dissenting.
On the original hearing I concurred in the conclusion of the court that the judgment of the trial court should be affirmed; but upon re-examination of the record upon the rehearing, I have been convinced that I was in error in my judgment. I am now of opinion that the judgment of the trial court should be reversed.
In this action Davis sued Roger A. Callis and the Standard Oil Company for personal injury resulting from the negligence of Callis in moving a large gasoline tank. The declaration alleges that Callis was acting as the agent of the Standard Oil Company, and is liable under the doctrine of respondeat superior.
*725The Standard Oil Company filed its petition in which it denied that Callis was its agent, alleged that he was an independent contractor employed by it to move this tank, and prayed that it be dismissed as having been improperly joined in the action with Callis.
On the motion of the Standard Oil Company a jury was impaneled on May 29, 1930, and this single issue was submitted to it, upon the evidence introduced before it. On June 30, 1930, the jury returned a verdict finding that Callis was not an independent contractor and was the agent of Standard Oil Company; and was thereupon discharged. The Standard Oil Company then moved the court to set aside the verdict of the jury on the ground that it was without evidence to support it, which motion the court overruled.
After the verdict returned by the first jury, the Standard Oil Company then pleaded the general issue, and though Callis filed no plea, the case was further proceeded in as if he also had plead the general issue. On the same day, May 30, 1930, a new jury was impaneled and the case was tried on the general issue. Upon the evidence introduced in the trial of the general issue, the jury returned the following verdict: “We, the jury, find for the plaintiff and fix his damages at $15,000.00.”
Counsel for plaintiff then suggested that the verdict might be uncertain as to whether it was a verdict against one or both defendants. The court then remarked: “I think it is against both,” and upon the motion of the plaintiff, the court instructed the jury, says the record, “to return to their room and state in their verdict whether the verdict was against one or both of the defendants.” The jury having returned to their room to further consider their verdict, returned into court with the following verdict: “We, the jury, find for the plaintiff upon the issues joined, and assess his damages at $15,000.00 against the Standard Oil Company.” The Standard Oil Company then moved *726the court to set aside the verdict against it and enter final judgment for it, on the following grounds:
“(1) Because of the improper admission and exclusion of evidence by the court during the trial of the case;
“(2) Because of misdirection of the jury by the court as to the law of the case;
“(3) Because the verdict is contrary to the law and the evidence;
“(4) Because the verdict is excessive;
“(5) Because it is against the Standard Oil Company alone and not against both defendants.”
And the plaintiff moved the court to set aside the verdict "in favor of Roger A. Callis,” because the verdict in not finding against Callis as well as the Standard Oil Company is contrary to the law and evidence and without evidence to support it; and further moved the court to enter judgment in its favor against both Callis and the Standard Oil Company for $15,000.00, the amount of damages ascertained by the jury.
The court overruled the motion of Standard Oil Company, but sustained the motion of the plaintiff, and rendered final judgment in favor of the plaintiff against both Callis and the Standard Oil Company for $15,000.00.
At the time this case was first considered by the court, I was under the impression that the evidence introduced upon the issue presented to the first jury (was Callis an independent contractor or the agent of Standard Oil Company?) was not in the record; and that the only evidence contained in the record was the evidence introduced before the second jury upon the trial of the plea of the general issue. In this I was mistaken.
A part of the evidence contained in the record is the evidence introduced before the first jury, and a part of it is the evidence introduced before the second jury.
The court in its opinion on the rehearing expresses some *727doubt as to whether the evidence introduced before the first jury has been properly certified by the judge, though it seems to consider it. On this point I have no doubt. I think this evidence has been sufficiently certified by the judge not only to permit but to require its consideration.
On the trial of the issue of independent contractor or agent, the only - evidence introduced was the testimony of E. C. Fox, a general salesman of the Standard Oil Company, and R. A. Callis, the defendant whose negligence is the basis of this action, who were introduced by the Standard Oil Company. The plaintiff put on no testimony whatever.
Below I quote every scintilla of testimony introduced on the trial of this special issue which has the remotest bearing upon whether Callis was an independent contractor or the agent of the Standard Oil Company, or which can by any stretch of imagination be supposed to have any possible tendency to impeach or cast suspicion on the testimony of these, the only two witnesses introduced. In order that I may be absolutely sure that I have not omitted something that the court may have deemed to have some bearing on the question here in issue, I have included much testimony which, in my judgment, might with propriety have been omitted:
Direct Examination of E. C. Fox.
“Q. Is it a part of your duty as general salesman in the territory contiguous to Urbanna to arrange for the installation and removal of storage tanks at any service stations of customers who buy gasoline in quantities?
“A. Not to supervise the work, but to arrange it.
“Q. What are your instructions from the company as to how such an arrangement should be made?
“A. We make arrangements with the man to carry out the contract and pay him so much to do this work, and turn it over to him after the arrangements have been made and find that he is a man capable of handling it, or we think he is capable of doing it.
*728“Q. Who does that work for the company in the territory contiguous to Urbanna?
“A. Mr. R. A. Callis.
“Q. How long' have you been dealing with him in work of that kind?
“A. I would say approximately around three years—two and a half or three years.
“Q. Could you approximate, Mr. Fox, in a way satisfactory to yourself, how many installations or removal of tanks Mr. Callis had made for the company during that period?
