dissenting.
I cannot agree that there is any evidence that appellant had any right of control of any of the work of the woodcutters; therefore I respectfully dissent.
The first two issues submitted to the jury, and the responses thereto were:
SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that Kirby Forest Industries, Inc., had the right to control any part of the work of the woodcutters on the occasion in question?
Answer: “We do” or “We do not.”
ANSWER: We do.
Instruction: The “right to control” must be more than a general right to order the *235work to start or stop, to inspect progress or to receive reports.
If you have answered Special Issue No. 1 “We do” and only in that event, then answer Special Issue No. 2 ; otherwise, do not answer Special Issue No. 2 .
SPECIAL ISSUE NO. 2
Do you find from a preponderance of the evidence that Kirby Forest Industries, Inc. was negligent in exercising such control over the work of the woodcutters on the occasion in question in any of the following particulars? Answer “Yes” or “No” on each line in Column 1. If any of your answers in Column 1 are “Yes”, was any such negligence a proximate cause of the occurrence in question? Answer “Yes” or “No” on the corresponding line of Column 2.
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a.In sending the woodcutters back into an area which had already been cut without performing a reasonable inspection to determine if there were lodged or standing trees that had been cut but not felled. Yes No
b.In failing to provide for proper safety rules and procedures for the cutting and felling of trees. Yes Yes
c.In failing to warn Jackie Glynn Kirkland of the danger of lodged or standing trees that had been cut but not felled. No +
d.In failing to provide properly trained and experienced Kirby Forest Industries, Inc. personnel to supervise the woodcutters work on Kirby Forest Industries, Inc.’s property. No
e.In providing in the Kirby Forest Industries, Inc.’s specifications that trees should be “smooth cut” rather than “step cut” so that the tree’s fall can be controlled. Yes Yes
In its first two points of error appellant contends the trial court erred in submitting the first issue because it is not supported by any evidence, or alternatively, that the jury’s answer is against the overwhelming weight of the evidence. In its next two points of error appellant contends the trial court erred in submitting issue 2(b) because it is not supported by any evidence, or, alternatively, that the jury’s answer is against the overwhelming weight of the evidence. In its next two points of error appellant contends the trial court erred in submitting issue 2(e) because it is not supported by any evidence, or, alternatively, that the jury’s answer is against the overwhelming weight of the evidence. All these points are so closely related that the law points (1, 3, and 5) will be jointly discussed as will fact points (2, 4 and 6).
Appellee referred to himself as an expert woodcutter, working as an independent contractor, cutting logs for K & E Company, a logging contractor. Appellant, Kirby Forest Industries, owned approximately 650,000 acres of timber land in Texas and Louisiana. K & E had been contracting exclusively with Kirby for some 8 to 10 years to harvest timber for Kirby. Contracts were entered into from time to time covering specific tracts of land. The contract, number 450, in effect at the time of appellee’s injury was executed on December 31,1979, and was supplemented in writing from time to time to cover specific *236tracts of land and specific types and sizes of timber to be harvested, dependent upon the use for the harvested timber, i.e. scaled logs, plywood logs, sawmill logs, or pulpwood. At the time of appellee’s injury, K & E was working under supplements to the contract that called for “clear cutting” an area containing some 22 acres. The loggers had already cut and removed the pine timber and were in the process of cutting and removing the hardwood when a hardwood tree, which had been cut almost totally through, fell on appellee as he was in the process of cutting limbs from another tree he had just felled. Appellee suffered extensive and very serious injuries.
The first paragraph of the contract between Kirby and K & E provided:
Contractor will, with his own equipment and employees, and upon his own responsibility and risk, perform logging services for Kirby and will be paid for such services, all as stated on Supplement 1 hereto and on additional supplements which may be agreed upon from time to time. Kirby will have no right to direct the means or methods of performance by Contractor; Contractor is to have responsibility for accomplishing the agreed results, himself employing, controlling and directing the details of performance of the work and selecting, directing and controlling his own employees.
