Dissenting Opinion.
Enloe, J.— I cannot give my assent to the reasoning, nor to the result reached in the majority opinion in this case. In that opinion the terms “contractor” and “independent contractor” are practically shorn of all their meaning. They are limited to specific contracts to do specific work. The entire matter must be definite and certain. I also think that the law as applied to independent contractors should not be limited merely to the law of negligence, and that it has its proper place in the application of the compensation laws. It should not, as stated in the majority opinion, be eliminated from consideration.
In this case Duer agreed to furnish his own tools and cut the timber according to measurements and dimensions given to him at $2.50 per thousand feet. What these tools were we do not know. The contract did not *448specify the tools to be used, and so far as its provisions are concerned Duer was at liberty to use his ax and cross-cut saw — simple tools; or he could, if he chose, use a gasoline engine or other machinery as his power plant by which his saws were operated. This was left to him; over this the so-called employer had no control. They had the right, upon this record, to see and demand that the said timber was cut according to “measurements and dimensions,” which they had given Duer. They had no control over methods or means.
In the case of Kelley’s Dependents v. Hoosac Lumber Co. (1921), (Vt.) 113 Atl. 818, the court said: “It was said in Rheinwald v. Builders’ Brick, etc., Co., 169 App. Div. 425, 153 N. Y. Supp. 598, that common-law decisions involving the liability of a master for injuries received by his servant are not controlling in cases under Compensation Acts, nor as valuable therein as cases under the acts themselves. But this idea was repudiated in Western Indemnity Co. v. Pillsbury, 172 Cal. 807, 159 Pac. 721, and we think rightly so; for we are satisfied that the learning of the common-law decisions affords the safest guide to a proper interpretation of the statutes. Accordingly, we look to our own cases for the rule to direct us to a correct decision of the question in hand. * * * It is this: If under the contract the party for whom the work is being done may prescribe not only what the result shall be, .but also may direct the means and methods by which the other shall do the work, the former is an employer, and the latter an employe. But if the former may specify the result only, and the latter may adopt such means and methods as he chooses to accomplish that result, then the latter is not an employe, but an independent contractor. So the master test is the right to control the work. And it is this right which properly differentiates service from independent employment.”
*449As I view it, the above is an accurate statement of the law, and as such upon proper occasion should be applied in the administration of the Workmen’s Compensation Act.
In the principal opinion it is said that: “Whether Duer was an employe of the hoop company at the time he received his fatal injury, was a question of fact for the Industrial Board, to be determined from the evidence.” While the above statement is, in a sense, literally true, yet as used in the majority opinion it is certainly misleading. And if it is meant in said opinion to place said fact in the class of all other simple facts, primary and inferential, it is an incorrect statement. The Industrial Board does find the facts — the primary facts. It does this from the evidence, which does or tends to directly establish the facts; or, as a matter of reasoning, by drawing inferences from facts directly established, it concludes that certain other facts exist. But in determining whether “B” is an employe, or an independent contractor, reason, unaided by certain rules of law, is powerless. It can reach no conclusion.
The determination of the question as to the status of “B” in such case can only be accomplished by the application thereto of certain well-known rules of law. The law furnishes us the measure, the yard-stick, by which the primary facts are measured and the said status determined. Hence the question is sometimes said to be a mixed question of law and fact; it is also sometimes spoken of as a conclusion of law.
In my opinion, under the facts of this case, Duer was a contractor, and the award should have been set aside.