This suit was brought by appellant to set aside an award of the Industrial Accident Board in favor of appellee against appellant for compensation for injuries alleged to have been received by appellee as an employee of the Crain Ready-Cut House Company (hereinafter designated Crain Company), to whom the appellant had issued its policy of insurance insuring the employees of the company against injuries received by them in the performance of the work of their employment.
The trial de novo in the court below with a jury resulted in a verdict and judgment in favor of appellee for compensation at the rate of $20 per week for 52 weeks from the date of his injury, amounting with interest to the sum of $1,040, and for further compensation for 73 weeks at the rate of $7 per week, with interest.
The first proposition presented in appellant's brief is as follows:
"The undisputed evidence shows that plaintiff was an independent contractor and that there was present every element of such contract, it being shown:
"A. That the work to be done was such as required special skill for its proper performance.
"B. Plaintiff was to produce certain results by such means and methods as he thought proper and employed his own men and fixed their hours of labor and remuneration.
"C. He undertook the performance of a definite piece of work and his stipulated remuneration was a gross sum, and
"D. He was a free agent as to his hours of labor, the number of employees on the job and the time and manner of payment to them for their services, and defendant's motion for directed verdict should have been sustained."
The undisputed evidence shows that appellee, plaintiff below, who is sixty years of age and had followed his trade all of his life, and regularly for 15 or 16 years, is an experienced carpenter. For five or six years prior to 1930 he had worked for the Houston Ready-Cut House Company, the predecessor in the business now conducted by the Crain Ready-Cut House Company, doing carpenter work in the construction of houses for the company.
In August, 1930, he was called from New Mexico, where he had gone in search of work, by a friend of his, a Mr. Brinkley, who wired him that he, Brinkley, had a house for him to build for the Crain Company. He returned to Houston on receipt of this telegram, and found that through prior arrangements with Brinkley he had the job of building house No. 1 for $366, which was to be a turnkey job for the carpenter work; when he returned, Brinkley was in charge, but plaintiff himself took charge thereafter; carpenter work required considerable skill and training and it is necessary to serve a considerable length of time as an apprentice before becoming a skilled carpenter. Plaintiff was at the time a skilled craftsman; he could read blueprints, plans and specifications, and had had experience in directing men, and was the head of the jobs he was doing.
This house he was constructing for the company was in Southside place, an addition to the city of Houston which was owned by the Crain Company. The houses which the company was constructing on lots in this addition were built for sale. The company had an office in the addition which was in charge of Mr. C. R. Brace. While engaged in constructing the house that he first went to work on when he returned from New Mexico in response to Mr. Brinkley's telegram, Mr. Brace, who was out on the job overlooking the work being done by him in constructing this house, told appellee that he had another house for him to build, and wanted him to start it in a day or two. Appellee told him all right, and went over to the place where the house was to be constructed within the time specified, and found the concrete foundation for the house ready, and some of the materials for construction, the sills, and some other material on the ground, but he had no plans and specifications. He started the work of laying the foundation timbers on the concrete, and went down to Mr. Brace's office to see about the plans, and got a blueprint of the plans about 10 o'clock that morning. The next day after all the foundation and subfloor was in and the work was ready to begin on constructing the walls, Mr. Brace came out and he and appellee agreed that appellee was to receive the sum of $385 for constructing the wooden portion of the house, the outside walls of which were to be of brick, and were not constructed by appellee. Appellee was not furnished with any specifications for his work. When he asked about specifications, Mr. Brace told appellee that he had none, "that he would be the specifications."
In the construction of these houses plaintiff hired and fired the three men employed to assist him in doing the work, and made his own arrangements with these men as to their wages. He furnished his own tools, and the Crain Company furnished all material. He got $366 for the first house, but made nothing out of his contract, and so told Mr. *Page 329 Brace, who then agreed to pay him $385 for the second house. Plaintiff testified that in the construction of this second house, where he received the injury for which he seeks compensation from appellant, he had the right to hire and fire his own help and did so, which was of no concern to Brace; furnished his own tools and used Brace as the specifications on this job the same as he did on the other; he was his own free agent as to his hours of labor, he could go to work when he pleased and quit when he pleased, so long as he delivered the goods; Brace got after him one day about working longer hours and plaintiff told him he would not work longer hours and refused to do it and worked such hours as he pleased. Plaintiff further testified that on all jobs there was a general construction foreman and if a workman was laying a floor and was not doing it in a good workmanlike manner, he would be called down and stopped, and the owner would not wait until he got it laid and then make him take it up; that when Brace came out and said that one of plaintiff's men was not laying the floor right, he came and told plaintiff about it.
