dissenting.
The pertinent facts in this case are undisputed and the ultimate conclusion to be drawn from the facts is a question of law.
*841It is conceded that Ernest Dewey Stovall Avas killed on the premises of the A. Deweese Lumber Company, in Neshoba County, on March 23, 1951, when he was assisting Johnny McKinnion in unloading a truck load of logs and one of the logs fell on him. The deceased had been employed to bunch and help load logs about four Aveeks before he was killed. "Whether he was an employee of the A. Deweese Lumber Company or merely an employee of Johnny McKinnion depends upon the interpretation that the Court places upon the facts testified to by the witnesses. If McKinnion’s relation to the lumber company was that of an employee, Stovall was likewise an employee of the lumber company. But if McKinnion was an independent contractor, Stovall was an employee of McKinnion.
The testimony in my opinion shows that McKinnion was not an independent contractor, but an employee of the lumber company.
McKinnion testified that he had been working for Deweese approximately two years. The logs that Mc-Kinnion was hauling at the time Stovall was killed were logs that had been cut by Deweese’s timber cutters on a large tract of land owned by the International Paper Company, in Leake County; and, although McKinnion testified that he was “contracting”, and not working for wages, the proof shows that he was merely one of several loggers, who had been employed by Deweese to bunch and haul logs cut by Deweese’s timber cutters from storm-damaged timber on the International Paper Company lands. Here is what McKinnion said about his so-called contract to bunch and haul logs:
“By MB. WEIB:
“Q. You say, now, you had an agreement there with the Deweese Lumber Company to haul and to load and haul all that storm damage timber on a certain portion, is that right? A. Yes, sir. Q. Now, on certain portions, wasn’t it, Johnny? A. Well, yes, sir, I couldn’t tell *842you which, portions. Q. How many acres? A. I don’t know. Maybe twenty acres. Q. You would just start on a certain portion? A. And clean up and get on another one. Q. Did you make separate trades on each portion? A. No, we stayed around the same place. Q. Did you make a separate trade with them each time that you would finish one portion and start another one or not? A. No, we just went on to the next portion. Wasn’t no more trade. Q. Was he paying you by the thousand or by the block? A. By the thousand.”
McKinnion had nothing to do with the cutting of the timber. It was his duty to bunch and haul the logs on the blocks of land pointed out to him by Dick Allen, the agent of the lumber company, as his area to log from. There were other loggers at work on adjoining areas. When McKinnion cleaned up one block he moved on to the next.
McKinnion testified that he was paid $16 or $17 per thousand feet for the logs that he hauled — he did not remember the exact amount. He said they gave him a raise later on. He was asked, “Who fixed the price there for the work?” His answer was, “Well, I reckon Dick (Allen) or some of them fixed it at the office.”
McKinnion furnished his own truck, hired his own helpers, and paid them by the thousand feet. Dewey Stovall furnished his own team, which consisted of a pair of horses that he had purchased from the Deweese Lumber Company and for which he had executed a title reservation note for $125 payable to the lumber company. The company paid off once a week. The helpers were paid directly by the lumber company, and their pay was deducted from McKinnion’s pay check.
Traditional test of the employee-employer relationship is the right of the employer to control the details of the work. All other tests are subordinate and secondary. Larson says that the principal factors showing the right of control are: (1) Direct evidence of the right *843or exercise of control; (2) method of payment; (3) the furnishing of equipment; and (4) the right to fire.
The direct evidence of the lumber company’s right of control in this case is, in my opinion, conclusive. Deweese had purchased only the storm-damaged pine timber on the International Paper Company lands, and under the stumpage sale contract, which was dated March 15, 1951, it was agreed that the buyer should have only until June 1, 1951, within which to cut and remove the timber. Deweese, under the contract, expressly assumed full responsibility for and agreed to pay damages for any timber cut or damaged in its timber cutting and logging operations, other than the storm-damaged timber marked with yellow paint, as provided in the contract. It is wholly unreasonable to assume that Deweese, after purchasing the timber under the conditions stated above, would employ a large number of timber cutters and loggers to cut and remove the timber and in doing so relinquish or contract away its right to control the work; and there is nothing in the record to indicate that Deweese did relinquish its right of control.