The concluding paragraph of the contract provided:
Contractor is familiar with all applicable safety rules, and rules currently published by Kirby relating to log and product specifications, particularly regarding tree and log sizes, trim allowance, log lengths, and defects. Contractor will keep himself informed of these specifications unless Contractor, upon a change, gives notice of the termination of his contract.
The majority points to the following provisions of the contract and the supplements thereto to justify the conclusion of Kirby’s contractual retention of control: (1) specification of the date for completion of the harvest contracted for (each supplement to the contract provided that “Kirby may terminate the agreement as applicable to the services herein contemplated if the same are not completed by contractor by _”); (2) reservation of the right to designate “the logging sets, logging trails and other roads” to be used (the main contract provided that “Road use, construction and hauling shall be done in such manner as to do the minimum damage to the remaining forest and environment, and to any improvements, particularly to road surfaces, ditches, culverts, bridges, fences and gates ... ”); (3) reservation of right to designate area from which trees were to be harvested and the size and kind of trees to be harvested; (4) reservation of the right to change the contract; (5) reservation of the right to add additional supplements “as the parties may agree upon additional or changed services to be performed” (quoted at length in the majority opinion); and (6) the testimony that Kirby “scheduled the property to be harvested at a particular time and that the company could designate the specific trees to be cut.” It is interesting to note that appellee does not argue that any of the above circumstances, except numbers (3) and (5) amount to a right to control the work of the woodcutters.
The bottom line, so far as I can determine, of the majority opinion is that because Kirby desired maximum utilization of the natural resource — the timber — Kirby thereby controlled the method of cutting the trees; therefore, the tree must be cut with a smooth cut and the smooth cut is dangerous. Also, Kirby had the power to address in the contract the manner in which the trees were to be cut and to forbid the trees being cut in a dangerous manner, and by not doing so it subjected itself to potential liability. I disagree because the facts upon which the majority relies do not rise to the level of a right to control any part of the work of the woodcutters.
The first issue inquired whether Kirby had the right of control over the work of the woodcutters; the jury found it did. In answer to the second issue, the jury found Kirby was negligent in exercising control over the work of the woodcutters in two *237respects: (1) in failing to provide for proper safety rules and procedures for cutting and felling trees, and (2) in providing in the Kirby Forest Industries, Inc.’s specifications that trees should be “smooth cut” rather than “step cut.” As a general proposition, an owner is not obligated to require an independent contractor to perform on-premises activity in a safe manner. Exxon Corp. v. Quinn, 726 S.W.2d 17 (Tex.1987). An exception was carved out in Redinger v. Living, Inc., 689 S.W.2d 415 (Tex.1985), which provides that when one exercises some control over an independent contractor’s work he may be liable unless he exercises reasonable care in supervising the contractor’s activity. Furthermore, in Pollard v. Missouri Pacific R.R., 759 S.W.2d 670 (Tex.1988) and in Newspapers Inc. v. Love, 689 S.W.2d 582 (Tex.1964), the Texas supreme court held that a premises owner may be liable for failure to exercise reasonable care where he has a contractual right of control, even if he does not exercise that right. In this case then, if appellant had a right of control over the woodcutters then it owed them a duty to provide them with training or instruction in safely cutting trees.
Reviewing the evidence in the light most favorable to the verdict, without regard to contradictory evidence or inferences, the record reveals the following. Kirby Forest Industries owned the land on which the plaintiff was working. Plaintiff was paid by K & E who had a contract with Kirby. The contract gave Kirby the right to designate which trees were to be cut, and to require maximum utilization of the wood. Specifically the contract stated that stumps should be cut low, stumps should not be cut on a slant or with high step joints, and butts of logs should be cut square and smooth. As the majority concedes, however, Kirby did not specify that a smooth cut be used, and the contract gave them no control over the means or methods of the cutters.
Additionally, Kirby did not supply any equipment to the woodcutters or to K & E and Kirby did not supervise, train or instruct the woodcutters to insure that they cut trees safely. A Kirby employee, called a contract administrator, would visit the cutting area once or twice a week solely to determine if the woodcutters were adhering to contract specifications and to designate other areas for cutting. The woodcutters were paid by K & E and the Kirby contract administrator always spoke with the partners of K & E if he was displeased with the logs. Under these facts, it appears the only right of control given to Kirby was the right to designate what trees were to be cut, to specify that there be maximum utilization of the wood, that stumps be cut low and without high step joints, and that butts of logs be smooth and square.
