
    CONSOLIDATED UNDERWRITERS v. FITTS.
    No. 3075.
    Court of Civil Appeals of Texas. Beaumont.
    June 2, 1937.
    Rehearing Denied June 9, 1937.
    Richardson & Lanier, of Jasper, and C. A. Lord, of Beaumont, for appellant.
    Sanders & McLeroy, of Center, for ap-pellee.
   WALKER, Chief Justice.

This is a compensation case. On September 5, 1934, R. U. Fitts was killed in Jasper county by a falling tree. On the verdict of the jury, finding that he was killed in the course of his employment with Peavy-Moore Lumber Company, judgment was entéred in favor of appellee, Mrs. Allie Fitts, his surviving widow, against appellant, Consolidated Underwriters, the compensation insurance carrier of Peavy-Moore Lumber Company, for the lump sum of $3,942.46.

Prior to the morning of Fitts’ death he was an independent logging contractor in the employment of Peavy-Moore Lumber Company, and in that employment was not within the protection of appellant’s policy of insurance. It is the theory of appellee, pleaded in her cross-action to appellant’s appeal from an adverse award of the Industrial Accident Board, that, on the morning Fitts was killed, he was employed by Peavy-Moore Lumber Company as a log scaler and was killed in the course of that employment. That theory was submitted to the jury and found in appellee’s favor.

It was the theory of appellant, brought forward as the basis of this appeal, that Fitts was killed in the regular course of his work as an independent contractor, and that the verdict of the jury, finding that he was killed while in the course of his employment as a log scaler, is wholly without support in the evidence. The following summary of the evidence reflects all the facts on the controverted issue.

Fitts, with his trucks and teams, was hauling saw logs from the woods to Bess-may and Buna, loading stations on the railroad, a distance of six or seven miles, for shipment to Peavy-Moore Lumber Company sawmill at Deweyville, Newton county. He was operating three trucks and several logging teams, and as an independent contractor had in his employment seven men. He and his men did not cut the logs he was hauling; this work was done by sawyers employed by Peavy-Moore Lumber Company, who worked in pairs, and the logs cut by these sawyers were scaled by a log scaler in the employment of Peavy-Moore Lumber Company, one Major Kelly. Mr. Fitts, as an independent log contractor, hauled the logs with his trucks and teams from certain territory, set apart to him by metes and bounds by the Peavy-Moore Lumber Company woods foreman, one Walter Bean, who had general charge of the woods operations. Mr. Fitts was not required to scale his logs in the woods, or on his trucks; that was done for him at the shipping point by a scaler in the employment of Peavy-Moore Lumber Company, but for his own protection he carried with him in the woods where his trucks picked up the logs his scale stick and his scale book; he scaled some of his logs after they were loaded on his trucks and some of the logs as they lay on the ground, and entered the scale in his log book, but he did not scale all the logs hauled by his trucks. On the morning he was killed Fitts was in the woods with his -trucks on the territory assigned to him for logging, and had loaded out one or more of his trucks when Walter Bean, the woods foreman, came to him saying that his regular log scaler could not be in the woods that day and made Mr. Fitts an offer of hire to scale logs that day behind the log sawyers. Mr. Bean’s offer to Mr. Fitts was heard by several witnesses, but no witness heard Mr. Fitts’ answer. A few moments after Mr. Bean left the woods, Mr. Fitts, with his scale stick and scale book in his hands, was walking towards two sawyers who were cutting logs within the territory assigned to Fitts for logging. As the tree they were cutting started to fall they saw Mr. Fitts walking toward them. They called to-him a warning, he stopped when they called to him, and was killed in his tracks by the falling tree. The witnesses described these events as follows, questions and answers reduced to narrative. Appellee’s witnesses:

Frank Smith:

