MOURSUND, J.
Appellant sued appellee to recover damages for personal injuries sustained, alleging that at the time he was an employé of appellee in the worn of erecting the Coca-Cola Company building in Dallas. The defendant, in addition to other defenses, alleged that the building was constructed by Arthur Tufts, an independent contractor, .and that the plaintiff was in the employ of said Tufts at the time of his injury. The court instructed a verdict for defendant on the ground that the evidence showed the building was constructed by Tufts as an independent contractor, and that plaintiff, was not employed by defendant, Judgment being rendered in accordance with the instructed verdict, the plaintiff appealed.
Findings of Fact.
The written contract between Tufts and the Coca-Cola Company was as follows: “Arthur Tufts, Contracting Engineer, 918 Austell Building, Atlanta, Ga., June 15th, 1910. Proposal for Erection of a Concrete Building for the Coca-Cola Company at Dallas, Texas. The Coca-Cola Co., Atlanta, Ga. — Gentlemen: I propose to furnish all plans and specifications and heavy machinery necessary to construct a three-story and basement reinforced concrete building, size 64' by 93'-6", situated on your lot corner North Lamar and Cochran streets, in the city of Dallas, Texas, and I propose to buy all material necessary for this building and pay-for same, taking receipted bills. I further propose to furnish you a statement each month showing the cash expenditures for the previous month; and when the building is, finally completed I will turn over to you-, all receipted bills for material and pay rolls, in order that they may be checked over and approved. For my services and. furnishing plans and machinery necessary to erect this building, you are. to pay me the total cost of said building plus ten per cent. Yours very truly, [Signed] Arthur Tufts. Aecept-
ed: [Signed] The Coca-Cola Co., by [Signed] Chas. H. Candler, V. P.”
Tufts told plaintiff at Atlanta be was erecting a building for tbe Coca-Cola Company at Dallas, and, if be would go to Dallas, Mr. Sammons, wbo was in charge of tbe work at Dallas, would put bim to work. Plaintiff did not know for whom be worked. Sammons paid him with tbe rest of tbe men. Tbe Coca-Cola Company kept no office at tbe place where tbe new building was being erected, and there is no evidence that any of its agents or employés (unless tbe said Tufts be held to be an employs or agent) ever interfered with tbe work on tbe building or directed how or by whom the same should be done. Tbe Coca-Cola Company owned tbe site on which tbe building was erected. Payments aggregating $41,632.37 were made to Tufts by tbe Coca-Cola Company, according to tbe exhibit attached to tbe deposition of Chas. H. Candler, tbe vice president of tbe Coca-Cola Company. Tbe first payment was $3,000, made June 20th, and there were 17 more made in amounts ranging from $500 to $4,029.94. Tbe recapitulation of bills presented by Arthur Tufts to tbe Coca-Cola Company begins as follows: “Statement of bills paid by Arthur Tufts for tbe Coca-Cola Company. Dallas job.” Tbe numbers and amounts! of tbe vouchers are given, but not their dates, nor tbe dates when the bills accrued. Items for telephone bills, printing bills, stamps, and expense of trip by Tufts to Dallas and return were included in tbe statement of amounts due Tufts by tbe Company, and upon which bis 10 per cent, was estimated.
Conclusions of Law.
There are nine assignments of error, complaining of different portions of the peremptory instruction for defendant. Appellant’s contentions briefly stated are: (1) That tbe evidence shows Tufts to have been tbe agent or servant of tbe Coca-Cola Company, and not an independent contractor; (2) that tbe issue should have been submitted to tbe jury whether Tufts was an independent'contractor or tbe agent or enployé of defendant.
[1]
Tbe first contention cannot be sustained.
[2]
The second is more serious. In order to sustain tbe action of the court in taking the question from tbe jury, we must find that tbe evidence showing Tufts to be an independent contractor was of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.
