On Petition to Rehear.
Tomlinson, Justice.The petition of Chickasaw Building Company and Maryland Casualty Company to rehear states that it is filed because “they have been deprived of their right to be heard in this Court on the grounds upon which this case was decided, for the reason that the decision was based upon grounds not raised by plaintiff, either by brief or in oral argument, and consequently not argued by the defendants.”
Mrs. Brademeyer’s second assignment of error was: “The Court erred in finding and holding that petitioner’s decedent, at the time of his death, was an independent contractor and not an employee of the defendant, Chickasaw Building Company”.
The opinion of this Court, after discussing what it considered to be the undisputed facts and the authorities, held: “Under the authority of the holding in the cases to which reference has just been made, it is necessary to conclude that Brademeyer was an employee of Chickasaw, and not an independent contractor, within the meaning of the compensation law.”
It was neither intended nor realized that the opinion “announces a truly revolutionary doctrine”, nor that it is “supported by no authority”, all, as asserted by the petition to rehear. A rather close re-examination of the record, and the authorities, and the opinion has not revealed such a drastic, unprecedented result.
*251Although the petition is very earnestly and rather ably presented, its contents are such that we find it difficult to respond without repeating what has already been said in the opinion. It may be that the facts existing at the time Chickasaw employed Brademeyer will furnish some assistance in determining the accuracy of the conclusion reached.
Until Brademeyer went there in 1945 the windows of this building had been washed by a colored porter. The superintendent engineer, who is still in the employ of the building, testified that “I had a nigger that worked for me there and the nigger went off on a vacation and died. So Mr. Fall employed Mr. Brademeyer. . . . For a long time I checked Mr. Brademeyer, but I quit that because everything was all right”. Responsive to the next question he said that by “checking” that he meant “checked to see that he washed and what floors he washed on”.
Mr. Althauser, who took over the management of the building after Chickasaw acquired it in the fall of 1948, says that he made an investigation and “ascertained the general manner in which Mr. Brademeyer’s window cleaning had been done before”, and the fact that his compensation had been 15c per window, and then entered into the following contract with Mr. Brademeyer:
“I told him to go ahead as we had in the past, to go ahead and wash the windows just -as we had been doing. I mentioned nothing as to how he was to do it. I mentioned nothing about when he was to do it. The only question was that he get around to them and present his bill when they were done. I reserved no right to tell *252him how to do it or when to do it as I had on these that I made up the pamphlets for.
“I didn’t tell him: I reserved no right of any control over him, but our employees. ... I had conferences with them. I said: I want you to do it this way; I want you to do it that way. But I didn’t tell Mr. Brademeyer, I reserved no right to tell you.”
Compare the Frost v. Blue Ridge Timber Corp. contract, 158 Tenn. 18, 11 S. W. (2d) 860.
There can be no doubt of it being a fact that under this contract Chickasaw had the right to tell Brademeyer what to do and the manner in which it was to be done and the right to dismiss Brademeyer at any time with or without cause. Frost v. Blue Ridge Timber Corp., supra, 158 Tenn. 20-21, 11 S. W. (2d) 860. Such a contract is entirely repugnant to an independent contractor status. On the other hand, none of the acts subsequently occurring, including the two items hereinafter discussed, deprived Chickasaw of or affected its indubitable right under the contract to control the manner in which the work should be done or its right to dismiss Brademeyer at will without cause. Therefore, the employment continued until the death of Brademeyer to be one which was entirely repugnant to an independent contractor status. Hence, there is no evidence to support the findings of the Trial Court that Brademeyer’s status was that of an independent contractor. Powell v. Virginia Construction Co., 88 Tenn. 692, 13 S. W. 691, 17 Am. St. Rep. 925; Odom v. Sandford & Treadway, 156 Tenn. 202, 208, 299 S. W. 1045; Sledge v. Hunt, 157 Tenn. 606, 610, 12 S. W. (2d) 529. On the other hand, the em*253ployment appearing, the presumption is that Brademeyer was a servant. Rose & Company v. Snyder, 185 Tenn. 499, 514-515, 206 S. W. (2d) 897.
With the exception of perhaps two items pressed upon us in the petition to rehear the absence of inconsistency of each of these acts with the employer — employee status so clearly established by the contract is discussed in the opinion with reference made to the authorities. That discussion need not be repeated here.
The first of the two omitted items just above referred to is that upon one occasion Peel “suggested” to Brademeyer “Why don’t you use the safety belt”, and Brademeyer’s reply was “I would rather not use one”, and the further “suggestion” with reference to not working on the day he was killed that “if I were you I wouldn’t work today and lay off”; that Brade-meyer replied, “No, I got to wash the windows.”
Since these were suggestions, and so termed in the petition, rather than commands, this circumstance has no probative force one way or the other in determining the question involved. Odom v. Sandford & Treadway, 156 Tenn. 202, 208-209, 299 S. W. 1045. Certainly the occurrence is not inconsistent with the employer-employee status established by the contract.
The second of the two omitted items is the insistence in the petition that Brademeyer was “engaged in a distinct business” of window washing. The chauffeur who operates the truck in the carrying on of his master’s usual industrial business and the cook at the hotel or restaurant have independent trades. They are none the less employees within the meaning of the Workmen ’s Compensation Act. So that fact is without probative value.
*254We considered Frost v. Blue Ridge Timber Corp., supra, controlling here. Petitioners seek to distinguish that case from the case at bar on the grounds that in the Frost case (1) “the only question . . . was whether there was any material evidence to support the finding of the Trial Court”, and (2) “there was evidence that the work was being done under the supervision of the defendant’s inspector.”
. The opinion in the Frost case [158 Tenn. 18, 11 S. W. (2d) 861] states that “there is no material controversy in the evidence as to the facts”, and, as to the inspector referred to in the petition, that his “only duty seems to have been to measure and report the quantity of lumber hauled by each man”. Hence, on controlling facts paralleling those in the instant case, it became a question of law as to whether Frost was an independent contractor or an employee, and the conclusion of the Court was that “while working under such a contract Frost was an employee” within the meaning of the Workmen’s Compensation Act. We do not think that any logical distinction can be drawn between the Frost case and the instant case.
The opinion in the instant case also referred to the holding in Mayberry v. Bon Air Chemical Co., 160 Tenn. 459, 464-465, 26 S. W. (2d) 148, 150. In determining the rights of litigants the Court must deal with actualities rather than abstract theories. In so doing, it seems impossible to táke this case of window washing at 15c per window from that holding'in the Mayberry case, supra, as follows':" “When a party simply states to another that he will give him' $1 a cord to cut wood, or 1 cent a pound to‘pick’cotton, or fifty cents ah acre to break land, the. relationship thus created is that of master and' servant. *255Such, an agreement does not contemplate a relinquishment of the right to direct the work and to control the means and methods by which the desired result is attained.”
In conclusion, it is proper to recall the fact that the Workmen’s Compensation Act contemplated the surrender of certain common-law rights upon the part of both employer and employee. It was intended by the Act that those who sustain injuries while performing duties such as Brademeyer was performing in the carrying on of the usual business of industry shall be compensated for their injuries, rather than that such workman, his widow and children be left the objects of charity. To hold that the facts of this case constituted Brademeyer an independent contractor would be to afford the means to industry to defeat the fundamental purpose of the Act in those cases in which it is most needed, and for which it was intended. It would enable industry to enjoy the benefits while avoiding the burdens of the Act. It would be contrary to the command of the Act that it “be given an equitable construction by the courts to the end that the objects and purpose of this chapter may be realized and attained”. Code, Section 6901.
The petition to rehear is denied.
Prewitt, J., not participating.