“A. Well, I couldn’t say how many; no, sir. I would say possibly around 150 or 200 and possibly as many as 250.
“Q. When Mr; Callis was employed to do this work, what were the terms of your contract with him?
“A. I had arranged with Mr. Callis (there was no written contract) whereby we agreed to pay him $1.00 an hour for-his time, which took care of his transportation from his place to the place where he did the work, and we would pay him for a helper—that is, that he would pay the helper himself and get a receipt from him, but the helper’s wages were not to exceed fifty cents an hour, and, of course, if he had to buy extra material on the job he paid for that and got a signed receipt from whoever he bought material from. If he had to have a dray to haul it any distance, he hired the dray himself. We had no jurisdiction over who he hired, or when he hired him, when he was on the job, and he paid the drayman and would also get a receipt from him. Then, of course, whatever he produced receipts for, we reimbursed him to the amount of money that he had advanced on the job.
“Q. Did you make an arrangement with Mr. Callis to remove a tank, two tanks, on the 2nd of October, 1928, I think it was, from the property of Mr. Richwine, in Urbanna?
*729“A. Yes, sir.
“Q. Was the arrangement you made with him at that time the same as you just described?
“A. Yes, sir; the same arrangement I just described.
“Q. How was the arrangement made—personally or how?
“A. I just asked him if he would take up these tanks at the Richwine place. One was going to one place and one to another, and I gave him the outline, and to remove them as he had been doing before.
“Q. You gave him instructions to take up the two tanks, and told him where you wanted them carried?
“A. Yes, sir.
“Q. Do you recall where the tanks were to be carried?
“A. One tank was to be removed a very short distance— the other tank, when he delivered that, was to go to Mr. F. C. Robbins, of Port Richmond.
“Q. Were you present when the work of removal was done?
“A. No, sir.
“Q. Was any representative of the Standard Oil Company present?
“A. Not that I know of.
“Q. You undertook to exercise no supervision over Mr. Callis in the way that he did the work?
“A. No, sir; absolutely none.'
“Q. Had Mr. Callis’s work, during the period of time you said that he had been employed in doing similar work, been satisfactory in its results?
“A. Very satisfactory—the best I ever had done by anybody. I never had to send him back for leaks or anything.
“Q. When one of these tanks is removed, what is it customary to do?
“A. When the tank is removed, of course it is taken out, and it is customary to plug the openings. We plug them *730and take off the pipes, when the tank is taken from the ground, and take them off right at the tank and plug them up. Most of them used here are screw plugs.
“Q. If a screw plug is not available, can any other object be used?
“A. You can use wooden plugs; yes, sir.
“Q. From your experience in the handling of those tanks, are you able to state to the jury whether, after a tank has been removed, its pipes are plugged up, it is a safe thing for a person to handle?
“A. Yes, sir. After it is plugged, absolutely. There is no reason why it should not be.
“Q. You say Mr. Callis has removed probably 200 or 250 of them?
“A. I would say so; yes, sir.
“Q. Have you ever had any dangerous or injurious consequences result from handling them in the manner in which you describe?
“A.' No, sir; we never have.
Cross-Examination of E. C. Fox.
“Q. You say Mr. Callis has been removing tanks for you and the Standard Oil Company two or three years?
“A. Yes, sir; something like that. I don’t know just the date that he started.
“Q. You had a general understanding with him that whenever you wanted a tank removed, you would notify him?-
“A. Of course he would not go out here and take up on'e of our tanks unless we did tell him. Of course, he wouldn’t go out and take up tanks promiscuously.
“Q. You did have a general understanding, whenever you wanted a tank removed, that you would notify him and he would remove it?
“A. Yes, sir.
“Q. During that period of two or three years, did you ever get other people to remove tanks?
*731“A. It may be during that time that there were one or two tanks removed by some other people. I do not know about moving any that I made any arrangement with. In fact, I have never made any arrangement with any one except Mr. Callis in this territory.
“Q. Didn’t Mr. Callis do other' work for you (the Standard Oil Company) during that period of two or three years other than removing tanks? As a matter of fact, didn’t Mr. Callis put the lights in front of Mr. Raymond Jones?
“A. Yes, he put the bungalow sign up in front of Mr. Raymond Jones.
“Q. Under what sort of contract did he do that?
“A. For so much.
“Q. For so much money?
“A. So much money.
“Q. In other words, he bid on that contract and he agreed to do it and put it in place for a lump sum of money?
“A. Absolutely.
“Q. Is that the only job that you remember that he did under a special contract of that sort?
“A. Since he has done that, when we want a thing of that kind done, he does it for the same amount.
“Q. For the same amount of money?
“A. Yes.
“Q. And in each case it was a lump sum of money and he paid whom he chose to do it?
“A. Yes.
“Q. In this particular case I understood you to say you had an arrangement with Mr. Callis by which you were to pay him one dollar an hour?
“A. Yes.
“Q. The petition states you were to' pay him $1.00 an hour for his work and for transportation, going to and from his work?
“A. Yes.
*732“Q. You paid Mm $1.00 an hour from the time he left his place?
"A. Yes; it included his transportation from his place to where he worked.
“Q. And he employed whom he chose to assist him?
“A. Yes.
“Q. But he could not pay his employee over fifty cents an hour?
