(dissenting in part).
I concur in a reversal of this case because of what I believe to be an error in the submission of special issues Nos. 4, 5, 6, 7, 8 and 9 pertaining to the question of waiver of premiums.
When the Board of Insurance Commissioners prescribes a rate, the insurer and/or the insured cannot adopt a different one. English Freight Co. v. Knox, Tex.Civ.App.1944, 180 S.W.2d 633, error ref.
Then too, it was error for the court to admit testimony that no claims had been paid by.the .insurer because the fact that no claims had been paid based on established losses would in nowise absolve the insurer of its liability for such losses and likewise would not relieve the insured from its obligation to pay .premiums. ,
I do not believe- that the drivers of the pieces of leased equipment used by the ap-pellee were as a- matter of law employees of Frozen Food Express while operating such leased equipment.
The contracts provided the terms and conditions thereof and- are set out in the opinion in this case.
Whether one is an employee or an independent contractor would depend, upon the terms of the contract, and since a person employed to do work for another is either an employee of such person or an independent contractor, the employee is covered by the Act but an independent contractor is not. And I believe that the jury had evidence before it to support its verdict that the drivers in question were not employees of Frozen Food Express while operating such leased equipment, but that they were either independent contractors or where the driver did- not own the equipment, employees of such independent contractor.
The Texas Workmen’s Compensation Law, Article 8306, et seq., V.A.C.S., applies to employer-employee relationships only, and not to employment of an independent, contractor.
The Court, in Williams v. Texas Employers’ Insurance Association, Tex.Civ.App.1948, 218 S.W.2d 482, 485, error ref. n. r. e. stated:
“A person employed to do work for another is either an employee of such person or an independent contractor. An employee is covered by the Workmen’s Compensation Act, art. 8306 et seq., Vernon’s Ann.Civ.Stats., and an independent contractor is not.”'
Security Union Casualty Co. v. M. & V. Tank Co., Tex.Civ.App., 1928, 12 S.W.2d 1062. R. E. Cox Dry Goods Co. v. Kellog, Tex.Civ.App., 145 S.W.2d 675, error ref.
The appellant makes the contention that the Board of Insurance ' Commissioners may, by'its''rule, call all persons who- are doing work ■ for a subscriber “employees,” and render fhe subscriber liable to pay for compensation on such persons even though the subscriber has no liability to such persons under the’Act.
I do not sustain this contention. The statute provides who are covered by the Act, and the Board; may not by its rules extend the.Act to covpr ..independent contractors, -if it desired to do so-. ..
I do not believe that the undisputed evidence shows that the insured' sublet the whole or principal part of the work' which it was contemplated was -to be performed with the purpose and intention of avoiding liability.-imposed by the terms of the Act.
The contracts provide for' maintenance and operation of the equipment by the lessor, purchase of license plates, etc., pay operating expense of his equipment, provide indemnification in favor of Frozen Food Express against loss or damage, and if the equipment owner hired a driver 'for' his truck, he agreed to pay any workmen’s *389compensation insurance and social security-taxes on such driver.
The lessee paid the lessor seventy per cent of the gross charge for the movement.
During the term of the lease the equipment was exclusively to be used in the service of lessee.
The pleadings and the evidence raised the fact issue for the jury to decide, as to whether the operators were employees of appellee or independent contractors.
I believe the findings of the jury are reasonably supported by the evidence. The contracts by their terms were before the jury as well as was the testimony of Cyrus B. Weller, President of Frozen Food Express, and of witnesses Perry, Kidd, and Yale, who were witnesses for the appellant.
There is no testimony that Frozen Food Express sublet any work, but the several equipment owners as lessors were paid seventy per cent of the gross charge for the movement. Fort Worth Lloyds v. Mills, Tex.Civ.App.1948, 213 S.W.2d 565, error ref. n. r. e.; Texas Employers Ins. Ass’n v. Harper, Tex.Civ.App., Dallas, 1952, 249 S.W.2d 677, error ref:, n. r. e.
The fact that our Supreme Court granted a writ in the Hall case is not of itself a positive assertion by the Court that it would have reversed the case and restated the law with reference to Section 6, but the Court may have not been Satisfied with the way and manner in which the Hall case was disposed of by this Court and simply wanted to consider the matter.'. -
I believe that the issues submitted Nos. 1, 2, and 3, inquiring if the lessors of the trucks were independent' contractors and/or if the drivers and swampers operating the leased trucks were not the owners of said trucks, were employees of independent contractors, together with á definition of the term “employee,” and inquiring if said operators and swampers were employees of the defendant during a period between March 14, 1948 and February 20, T950, inclusive, the first two issues were answered “Yes” and the third was answered “No,” raised the issues and the jury’s verdict is reasonably supported by the evidence, and the court properly overruled plaintiff’s motion to set aside the verdict of the jury on the ground that the answers of the jury are so contrary to the overwhelming .weight of the evidence as to show passion and prejudice.
But for the submission of special issues Nos. 4, 5, 6, 7, 8 and 9, of itself not sufficient to reverse the case, but taken with the probable and its attendant effect upon the jury, and the admission of testimony that no losses had been paid, I would affirm the trial court’s judgment.
I therefore concur in the reversal of this case, but do not concur in the entire opinion of my associates.