(dissenting).
I respectfully dissent.
This writer would have been inclined to agree with the majority opinion before the release by the Supreme Court of Pitchfork Land and Cattle Company v. King, 162 Tex. 331, 346 S.W.2d 598. I find myself unable to agree there are any material distinctions between the instant case and that case on the question of independent contractor except that Pitchfork has stronger evidence rebutting the independence of the adjudicated independent contractor.
The majority has said “* * * the supreme test in determining whether one is an employee or an independent contractor is the test with respect to right of control * * * ”, citing a number of Supreme Court cases. If that was the rule the Supreme Court had adopted before the announcement of Pitchfork, it cannot be gainsaid they departed from it in that case. Jim Humphries, Pitchfork’s assistant manager, testified if he had thought he was endangering anybody’s crops he would have stopped the spraying on the occasion in question. How could it be said that did not show the right to control the detail of time and progress in the spraying by Aerial Sprayers ? Time and progress were very important details in that case because of the wind velocity.
In the Pitchfork case the spraying company furnished the moving vehicle for *959applying the spray just as Stokes in this case furnished the moving vehicle for applying the fertilizer — the tractor. Mc-Dermett furnished the fertilizer and Pitchfork furnished at least part of the spray material. In Pitchfork the spraying company was paid by the acre and in the in- • stant case Stokes was paid by the acre. In Pitchfork the hiring ranch determined the strength of the poison while in the instant case McDermett did not even exercise that control but the amount of the fertilizer was determined by the wishes of the farmers whose land was being fertilized. Stokes made his own decision as to applying the correct amount of fertilizer the farmers wanted by the adjustment of certain valves and indicators on the applicator.
Since this writer authored the Court of Civil Appeals opinion in Pitchfork, part of which was overturned by the Honorable Supreme Court on the independent contractor question, it might be presumed that I would not be inclined to agree with the application of that doctrine the Supreme Court opinion made to the facts of that case. Whether I do or do not is completely immaterial but I certainly recognize we are bound by it. Since we are, I cannot agree Stokes is not an independent contractor in the instant case.
The citation of the Pitchfork case by the majority in the instant case is conspicuous by its absence, and I believe with good reason; that is, the results reached in the two cases cannot be reconciled. Since they cannot, I must respectfully dissent in this case. Since Stokes was an independent contractor under the authority of Pitchfork the case should be reversed and rendered.