Appeal from District Court, Hunt County; were under the control of appellee, In doing Wm. Pierson, Judge.

Action by J. M. Alexander against the Texas Refining Company. From judgment for plaintiff, defendant appeals. Reversed and remanded.

Harry P. Lawther, of Dallas, for appellant. B. Q. Evans and W. A. Shields, both of Greenville, and Carden, Starling, Carden, Hemphill & Wallace, of Dallas, for appellee.

the work all the necessary tools and appliances for the work were furnished by the Model Machine Shop, unless it was the piece of steel out of which the pin was made. This piece of steel was taken to the shop and fashioned for the purpose of inserting it into the

hole bored by appellee.

It is also shown that appellee chipped of the parts of the machine necessary to get the old pin out, and the helpers, negroes, with a

sledge drove the pin out, and after it was HUFF, C. J. Alexander sued the Texas out, with a boring machine belonging to the Refining Company for damages occasioned by shop the appellee enlarged the hole; one of the loss of a finger, and recovered upon the the negroes turning the machine. After the trial $2,000. He alleged that on or about hole was completed to suit the appellee he the 28th day of October, 1915, he was in the took the necessary measurements and the employment of the refining company, assist- steel for the pin to the shop and finished it ing in repairing a part of their machinery, so as to make it the proper size for the hole. etc. The negligence alleged is that the refin- Upon return to the plant the new pin was ing company employed the men to help in inserted in the hole and was driven in, under the work, and without his knowledge employ- the direction of appellee, to within about an ed incompetent men, who were not experi-inch of the distance it should go. This was enced in that line of work, which was the accomplished by Alexander holding a copper proximate cause of the injury, and also al- hammer on the head of the pin, the negro leged that the men so employed were negli- striking this with a sledge hammer. It was gent. The answer will not be set out at this then found that in order to drive it up it place, but the issues presented by it will be would require more force. Carley, the enginoticed in the course of the opinion. The neer of appellant, was in the engine room Texas Refining Company was engaged in the asleep, and appellee woke him up, stating manufacture of lard and cooking oil and in that he could drive the pin no further with the making of ice. A crank pin in an up- the sledge, and that he would have to have a right engine in use in its plant in Greenville, battering-ram, and asked for something that Tex., became loose, necessitating taking it out, could be so used. Carley told him there was the making of a new pin, and putting it in some railroad iron which he could use, and its proper place in the engine. One Mc- told the negroes where it was. This railroad Mackin was a machinist in the city, doing iron weighed about 400 pounds and was business under the name and style of the about 20 feet long. The engine, where the Model Machine Shop. Alexander was work-pin was being driven was about 8 feet from ing for McMackin on a percentage basis; the brick wall of the building, and it was that is, he received 50 per cent. of half of the found necessary to cut a hole in the wall in compensation for any job of work that Mc- order to pass one end of the iron through it Mackin obtained, and which was turned over for leverage to use the iron as a batteringto Alexander, and after the work was done ram. Appellee in one place seems to say and expenses paid they divided the profits. Carley cut the hole in the wall; all the othSome portions of the appellee's testimony er witnesses but himself say that he himseem directed to an effort to show that the self measured it and directed the negroes to Model Machine Shop lent or hired him to ap- cut the hole. One end of the iron was run pellant to work on the engine, and under ap- through this hole, and the one next to the pellant's control and management that his machine was suspended by a rope from services were to be paid for by the hour, above. The appellee says Carley directed while from other portions of the testimony this arrangement. All the other witnesses the inference may be drawn that the "job" state appellee did so himself. Carley says was that of the shop, and that he controlled that he was not in there when it was rigged and directed the entire work. The testimo- up, and was not there until after they had ny of all the other witnesses shows the con- begun to use it as a battering-ram. Appeltract was made with McMackin, or the shop, lee admits in one place that he did assist and to do the designated work; that it was to direct the arrangement of the ropes suspendbe paid for as a complete piece of work, and ing the iron. In using the rail there were the Model Machine Shop was so paid upon three negroes outside the building for the the rendition of its bill; that the appellant purpose of propelling the iron and one on the did not manage, control, or direct the appel- inside at the rope to hold and guide the iron lee, but that he controlled the work, using so as to strike the head of the pin. When his own tools, manner, and method of doing they first began using the iron a brass hamthe work; that in doing the work he was mer was held against the head of the pin representing the Model Machine Shop, and at and the iron struck this. The handle fell his request the appellant, through its engi- out of the hammer, and appellee picked up a neer, lent to him helpers who, while helping,piece of shafting 51⁄2 inches long and 215/16

