Appellant's motion for rehearing complains that two prejudicial misstatements of fact are made in the third and fifth sentences, respectively, of the sixth paragraph of the opinion. *Page 928 The first of these states, concerning the work to be done by the independent contractor: "It did not include the lathing and plastering for new partitions and walls in which the 2"× 4" timbers were chiefly used." [Last italics ours.] In other words, appellant's own workmen plastered the walls. Appellant says the evidence is conclusive that these 2"× 4" timbers did not enter into the construction of the partitions and walls at all, because they were built of metal lath, channel iron studding and plaster. That is true.
But appellant further says the evidence is that "no lumber wasused in this work." That is incorrect. The appellant's foreman, Charles Jungling [Record, p. 261.2] testified that 2"× 4"'s were used for scaffolding in building the partitions and walls. Furthermore some of the workmen who said they were engaged in the plastering on or about August 11, 1941, the date of the casualty [Record, pp. 135, 137, 152] testified wooden scaffolding was used in that work, though they did not erect them. It is immaterial whether the 2"× 4"'s were used as construction materials or as erection materials. The point is that 2"× 4"'s were on that part of the thirteenth floor for use by appellant at the time of the casualty.
The second sentence in the opinion, of which complaint is made, states the records of the appellant's store architect showed some of the store's carpenters worked on the east half of the thirteenth floor during the week ending August 16, which included August 11, the date of the casualty. Appellant says that is not correct — that it was the following week, ending August 23. This statement also is erroneous. The deposition of appellant's store architect stated the plasterers were included in the carpenters' payroll [Record, p. 170]; that they worked on the thirteenth floor on the week ending August 9, for which $442 was charged [Record, p. 193-4]: that they worked the week of August 16 for which $156 was charged for improvements, and $274, a lot of which was for patching [Record, p. 181-2]; that the carpenters worked on that floor the same week and for the week ending August 23 [Record p. 184]; and another item for Department 381, shows the carpenters worked on that floor the week ending August 16 [Record, p. 194].
We find no errors in the opinion and the motion for rehearing is overruled. *Page 929