“A. That we would not be responsible for anything in excess of fifty cents an hour.
“Q. Did you make any limitation as to what he should pay for truck hire?
“A. No; he should use his judgment about that.
“Q. If he paid for his truck hire more than you thought reasonable, you would not have paid it, would you?
“A. No. Of course, under the contract we had with him, we possibly would have had to pay it.
“Q. Who paid these bills to his employees?
“A. He paid them.
“Q. After the work was done, he would present you with a bill for his time, and for the work of Mr. A, B, or C, and the time that he made, and for the hire of the truck; is that the way the bill would be made?
“A. With the receipts attached, that he paid that amount of money.
“Q. And that was always done before you paid the bill?
“A. Yes. I never paid it at all.
“Q. The bill would be presented to you, and it would be OK’d and sent to the Standard Oil Company and paid by the Richmond office?
“A. Yes.
“Q. You say in this particular instance you simply called Mr. Callis over the phone and told him you would like to have two tanks removed from Richwine, one to Port Richmond and the other to Mr. Charlie Palmer’s?
*733“A. Yes.
“Q. And he proceeded under that direction to carry out the contract?
“A. That is true.
“Q. There was no sort of contract made at that time?
“A. No. The contract had been previously made.
“Q. He was doing it in accordance with a previous arrangement made probably a year or two or three years ago?
“A. Yes.
“Q. Did you at any time direct, after notifying Mr. Callis to remove this tank—did you at any time tell him to change the position or place where you wanted it carried?
“A. No, sir; I did not.
“Q. Did you ever tell him you probably would not want it carried to Port Richmond?
“A. No, sir.
“Q. Do you know which tank he removed first—the one to Charlie Palmer’s or the one to Port Richmond?
“A. I understand he took them both up at the same time. He was putting in one at Charlie Palmer’s before he proceeded to Port Richmond.
“Q. As a matter of fact, your contract with Mr. Callis involved the moving of two empty tanks?
“A. Moving empty tanks and installing empty tanks.
“Q. You had no special agreement with him that he should take the gasoline out of the tanks did you?
“A. Yes. All tanks are to be drained.
“Q. By whom?
“A. By him or his helper.
“Q. Did the contract require him to do that?
“A. Yes, sir; absolutely, all tanks to be drained.
“Q. What became of the gasoline that he drained out of the tanks?
“A. I don’t know. I have never seen him do it. He *734told me Mr. Bennett used quite a bit of it in his car, but I don’t know. That is what he told me, but I didn’t see him.
“Q. Did the contract require Callis to plug the holes up in the tanks before he removed them?
“A. Yes, sir.
“Q. Why?
“A. To prevent the vapor that might be in the tank from rising.
“Q. Why did you want to prevent the vapor? I know, but I would like you to tell the jury?
“A. To prevent the vapor from escaping.
“Q. Why not let it escape?
“A. Of course, if you are not going to let it escape, just as I understand he let the one at Mr. Palmer’s—he plugged it. If people, walking by that particular tank, would strike a match in the opening, of course the vapor would fire if you struck it right in the opening.
“Q. Mr. Fox, after this accident occurred, did you not go to see the Davis boy down here at their home?
“A. Yes, sir.
“Q. Didn’t you attempt and request them to give you a written statement how the accident occurred?
‘ ‘A. I asked them to give me a statement how it occurred.
“Q. In writing?
“A. I didn’t care whether it was in writing or how. I didn’t ask them to write it, but to give me a statement how it occurred.
“Q. Of course, you went there as agent of the company?
“A. I went there, yes, sir; and I also went to the hospital to inquire how he was. I drove up there Monday and back.
“Q. Did you go to see Mr. Clements? (Note, Clements was injured by same explosion that injured the plaintiff Davis.)
“A. I went to see Mr. Clements, and went to the hospital *735to inquire about Robert Gray Davis. I went to both hospitals.
“Q. Didn’t you offer to employ a nurse for Mr. Clements?
“A. Absolutely no, sir.
“Q. Did you not go to the Memorial Hospital, and, in a conversation with Mr. Hill Clements, the father of Mr. Leonard Clements, who was killed the same time this explosion took place, say to him, after inquiring about this boy—ask about a special nurse, and say you would like to give him a special nurse, as he was hurt by your company?
“A. Absolutely no, sir. I asked him up there—he told me he had some oysters coming up here that he wanted some gentleman (I have forgotten his name) to take care of and see that they were planted on his shore, and that would see him when he got back, and asked me to see that man. I did the following morning, but as far as any nurse or any assistant was concerned, no, sir—absolutely not.
“Q. You deny telling him that he was working for the company?
“A. Yes, sir; absolutely. He was not working for us.”
Mr. Gay: “He is dealing with Mr. Clements, if your Honor please. This is Davis’ case and not the Clements case. * * * I, therefore, renew my objection to the question.”
Mr. Evans: “He has testified as to the character and nature of the contract,. which we are trying to rebut. If this witness says that Mr. Clements, in the exercise of his duties, in the very moving of this very tank, which they claim Mr. Callis was moving as an independent contractor, if this witness says to Mr. Clements that your son was working for us, I submit that is evidence to go to this jury for them to decide whether or not he was working for Callis or whether he was working for him as an independent contractor, and it goes to the merits whether Mr. Callis was an independent contractor.”