“I had been working for Mr. Fitts for two years, right around two years. I was driving a log truck. At the time of Mr. Fitts’ death he had been employed or engaged in hauling logs for Peavy-Moore around three or four months, or five. I had been in the vicinity of Buna three or four months before Mr. Fitts got killed. Mr. Fitts had three individual trucks on that job. He had seven men working for him, I believe. Up until the day he was killed I don’t know whether or not Mr. Fitts had anything to do with cutting the logs. Peavy-Moore cut the logs he was hauling.
“I know a man by the name of Walter Bean. He was woods foreman, supervisor of the woods, for Peavy-Moore Lumber Company. I know a man named Major Kelly. He was employed by Peavy-Moore Lumber Company at that time. He scaled after the saws down on the Boat Lake haul, east of Buna. At the time Mr. Fitts died we had just gone on that present haul that morning.
“In hauling those logs out of the woods the land was set aside to Mr. Fitts to haul off of in strips like. I went to the woods to work that morning. I reckon it’s six or seven miles from Buna to those woods; I never did measure it. On the Sth of September, 1934, we got out to the job about 7:15 or 7:30. Nobody was out there but .the employees working for him (referring to Fitts).
“When I got there Mr. Fitts was there where the timber set in to be cut at the job we started on that morning. Very little timber had been cut when I got there. Nobody was cutting timber where we were; I heard a saw back north of us. When I got there I saw Mr. Fitts and Mr. Bean. I heard some conversation between Mr. Bean and Mr. Fitts.”
“Q. If you heard any conversation that morning between Mr. Bean and Mr. Fitts, with reference to employment of Mr. Fitts-for any purpose I wish you would tell just what it was. A. Well, I was sitting there fixing to-a pair of gloves and Mr. Bean-told Mr. Fitts, said, I got to take the woods scaler and put on the track today and I want you to scale the logs these-saws cut today until I get somebody to relieve you; I have to take my woods-scaler and put on the track, we got to have them loaded and scaled on the track.
“Q. Go ahead and detail just what was said. A. We went ahead and loaded—
“Q. Let’s get through with the conversation. A. Mr. Bean said I want you to scale the logs for me today; I had to take my scaler; he went ahead and scaled the logs that was laying on the ground.
“Q. Was that all that was said? I want you to detail all the conversation you heard between Mr. Fitts and Mr. Bean about Mr. Fitts. A. Well Mr. Bean asked him would he scale, he told him he wanted him to scale the logs that day, he had to take his saw scaler to the track to scale the logs; he would outline the way the strip run and the saws that he had to cut for him, that he would have to scale for him, that he would scale for him that day.”
“Mr. Fitts and Mr. Bean went around to where there was some logs to be scaled and loaded. That was on Company land, company’s timber I mean. That was on the strip that was set apart for Mr. Fitts’ trucks to haul. That was after I heard Mr. Bean tell Mr. Fitts he wanted him to scale for him that day. After that Mr. Bean left. Then Mr. Fitts was scaling the logs; the logs he went ahead to scale were on the strip of land that had been set apart for Mr. Fitts to log that day. I never saw Mr. Fitts any more alive. The Negroes hollering Mr. Fitts was killed was what attracted my attention; I went up there. He was laying under the top of the tree when I got there. He was laying with his face down, feet right against a stump. He had a scale stick and hook; scale hook. The book was in his left hand; the scale stick was laying by his right hand. Trees had been cut around where I saw Mr. Fitts’ body lying. The stump was marked; he was laying with his feet about a foot from the stump, like he walked up behind the tree, he fell sorta like that and the top fell over this stump. This must have been 7:45 in the morning; something like that. Mr. Walter Bean was not there.
“ * * * Mr. Fitts didn’t ordinarily scale the logs that his trucks hauled, all time. He didn’t generally scale the logs that his trucks hauled; he didn’t scale them after them all time, just some days maybe he scaled one load or two loads. I wouldn’t say there was a rule about it, he maybe scaled one load a day or two loads tomorrow; he didn’t keep up with it.
“ * * * Walter Bean was there shortly after I got there. Mr. Fitts came up behind me with Mr. Bean; one came in one car and one in another but they arrived about the same time. I saw Mr. Fitts and Mr. Bean talking together. . Mr. Bean told Mr. Fitts he wanted him to look after the scaling that day. I didn’t hear Mr. Fitts’ reply. I didn’t tell all I heard Mr. Bean say yet. I heard Mr. Bean say he wanted Mr. Fitts to scale the saws that day and that he (Bean) wouldn’t be there that day. When Mr. Bean was talking to Mr. Fitts about scaling the logs and asked him if he would scale the logs — I heard his words. I did not hear what Mr. Fitts said, about whether he would or would not. Mr. Bean was out of his car then; out of his car standing at the side of a truck.
" * * * He had a scale stick and scale book in his hand. The scale stick is a rule you scale by, stick that figures diameter out of a log. That was laying right by his right hand. He had a scale book in his left hand. That is the book you keep the time and log scale in; some of them are three-fourths of an inch thick; that book was about that thick; something like that.
“ * * * Mr. Fitts scaled the logs while they were on the trucks that morning. He scaled some on the ground after he finished scaling one truck, he scaled five logs at the first truck laying on the ground. * * *
“I told you that Mr. Fitts sometimes scaled his own logs that he was hauling and sometimes he did not. Sometimes he scaled them both ways; if he was in a hurry for something he scaled them on the ground and if he wasn’t he scaled them on the truck. It is a fact that the logs were scaled day by day at the railroad track. The logs that I hauled for Fitts and that the other men hauled for Fitts on Fitts’ trucks to the railroad were scaled day by day all time there at the railroad track. Major Kelly scaled the logs at the track that day. I had never seen him scale logs at the track before that day; but that day Major Kelly was scaling logs at the track.”

