Since the original decision was rendered, the question of independent contractor has been reexamined in Dortch Baking Co., v. Walter Schoel, Ala.Sup., 194 So. 807;1 and in that case the holding was rested on Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757.
In Birmingham Post Co. v. Sturgeon, 227 Ala. 162, 149 So. 74,77, this court said:
" '* * * A clear and concise statement of such distinction is made in our case of Republic I. S. Co. v. McLaughlin,200 Ala. 204, 75 So. 962, to the following effect: The relation is "determined by whether or not the person for whom he is working 'has control over the means and agencies' by which the work is done (Warrior-Pratt Coal Co. v. Shereda, 183 Ala. 118,62 So. 721; T. C. I. R. Co. v. Davis, 194 Ala. 149, 69 So. 544; L. N. R. Co. v. Williams, 199 Ala. 453, 74 So. 382), (and) or has control over the means and agencies 'by which the result is produced' (Harris v. McNamara, 97 Ala. 181, 12 So. 103). In line with this test is the rule that he is deemed the master who has the supreme choice, control, and direction of the servant, and whose will the servant represents, '(not merely in the ultimate result of his work, but in all its details).' (Lookout Mt. I. Co. v. Lea, 144 Ala. 169, 39 So. 1017)." * * *
" 'An application of this test has been made in numerous cases, with the result of holding that the relation of independent contractor, and not servant, existed where the person was city salesman on commissions, using his own car (Aldrich v. Tyler Groc. Co., 206 Ala. 138, 89 So. 289 [17 A.L.R. 617]); where the person furnished clay by the wagon load to a mudmill of the contractee, getting the clay from pits on lands of the contractee, and was paid by the load (U.S. Cast Iron Pipe Foundry Co. v. Fuller, 212 Ala. 177, 102 So. 25); where the person mined coal or iron ore for the mine operator, and was paid by the ton mined (U.S. Cast Iron Pipe Foundry Co. v. Caldwell, 208 Ala. 260, 94 So. 540; Hubbard v. Coffin ( Leak), 191 Ala. 494, 67 So. 697); where the person was holding the owner's car, for the purpose of repairing it in his own way by the job, and free from direction or control of the owner as to details or manner (Freeman v. Southern Life Health Ins. Co., 210 Ala. 459, 98 So. 461). This rule was applied in Mississippi to a truck driver selling bread to customers along a route he had selected, wherein the baker did not control him in the manner or method of selling and delivery (Crescent Baking Co. v. Denton, 147 Miss. 639, 112 So. 21); and in Florida, where it is said the right to control the method of work is one of the principal considerations (Gulf Refining Co. v. Wilkinson, 94 Fla. 664, 114 So. 503).' * * *
"True, in Martin v. Republic Steel Co., supra (226 Ala. 209,146 So. 276), it was held that the criterion is not whether the owner did in fact exercise supervision, 'but rather did he have the right to do so; did he possess the power to control,' but the rules for distinguishing between independent contractors and servants as found stated in the Findlay Case, supra (General Exchange Ins. Corp. v. Findlay, 219 Ala. 193,121 So. 710, 711), have not been altered by statute or decisions, so far as the question of control is concerned, though our cases have recognized that other elements of an independent contractor have been subject to modification. Section 7585, Code, 1923; Ex parte Am. Fuel Co., 210 Ala. 229, 97 So. 711; Ex parte W. T. Smith Lumber Co., supra (206 Ala. 485,90 So. 807)." (Parenthesis supplied.)
A reexamination of the contract of Western Union Telegraph Co. for establishment of a Class 11-B Agency with the "Redding Drug Store by J. A. Redding, Agent" and "accepted July 7, 1937," by the Superintendent of the telegraph company without more, would create of that "agency" the relation of an independent contractor in the discharge of the services undertaken.
However, under the evidence set out in the original opinion, the manner of payment of the boy's earnings for delivery *Page 87 of messages, the social security card of Western Union as affecting George, created by operation and conduct of business thereunder, the relation of the master and servant, as held by the circuit court and this court, was created.
It results from this that the relation subjected the Western Union Telegraph Co. to the terms of the Workmen's Compensation Act, as we have heretofore indicated. Code 1923, §§ 7596, 7586 et seq.
The application for rehearing is overruled.
ANDERSON, BOULDIN, BROWN, and KNIGHT, JJ., concur.
1 Post, p. 266.