*736Witness: “I do not believe Mr. Clements will state that. I believe he is more truthful.
“Q. I ask you whether or not Mr. Clements helped Mr. Callis to remove it?
“A. Do I know?
“Q. Yes.
“A. No more than what I was told. I didn’t see him there.
“Q. Did Mr. Callis tell you?
“A. Yes. I didn’t see him working there.
“Q. Any bill that was presented to you for payment, does Mr. Callis give you the names of the helpers?
“A. He gives a receipt signed by the helper.
“Q. It is a fact, I think, that will not be denied that the tank was taken up on a Tuesday evening; will you please state to the jury whether or not you directed, or any of the agents of the company, directed Mr. Callis, oh Wednesday morning, to go to work on another job?
“A. It may have been. I did not.
“Q. You don’t know whether it was done, or not?
“A. No.
“Q. Mr. Fox, you stated that Mr.' Callis has installed and removed for you in the past two or three years quite a number of tanks, estimated by you to be possibly 200. State how many of those tanks were new tanks and how many were used tanks, or have you any idea?
“A. I couldn’t tell you.
“Q. Quite a number were new?
“A. Some few were used possibly and maybe fifty to seventy-five, or maybe 100, he may have taken up himself. Maybe some of them were taken up from some other part of the State and used here. I don’t know just how many were used tanks.
“Q. I understood you to say you didn’t know how many were actually taken up out of the ground and moved?
*737“A. No, I don’t know actually how many, but I would say possibly 100 or seventy-five.
Direct Examination of Roger A. Callis.
“Q. What is your occupation?
“A. I run a store and do general work around—electrical work and tank work for Standard Oil Company sometimes and different work around and trying to make an honest living.
“Q. And do some installation work for Standard Oil Company?
“A. Yes, sir.
“Q. Were you in the court room when Mr. Fox stated what arrangements he had made with you with respect to installing and removing tanks?
"A. Yes; I think I was in here a part of the time.
“Q. Did you hear his statement in respect to that matter?
“A. Yes, sir.
“Q. It is correct?
“A. It is correct.
“Q. How long have you been doing work of removing and installing tanks for Standard Oil Company?
“A. I presume three or four years.
“Q. Could you tell the jury, with any degree of satisfaction to yourself, approximately how many tanks you have removed?
“A. I couldn’t tell you, but I imagine 250 or 300—quite a few.
“Q. With respect to the work of removing a tank from the ground, in pursuance of the contract which you have said existed, did you have any direction from the Standard Oil Company in the matter?
“A. No, sir.
“Q. Did you employ your own men?
“A. Yes.
*738“Q. Did you pay them according to your own agreement with them?
“A. Yes, sir.
“Q. Subject to the limitation that they should not exceed fifty cents an hour?
“A. I never paid any over fifty cents an hour. I never got any instructions as to that. I never paid any more than that. I don’t remember getting any instructions of that kind—I don’t remember, but I never paid them over that.
“Q. If you had to haul a tank any distance, would you yourself employ a drayman?
“A. Yes, sir.
“Q. And pay him yourself?
“A. Yes, sir.
“Q. How did you get reimbursement from the Standard Oil Company?
“A. I would take the bill and have the fellow sign receipt, and I would send the bill in with my bill. Whoever hauled the tank would sign the paper.
“Q. You would submit your bill for the job, accompanied by the receipts for what expenses for labor and material you had paid?
“A. Yes, sir.
“Q. Do you recall who you employed, if anybody, to assist you in the work of removing the tank?
“A. Mr. Bennett helped me and Mr. Clements hauled it for me.
“Q. Did you employ Mr. Clements?
"A. I had to take these tanks and I think I had him with me all day.
“Q. You had Mr. Clements as a helper?
“A. Yes, sir; and I had the two pumps to haul to the Taylor Motor Company. I don’t know whether he was with me all day.
*739“Q. What work did Mr. Clements do?
“A. He would help probably sometimes, but mostly just to haul.
“Q. Is he a person engaged in the general hauling business in the community?
“A. Yes, sir.
“Q. Did he have a truck of his own?
“A. Yes, sir.
“Q. Did you do this work in connection with removing the tank from Mr. Rich wine’s place under the same terms as had been your general custom?
“A. Yes, sir.
“Q. You expected to be paid in the same manner by the Standard Oil Company?
“A. Yes, sir.
“Q. You spoke of having certain plugs there to plug up the holes in the tanks when you removed them; explain to the jury briefly what that operation was?
“A. I would take the pipes out and screw plugs in there to prevent anything from getting in there, or dirt. In taking them out of the ground dirt from above falls in, and I put them in there to keep the dirt out, and also to keep the vapor from getting in there.
“Q. If you didn’t have a plug convenient, did you have anything else you could use?
“A. Yes, sir; a wooden plug, but I didn’t have that.
“Q. A wooden plug could have been put in there?
“A. Yes, sir.
“Q. In the several years you have been handling these tanks have you ever had any dangerous or injurious consequences to result from your work?
“A. No, sir.”
Cross-Examination of Roger A. Callis.
“Q. I understand you have been moving tanks for some time?
*740“A. Yes, sir.
“Q. And it was your custom to plug them up and transport them?
“A. Yes, sir.
“Q. And the Standard Oil Company furnished you with those plugs?
“A. Yes, sir.
