ON REHEARING.
(3) On application for rehearing it is insisted that there is evidence from which the jury would have been authorized' in believing that the servant, Jones, referred to in the opinion, was the servant of the, defendant, and hot of Fortner & Short, as stated in the opinion, and that,, consequently, we erred in the opinion in holding that the lower court was in error in refusing to defendant the general affirmative charge. The testimony *341upon which this contention is predicated is, the brief of appellee states, the statement, as follows, of the plaintiff, as a witness for himself, to-wit:
“Mr. Jones was the man that looked after that; he is the man that the company put at that job.”
What company — the defendant company, a corporation which owned the mines, or the company of Fortner & Short, a partnership, who were under contract to mine the coal in mines? The statement fails to inform us, and, so failing, it in no wise, as we in effect held in the opinion, conflicts with the other evidence, which shows without dispute that Jones was the servant of the company of Fortner & Short, and not of the defendant company. If the statement had been that the “defendant company” put Jones at that job of cutting down the coal and propping the rock, there might be some room for a contention that there was a conflict in the evidence as to whose servant Jones was; but, as it is, we see no conflict.—Birmingham Railway, L. & P. Co. v. Strickland, 192 Ala. 596, 68 South. 911.
Application for rehearing is accordingly overruled.