[3]
An independent contractor is defined in 26 Cyc. p. 970, to be “one wbo contracts to do a specific piece of work, furnishing his own assistants, and executing tbe work either entirely in accordance with bis own ideas or in accordance with a plan previously given to him by tbe person for whom the work is done, without being subject to tbe orders of tbe latter in respect to the details of tbe work.” In tbe case of Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399, tbe court said: “If Davis was an independent contractor in the sense that the company bad no right of control as to the manner in which the work was to be done, then he was not the servant of the company; and the plaintiff, having been employed by him, cannot recover. * * * If, however, the Southern Cotton Oil Company exercised control over the manner in which Davis was to do the work, or over the means by which it was to be done, or if the persons engaged in the work with Davis were under the control and management of the said company, then Davis was but its employé, and Wallace was likewise the servant of the said company by virtue of his employment by Davis.” The contract between the Coca-Cola Company and Tufts introduced in evidence did not give the Coca-Cola Company any right to control the work on the building, nor to say how it should be done nor by whom. The company had no right under the contract to employ persons to erect the building nor to discharge them, nor is there any evidence in the record that the Coca-Cola Company ever controlled or sought to control the work on the building, or to direct by whom the same should be done.
[4]
Appellant contends that the clause in the contract requiring Tufts, after the completion of the building, to submit the bills for material and his pay rolls to the Coca-Cola Company to be checked and approved, carries with it the idea that the company had the right of approval of the men who were to do the work. We think the right of approval extended only to the amounts paid for material and work, and could only be construed to give the company the right to disapprove the amounts paid for certain material and work if unreasonable, but cannot be construed to mean that the company would have the right to name the men who were to do the work or the right to discharge men who were doing the work under employment by Tufts. The pay rolls were not required to be turned over for approval until the building was completed. Certainly the contract was not intended to give the company the right, after all the work was done, of saying that certain persons should not have been permitted to do the same. The contract itself does not provide that the persons from whom material is bought and who do the work are to be approved by the company, but merely the bills and pay rolls, and we think it was clearly the intention of the parties that the right of approval or disapproval went to the amounts, and not to the persons. Nor is there any evidence that'the parties themselves ever construed the contract'as contended by appellant.
[5]
Again, appellant says the fact that
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MOURSUND, J.
Appellant sued appellee to recover damages for personal injuries sustained, alleging that at the time he was an employé of appellee in the worn of erecting the Coca-Cola Company building in Dallas. The defendant, in addition to other defenses, alleged that the building was constructed by Arthur Tufts, an independent contractor, .and that the plaintiff was in the employ of said Tufts at the time of his injury. The court instructed a verdict for defendant on the ground that the evidence showed the building was constructed by Tufts as an independent contractor, and that plaintiff, was not employed by defendant, Judgment being rendered in accordance with the instructed verdict, the plaintiff appealed.
Findings of Fact.
The written contract between Tufts and the Coca-Cola Company was as follows: “Arthur Tufts, Contracting Engineer, 918 Austell Building, Atlanta, Ga., June 15th, 1910. Proposal for Erection of a Concrete Building for the Coca-Cola Company at Dallas, Texas. The Coca-Cola Co., Atlanta, Ga. — Gentlemen: I propose to furnish all plans and specifications and heavy machinery necessary to construct a three-story and basement reinforced concrete building, size 64' by 93'-6", situated on your lot corner North Lamar and Cochran streets, in the city of Dallas, Texas, and I propose to buy all material necessary for this building and pay-for same, taking receipted bills. I further propose to furnish you a statement each month showing the cash expenditures for the previous month; and when the building is, finally completed I will turn over to you-, all receipted bills for material and pay rolls, in order that they may be checked over and approved. For my services and. furnishing plans and machinery necessary to erect this building, you are. to pay me the total cost of said building plus ten per cent. Yours very truly, [Signed] Arthur Tufts. Aecept-
ed: [Signed] The Coca-Cola Co., by [Signed] Chas. H. Candler, V. P.”