Earl Lum:

“I had known R. U. Fitts in his lifetime two years. I worked for him. I recall the date when he was injured that resulted in his death some place close to Buna. I believe it was the 5th of September when that occurred. I was driving mules that'day; for Rufus Fitts. That is the same person as R. U. Fitts. I had been working for him at that time nearly a year and a half. I had been engaged in loading logs. Mr. Fitts’ business previous to his death was logging. I couldn’t say exactly how long Mr. Fitts had been in the logging business. Mr. Fitts had been principally engaged in business before his death with Frost-Johnson, Kirby and Peavy-Moore Lumber Company.
“On that particular morning of the 5th of September, 1934, I was in the woods, loading logs. I got to the woods that morning about seven o’clock.
“I know a man by the name of Walter Bean. He was woods foreman there I understood, for Peavy-Moore. I saw him that day. I first saw him right where I loaded. Mr. Bean was there when I got to the woods, somewhere around seven o’clock. I saw Mr. .R. U. Fitts when I got there that morning. They were right close to where I was loading. * * * They were talking. They were fifteen or twenty steps away from me. They were engaged in talking with each other something like fifteen or twenty minutes. I didn’t hear any part of the conversation that occurred between them. I saw them while they were engaged in that conversation. I saw acts op movements or motion made by both Mr. Bean and Mr. Fitts. I saw him (Mr. Bean) showing him (Fitts) these lines of the timber and outlines. I didn’t hear what Mr. Bean said. Mr. Bean stayed there after I saw those movements just a few minutes. * * *
“I had pointed out for me the strip of land I was logging for Mr. Fitts. * * * There was a load of logs cut down when I got-to the woods. The sawyers were just across the bagóle from me. * * * After Mr. Bean left I didn’t see Mr. Fitts any more. They left together. They went west from me I believe it was. It was something like forty minutes, I guess, after that before anything attracted my attention unusually; he' come running out there and said Mr. Fitts was killed, the Stanley boy. I quit loading then. * * *
“It was my job all the time to load the trucks with the teams. I carried on that loading. It was not Mr. Fitts custom and habit to scale the logs that he loaded and hauled every day. He scaled his own logs for his own protection; he scaled his logs sometimes, he didn’t scale them regular; he did that for his own 'protection; to see if he was getting his scale; so that he would keep up with the scale they were hauling and be paid by Peavy-Moore the right scale. Sometimes he scaled and sometimes he didn’t. He had a scale stick of his own; he had a scale book too, I suppose; yes, he had a book. He had a scale stick and book. He used them there when he scaled his logs, he would scale them. He didn’t scale each day but when he did he used his scale and his book.
“L. L; Smith was driving a truck that morning. * * * That was Mr. Fitts’ truck. Emmett Gilchriest loaded that truck. He handled the teams like myself. Joe Ramsey drove the truck I loaded. Those trucks being loaded were about two hundred yards apart. L. L. Smith was helping load. The driver of the truck helped load the truck; while I was loading the Ramsey truck I was assisted by Ramsey. At the time I saw Fitts and Bean talking together they were not in Mr. Bean’s car. They were together and something like fifteen or twenty steps from me. At that point I was something like two hundred yards from the place where L. L. Smith and Gilchriest carried on their work. While this conversation was going on I was about fifteen steps from the scene there and Smith and Gilchriest were some 150 or 200 yards away. That is right. After that I said that Bean and Fitts walked off together. This was the conversation I saw them engaged in together. * * *
“Fitts 'and Bean were talking when I got there that morning. As I drove up I saw Bean and Fitts talking together in this conversation. Then it was that I went on with my work and noticed the other truck was over yonder a couple of hundred yards away. And a few minutes later I saw Bean and Fitts walk off together and saw the motions of Beans hands.”