“Q. They did?
“A. Yes, sir.
“Q. I understood you to tell this jury the reason you didn’t plug this particular tank up was you didn’t have but one set of plugs?
“A. Yes, sir.
“Q. • Then I understand the Standard Oil Company did not furnish you at that time with but one set of tanks?
"A. No, I am talking about plugs. When they sent the tank they always sent the plugs, but they didn’t furnish you anything.
‘ ‘ Q. They didn’t send you this tank?
“A. No.
“Q. Where did you get the plugs from?
“A. From older tanks. Say a tank would come to me and it would have plugs in it, I would take that plug and use it again, or if I was to go to remove one I would take it.
“Q. If you didn’t get the plugs from the Standard Oil Company, you didn’t have any way of getting them?
“A. Oh, yes, sir. I have bought them myself.
“Q. Where did you get them?
“A. From Southside and in Richmond.
“Q. You just told us you only got plugs from other tanks?
“A. No.
“Q. Didn’t you state you got plugs from other tanks?
“A. Yes.
“Q. You stated the Standard Oil Company furnished *741them, and then you changed it and said you got them from other tanks?
“A. Yes. They didn’t furnish them.
“Q. Where did you get them?
“A. When they would send me a tank they would send plugs in it.
“Q. I don’t catch what you mean by sending you a tank. They would not send you a tank?
“A. Yes; they would send them on the bus; they would send them sometimes to the place where it was to be installed.
“Q. In other words, if a tank was to be sent down to be installed, you would take the plugs?
“A. For instance, it was going down in the county; they would leave it at Cooke’s corner, and the plugs would be- in it. I would get Mr. Clements, or whoever I wanted to haul it, to haul it, and I would take the plugs and if I was going to get another tank I would have the plugs, and if I didn’t, I would have the plugs, and I have had to buy some.
“Q. When you bought those plugs, who paid for them?
“A. I paid for them.
“Q. And put it in the bill?
“A. Yes, sir.
“Q. As I understand you, you were called up over the telephone by Mr. Fox and told that they would like to have two tanks moved from Mr. Richwine’s, one to be placed at Mr. Palmer’s and the other to be carried to Port Richmond?
“A. Yes, sir.
“Q. Did you ever have any instructions from the company not to carry that tank to Port Richmond?
“A. No, sir.
“Q. On Thursday or Friday of that week—the tank was removed by Mr. Clements on Tuesday, was it not?
“A. Yes, sir.
“Q. On Friday or Thursday didn’t you have some *742question that you didn’t know whether you would carry the tank to Port Richmond?
“A. No; I don’t recall that.
“Q. Mr. Callis, did Mr. Clements work for you in removing this tank? When you presented your bill for such work, did you pay the helpers beforehand or afterwards?
“A. Sometimes I would pay them before, but Mr. Clements nearly always owed me.
“Q. Sometimes you paid them afterwards, didn’t you?
“A. Yes, sir.
“Q. Then, as a matter of fact, when you made off your bill for this work, you did make off a bill stating so many hours of your time and so many hours say of Mr. Bennett and so many hours for Mr. Clements and his truck?
“A. Yes, sir.
“Q. You presented the bill to Mr. Fox, and Mr. Fox would have the company send a check for the full amount?
. “A. Yes, sir.
“Q. And then you would pay them?
“A. Sometimes, and sometimes I would give them the money right away if they wanted it.
“Q. Mr. Fox stated you always presented receipted bills before bills were paid. That is a mistake, isn’t it?
“A. No, I didn’t.
“Q. Yes, you did. What is the matter, Mr. Callis?
“A. Whether I pay him, or not, he signs a receipted bill.
“Q. The men sign a receipt before they are paid?
“A. Yes.
“Q. What sort of men do you have working for you?
“A. They trust me, I reckon, as an honest man. They always sign the paper.
“Q. But you made the other statement, and I couldn’t understand why you should make it. Now, Mr. Callis, as a matter of fact, you employed Mr. Clements to take this tank over to Port Richmond, didn’t you?
*743“A. Yes, sir.
“Q. You took it up and put it on Ms truck Tuesday afternoon?
“A. Yes, sir.
“Q. When did you expect to take that tank to Port Richmond and employ him to take it?
“A. Next mormng.
“Q. Wednesday morning?
“A. Yes, sir.
“Q. Why didn’t you do it?
“A. Wednesday morning I received a message from Mr. Thrift.
“Q. Who is Mr. Thrift?
“A. Standard Oil Company’s driver and has charge of the stations.
“Q. He called you up over the phone?
“A. Yes; I tMnk he did.
“Q. That is Wednesday mormng?
“A. Yes, sir.
“Q. All right?
“A. He said Locust Grove farm couldn’t get any gas and they wanted to plow and wanted to see if they couldn’t get some gas.
“Q. On Wednesday morning you were notified by Mr. Thrift, the agent of the company, to go to Locust Grove to fix the tank. What did you do?
“A. I received the message, and Mr. Bennett was there ready to carry the tank to Port Richmond. I told Mr. Bennett to go and tell Mr. Clements we will not go today but will tomorrow—at least I told him to wait, that we had to go to Locust Grove to see if he couldn’t get some gas so he could go to work with the tractor. It took us some time to fix it, and it was late and we didn’t go. It was a long journey.