The several instances relied on by appellee to show such control by Brace of appellee in doing the work of constructing the building as to destroy appellee's status as an independent contractor show nothing more than the exercise of the right of the owner to inspect the work as it progressed and require that it be done in a workmanlike manner. It is true that in one or two instances appellee deferred to Brace as to how some of the smaller details of the work should be performed. The following illustrates the character of the instances in which appellee followed the direction of Brace in doing the work. It was proper and necessary to place what is known as weather strips around the windows in the buildings. Appellee testified in reference to this detail of the work that Brace told him that these strips had to go around the windows, and showed appellee how to put them on. He further testified that he did not know how Brace wanted them put on because he had no specifications showing how they should be placed, "and since Brace was the specifications" he asked him how he wanted them put on, and he told him. It appears from the evidence that in carrying out their contracts for the construction of the houses both appellee and Brinkley, because of the absence of specifications, consulted Brace in regard to some of the minor details. Brinkley testified: "Well, like anything we did not understand, you see we had no specifications to go by, and anything we did not understand, we would go to him with it."
Appellee paid his employees' wages with money advanced him by Brace. The amount of such advances as fixed by agreement of the parties, was that the Crain Company, acting through Brace, would advance or pay appellee 80 per cent. of $6 per day for each of the men working on the job. The evidence shows that this was the agreed method of the parties in arriving at the percentages of completion of the work by appellee, and not a payment of the wages of the men.
Upon this state of the evidence we agree with appellant that appellee must be held to have been an independent contractor in performing the work in which he received his injuries, and is not therefore a beneficiary in the insurance policy issued by appellant to the Crain Company for the benefit of its employees. Every element necessary to make him an independent contractor under his agreement with the Crain Company for the construction of the building is shown by the undisputed evidence before set out.
Under his contract he was to take charge and complete the work allotted to him, by the means and methods he deemed proper, for a fixed consideration covering the entire amount to be paid by the Crain Company for the work. He employed and fixed the wages and hours of labor of the men engaged in the performance of the work, and had entire control over them.
We think it clear from the evidence that appellee was not a mere servant or employee of the Crain Company, but that in pursuit of his independent trade or business as an experienced, skillful carpenter he undertook to do a specific piece of work for the Crain Company, using his own means and methods without submitting himself to the control of the Crain Company in respect to the details of the work, and was responsible to that company only for the result of the work. The following authorities fully sustain our conclusion that appellee in performing the work of his undertaking for the Crain Company was an independent contractor, and appellant's request for an instructed verdict should have been granted: Shannon v. Western Indemnity Co. (Tex.Com.App.) 257 S.W. 522; Mansfield Construction Co. v. Gorsline et al. (Tex.Civ.App.) 278 S.W. 485; Smith v. Humphreyville, 47 Tex. Civ. App. 140, 104 S.W. 495; Texas Employers' Ins. Association v. Owen et al. (Tex.Com.App.) 298 S.W. 542; Casement v. Brown, 148 U.S. 615, 13 S.Ct. 672, 37 L.Ed. 582; Litts v. Risley Lumber Co., 224 N.Y. 321, 120 N.E. 730, 19 A.L.R. 1147; Stricker v. Industrial Commission, 55 Utah, 603, 188 P. 849, 19 A.L.R. 1159.
In the Shannon Case, supra, Judge German, speaking for our Commission of Appeals, in a well-considered opinion written in his usual clear and forceful style, discusses many of the authorities dealing with this question of the essential elements of a contract of one person to perform work for another, which conclusively fixes the status of the one *Page 330 undertaking to do the work as that of an independent contractor, and not a hired employee of the party for whom the work is done. The rules announced in that case are, we think, conclusive of the question presented in the instant case.
Many of the other cases cited declare and follow the well-settled rule that the fact that the person for whom the work is being done inspects or oversees the work as it progresses, and directs and requires that it be done in a workmanlike manner, is of no significance in determining the question of independent contractor. The test of control of the work which makes the person undertaking its performance a mere employee as distinguished from an independent contractor means complete control, and the evidence in this record conclusively negatives such control by the Crain Company of appellee or his employees in the work of construction which appellee undertook to perform for the Crain Company.
These conclusions require that the judgment be reversed and judgment here rendered for appellant.
Because of our conclusion above expressed, it is unnecessary for us to pass upon the remaining questions presented in appellant's brief, but we deem it not amiss to add that we agree with appellee that the insurance contract, considered as a whole, should be construed as including appellee as a beneficiary, if he is not an independent contractor.
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