inches in diameter, holding one end against, The appellant also objected to paragraph 4, the pin with his hand, while the negroes swung because it assumed that the relation of masthe ram against this piece of shafting. There ter and servant existed between appellant were some blows struck with the ram after and appellee, and also objected to issues 1 which a blow missed and caught the finger and 2, for the reason the evidence established of appellee, mashing it against the plate so that appellee was in the employ of the Model that amputation was necessary. The negroes Machine Shop, which was an independent conon the outside, swinging the ram, could not tractor to do the specific work; that he was see appellee or the pin. After they had be- pursuing his own means, methods, and mangun to use the iron, Carley states, and the ner of work; that the particular work was to other evidence shows, that he was present be paid for to the shop, which in fact was so when the ram struck appellee's finger, hold-paid in a lump sum, and that appellant's ining a light so the work could be seen. Ap-terest in the work was only in the final repellee, in some of his testimony, would seem to state that Carley was directing the work. All the other witnesses say appellee was doing so. The negroes were in the employ of appellant, and appeared to be only ordinary laborers, and were perhaps not skilled mechanics. At the time of the contract or employment of appellee, he asked Carley if appellant could give him helpers. Carley stated he would be there, and would furnish him help. Carley was the engineer at the plant, working for it in that capacity; the negroes were helping appellee under the arrangement

so made.

This statement of the facts we judge to be sufficient for the purpose of considering the assignments.

The appellant requested the trial court to instruct a verdict for it, and presents a number of assignments, based on the refusal of such instruction.

sult. That the duty to furnish competent fellow servants is an obligation imposed by common law upon the master to his servant; that in this case the relation of master and servant did not exist. The appellant, in its answer, pleaded independent contract by the Model Machine Shop; that appellee was in its employ and under its direction when he was performing the particular work; that he adopted his own methods and means, and that the entire work was under his control and management; that the negroes were lent appellee for the purpose of helping him, and were under his control, management, etc. Appellants took a bill of exceptions to the action of the court in refusing to submit the special issues so requested. The court, however, indorsed on this bill his approval with the following explanation:

"The question as to whether the work being dene by plaintiff was done under an independent contractor, an employé of defendant, was, by counsel for defendant and by counsel for plaintiff, repeatedly stated to be a matter for the court to pass on, and throughout the trial the

The fourth paragraph of the court's charge, instructed with reference to the duty of a master to furnish a reasonably competent fellow servant, and after certain definitions sub-case proceeded on this understanding." mitted special issues to the jury, the first being, was the helper Stinson (who was the negro guiding the ram at the time of the injury) incompetent and wanting in required qualifications for assisting plaintiff in the work in hand? Second, was the defendant guilty of negligence in furnishing the helper Third, was the helper furnished and the negligence of the defendant the proximate cause of the injury? The jury answered all of these questions in the affirmative. The appellant requested several issues to the effect, Was appellee, at the time of the injury, in the employment of the Model Machine Shop? Was he paid for his services by that shop, by commission on the net profits? Was he doing the work he was engaged in according to his own methods and means and with his own choice of tools? While doing the work, was he under the control or direction as to method, means, and manner of work as to tools used by the Texas Refining Company? Were the employés who assisted him in his work under his direction and control in so far as said work was concerned? Did he direct the manner and use in which the railroad rail was used as a battering-ram? These several issues the court refused, and

[1] At this time we will notice the qualification made by the trial judge on the bill. All the record in this case suggests that the appellant urged in the court below, as well as in this court, that the evidence did not establish the relation of master and servant, and as a matter of law the court should so hold; but the court did not think so, and submitted issues of fact for the jury's findings. The appellant filed written objections to the assumption by the court of the existence of the relation of master and servant between appellant and appellee, and presented them to the court before his charge was given to the jury; not only that, but it requested, in writing, issues for findings by the jury which, if they had answered in the affirmative, would have shown no such relationship existed, and these issues were also presented by its answer, specially setting them out. The statute relating to special issues provides, where issues are not submitted to a jury and no finding thereon, if necessary to support the judgment, the appellate court will presume such finding by the trial court, if there is evidence to support the finding, unless there is a written request for a finding on such issues by a

Our Supreme Court said:

"It is now the well-established doctrine in Europe and the general prevailing rule in this country that the ordinary relation of principal and agent and master and servant does not subsist in the case of an independent employé or contractor who is not under the immediate direction of the employer." Cunningham v. Railway Co., 51 Tex. 503, 32 Am. Rep. 632; Railway Co. v. Meador, 50 Tex. 87.