By Mr. Evans:
*744“Q. What did you do when you came back? What did you do the rest of that day?
“A. I went to the Taylor Motor Company. I thought probably I would put one of those in. We went there and worked the balance of the day.
“Q. At the Taylor Motor Company for the Standard Oil Company?
“A. Yes, sir.
“Q. Did you go yourself or send Mr. Bennett to Mr. Clements?
"A. I sent Mr. Bennett.
“Q. You didn’t go to Mr. Clements’ house?
"A. No, sir.
“Q. You notified Mr. Clements that you would not be able to go that day and to wait?
“A. To wait and we would go later. That night I received a phone message from Mr. Clements telling me that he was going to the Fair next day and would not be able to go.
“Q. That was Thursday?
“A. Yes, sir. Friday night I got another message saying that he would stay at the Fair and would not be back Friday, and told me to go ahead with the truck if I wanted to. I didn’t know how to run a Ford, and I didn’t like to leave the store on Saturday, and so we would go Monday.
“Q. Who paid you going down to Locust Grove?
“A. Standard Oil Company.
“Q. Who paid you for working on the tank that afternoon?
“A. The Standard Oil Company.
“Q. How did they pay you?
“A. The same way as always.
“Q. By the hour?
“A. By the hour, and sent the bills like all the rest of them.
*745“Q. Did you notify the Standard Oil Company that you would not carry the tank over to West Point until Monday morning?
“A. No, sir.
“Q. In your special—in your agreement with Mr. Fox to remove this particular tank, was there any time specified in which it was to be removed?
“A. No, sir.
“Q. No time was specified?
“A. No, sir.
“Q. Did you have any arrangement—you said you couldn’t run a Ford truck. Didn’t you have an arrangement with Mr. Clements that he was going to the Fair on Thursday and that your assistant, Mr. Bennett, would drive Mr. Clements’ truck to West Point Friday?
“A. No, sir.
“Q. And that he would meet you coming from the Fair and put the tank in?
“A. No, sir.
“Q. You didn’t have any such arrangement as that?
“A. No, sir.
“Q. Mr. Callis, during these two or three years, did you ever do any special contract work for the company?
“A. Yes, sir; I done some special contract work.
“Q. All right, tell the jury what it was.
“A. I put in electric lights in the plant for them, and put in some tanks—and some signs.
“Q. Did you put in the one at Mr. Jones’?
“A. Yes, sir.
“Q. You contracted to do that work at a lump sum?
“A. Yes, sir.
"Q. As a matter of fact, you bid on it, didn’t you?
“A. Yes, sir.
“Q. And you made the lowest bid and got the job?
“A. I think so.
*746“Q. Did you have a written contract?
“A. No; J don’t think we had a written contract, but I bid on it, I believe, and they sent me a slip telling me to go ahead and do it.
“Q. And the specifications?
“A. Yes, sir.
“Q. And you accepted that written statement?
“A. ■ Yes, sir.
“Q. At a special amount?
“A. Yes, sir.
“Q. And you agreed to do it, didn't you?
“A. Yes, sir.
“Q. Did you sign the paper?
“A. No, sir; I didn’t sign the paper. They asked me to bid on it.
“Q. Did you put the bid in writing?
“A. Yes, sir.
“Q. Then you did, in writing, agree to do that work for a certain price?
“A. Yes, sir.
“Q. You do not recall any other contract?
“A. No.”
Re-Direct Examination of Roger A. Callis.
“Q. Mr. Callis, you have been asked on cross-examination about Mr. Clements’ handling of this tank. I want to try to get that clear. These two tanks that you were removing were in Mr. Richwine’s place, in Urbanna, as I understand it?
“A. Yes, sir.
“Q. And you had this contract to remove both of them and put one nearby on whose place?
“A. Mr. Palmer’s.
“Q. The other you were to take to Port Richmond?
“A. Yes, sir.
“Q. You say, Mr. Callis, you employed Mr. Clements to do the hauling of the empty tanks?
*747“A. Yes, sir.
“Q. And did he haul the empty tank from Richwine’s place in Urbanna?
“A. Yes, sir.
“Q. Who was on the truck with him, if anybody?
“A. Myself and Mr. Bennett.
“Q. Where did you go from Urbanna?
“A. To my store at Stormont.
“Q. Why did you stop at your store?
“A. I was to put the tank out there.
“Q. Why didn’t you do that?
“A. I told Mr. Clements to put it off, and I went in to take some tools, and when I come out I met Mr. Bennett and he asked me to let him carry it to his home and change it to another truck, that this truck wasn’t good enough to carry it to Port Richmond néxt day. I went into the store, and when I started out the store I met Mr. Bennett, and he said that he would change it to another truck.
“Q. Then I understand he carried it to his place contrary to your instructions?
“A. Yes, sir.
“Q. What was your purpose in having it put off at your yard?
“A. I was going to plug it and get all the gas out and shoot some water in it and fix it up for transportation.
“Q. Did you have a storage yard on your place where you handle tanks?
“A. Yes, sir.”
Re-Cross-Examination of Roger A. Callis.
“Q. Mr. Callis, with reference to the statement that you have just made, do you mean to téll the jury you told Mr. Clements that he must not carry this tank to his house?
“A. Yes, sir. I didn’t tell him not to carry it to his house, but to put it off here.
