UPON REHEARING
This case was decided by this court at its March term, 1931, and the judgment of the circuit court was affirmed.* A rehearing was granted, and in this way the case is again before this court.
It is a proceeding by notice of motion in which the plaintiff, Robert Gray Davis, an infant, recovered judgment in the circuit court against the Standard Oil Company, a *712corporation, and Roger A. Callis, defendants, in the sum of $15,000.00. The correctness of that judgment is here questioned by the company.
The material allegations of the notice of motion are: That the Standard Oil Company was the owner and operator of a certain gasoline tank, in which it had placed, or caused to be placed, gasoline, a dangerous and highly explosive substance; that it desired to have the tank removed from the town of Urbanna, in Middlesex county, to the town of Port Richmond, in King William county; that thereupon, without draining the gasoline from the tank and without washing the tank in order to safeguard it from explosion, it directed Roger A. Callis, who was at the time a servant, employee, or agent, of the company, to remove the tank as desired; that Callis, the agent, employee, or servant, of the company, did remove the tank from Urbanna to the premises of R. H. and Emma Clements, preparatory to transporting it to Port Richmond, and permitted the tank containing a large quantity of gasoline to remain therein, uncapped, and opened sufficiently to permit vapor from the gas to escape; that it was the duty of defendants, before removing the tank, to drain and wash it out; that the company was guilty of negligence in leaving the tank thus exposed to ignition; that the plaintiff was on the premises of Clements, where he had a right to be, for the purpose of gathering fodder; that while the tank was in the custody of the defendants, without fault of plaintiff, it was ignited by a spark; that as a result of the explosion plaintiff’s skull was fractured, his body severely burned and permanently disfigured.
The company filed, under oath, its petition, which in substance was a special plea denying that the removal and transfer of the gasoline tank, as set forth in the notice of motion, was such an operation as was inherently dangerous; denying that Callis was its servant, employee, or agent; *713and alleging affirmatively that Callis, in the removal and transfer of the tank, occupied the position of independent contractor.
The prayer of the petition or plea is as follows: “Wherefore your petitioner says that it has been improperly joined as a codefendant in this action with the said Roger A. Callis, and prays that it may be dismissed as a party to the within action.”
Plaintiff thereupon filed, under oath, a replication to the petition or plea, denying all of its allegations.
The trial court, over the objection of the. plaintiff, held as a matter of law that the removal and transfer of the tank, as alleged in the notice of motion, was not an inherently dangerous operation. The court being further of opinion that the petition or plea and the replication thereto presented an issue of fact and not a pure question of law, over the objection of the company, empaneled a jury and submitted to it the issue of whether or not Callis was an independent contractor. At the conclusion of the taking of evidence on the issue raised by the special plea, without objection, the court gave the following instructions:
“The court instructs the jury that a person who is skilled in the performance of a particular kind of work, and who, on account of his skill, is employed to do a piece of work, without restriction upon the means to be employed in doing the work, and who employs his own labor which is subject alone to his control and direction, and undertakes to do the work either according to his own idea, or in accordance with the plans furnished by the persons for whom the work is done, is an independent contractor, and the fact that his compensation is measured by a fixed sum per hour to himself and those employed by him, or that the owner furnishes material for the work, does not affect the status of such person as an independent contractor.
“2. The court further instructs the jury that if they *714believe from the evidence that Roger A. Callis was a person skilled in the work of removing gasoline storage tanks such as the one involved in this case, and who, on account of such skill, was employed by the Standard Oil Company to remove the storage tank in question, without restriction upon the means to be employed in doing the work, that Callis employed his own help which was subject alone to his control and direction, and that Callis undertook to do the work either in accordance with his own ideas or according to the directions given by the Standard Oil Company, then Callis was an independent contractor and the fact that Callis was paid a stated price per hour for his services and those employed by him, and that the Standard Oil Company furnished him materials for the. work, would not render Callis an employee of the Standard Oil Company.
“3. The court instructs the jury that when the contract between the two parties is not in writing, in determining whether one is an independent contractor, or a servant, or employee, the terms of the contract of employment and all the facts and circumstances in the case are to be considered by the jury in determining the fact whether or not the Standard Oil Company of New Jersey and R. A. Callis so contracted as to make Callis an independent contractor within the meaning of the law as given you in the other instructions of the court.
“4. The court instructs the jury that if you do not believe from the evidence that R. A. Callis was an independent contractor as defined in the other instructions of the court; and if you further believe from the evidence that R. A. Callis did, on the order of E. C. Fox, agent for the Standard Oil Company of New Jersey, undertake to move the tank referred to in the evidence, you are instructed to find that Callis was a servant of the Standard Oil Company of New Jersey.