[4] The mere use by appellee of material or employés primarily employed by appellant to do the work undertaken by him would not of itself make the company liable for their acts, unless it had the immediate control and management of the work done; and, as said in the Cunningham Case, supra:

"To hold otherwise would virtually forbid parties to construct works of improvement, or perform many other acts except by their own servants, unless at great peril for liability for actions of others over whom they have no im

mediate control."

The Supreme Court again announced substantially the same rule in Wallace v. Southern Oil Co., 91 Tex. 18, 40 S. W. 399. The case of Walker v. El Paso Electric Co., 103 Tex. 259, 126 S. W. 262, and 118 S. W. 554, does not announce a different rule.

[5-7] The mere fact that the appellee, or the Model Machine Shop, was to receive pay for the work for so much per hour, or that it was to be paid for by the job, is no conclusive, either one way or the other. Such facts may be entitled to some evidentiary value. These questions are usually determined on the issue as to who is in charge and control of the work, and who is left to determine the method in which it is done. Thompson on Negligence, vol. 1, §§ 629, 630, et seq. The true test in such cases is to ascertain who directs the movements of the person committing the injury. Higgins v. Western Union Telegraph Co., 156 N. Y. 75, 50 N. E. 500, 66 Am. St. Rep. 537; Cotter v. Lindgren, 106 Cal. 602, 39 Pac. 950, 46 Am. St. Rep. 255;

St. Rep. 267." Wallace v. El Paso Electric Co., 118 S. W. 554; Wolfe v. Mosler Safe Co., 139 App. Div. 848, 124 N. Y. Supp. 541, and authorities above cited.

[8] This case, we think, clearly raises the issue that the Model Machine Shop undertook to do the specific work, and that Alexander was in its service; that it furnished the material and work; that Alexander, for it, selected the instrumentalities with which to do the work; that he directed and controlled the manner in which it was done and all those who assisted in the work; that appellant did not control the work as it progressed, but was only interested as to the final result of the work; that appellant loaned, with their consent, its employés to appellee to assist him in the work; and that he controlled them in their duties with reference thereto. We, perhaps, would not be justified in holding as a matter of law that there are no facts to

the contrary, but we think, under the motion for new trial, pointing out the error of the court in the particulars above stated, that the court should have granted a new trial, and therefore we believe the case should be reversed and remanded for the reasons above stated.

[9] The trial court submitted issue No. 4:
"(a) In the manner and by the means by
which the plaintiff was performing the work,
was plaintiff guilty of contributory negligence,
as defined in paragraph 3 hereof? (b) If yes,
then did said negligence of the said J. M. Alex-
ander proximately cause, or contribute to cause,
his injury, as to the term 'promimate cause'
has been defined to you?

To (a) the jury answered "Yes"; to (b) "No."
Paragraph 3 is as follows:

"Contributory negligence is negligence on the part of the person injured combining and concurring with negligence of the person inflicting such injury, and but for which the injury would the injury complained of and contributing to not have occurred."

Even though appellant was master and was negligent in failing to employ competent Labatt on Master and Servant, vol. 1, §§ 18, helpers, which negligence proximately caused 19, et seq., notes. The fact that appellant the injury, we cannot see how appellant at was the primary employer of the negroes who common law could recover if he himself was operated the battering-ram does not neces-negligent, which negligence caused, or consarily make them its servants at the time the tributed to cause, the injury, "and but for injury was inflicted. The statement made by which the injury would not have occurred." Judge James with reference to this subject is as we understand the generally accepted rule; that is:

"The rule, generally adopted, is that when a master loans or hires his servant to another, the test of fellow servant is whether in the particular service the servant continues liable to the direction and control of his master, or becomes subject to the party to whom he is loaned or hired. Munsie v. Springfield Breweries Co., and cases there cited; 200 Mass. 79, 85 N. E. 840."

The definition of proximate cause given by the court is stated to be that which, in a natural and continued sequence, "unbroken by any new or independent cause," causes the injury, etc. Now, the natural sequence from employing an incompetent helper, the jury found, was negligence, and caused the injury. But they further found this injury would not have happened but for the new and intervening negligence of appellee. The an

Judge Fly in the same case recognizes the swer of the jury is contradictory, and no same rule. He says:

"If, with the knowledge and consent of an employé, he is placed in charge of another to perform his work, he would thereby, at least temporarily, pass from the control of one master to that of another, as was held in the case of Hasty

judgment could be rendered on the verdict. The court should have set aside the verdict.