On the contrary, Deweese took the necessary steps to safeguard its right of control. Deweese employed the timber cutters to cut the timber; and Deweese’s agent parceled out the land on which the storm-damaged timber was situated and assigned to each logger a specified area in which he was to operate. McKinnion was asked the direct question, ‘ ‘ They would point out to you what your area to log from?” And his answer was, “That’s right.” After the logs were bunched and hauled away, Deweese’s representative checked behind the logger and his helpers to see that all of the logs that had been cut were hauled to the mill. Otis Stovall testified that, after Dewey was killed, he went back over there and worked. Some one else had left a good many trees on the ground, and Mr. Smith came down there and found them and told the workmen where they were; and Otis said, “We *844went back there and picked them np.” As each block was cleaned up the logger and his helpers would move on to another block. In no other way could the logging operations on such a large body of land have been carried on by the several crews, each crew operating independently of the others, without confusion and duplication of effort. The above mentioned facts show that management had complete control of the logging operations ; and it was not necessary for Deweese to maintain a full time watchman to supervise McKinnion and his helpers in loading the logs, and its failure to do so under the facts in this case did not affect the status of McKinnion and his helpers as employees of the lumber company.
McKinnion was asked, “Who detei’mined how they would pay you?” His answer was, “Well, they would hold mine and his ’n out — make separate checks. ’ ’ He was asked specifically about Stovall’s pay; and his answer was, “They always gave the check.” He said the company paid off once a week. He had not asked that he be paid once a week. ‘ ‘ They just paid it that way. ’ ’
But, if there were any remaining doubt as to Deweese’s right of control, that doubt is removed by a reading of McKinnion’s testimony in answer to questions propounded to him relative to Deweese’s right to terminate his employment. McKinnion’s testimony on that point was as follows: “ Q. Could Deweese have cut the contract off or not? A. They could have laid me off. Q. They could have laid you off at any time? A. That’s right. Q. And you couldn’t have made them kept on hiring you? A. No. Q. Or else pay you damages for breach of contract? A. No.”
Larson says, “The power to fire is the power to control. The absolute right to terminate the relationship without liability is not consistent with the concept of independent contract, under which the contractor should have the legal right to complete the project contracted *845for and to treat any attempt to prevent completion as a breach of contract.” Larson’s Workmen’s Compensation Law, Vol. 1, 654, par. 44.35. See also cases cited.
McKinnion cannot be deemed to have been independent when his work could be stopped at the will of his employer. The power to terminate the employment, of necessity, gave to the employer the power to control the activities of the employee and his helpers, and, as stated by the Louisiana Court in the case of Deason v. Coal Operators Casualty Co. (La. App.), 43 So. 2d 630, “when such a situation prevails, it cannot be said that there is an agreement as to the specified result of the work, either as a unit or as a whole, because there is no certainty as to the result and no means existing independent of the will of the employer for determining and limiting finally the work to be performed. ’ ’
But it is said that this Court has held in other cases where the facts were similar to the facts in this case that the relationship of the logger or trucker was that of an independent contractor, and not that of an employee ; and the cases mainly relied upon are Hutchinson-Moore Lumber Co. v. Pittman, 154 Miss. 1, 122 So. 191; Crosby Lumber & Manufacturing Co. et al. v. Durham, 181 Miss. 559, 179 So. 285; McDonald v. Hall Neely Lumber Co., 165 Miss. 143, 147 So. 315; and Carr v. Crabtree, et al., 212 Miss. 656, 55 So. 2d 408.
All of the above mentioned cases, however, are distinguishable from the case that we have here. In Hutchinson-Moore Lumber Company v. Pittman, supra, the controlling factor, as the Court pointed out in its opinion, was that the contract plainly provided that Magee was to cut and deliver to the appellant at its logging road all the merchandise timber from the lands specifically described in the contract. In Carr v. Crabtree, et al., supra, Carr Brothers had a definite contract for the cutting and hauling of all the timber 12 inches in diameter and above, except hickory, on the tract of *846land known as the “Thompson Place.” In Crosby Lumber & Manufacturing Co. v. Durham, supra, the contract was a written contract which the Court held constituted Stockstill an independent contractor; and the logs to be hauled were the logs cut on a specifically described tract of land. In McDonald v. Hall-Neely Lumber Co., supra, which was decided by a divided court, the majority opinion stated that, “Cray was a public hauler in and around New Albany, and between that place and Memphis and other points.” It thus appears that in each of the above mentioned cases there was a definite contract or agreement for a specified amount of work. In the case that we have here there was no such definite contract or agreement.
Dewey Stovall was killed on Deweese’s premises, while unloading Deweese’s logs. The work that he was engaged in performing was an integral part of Deweese’s lumbering operation. In my opinion, the evidence shows that Johnny McKinnion was Deweese’s employee, and not an independent contractor, and that Dewey Stovall was an employee of the lumber company. It is admitted that Stovall’s injuries arose out of and in the course of his employment. I think his wife and 4-year old boy are entitled to death benefits under the Workmen’s Compensation Act.