“5. The court instructs the jury that the burden rests *715upon the defendant to establish by a preponderance of the evidence, in the manner set out in the preceding instructions of the court, that the defendant Callis was an independent contractor and not the servant of the defendant the Standard Oil Company.”
Upon the issue joined, the jury returned this verdict:
“We, the jury, upon the issues joined, find that Roger A. Callis was not an independent contractor with the Standard Oil Company of New Jersey, but was the servant of said Standard Oil Company.”
A motion to set aside the verdict was overruled, and thereupon the company filed its plea of not guilty and also filed its grounds of defense. Callis failed or refused to plead the general issue, but the case was proceeded with as though a plea of not guilty had been filed by him. Another jury was empaneled, and the trial resulted in a Verdict in favor of the plaintiff in the sum of $15,000.00 against the company, the effect of which was to find in favor of Callis.
A motion was then made by plaintiff’s counsel to set aside the verdict in favor of Callis, and enter judgment against him as well as the defendant company. The motion was sustained and judgment pronounced against both defendants.
On the three questions: (1) The negligence of Callis, (2) the severity of plaintiff’s injuries, and (3) that the plaintiff was without fault, the evidence is so conclusive that not even a doubt can be entertained.
No contention is made that the damages are excessive.
The errors assigned are:
“1. The court erred in overruling your petitioner’s motion to set aside the verdict and enter judgment in its favor on the ground that the undisputed evidence showed that its codefendant, Roger A. Callis, was an independent contractor for whose negligence, if any, it was in no way responsible.
*716“2. The court erred in admitting the testimony of Fox and Hill Clements in regard to a statement alleged to have been made by Fox to Hill Clements, subsequent to the explosion of the tank, to the effect that he (Fox) would employ a nurse for Leonard Clements, since he was hurt by the company.
“3. The court erred in admitting the testimony of Callis in regard to work done by him on a gasoline pump at Locust Grove farm at the request of the company’s representative, Thrift, on the day following the removal of the tank from Richwine’s service station.
“4. The court erred in admitting the testimony of Roland Davis and Hill Clements in regard to an alleged request, made by Fox of Roland Davis, to furnish him with a written statement as to how the explosion occurred.
“5. The court erred in refusing to grant your petitioner a new trial on account of the improper admission of the testimony referred to in the three foregoing assignments of error.”
It is to be observed that the first assignment of error relates not only to the alleged errors committed by the trial court upon the trial of the first issue, but relates also to the alleged errors committed upon the trial of the second issue. This is borne out by the following statement in the defendant’s petition:
“The court’s action in this respect was the final of its several rulings against your petitioner’s contention that it had been shown by uncontradicted evidence that Callis was an independent contractor for whose negligence, if any, it was in no way liable. The point was saved by your petitioner at several stages during the trial: First, when the court overruled its motion to be dismissed as a party defendant, made at the conclusion of the testimony given before the jury impaneled rto try that issue; second, when the court overruled its motion to set aside the special verdict and *717enter its order dismissing it as a party defendant; third, when the court overruled its motion that it be dismissed as a party defendant, made at the conclusion of the taking of the testimony on the trial on the merits before the second jury; fourth, when the court refused to grant the instructions offered by your petitioner which would have submitted the issue to the second jury; and finally, in the instance first-assigned, when the court overruled your petitioner’s motion to set aside the verdict of the second jury as contrary to the law and the evidence and without evidence to support it, and to enter up judgment in its favor, and entered up judgment on the verdict against your petitioner.”
It is contended by counsel for the plaintiff,' that while the transcript of the record of the first proceeding is copied into the printed record, it is not legally a part thereof, because not certified within the time prescribed by law.
While we entertain doubt on the question, in our view the proceedings of both trials are so interwoven that it is essential for a proper disposition of the case to consider the entire record as we have it. This conclusion, it seems to us, is demonstrated by the record. Though the jury trying the first issue found that Callis was the servant of the company, it was contended by counsel for the company during the progress of the second trial that “this case cannot proceed before this jury without proof of the relationship between Callis and Standard Oil Company.” The trial court concurred in the contention of counsel for the company. Thus, during the progress of the two trials we have the company striving to carry the burden of showing ■ that Callis was an independent contractor, while the plaintiff was striving to carry the burden of proving the facts on which the agency exists.
To sustain the burden imposed by law upon it to show that Callis was an independent contractor, the company introduced as witnesses E. C. Fox and Callis. A summary *718of their testimony, taken from the brief of counsel for the company, is as follows:
“The witness, E. C. Fox, testified as follows: That for nearly five years he had been employed as the general salesman of the Standard Oil Company of New Jersey in the territory contiguous to Urbanna, Virginia; that it was a part of his duty as general salesman to arrange for the installation and removal of gasoline storage tanks at service stations of the company’s customers in that territory; that his duty did not involve the supervision of the work but the arranging to have it done for the company by a contractor; that it is customary for the company to find a man capable of handling the work, to make arrangements with him to handle it at an agreed price and to turn the work over to such party.