We will at this point consider appellant's assignment No. 6. The appellant, in answer to the petition, pleaded that it was a mem

ing meaning: 'Employer,' shall include the legal
ployé shall include every person in the service
representatives of any original employer. 'Em-
of another under any contract of hire, express-
ed or implied, oral or written, except one whose
employment is but casual, or is not in the usual
course of the trade, business,
pation of the employer."

*

or occu

[12] The board, in its findings, evidently determined that appellee was only a casual employé, and not employed in the usual course of the trade or business of the employer. The appellant relies on section 6 of part 2, referring to employés under an independent contractor or subcontractor, which in effect provides the association shall pay to such employé compensation which would

ers' Liability Act, passed by the Thirty-Third | plainly required by the context, have the followLegislature, alleging the necessary facts as to the number of its employés, etc.; that it held a policy in the Etna Life Insurance Company; that the policy appellant so held provided for payment of the compensation provided for in the act above named; that appellee presented his claim for compensation to the Industrial Accident Board, which made its final ruling, to the effect that he was not entitled to compensation under the act. The facts show appellant was such member and subscriber as alleged, and had taken out a policy with the insurance company, as alleged, which was in force at the time of the injury. After the injury Alexander filed his claim for compensation under the act for personal injury while in the employ of appellant. The date of such claim and filing is November 10, 1915, after the accident on August 27, 1915. On the 22d day of December, 1915, the board entered an order to the effect that, it appearing that Alexander was not in the regular employ of appellant, in a capacity covered by the policy, and that the claim is without merit under the Employers' Liability Act, therefore the board adjudged and ordered

that the claim be disallowed. The answer

and request of appellant sought the judgment of the trial court as to whether it would take further cognizance of the action, and prayed that the cause be dismissed.

be payable under the act, etc. The section shall not apply to independent or subcontractors on any contract which is merely auxiliary and incident to and is not a part or process in the trade or business carried on by the subscriber. If the appellee was working for an independent contractor at the time of his injury, it "was merely auxiliary and incident to," and was not part of, the "trade" or "business." We believe the finding of the

board and the award made had the effect of

remitting the parties to their common-law rights, both employer and employé.

Under this act and the facts showing only casual employment of appellee by the embusiness in which he could not become a ployer in auxiliary or incidental work to the subscriber under the act so as to obtain relief from his common-law liability, it is our view that the purpose of the act was not to

[10] If the appellee was an employé of ap pellant, within the meaning of the Employers' Liability Act, under section 3, part 1, of the act, appellee would have no cause of action against appellant, who was a subscriber under the act. The fact that no notice was giv-deprive the employer of the defense of conen by appellant to appellee that it was a member of the association, or did not so plead and prove, we believe not to be material, when it is shown by the pleading and the proof that the appellee made his claim under the act and prosecuted that claim to final adjudication before the board. This, we think, sufficiently shows he accepted as such employé, provided the board find that he fell within the class of employés defined in the act. In the case of Rice v. Garrett, 194 S. W. 667, Judge Boyce, speaking for this court,

said:

"And we have concluded that the employer, in order to show that the employé has elected to take under the compensation act, should show that the employer has given notice required by the act, or the employé has in some manner waived it."

[11] We think in this case the pleadings and evidence show appellee waived the formalities stated by filing his claim with and prosecuting to judgment the claim before the board. However, we believe the appellee was not an employé within the definition of section 1, pt. 4, of the act, and not entitled to compensation under the act. That section in part is as follows:

"The following words and phrases, as used in this act, shall, unless a different meaning is

tributory negligence, negligence of fellow servant or assumed risk, but under such circumstances leaves both parties amenable to the rules of the common law, governing master and servant. Section 4, part 1, entitles the employé to bring suit against a nonsubscribing employer, and when such employer is not a subscriber, section 1 of the act de

prives him of the defense of contributory section does not apply; in fact there is no negligence, etc. If he is a subscriber, the 4, above quoted, defining who are employers cause of action against him. Section 1, part and employés, further evidences the fact that the provisions of the act do not apply in this case. The term "employé" as used in the act, does not mean a casual employé. Section 1 of the act provides that, in an action for damages by an employé, "it shall be no defense" that he was guilty, etc. The employé here referred to is an employé under the act as defined. If he was such employé as would be entitled to compensation under the act, appellee would have no cause of action; if he was not such employé, then the employer was not deprived of his commonlaw defense. We hold he was not an employé within the meaning of the act, and, not being such, he was subject to the defense of contributory negligence, etc. The trial