dissenting. I find myself in basic disagreement with the opinion of the majority and therefore respectfully dissent.
Apparently, the opinion of the majority relies upon the tests set ont in the Restatement of Agency (2d Ed.) Sec. 220, for determining whether or not an employer-employee relationship existed between the parties to this action. While the Restatement of Agency tests are certainly valid in a proper situation, I cannot agree that they should be applied in Workmen’s Compensation cases for determining the relationship between the parties. As pointed out by Dean Larson in his excellent work on Workmen’s Compensation, the basic purpose for which the definition of an employee as used in compensation statutes is entirely different from the common law purpose. At common law the concept of an employee or servant performed one main function and that was to delimit the scope of a master’s vicarious tort liability. This tort liability naturally arose out of detailed activities carried on by the servant resulting in harm to third persons. The extent to which an employer could control these detailed activities was highly relevant to the question whether the employer ought to be liable for them or not. Again, as pointed out by Larson, the theory of compensation is concerned not with injuries by the employee in his detailed activities but with injuries to him as a result not only of his own activities but those of co-employees, independent contractors and other third persons. To impose a narrow common law concept upon a statute which this Court has many times said should be liberally construed to afford relief is to do violence to both the legislative intent and previous decisions of this Court.
By applying the tests which the majority opinion apparently uses, I am of the opinion that the evidence shows that Tom West was an employee of appellee. First, the majority says the only evidence contradicting the testimony offered by the appellant is that he thought he was covered by workmen’s compensation. The record clearly reflects that the appellant was the only one to present any evidence at the trial and no evidence was presented to contradict his case. The evidence shows that Lake Lawrence was the only buyer of pulpwood in Montgomery County. The arrangement by which he purchased pulp timber was no ordinary operation. The method was a stipulated price per cord based upon mileage, a rather unusual method of payment. Second, Tom West was not cutting timber upon land owned or rented in fact by him. The evidence shows that Lake Lawrence, through the use of a straw man, had actually rented this land to avoid certain government regulations on cutting other parcels before completion of another. I find it even more significant that not only Tom West thought he was covered by workmen’s compensation but evidently Lake Lawrence thought so too. Corroborated evidence was presented in the record to the effect that Lake Lawrence deducted a fixed sum per cord of wood cut for workmen’s compensation insurance. We have held that the employer’s practice of carrying a particular person on his compensation insurance payroll is a factor to be considered and given weight in discovering the real understanding of the employer as to the worker’s status. Farrell-Cooper Lumber Co. v. Mason, 216 Ark. 797, 227 S. W. 2d 444.
In conclusion I find that, all other things aside, the least that can be said is that there should be an estoppel to deny recovery. Estoppel is a holding out, justified reliance on the holding out, and detriment from such holding out. Here, Lake Lawrence by carrying compensation insurance on the worker led the worker to omit to take other measures protecting his income in time of disability. Under these circumstances, recovery should be allowed and therefore I respectfully dissent.