“Q. Did you tell him that he could or must put it off here?
*748“A. To put if off here.
“Q. Where was the truck at the time you said that?
“A. Right at my door.
“Q. Right in front?
“A. On the side.
“Q. In the road?
“A. Yes, sir.
“Q. As a matter of fact, you just stated to this jury that you and Mr. Bennett rode with Mr. Clements on that truck to Stormont?
“A. Yes, sir.
“Q. Tell the jury where, at your place, you intended to throw it off?
“A. I was going to put it in the yard.
“Q. At the back yard?
“A. Yes, sir.
“Q. As a matter of fact, at the time you stopped the truck, hadn’t you passed the lane going into your house?
“A. Yes, sir.
“Q. Why did you do that?
“A. I just dump them and roll them on.
“Q. Now, Mr. Callis, as I understand it, and the jury will probably know, when you drove from Urbanna you came up behind your store, didn’t you?
“A. Yes, sir.
“Q. There is an opening or a gate which leads into a back yard of your store, isn’t there?
“A. No; there is no fence there at all.
“Q. There is an opening?
“A. Yes.
“Q. You drove beyond that opening practically to the front of your store and stopped?
“A. I put them all out there.
“Q. You tell the jury you were going to take the tank and lay it on the side of the road by your store, or were you going to roll it into the lot?
*749“A. I generally clean the gas out there and put it in the tank, and we have an old Ford we drive around.
“Q. Did you think there was gas in it?
“A. Yes.
“Q. And you were going to turn it out?
“A. Yes.
“Q. Then, as a matter of fact, at the time you were removing the tank there were three pipes projecting from it?
“A. Yes, sir.
“Q. Were you going to take those off before you began to roll it?
“A. Yes, sir.
“Q. Will you tell me how, after it got on the ground and Mr. Clements had gone away with his truck, you were going to take the gas out?
“A. Very often I take it with the truck, but this time I was going to put it up there.
“Q. Can you put that 500 gallon tank up there?
“A. Yes, sir. We have a trestle made.
“Q. A trestle made for the purpose of handling it?
“A. Yes, sir. I can put it up on the end any time. We lift them right out of the hole.
“Q. As a matter of fact, if you had ordered Clements to take the tank off at your place and not carry it further, he would have done it, wouldn’t he?
“A. He didn’t.
“Q. Didn’t you say ‘you can leave it here if you want?’
“A. No.
“Q. And didn’t he reply that he was going to take it up there, that he wanted to change it or carry it to Richmond?
“A. I said: ‘Put the tank off here,’ and he said that ‘this truck is not able to go,’ and I said ‘put it off,’ and I went into the store to get some tools, and when I came out they said he had gone.
*750“Q. Didn’t you tell Mr. Ed Johnson, at Mr. Wood Davis’ house on the Sunday following this accident, that you told Leonard Clements that he could put the tank off there if he wanted?
“A. No, sir.
“Q. But that he said that he wanted to carry it to his home, or because he wanted to go to the Fair?
“A. No, sir.
“Q. And you say you ordered Clements to put it off, and he said no, and then you let him do it?
“A. I didn’t let him do it.
“Q. Whose job was it—yours or Standard Oil Company?
“A. Mine.
“Q. Then didn’t you let him do it?
“A. No. If the man goes on up the road, I can’t run up there and get him.
“Q. You knew that he was doing a dangerous thing?
“A. Yes, sir.
“Q. As I understand you to say, you went into the house to get some tools, and you came out and Mr. Bennett told you he had gone?
“A. Yes, sir.
“Q. How long a time intervened there?
“A. About two minutes.
“Q. After he had gone with the tank you didn’t follow him?
“A. No.
“Q. You knew it was dangerous?
“A. Yes, sir.
“Q. You made no effort to protect the public or Mr. Clements against danger?
“A. I did all I could. I told him to put it off there.
“Q. You are the Roger Callis the defendant in the suit brought by Mr. Davis?
“A. Yes, sir.
*751“Q. Have you counsel?
“A. No, sir.
“Q. You knew where Mr. Clements was going to take the tank, didn’t you?
“A. No.
“Q. He didn’t tell you he was going to take it by home to change it?
“A. (Interposing) He said he was going to change it on his truck.
“Q. Didn’t you know that he was going to carry it home?
“A. No.
“Q. Didn’t you find out Wednesday morning?
“A. No.
“Q. Mr. Bennett didn’t tell you the tank was in Mr. Clements’ yard?
“A. No.
“Q. You say you didn’t find out it was there until the explosion?”
Mr. Bazile: “He said that Mr. Bennett told him.”
If the testimony of these two witnesses hereinabove set out be true, then Callis was an independent contractor, and not the agent of Standard Oil Company. To sustain a verdict finding that Callis was not an independent contractor it is necessary to disbelieve their testimony.
Considering the evidence introduced upon the trial of the special issue before the first jury, I find nothing therein which, in my judgment, could have warranted the jury in a finding that Fox and Callis were not telling the trubh. There is nothing inherently improbable or unworthy of belief in their testimony. There is nothing in their testimony which is necessarily inconsistent with their positive testimony that Callis was an independent contractor. They do not contradict each other and there was no evidence introduced which contradicts either of them; and, so far as the record stood when the first jury rendered its verdict, they both stood *752wholly unimpeached either upon a material or immaterial matter.