Ernest Gilchriest:

“I knew R. U. Fitts during his lifetime. I worked for him. I was working for him on the 5th of September when he was killed. I was driving a team for him loading logs in the woods. I saw him that morning. I also saw Mr. Walter Bean. I didn’t hear any conversation between them. They was there when I got there with the mules. I saw Mr. Walter Bean when he left. I saw Mr. Bean and Mr. Fitts in a conversation while they were there. * * *
“I was out there loading logs when Mr. Fitts was killed. He was about 150 yards away from me when he was killed. I saw him immediately before he was killed; he just left. Just before Mr. Bean left all I seen him do, he and Mr. Fitts had a conversation, all I could see him do was motion just like that. He was motioning back in the direction where the timber was. The sawyers was working in that direction. Shortly after Mr. Bean left Mr. Fitts went away; he went back out where the saws was cutting, at first where they brought up; the saws had been working in there but they was working sorta back west of there then. It wasn’t over twenty minutes after Mr. Bean left before Mr. Fitts went in the direction of the place he was killed. * * *
“I don’t know how many flatheads were cutting logs right in the immediate vicinity of.the place where Mr. Fitts was killed. I don’t know how many logs had been scaled in that immediate vicinity that morning; there were not so many logs right where we were working that had been scaled; it wasn’t over twenty. That would be my estimate of the matter.”