“That some two or three years previous he had made an arrangement with Roger A. Callis to do this kind of work for the company in his territory; that Callis ran a store at Stormont and did general electrical contracting work; that he made the following arrangement with Callis in regard to doing the work for the company: the company was to pay $1.00 an hour for his time, which took care of his transportation from place to place where the work was to be done; Callis was to employ his own helpers to assist him in the work, and if he had to have a dray for hauling was to employ the drayman himself; if it was necessary to have extra materials Callis was to purchase them himself; he was to get receipts from his helpers, from the drayman and from the parties from whom he purchased materials, and present them along with his bill to Fox who would in turn forward them to the Richmond office for payment; the company stipulated that the helpers’ wages should not exceed fifty cents per hour, but left it to Callis to effect the best arrangement possible as to the drayman;, the company was to have no jurisdiction over whom Callis hired or when he hired them *719and to exercise no supervision over Callis in the way that he did the work; the only, directions given Callis were that he should drain a used tank of gasoline, wash it out if possible and in every case cap or plug the openings in the tank to prevent escape of gasoline vapors;
“That the foregoing arrangement was made with Callis personally; that after the making of the arrangement the company would call Callis and advise him that it wanted a certain piece of work done; that Callis would sometimes say: T will not be able to do it tomorrow, I have to take my wife to Richmond;’ or that he had some other job on hand, wiring a house or something of the kind; or that ‘I will do it as soon as I can;’ that during the period of two or three years that the arrangement had been in effect Callis had made several hundred installations and removals of tanks without injury or accident and that his work had been very satisfactory—the best he had ever done by anybody;
“That two or three days prior to October 2, 1928, he found that it was necessary to have two of the company’s underground gasoline storage tanks removed from the Richwine Service Station at Urbanna, Virginia; that one of the tanks was to be installed at a station next door to Richwine’s and the other at a station at Port Richmond, Virginia; that he called Callis on the ’phone, outlined to him what had to be done and asked him to remove the tanks, as he had been doing before; that Callis undertook to do the work under the terms of the arrangement that he had previously made;
“That he was not present on October 2, 1928, when the tank in question was removed from Richwine’s station; that he did not know when Callis went to Richwine’s to do the work, and that he undertook to exercise no supervision over Callis in the way he did the work.
“The witness, Roger A. Callis, testified as follows:
“That he was forty-two years old, and that he had oper*720ated a store at Stormont, Virginia, for about five years; that he had been doing electrical work practically all his life,- and that in addition to running his store he did contract work outside, electrical contract work, installation work and various other kinds of contract jobs;
“That he had heard the statements of the witness, Fox, as to the nature of the arrangement made with respect to installing and removing tanks and that they were correct; that under the arrangement he was to receive $1.00 an hour for his services, which covered his transportation to and from his place to the place the work was to be done; that he was to employ his own helpers and pay them in accordance with his own agreement with them; that he did not recall the limitation of fifty cents an hour to such labor as stated by Fox, but that as a matter of fact he had never paid more than that to a helper; that he was to employ his own drayman, paying him such sum as was necessary to get the hauling done and was to purchase such materials as were necessary for the work; that he was to get receipts from his helper, the drayman and the party furnishing the. materials and present them along with his bill to the company for payment; that he had no directions from the company with respect to the work of removing its tanks other than that he should drain the gasoline from them, wash them out if possible, and cap or plug them to prevent the escape of vapors; that the company was not to exercise any supervision or control over the persons employed by him to help or over the persons employed to do the hauling for him as draymen;
“That he had been acting under the foregoing arrangement for about three years and during that time he had removed and installed several hundred tanks without accident or injurious consequences; that it was his custom in doing the work to remove the pipes from a tank and cap or plug it at the joint on top of the tank; that he had obtained most *721of the plugs necessary for this operation from tanks sent to him for installation by the company, but that when he had no plugs from that source he would purchase them himself, get a receipt and be reimbursed by the company; that it was his custom to employ Leonard Clements, a drayman with a truck of his own, who did a general hauling business, to move the tanks for him; that in some cases he would pay Clements a fixed sum for the job and in others would pay him a stated sum for the time the truck was in transit and a lesser sum per hour while Clements was waiting around and doing little things about helping him; that he would pay his helpers and draymen and send the receipted bills to the company and that sometimes those persons signed the receipts before he paid them in order that he might get the money from the company; that he had instructed everyone who worked for him to be very careful about lighting matches near the tanks, or striking the tanks with chisels or hammers;
“That several days prior to October 2, 1928, Fox called him over the ’phone and requested him to move two underground gasoline tanks from the Richwine Service Station at Urbanna, advising him that one was to be installed at the station next door, the other to be moved to Port Richmond and installed at a station there, and that the pumps were to go to the Taylor Motor Company at Urbanna; that he undertook the Richwine station work under the same terms as had been the general custom and expected to be paid in the same manner by the company; that no definite time was specified within which he should do the work;
“That on October 2, 1928, he employed Francis Bennett as a helper and Leonard Clements as a drayman, and with them went to Richwine’s place to do the work; that the company did not undertake to exercise any control over him or the persons employed by him in doing the work; that Fox *722specified no time when the work was to be done and was not notified of the change of place as to when the tank was to be removed to Port Richmond.”