Tufts told plaintiff at Atlanta be was erecting a building for tbe Coca-Cola Company at Dallas, and, if be would go to Dallas, Mr. Sammons, wbo was in charge of tbe work at Dallas, would put bim to work. Plaintiff did not know for whom be worked. Sammons paid him with tbe rest of tbe men. Tbe Coca-Cola Company kept no office at tbe place where tbe new building was being erected, and there is no evidence that any of its agents or employés (unless tbe said Tufts be held to be an employs or agent) ever interfered with tbe work on tbe building or directed how or by whom the same should be done. Tbe Coca-Cola Company owned tbe site on which tbe building was erected. Payments aggregating $41,632.37 were made to Tufts by tbe Coca-Cola Company, according to tbe exhibit attached to tbe deposition of Chas. H. Candler, tbe vice president of tbe Coca-Cola Company. Tbe first payment was $3,000, made June 20th, and there were 17 more made in amounts ranging from $500 to $4,029.94. Tbe recapitulation of bills presented by Arthur Tufts to tbe Coca-Cola Company begins as follows: “Statement of bills paid by Arthur Tufts for tbe Coca-Cola Company. Dallas job.” Tbe numbers and amounts! of tbe vouchers are given, but not their dates, nor tbe dates when the bills accrued. Items for telephone bills, printing bills, stamps, and expense of trip by Tufts to Dallas and return were included in tbe statement of amounts due Tufts by tbe Company, and upon which bis 10 per cent, was estimated.
Conclusions of Law.
There are nine assignments of error, complaining of different portions of the peremptory instruction for defendant. Appellant’s contentions briefly stated are: (1) That tbe evidence shows Tufts to have been tbe agent or servant of tbe Coca-Cola Company, and not an independent contractor; (2) that tbe issue should have been submitted to tbe jury whether Tufts was an independent'contractor or tbe agent or enployé of defendant.
[1]
Tbe first contention cannot be sustained.
[2]
The second is more serious. In order to sustain tbe action of the court in taking the question from tbe jury, we must find that tbe evidence showing Tufts to be an independent contractor was of such character that there is no room for ordinary minds to differ as to the conclusion to be drawn from it.
[3]
An independent contractor is defined in 26 Cyc. p. 970, to be “one wbo contracts to do a specific piece of work, furnishing his own assistants, and executing tbe work either entirely in accordance with bis own ideas or in accordance with a plan previously given to him by tbe person for whom the work is done, without being subject to tbe orders of tbe latter in respect to the details of tbe work.” In tbe case of Wallace v. Southern Cotton Oil Co., 91 Tex. 18, 40 S. W. 399, tbe court said: “If Davis was an independent contractor in the sense that the company bad no right of control as to the manner in which the work was to be done, then he was not the servant of the company; and the plaintiff, having been employed by him, cannot recover. * * * If, however, the Southern Cotton Oil Company exercised control over the manner in which Davis was to do the work, or over the means by which it was to be done, or if the persons engaged in the work with Davis were under the control and management of the said company, then Davis was but its employé, and Wallace was likewise the servant of the said company by virtue of his employment by Davis.” The contract between the Coca-Cola Company and Tufts introduced in evidence did not give the Coca-Cola Company any right to control the work on the building, nor to say how it should be done nor by whom. The company had no right under the contract to employ persons to erect the building nor to discharge them, nor is there any evidence in the record that the Coca-Cola Company ever controlled or sought to control the work on the building, or to direct by whom the same should be done.
[4]
Appellant contends that the clause in the contract requiring Tufts, after the completion of the building, to submit the bills for material and his pay rolls to the Coca-Cola Company to be checked and approved, carries with it the idea that the company had the right of approval of the men who were to do the work. We think the right of approval extended only to the amounts paid for material and work, and could only be construed to give the company the right to disapprove the amounts paid for certain material and work if unreasonable, but cannot be construed to mean that the company would have the right to name the men who were to do the work or the right to discharge men who were doing the work under employment by Tufts. The pay rolls were not required to be turned over for approval until the building was completed. Certainly the contract was not intended to give the company the right, after all the work was done, of saying that certain persons should not have been permitted to do the same. The contract itself does not provide that the persons from whom material is bought and who do the work are to be approved by the company, but merely the bills and pay rolls, and we think it was clearly the intention of the parties that the right of approval or disapproval went to the amounts, and not to the persons. Nor is there any evidence that'the parties themselves ever construed the contract'as contended by appellant.