In this state of the record I think the court erred in not setting aside the verdict of the first jury upon the special issue, and in not then entering final judgment in favor of the Standard Oil Company, dismissing the action as to it.
While the court in its opinion does not in terms say so, the reasoning of the court in sustaining the verdict would indicate that in its opinion the verdict of neither the first, nor the second jury, can be sustained unless the jury was warranted by the evidence in disbelieving both Callis and Fox. In its reasoning in support of its conclusions the court says, among other things:
“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.” * * * “While, as stated, ‘no witness’ contradicted the statements 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.”
None of the matter referred to in the italicized portions of the above paragraph appears from the evidence introduced before the first jury on the trial of the special issue. All of this italicized language refers to testimony introduced *753upon the trial had before the second jury on the plea of the general issue.
Of course the court in its opinion is not to be understood as intimating that a court may reach over into the testimony introduced before the second jury to get evidence to support the verdict of the first jury, or reach back into the evidence introduced before the first jury to support the verdict of the second jury. It is not clear to me from the opinion of the court just how the court has viewed the proceedings had before the first jury upon the special issue; but in effect it would appear to have treated the case as if there had been no trial of the special issue before the first jury, and to have regarded the trial upon the general issue before the second jury as the only thing having any legal effect.
It is true that the evidence introduced before the first jury does show, to use the language of the court in its opinion, that: “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. 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; (and) that Callis desisted in the removal of the tank and performed the work as requested by Thrift.” But no one of these facts, nor all of them taken collectively, are sufficient to warrant a jury in finding that an unimpeached, uncontradicted witness is not telling the truth when he testifies to a contract between Callis and the Standard Oil Company under the terms of which Callis was an independent contractor.
*754But suppose for the sake of argument that I am wrong about the court having erred in not setting aside the verdict of the first jury and in not having then rendered judgment for the Standard Oil Company. Or suppose that, as the Standard Oil Company has introduced before the second jury on the trial of the general issue evidence tending to prove that Callis was an independent contractor that it has acquiesced in having the court treat the trial before the first jury as a mere nullity; and that there was some evidence introduced at the second trial which tended to support a verdict finding that Callis was an agent and not an independent contractor. If this be granted, I think the court erred in not setting aside the verdict of the second jury finding Callis, the agent, not guilty and the Standard Oil Company guilty, and in not awarding a new trial.
The most that I understand the court in its opinion to hold is that when the evidence introduced at the second trial is considered alone, or the evidence introduced both at the first and the second trials is poured into a common melting pot and considered together, as a whole, there is some evidence to support a verdict finding that Callis was the agent of the Standard Oil Company. I do not understand it to hold that if the jury had returned a verdict finding that Callis was an independent contractor the court would have been warranted in setting aside the verdict because without evidence to support it, or even that the decided preponderance of the evidence is that Callis was not an independent contractor. Certainly, I could not agree with it in either of these holdings.
In Barnes v. Ashworth, 154 Va. 218, 153 S. E. 711, 713, in the opinion of the court written by me, it is said:
“* * * the best considered cases, and we think the weight of authority, sustain the view that where a master and his servant are sued together for the same act of negligence and the master's liability, if any, rests solely upon the *755servant’s misfeasance or malfeasance, a verdict which, in terms finds for the servant and against the master, or is silent as to the servant and finds against the master, is either predicated upon a misapprehension of the law, or is so capricious and arbitrary, or, at least, so contradictory and doubtful, that no judgment predicated upon the verdict should be entered for or against the plaintiff as to either the master or the servant, but upon the motion of either the plaintiff or the defendant master the court should set aside the whole verdict, the expressed or implied finding for the servant as well as the finding against the master. Doremus v. Root, 23 Wash. 710, 63 Pac. 574, 54 L. R. A. 649; Emmons v. Southern Pac. Co., 97 Or. 263, 191 Pac. 333; Begin v. Liederbach Bus Co., 167 Minn. 84, 208 N. W. 546; Southern Ry. Co. v. Harbin, 135 Ga. 122, 68 S. E. 1103, 30 L. R. A. (N. S.) 404, 21 Ann. Cas. 1011; Pangburn v. Buick Motor Co., 211 N. Y. 228, 105 N. E. 423; Hein v. Sulzberger & Sons, 175 App. Div. 465, 163 N. Y. Supp. 995; Childress, Adm’r, v. Lake Erie & W. R. Co., 182 Ind. 260, 105 N. E. 467; Sparks v. A. C. L. R. Co., 104 S. C. 266, 88 S. E. 739; Walker v. St. Louis-San Franscisco Ry. Co., 214 Ala. 492, 108 So. 388; Hobbs v. Illinois Cent. R. Co., 171 Iowa 624, 152 N. W. 40, L. R. A. 1917E, 1023 and note.
“When such verdict is set aside, as a general rule, a new trial against both defendants should be awarded both upon the question of the amount of damages and the liability of the defendants. But in such a case when a demurrer to the evidence would have been sustainable as to the liability of the party who is alleged to have committed the act of negligence complained of, the court should enter final judgment for both defendants.”
This rule of law is peculiarly applicable to the instant case; and, even if there had been no submission of the special issue in this case to the first jury, would require that the judgment of the court be reversed and the case remanded for a new trial.