wages or anything else, or that they had any obligation of any kind to him. Although the evidence shows the Gin in some respects treated the drivers differently than its other employees, there is no finding, and the evidence does not conclusively establish, that such treatment was other than wholly optional with the Gin so far as its arrangements with Bounds were concerned. While it may well be that under the evidence the trial court could have found that the arrangements between Bounds and the Gin were a subterfuge, and that in substance the drivers were actually furnished by Bounds, no such findings were made here. On the contrary, the trial court rendered judgment for Bounds and the Gin, and its findings of fact, as accurately summarized by the court of civil appeals, included the following:
*Page 81Bounds did not have, nor did he exercise, any authority to hire or fire any of the truck drivers who drove the leased trucks; Bounds did not have, nor did he exercise, any authority relating to the rate of pay, working hours, or details of job performance with respect to the truck drivers; Bounds did not have, nor did he exercise, any authority as to the maintenance of the trucks; Bounds had no right to control the hauling operations; and the Gin had the exclusive right to control the hauling operations. 581 S.W.2d 799 at 802.
None of the trial court's fact findings are challenged by the State as being contrary to the undisputed evidence or as being based on no evidence, and such findings are consequently binding on this court. In my opinion "furnishing . . . drivers" as used in Section 1(j) means something more than crediting the "furnished" party with the costs it incurs in furnishing its own drivers. In order for one party to be "furnishing . . . drivers " to another under Section 1(j) there must be a relationship or connection between the drivers and the party who is allegedly furnishing them. No relationship or connection whatever between Bounds and the drivers has been found here, nor does the court's opinion point to any such conclusively established by the evidence. This is not to say that courts should disregard the substance of a transaction, or that they are bound by its form. If the trial court had found (or if the evidence conclusively established) that Bounds in fact hired or selected the drivers, or controlled them, or that there was some significant relationship or connection between Bounds and the drivers, so that they were in substance furnished by him, then, despite the paper work, it would be proper to regard them as having been furnished by Bounds under Section 1(j). But the fact findings, which are not challenged, are to the contrary. So, as we must view the case, Bounds did not furnish the Gin equipment and drivers; the Gin furnished its own drivers; Bounds furnished the Gin equipment and a credit on its rental equal to the Gin's operating costs. I therefore dissent from the holding that as a matter of law Bounds was "furnishing during the same period of time . . . equipment and drivers" to the Gin within the meaning of Section 1(j).1
BARROW, J., joins in this dissent.