Indus. Indemnity Exch. v. Southard , 147 S.W.2d 939 ( 1940 )

On Rehearing. Rehearing denied. I am unable to concur in the finding of the majority of this court that Elbert Vaughn Southard was an employee and servant of the Kurth Lumber Manufacturing Company, and not, as a matter of law, an independent contractor at the time he sustained the injuries which resulted in his death.

In arriving at this conclusion, I have taken into consideration every fact and circumstance in the record which would, in my opinion, tend to show such control over the action of the deceased by the Lumber Company as would constitute him its employee. In my opinion, the supervision exercised by the deceased in the manner, means and methods of doing the work in which he was engaged were not sufficient to constitute him an employee of the Lumber Company, when the fact that he was paid for the services rendered by him on the basis of the logs hauled, that he furnished the equipment used by him, and paid the expenses of its operation and repairs, and that the Lumber Company exercised no supervision over the number of logs hauled, the amount of work done, or the length of time devoted by him to his work for the Company, is taken into consideration.

These conclusions are based to a large extent on the cases of Smith Bros. v. O'Bryan, 127 Tex. 439, 94 S.W.2d 145, and Riggs v. Haden Co.,127 Tex. 314, 94 S.W.2d 152, both of which involved injuries to truck drivers and in both of which cases the facts are similar in all material respects to those in the instant case.

In each of the above cases the Commission of Appeals held that the drivers of the trucks involved were not employees, but that they occupied positions analogous to that of independent contractors.

For the above reasons, the judgment of the trial court should, in my opinion, be reversed and judgment here rendered in favor of the plaintiff in error.