[5]
Again, appellant says the fact that
payments were made by the company to Tufts all along, and especially that one for $3,000 was made five days after the date of the contract, is sufficient to show that Tufts was using the company’s money, and not his own, in carrying out the contract, and that, therefore, he was the mere servant of the company, and not an independent contractor. The record does not show that Tufts used the company’s money to buy material. It merely shows that they made advancements to him from time to time. The dates of vouchers paid by him are not given. He may have spent his own money for all material and labor, and upon showing the company the purchases and payments made by him may have induced the advancements to be made. It appears from the contract itself the company had a great deal of confidence in Tufts, probably much more than a person of average prudence would have, hut, such being the fact, Tufts could likely induce them to make the advancements to him, even though he was not entitled to same under his contract, and the mere fact that such advancements were made would not be sufficient to constitute Tufts the agent or employé of the company.
[6]
The only other evidence relied upon by appellant is the fact that the company paid Tufts the telephone, printing, and stamps bills incurred by him, and the expense of his trip to Dallas, and paid him his per cent, on said items, treating and considering the same as a part of the contract price of the building. . It is true, if Tufts was the agent or employs of the company, he would charge them with such expenses; also, if he was to receive a lump sum for the building, such items should be considered as covered by such sum. But it does not follow that he would not, under a contract like the one in this case, charge the company with such items, even though an independent contractor. They appear to have been legitimate expenses incurred in carrying on the work, and, though not mentioned in the contract, may have been considered by the company and Tufts as just portions of the claim against the company for erecting the building. The mere fact that they were charged for by Tufts and paid by the company would not be sufficient to show Tufts to have been an agent or employé of the company in erecting the building. We do not think any or all of the matters mentioned would be sufficient to make Tufts the agent or servant of the Coca-Cola Company in the erection of the building. It has been frequently held that the mere retention of the right of supervision of the work in person or by architect for the purpose of seeing that it is done in accordance with the contract is not sufficient to destroy the relation of independent contractor. Smith v. Humphreyville, 47 Tex. Civ. App. 140, 104 S. W. 496; Mason & Hoge v. Highland, 116 S. W. 322 (1909); Kelly v. Mayor, 11 N. Y. 432. Also that the manner of payment is not conclusive. 16 Am. & Eng. Ency. of Law, 180; 1 Shearman & Redfield on Negligence, § 165. It has even been held that the fact that no price is fixed and no specifications are made as to the work to be done does not of itself create the relation of master and servant between the parties. Id. In this case Tufts, under the contract, wás to deliver a completed work, waa to furnish and did furnish his own assistants, was not subject to the direction of: the company as to the details of the work,, nor does the evidence show that the company ever sought to direct the work, or control or select his assistants.
The facts relied upon by appellant are of only slight probative force, if any, on the-question at issue, and are not inconsistent, with the theory that Tufts was an independent contractor, and we are of the opinion, that the evidence taken as a whole so conclusively established the relation of independent contractor on the part of Tufts, that a verdict could not have been sustained for the plaintiff, and that, therefore, the court did not err in instructing the jury to find for the defendant. Simonton v. Perry, 62 S. W. 1090; City of Groesbeck v. Pinson, 21 Tex. Civ. App. 47, 50 S. W. 620; Southwestern Tel. Co. v. Paris, 39 Tex. Civ. App. 424, 87 S. W. 724; Cunningham v. Railway Co., 51 Tex. 510, 32 Am. Rep. 632; Beaumont, S L. & W. Ry. Co. v. Manning, 146 S. W. 227. See 65 L. R. A. 462.
The assignments of error are therefore overruled, and the judgment affirmed.