(dissenting).
If the matter were to be decided on the basis of the law generally,1 I should concur in the opinion of the majority. Since, however, the law of Georgia is quite otherwise,2 I am constrained to dissent. I cannot agree with the view of the majority that what was being done by Yarbrough’s employees at the time of the injury was not being done pursuant to the written contract between him and Sinclair. But I do not regard this as at all material. The question presented in this case is not one of the construction of a written contract but of the application of Georgia law to the undisputed facts. These are: that in shipping the tank, pursuant to his arrangements with Sinclair, Yarbrough was acting not as its servant but as an independent contractor; that Hicks and Roundtree were and remained his employees; and that they did not, under the borrowed servant rule, become employees of Sinclair so as to make Sinclair liable.
I respectfully dissent.
Rehearing denied; HUTCHESON, Circuit Judge, dissenting.
Gulf Refining Co. v. Brown, 4 Cir., 93 F.2d 870, 116 A.L.R. 449, where the eases are collected.
Sinclair Refining Co. v. Veal, 51 Ga. App. 755, 181 S.E. 705; Gulf Refining Co. v. Harris, 30 Ga.App. 240, 117 S.E. 274: and Phipps v. Gulf Refining Co., 25 Ga.App. 384, 103 S.E. 472.