The opinion
On Kehearing.
HIGGINS, J.
We are of the opinion that the reason assigned in the main opinion for overruling appellant’s proposition to the effect that the carpenter Meraz was an independent contractor is perhaps unsound. It was incumbent upon the plaintiffs to show that Meraz was the servant of appellant, and it whs perhaps permissible for appellant to rebut this under the general denial by showing that the carpenter was an independent contractor. In any event we prefer to base our ruling upon another ground which is regarded as conclusive.
The proposition is that:
“The uneontroverted and unimpeached evidence showing that the negligence, if any, in making the hole in the balcony floor, was the act of an independent contractor, and not the act of appellant, his agents, or employees, and appellant cannot be held in damages therefor,”
—and is submitted under an assignment complaining of the refusal of a peremptory instruction to find for the defendant, and another assignment that the undisputed evidence shows that Meraz was an independent contractor.
. The evidence discloses that .Meraz was repairing the building for its owner, Baray. The presumption thereupon arose that Meraz was appellant’s servant, and it became incumbent upon appellant to rebut the prima facie case thus made by showing that Meraz was an independent contractor. Ry. Co. v. Warner, 88 Tex. 642 , 32 S. W. 868 ; Kampmann v. Bothwell (Tex. Civ. App.) 107 S. W. 120 .
In order to do so it was necessary for appellant to prove that under the contract of employment the details of the work to be done were completely within the discretion and control of Meraz, and that the latter was responsible to Baray only as to the result of the work done.
The evidence relied upon by appellant as showing such status, as quoted in the motion for rehearing, is as follows: -
Baray testified as follows:
“I sent a man over there to tear up that balcony, I made a contract with a carpenter. I was not there when the woman fell through and killed herself. * * * I made a contract with the carpenter to give him the lumber, and
*1102
to pay him $7 to cover up whatever-was defective. That contract was in writing. I have a -receipt for the contract; my attorney has the contract. I have the receipt where it was paid.”
Eduardo Meraz, the carpenter, testified:
“I am a carpenter and have been about 18 years. I was engaged as a carpenter in October, 1922. On or about the 27th or 28th of October, I was working on the corner of Eighth and Florence streets on a white brick building. I was working for Mr. Baray. I was making some repairs for him. X arranged with Mr. Baray to do the work by contract. I have not a copy of that contract; I have only the receipt for the work. * * * I was putting down-some new lumber in the floor and in order to do that I had to remove the old pieces or boards. At the time the woman fell through there was an opening in the floor of approximately 3 feet. ⅜ ⅜
*
”
On cross-examination, he testified:
“I have worked for Pablo Baray some two years off and on when he had work. Whenever he had some work he had me work for him. I was the carpenter that was sent down by Baray to fix the balcony1 at the place where this woman was killed. I notified everybody in the place that I was going to take up the balcony. Everybody knew it. * * * The new lumber was up on the balcony. I was cutting the lumber at the time this woman fell through. * * * I am-not friendly to Mr. Baray. I work for him. I made a contract for fixing up the balcony down there, and Mr. Baray furnished the lumber. He owns the building. He sent me around there to do the work.”
On redirect examination, he stated:
“I agreed to do the whole job for $6. I now work at Ft. Bliss in the construction, and have worked for the Anderson Investment Company and as foreman for the government. When I did this work X did it on the understanding that I was to get .$6 for it. Mr. Baray was not there at the time of the accident. I was getting $6'regardless of how much time I consumed.”
On recross-examination, he stated:
“Baray sent me over to repair the balcony just as he has done on many of his other properties. I went over and did this work, and he paid me $6 for it. I had the agreement to do the work for $6 before I commenced.”
While Baray testified that the work -was done under a written contract, no such contract was offered in evidence, and if in fact such contract existed it was executed after the injury. This is shown by Baray’s testimony, as follows:
“This is the receipt I turned over to the carpenter. This is the only receipt I ever got from him. Every time he works-1 get a receipt from him. X had a contract with him before the work was done.”
Cross-examination:
“This shows to be a contract. The carpenter wrote this. It was made several days after this woman was killed, when he came to settle up. This is what I referred to as the contract.”
If we were disposed to do so, our ruling might well be based upon the proposition that there was a written contract which evidenced the true relation existing between the carpenter and appellant, and that appellant failed to offer the same in evidence or otherwise prove its terms, and thus wholly failed to rebut the prima facie case made by appellee, but the reasonable deduction to be drawn from all the evidence is that there was in fact no written contract between the parties for the work, and the written contract referred to by Baray was simply a receipt given by the carpenter after the work was done for the money paid by Baray.
The question then is, Does the quoted evidence conclusively show that under the contract of employment Meraz became an independent contractor? In our opinion it is silent upon the controlling issue in determining the status between the parties. It simply shows that Baray employed Meraz to do some repair work upon the house, agreeing to furnish the necessary lumber and pay either $6 or $7 for the work done. It is wholly silent as to whether Baray reserved any right to direct or control the manner in which the repairs were to be made.v From, the evidence it cannot be definitely ascertained whether he did or did not, and in our opinion appellant failed to meet the burden of rebutting the prima facie case made against him. Certainly it cannot be said that such evidence conclusively establishes that the carpenter was an independent contractor in making the repairs so as to justify a peremptory instruction in appellant’s favor upon such theory or that this court would be warranted in holding that such evidence conclusively established that the carpenter occupied such status.
The motion for rehearing is passed for further consideration and appellant is granted 15 days in which to file an amended or supplemental motion for rehearing if he desires so to do; leave to file same being hereby granted.