Appellee contends that these contract specifications amounted to the right to control the work of the woodcutters. First, he argues, that the right to designate what trees are to be cut retains in Kirby a right of control over the woodcutters. It is difficult to determine from the majority opinion the extent to which it relies upon the right to designate what trees are to be cut as a retention of the right of control over the woodcutters. Assuming the majority finds this to be a retention of the right of control, then I disagree, because in my opinion, this contract specification just cannot be said to be an exercise over the independent contractor’s work. To hold otherwise would mean that the exception created by Redinger would become the rule. Second, appellee argues, and the majority agrees, that the right to specify that there be maximum utilization of the wood, that the stumps be cut low and without high step joints and that butts of logs be smooth and square amounted to the right to control the work of the woodcutters by necessitating the use of an unsafe means of cutting — the smooth or flat cut. Therefore, it is our duty, under appellant’s challenge, to determine if there is any evidence to support the jury finding that Kirby Forest Industries, Inc.’s specifications required that trees should be smooth cut rather than step cut. I can find none.
First, of course, the specifications of the contract do not so provide. This should end the inquiry based upon the wording of *238appellee’s issue. However, the majority looks to the testimony of (1) fellow woodcutters Jesse Henson and Rodney Rhodes, (2) Vernon Cain, an employee of K & E, who operated a skidder to bring the logs from where the trees were cut to the truck loading area, (3) appellee and (4) Keith Ax-elson, a Kirby logging supervisor to find this requirement. I do not understand how their testimony can control the specific terms of the contract, but even if it could, such evidence amounts to no more than a scintilla and therefore, fails under appellant’s challenge.
Looking to the testimony of each and the reasonable inferences flowing therefrom in their most favorable light to support the jury’s findings, and disregarding all contrary evidence, I find the following.
Henson, one of the three woodcutters, testified by deposition. Only the following questions were asked, and answers given, which relate to the issue:
Q. As far as you know from your own personal knowledge, was Kirby providing any equipment out there on that job?
A. Butt chewing.
Q. What is butt chewing?
A. That’s when you get your butt chewed out.
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Q. Let me get back to the butt chewing. The Kirby man out there is called a woods boss. Is that right?
A. Right.
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A. Our boss has got to please him, and we’ve got to please him.
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Q. How many times a week would you say that he’d come out to see what was going on the survey?
A. Once or twice. Sometimes he wouldn’t. Depends on how the job was going.
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Q. You tell me what you meant by butt chewing. I’m not going to put words in your mouth. You tell me about it.
A. If you’re messing up, if you’re cutting too high or something, if you’re not going far enough up in the tops, the wood foreman comes out there and tells our boss; and they come out and tell us. Rhodes, the second of the woodcutters, also testified by deposition.
The only questions and answers relating to the issue were:
Q. Is the Kirby woods boss the head man on the survey?
A. Yes.
Q. Does everybody at K & E take orders from the Kirby woods boss?
A. Yes, I reckon.
Q. Did the woods boss on this particular survey give anybody any orders about safety, about how you ought to work?
A. No.
Q. Did they provide you any safety manuals or anything like that?
A. No.
Q. Did Kirby have any safety meetings for the woodcutters to tell them how to do it safely?
A. No.
Q. Did Kirby provide specifications for cutting wood?
A. No.
Q. In terms of how high the stumps were supposed to be?
A. Yes, on that.
Q. In those specifications, did they provide that the stumps were supposed to be cut smooth?
A. Yes.
Q. That was the way you were doing it, right, smooth? Were you told to cut them smooth?
A. Right.
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Q. Look at those two pictures. For the record, we’re looking at Plaintiff’s Exhibit 2 and Plaintiff’s Exhibit 5, looking at those two, is that a flat cut?
