ON APPLICATION FOR REHEARING.
CARVER, J.Defendant’s counsel earnestly urge that we erred in holding that defendant had any control over plaintiff other than in accordance with the plans and specifications, which control, they say, is the real test in determining whether plaintiff was a servant or an independent contractor, and in holding that the case is governed by the decisions in Dick vs. Gravel Company, 152 La. 993, 95 South. 99; Bell vs. Hanson Lumber Co., 151 La. 824, 92 South, 350; and Burt vs. Davis, 157 La. 111, 102 South. 87, instead of the decisions in Clark vs. Tall Timber Lumber Co., 140 La. 380, 73 South. 239; and Helton vs. Tall Timber Co., 148 La. 180, 86 South. 729.
Amongst other citations, substantially to the same, effect, they cite 26 Cyc. 1546 as follows:
“An independent contractor is one who, carrying on an independent business, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. • Generally the circumstances which go to show one to be an independent contractor, while separately they may not be conclusive, are the independent nature of his business, the existence of a contract for the performance of a specified piece of work, the agreement to pay a fixed price for the work, the employment of assistants. by the employee who are under his control, the furnishing by him of the necessary materials, and his right to control the work while it is in progress except as to results.
“The rest of the relationship is the right to control. It is not the fact of actual interference with the control but the right to interfere which makqs the difference between an independent contractor and a servant or agent. To enlarge the test is whether the employee represents his employer as to the result of the work only or as to the means as well as the result. If the employee is merely subject to the control or direction of the owner or his agent as to the result to be obtained, he is an independent contractor. If the employee is subject to the control of the employer as to the means, he is not an independent contractor.”
Testing this case by the rule given in this citation, we find that one of the elements, namely, the furnishing of materials, is wholly absént and the others, though they are in a certain sense present yet they are so only in a qualified sense. The fixed price was true only as to laying the Bird roofing. If preparation of the old roof involving carpentry was necessary plaintiff did this and was paid reasonable compensation not fixed in advance. Each roof, of course, was a specific piece of work, but there was no special contract made each time. Defendant in obtaining orders for roofs stated in its printed blanks that plaintiff did its application work, and when it got an order for an applied roof, it simply sent the roofing material to thé building and notified plaintiff to put it on, without negotiating with plaintiff in any manner.
Plaintiff’s business was independent in the sense that he could leave Alexandria and go elsewhere or could engage in some other business there; but considering that defendant had the exclusive sale of Bird roofing, that plaintiff had specialized in *392putting on that kind of roofing, that defendant’s business in the Bird roofing line was almost if not quite extensive enough to occupy all of plaintiff’s time, that defendant expected if it did not require plaintiff to accord it preference in its work, and that defendant could discharge plaintiff at the end if not in the middle of any job, it seems to us that the resulting situation left plaintiff far from independent in any real sense.
These circumstances gave the defendant the power of control as to means and methods as well as results whether they gave the right of control or not. This power of control extended to the employ,ment of helpers, and plaintiff testifies:
“Q. And he didn’t have anything to do with firing them?
“A. I don’t know whether he did or not, —if he had fired them, I would have had to let them go.
Defendant seeks to minimize the control shown by shifting plaintiff from the Weil to the Milady job by saying that this was done not by order but only by request. Under the situation, though, it seems to us that there was little difference between an order and a request.
Plaintiff had to satisfy defendant or risk losing his job. Besides the domination of the situation which the circumstances above mentioned gave to defendant without an express stipulation giving it control, the printed instructions for laying the roof contain features showing control not only as to results but as to means and methods. These are as follows:
“We do not recommend laying roll roofing in a vertical direction on roofs of less pitch than 4 inches to the foot, tlut the roofing with a sharp knife and always lay the inside of the roll to the weather. * * * In cold weather set cans of cement in hot water before using. Do not set near a fire. Apply with a short stiff brush or putty knife. * * * Begin to lay roofing at the eaves. * * Use staging on steep roofs taking care not to nail into finished roofing.
Furthermore the citation from Cyc. is not nor does it pretend to be an exact formula. Other elements sometimes enter, not therein mentioned. An outstanding one in this case is the fact that essentially the pay that plaintiff received was in an economic sense mainly wages for his own labor rather than profit on the labors of others or return on capital investment.
See Dick vs. Gravel Company, supra.
Plaintiff never employed more than two assistants and seldom more than one and not even one all the time. In appraising the whole situation, his employment of so limited a number of assistants even were his control over them wholly unrestricted, is of little weight as compared to the more dominating features.
Our re-examination of the case has confirmed us in the opinion that the doctrine of the Dick, Bell and Burt cases controls rather than that of the earlier cases of Clark and Hilton. It is to be noted, too, that though the Supreme Court has mentioned the' Hilton case in subsequent decisions it hás not re-affirmed same, and in the Dick case Chief Justice O’Niell expressed the opinion that it should be expressly overruled.
Rehearing refused.