It is contended by the company that “plaintiff’s counsel introduced no witness to rebut this testimony of Fox and Callis as to the nature of the arrangement made between them, and the manner in which the work was to be done by Callis.” In the very nature of things this was an impossibility, as only Fox and Callis, it appears, knew of the alleged agreement. Thus handicapped, plaintiff necessarily had to rely upon such facts and circumstances as were available. These may be thus summarized:
The alleged agreement between Callis and the company was made two or three years before the accident occurred; Callis was directly interested in the result of the trial; Fox was an employee of the company; both of them were contradicted on material matters affecting their credibility. It further appears that the company reimbursed Callis for money expended by him in removing gasoline tanks; that the company paid for any extra material bought by Callis; that during the period of the alleged agreement Callis did certain electrical work for the company under a separate written contract; that while engaged in removing the tank involved Callis was requested by one, Thrift, an employee and agent of the company, to engage in other work for the company; that Callis desisted in the removal of the tank and performed the work as requested by Thrift.
There was no special contract between the company and Callis to remove the tank in question. The most that can be said is that Fox and Callis testified that this particular tank was to be removed under the terms of the general agreement made two or three years prior thereto.
The trial court, under the facts and circumstances proven, was right in submitting to the jury for its determination the question whether or not Callis was an independent *723contractor. While, as stated, “no witness” contradicted the statement of Callis as to the terms of the agreement, it plainly appears that Callis did make contradictory statements directly affecting his credibility. As a witness he stated that he knew that gasoline was in the tank at the time of removal and that he intended to drain it out. In an affidavit made a few days after the explosion, and which was introduced by the company, Callis made the statement that the “tank was well drained before it was put on the truck.” The affidavit was made for the purpose of relieving Callis of the imputation of negligence. It was in direct conflict with his evidence and was impeaching evidence of the highest order. The jury was not bound to accept as true the statements of Fox and Callis.
In Metropolitan Insurance Co. v. Botto, 153 Va. 479, 143 S. E. 625, 628, 154 S. E. 603, the rule laid down by Keith, P., in Clopton’s Case, 109 Va. 818, 63 S. E. 1022, 1023, is approved. In the Insurance Company Case we read: “It is true as a general proposition that the evidence of an unimpeached witness, if not inherently incredible, should be believed; but the fact that a witness has not been impeached —employing the term in its common acceptation—is not conclusively binding upon the jury. The jury are the judges of the credibility of the witness and they have the right to determine from his appearance on the stand, his manner of testifying, his candor and fairness, his contradictions, if any, what weight shall be given to his evidence. Horton’s Case, 99 Va. 855, 38 S. E. 184.”
The refusal of the court to instruct the jury, on the second trial, that Callis was an independent contractor is correct, and the assignment is without' merit.
It is assigned as error that the.court erred in admitting the testimony of Fox and Hill Clements in regard to a statement alleged to have been made by Fox to Hill Clements, subsequent to the explosion of the tank, to the effect *724that he (Fox) would employ a nurse for Leonard Clements, since he was hurt by the company.
It is also assigned as error that the court erred in admitting the testimony of Roland Davis and Hill Clements in regard to an alleged request made by Fox to Roland Davis, to furnish him with a written statement as to how the explosion occurred.
We do not think this evidence irrelevant and immaterial. Fox was practically the main reliance of the company in seeking to establish that Callis was an independent contractor, by virtue of a verbal contract entered into two or three years prior to the accident. He reiterated his statements on the second trial. Therefore, it was competent for the plaintiff to show that he had made contradictory statements.
In admitting the evidence complained of, the trial court instructed the jury that it could only consider it as affecting the credibility of Fox and not as evidence affecting the question of independent contractorship.
Upon the whole case we are of opinion that the judgment is plainly right; therefore, it is affirmed.
Affirmed.
The opinion then delivered was withdrawn and will not be reported.