A. Yes, straight out.
Q. There’s another way to cut trees to make them a little bit more controllable about which direction they fall, and that’s called an offset?
A. Yes, cut on both sides. That tree was back handed probably. You couldn’t *239really tell. That’s probably the way it was cut.
Appellee testified that he was an expert woodcutter, “better than most,” and acknowledged that “it didn’t take Bob Harper (Kirby representative) to come out there and teach [me] how to cut a tree because [I] already knew.” Concerning the issue of a “smooth cut,” he testified:
Q. You’ve heard us talking during the course of this trial about step cut or offset cutting.
A. Yes, sir.
Q. In your opinion is that the safest way to cut a tree?
A. Yes, sir.
Q. When you’re working on Kirby land under their specifications, would they let you cut it that way?
A. They didn’t like for you to.
Q. How did they want you to cut it?
A. They wanted you to cut it flat.
Cain, a skidder operator, testified by deposition. While he was not a woodcutter, he nevertheless testified about the issue of a smooth cut as follows:
Q. Let me put it this way: How were you instructed by Kirby to cut those stumps?
A. We back sawed them.
Q. Like this?
A. Kirby wants them sawed smooth. You cut in and then you cut the other way and meet up with your same — what we called match sawing.
Q. Did they instruct you to do a flat cut?
A. They wanted it as flat as you could get it.
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Q. When he [the Kirby wood boss] come out to the job site, did the contractors do what he said to do?
A. They was working for Kirby, so they had to do what Kirby wanted them to haul.
Q. Kirby was the final authority to say how they wanted it cut and where they wanted it cut?
A. Sure, you got to cut your stumps down right and you got to cut your log length and you had to go in the top and get all the wood out. Kirby wanted you to cut your logs, cut them right and cut what they spotted. If it was clear cut, if you had any left, you had to go back and cut them. That’s the way the operation went always all my life.
Q. Not only on this job with Kirby but on other jobs that you’ve worked on over the years?
A. They want to make sure their logs are cut to their specifications.
Finally the majority refers to the testimony of Axelson, a Kirby logging supervisor. He testified by deposition, and those portions introduced by appellee showed that cutting trees is dangerous because to “harvest a tree means more than cut.” He stated that Kirby does not prescribe or dictate any safety regulations to its contractors. Concerning the testimony attributed to him by the majority, he explained in answer to questions by appellee’s counsel, how he would cut a tree — that is cutting a third of the way through on one side and then cutting from the opposite side “a little higher” and “unless the wind’s blowing real hard or there’s some other factor, generally speaking, that tree’s going to fall to the side of the lower cut.” The following then occurred:
Q. Does Kirby Forest Products ever specify this technique that you’ve just described or any other safe way to cut a tree so that the forester will know which way the tree is going to fall?
A. Specify to whom?
Q. To the woodcutters.
A. No. To a company, or to contract woodcutters?
Q. Either one.
A. Yes.
Q. To the company woodcutters, it does?
A. They are written — I don’t know if you call it policy, procedure, practices regarding the felling of trees for company individuals.
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Q. Anything else that you can remember in those regulations?
*240A. No. It has been years since I read those.
He continued his testimony that those regulations were “incorporated into a safety manual, a green, bound safety manual of all safety procedures and guidelines.” (However, to put this testimony in proper perspective John Derkits, the project forester for Kirby, and called as a witness by appellee, had just testified prior to the introduction of the deposition, that in the past they (Kirby) had salvage crews who cut logs, “but we haven’t had those for years.” He stated that when they had such salvage crews Kirby had a “little green book,” a safety manual that provided safety specifications for company employees.)
This, then, is the testimony which the majority finds to be sufficient to sustain the finding of the jury “that Kirby retained a sufficient degree of control over the contract woodcutters’ work to give rise to the Redinger exception.” I disagree and would hold this is no evidence that Kirby retained anything but the right to control the end product of the woodcutters, as opposed to the right to control any part of the woodcutters’ work. It necessarily follows, from this proposition, that there is no evidence, in my opinion, to support the jury’s answer to issues 1, 2(b) and 2(e). The judgment should be reversed and rendered in favor of appellant.
