On Motion for Rehearing.
We have considered carefully the long and well prepared motion for rehearing presented by appellee.
Among other arguments made, it is urged that no writ of error will lie in this cause.
We do not think this contention sound, for the following reasons: The trial court heard the cause on the plea of privilege and overruled such plea. An appeal was taken from such order and then the trial court set and heard the cause on its merits and, judgment having been rendered, an appeal was taken from such final judgment. These causes were then consolidated in the Court of Civil Appeals.
We have concluded that the plea of privilege is well taken and we then declined to pass upon the issues presented in the appeal from the judgment on the merits, but reversed such judgment and remanded the cause to the District Court of Cass County.
If we are in error in sustaining the plea of privilege, then it is obvious that we should consider the appeal from the judgment on the merits and we should either affirm such judgment or reverse and re*125mand the cause to the District Court of Hunt County.
It would seem to us that the Supreme Court, under such a record, has jurisdiction to pass upon the merits of an application for a writ of error bottomed upon the declination of this court to consider the issues presented in the appeal from the judgment on the merits; such declination being predicated on our ruling holding the plea of privilege well taken.
The appeal before us does not simply involve the merits of a plea of privilege, but it involves the merits of a final judgment rendered in the main case.
We can see no difference in the situation presented here in the consolidated causes on appeal and that of a case where the plea of privilege is overruled, the parties put to trial immediately upon the merits, and an appeal from final judgment in which the merits of the plea of privilege and those of the main case are all presented in one breath on appeal.
It seems to us that to take any other position would be a denial of a substantial right to a diligent litigant.
As an illustration of our position, see Gilmer v. Graham, Tex.Civ.App., 26 S.W.2d 687, in which a writ of error was granted and the judgment reversed and remanded by the Supreme Court, in 52 S.W.2d 263. See, also, McNeill v. Simpson et al., Tex.Civ.App., 24 S.W.2d 485, in which a writ of error was granted and the judgment affirmed by the Supreme Court, 39 S.W.2d 835.
We have gone into the contentions urged in the motion and do not believe them well taken.
We do not believe that the inferences raised by the evidence are sufficient to overcome the plain stated facts, which are given support in the evidence by proof that does not depend upon oral testimony of any interested party.
The fact that through an arrangement Linden Lumber Company carried the employees of Raymond Morse in its Workmen’s Compensation Insurance policy, does not make such persons employees of the Lumber Company.
It is quite true that the insurance carrier would not be heard to deny liability to Raymond Morse’s employees, but this, in our opinion, would be predicated upon the ground that the insurance carrier was put in possession of the true facts and, having issued the policy of insurance and accepted the premiums, it would be estop-ped to deny liability.
We are unable to see the distinction between a certified copy of the registration receipt issued by the Tax Collect- or of Cass County and the original receipt delivered by such officer to Raymond Morse, which covered the truck that was involved in the accident. .
No one should seriously contend that a certified copy of a tax receipt, issued by a county tax collector, is not worthy of full faith and credit in any court in Texas, in the absence of the original receipt.
It is undisputed that Raymond Morse purchased and owns all of the trucks that do the hauling; that he pays for them out of his earnings; that he pays for all repairs, unkeep and operating expenses; that his account in the bank is separate and distinct from the account of Linden Lumber Company; that he pays the truck drivers out of his earnings; that he hires and discharges the drivers; that he is paid for the hauling of all lumber at approximately freight rates; that the Lumber Company carries the account on its books showing what Raymond Morse earns with the trucks and charging Raymond Morse with all items paid out by the Lumber Company, which are properly chargeable to him; that the only control exercised over the trucks drivers by the Lumber Company was that which, in the orderly conduct of the business, merely accomplished the purpose of seeing that the work was properly and expeditiously done and proper results accomplished, by the contractor’s employees.
We do not believe that the inferences shown and the facts developed are sufficient to make out a prima facie case of master and servant between the Lumber Company and the truck drivers, and we believe that the oral testimony which was introduced to show that the drivers stated, in substance, that they were hauling for Linden Lumber Company, was not admissible, under the record in this case.
When we delete from this record, these oral statements of declarations made by the drivers and the testimony of the witness, Ethridge, who says he demanded the registration papers, that they were exhibited to him, and they showed that the truck was registered in the name of Linden Lumber *126Company, there is, to our way of thinking, not enough evidence in the record to raise the issue of employer and employee between the drivers and the Lumber Company.
The motion is overruled.