Next, addressing appellant’s points two, four and six, when all of the evidence is considered to address appellant’s challenge to the factual sufficiency of the evidence, it is abundantly clear to me that the answers of the jury to issues 1, 2(b) and 2(e) are against the overwhelming weight of the evidence. In addition to that evidence detailed above, the record contains the following.
John Derkits, project forester for appellant, testified that contract administrators, employees of Kirby, were the individuals whose job it was to oversee the contracts with logging contractors. Concerning the contract under which the logging was being done in this case, he testified that the contract administrator showed “K & E the tract of land that they were to cut on and described the timber that the logs would be cut from, what sizes or if it’s a clear cut. He didn’t show them which tree to cut or where on the tract to go and cut, you know, where to start and what time of day to start or anything ... We don’t tell them when or how to cut the trees. We show them where to cut them.” He explained that the specifications in the contract that “log cuts shall be square, smooth and without splintering, splits or crushed fibers” means that “the ends of the log is what we’re talking about cutting smooth, not how you cut the tree of the stump.” As to how to cut down a tree, he testified that Kirby does not have any safety rules because the logger is “the expert. That’s an art, cutting down trees. Guys like Jackie Kirkland, that’s an art. You just don’t go to school and learn how to do it.” He stated that the contract contains no specifications on stump characteristics as far as how they should be safely cut. Concerning step joint cuts, he stated “we don’t say a step joint should be avoided. We say high step, if its a high step rather than a low step. If you cut a high step, it’s a tendency for the tree to split. If you cut it lower, then you don’t damage the log as much, and its really safer because the tree won’t split up as bad and hold it to the stump and hinge over.” He also testified that step cuts were used by the woodcutters because the photograph of the stump of the tree “next to the tree that hit Jackie” had been step cut. Robert Harper, contract administrator for appellant, testified a back cut “would be a cut that’s made so you can directionally fell a tree.”
Finally, there was no testimony indicating that Kirby’s contract specifications, if different, would have prevented this accident. Appellee testified that with all the experience he had in cutting trees, “it didn’t take Bob Harper to come out there and teach [me] how to cut a tree because [I] already knew,” and that there was not “anything anybody could have told [me] that [I] didn’t already know about to be a safe woodcutter.” He acknowledged that he was an expert — better than most — on how to do it right. At trial appellee ex*241plained a “match cut” as being a procedure where the woodcutter cuts about a third of the way through a tree and then cuts the reverse side of the tree, lining up the cut so that it matches the first cut thereby leaving a smooth cut, both on the log end and on the stump. While at trial he testified this type cut wasn’t “as safe,” a portion of his deposition was introduced where he testified that based upon all his years experience as a woodcutter, it was a safe way to cut a tree (emphasis supplied). Another portion of his deposition testimony was introduced in which appellee testified that he had never used the technique of a step cut.
Raymond Kervin, one of the owners of K & E, testified appellee was an experienced woodcutter hired by his company. He stated that Kirby never supervised his men, and that Kirby never told his woodcutters how to cut a tree. He stated that appellee and other woodcutters he hired were “some of the best I ever saw” and that we picked the woodcutters — “the ones that we knew how to cut logs.” Bernard Edge, the other owner of K & E, testified it was not Kirby’s job to tell the woodcutter how to cut a tree. He stated that appellee was “one of the best” woodcutters.
In view of all this evidence, and the lack of any to the contrary, other than the inferences related above, the findings by the jury (1) that Kirby had a right to control any part of the work of the woodcutters, (2) that Kirby was negligent in exercising such control in failing to provide proper safety rules and procedures for cutting and felling trees, and (3) that Kirby was negligent in exercising such control in providing that trees would be smooth cut rather than step cut, are contrary to the overwhelming weight and preponderance of the evidence, and accordingly the judgment should be reversed and remanded. However, having previously determined that in my opinion there is no evidence to support the issues, there is no need to address appellant’s seventh and eighth points of error. The judgment should be reversed and rendered in favor of appellant.
PAUL PRESSLER and SEARS, JJ., join in this dissent.