L. L. Smith:

“Peavy-Moore Lumber Company had a scaler where the logs were being cut and logged out near Buna, in Jasper County, Texas, prior to September 5th, 1934. I cannot recall the name of the man who was scaler. This man who was employed as scaler was not in the' woods where the cutters and haulers for Peavy-Moore Lumber Company were at work on the morning of September 5, 1934. I heard Mr. Walter Bean say that the scaler was at work on a job several miles away and could not be there on that morning. The regular scaler scaling the logs for Peavy-Moore Lumber Company was not there on September 5, 1934. I knew R. U. Fitts in his lifetime. I saw Mr. Fitts at the place where I was hauling logs for Peavy-Moore Lumber Company both at the places where Mr. Fitts’ trucks were hauling and on the land which was being cut and hauled by Peavy-Moore Lumber Company outside of the strip of land which had been set apart, or marked, out for Mr. Fitts’ trucks.
“I saw Mr. Walter Bean on the morning of September S, 1934. I saw Mr. Walter Bean and heard him talking with Mr. R. U. Fitts. I heard a conversation between them. Mr. Bean came down to where Mr. Fitts was in the woods and told Mr. Fitts that the scaler, looking after the Company’s men, who were the log sawyers and scaling, could not be on the job that morning and asked Mr. Fitts if he, Mr. Fitts, wouldn’t look after this scaler’s work for him that day, and scale the logs and supervise the cutting. Immediately after the conversation between Mr. Fitts and Mr. Bean, Mr. Fitts took a scale stick and went over to where some flat heads were cutting logs for the Peavy-Moore Lumber Company and commenced to scale these logs that had been cut. The only work I saw Mr. Fitts doing before he was killed was scaling some logs that had been cut on the Company block. The logs Mr. Fitts was scaling were logs that had been cut by men working for Peavy-Moore Lumber Company and were Company logs. All the work that Mr. Fitts had done that morning that I know of had been to scale the load of logs on my trucji, and then he left and went over where the Company men were working and at the moment he left my truck * * * I saw him make some scale marks on some logs and scale some logs and I saw him going on out to where the flat-heads were sawing, and saw him when a tree fell on him, cut by these men, that killed him.”

Appellant’s witnesses gave the following testimony:

Walter Bean:

“I am connected with Peavy-Moore. • I have been connected with the company about twelve or fourteen years. I have been woods superintendent. I am that now. I was that on the Sth day of September, 1934. I wasn’t present when R. U. Fitts was killed on the morning of the 5th of September, 1934, when he got killed, no sir. * * * I learned of the place of the tree and everything. I had been right through there at that place before, right near there, before I went back after he was killed; that morning. I was there the day before that occurred. I went to that location the day before to meet the sawyers to put them to work there; Walters and Crockett; some negroes. Walters is a white man who has been here to testify today. I at that time knew about the location of a tram road through that section of timber; it extended east and west. We used that road as the marking line on division or strips of timber. The purpose of that division was to keep the trucks separated; to put one gang on one strip and another gang on another strip. I on that day separated and designated the strip of timber that would be logged by R. U. Fitts. There was a territory or strip that he was to log and it was on the north side of the road. That on the south side we later logged it out with some other contractor. * * *
“R. U. Fitts was a contractor with Peavy-Moore before he was killed. He was the man that contracted the hauling of the timber. He owned some trucks of his own and he had two or three hired trucks. He employed his men; he paid his men; he had maybe one hired team. The team was used in loading logs, skidding and loading them; picking them up off the ground and putting them on trucks. We paid him for his hauling so much a thousand feet delivered at the track. He delivered the logs to the track at Bessmay. I did not work out the details as to how the logs should be picked up and loaded; I laid the strips off and put him on it and he handled his business. When the strip was laid off and designated he was informed about it. After that Mr. Fitts would determine the way and details of loading and carrying on the loading and trucking operations. I know that some logs had been cut in that locality before that time we referred to, the evening before Mr. Fitts' was killed. A few logs were cut the evening before on the south side of the old road. I gave instructions to them about further cutting; I moved them, that was south of the road back on the other side of the road; I moved them so I could get them over on Mr. Fitts’ haul and save the south side for some more contractors. The evening before Mr. Fitts was killed part of the logs were cut by Peavy-Moore’s men on the south side of the old road. I don’t know what was done with regard to the removal of the few logs that were cut close to and on the south side of the old road; I think Mr. Fitts hauled them, I wouldn’t say for sure.
“I got into the woods there in the vicinity where Mr. Fitts was killed on the morning of the Sth of September — it must have been 7:30. Joe Ramsey and a little fellow named Morgan was there when I got there and there was four or five men there, I don’t remember who all was there. I don’t remember whether any of Fitts’ trucks was there. One of Fitts’ trucks was loaded when I got there. Fitts was there when I got there. I met him and talked with him; I met him right out in front of where they started to work. * * * I had some conversation with Mr. Fitts that morning. I got out that morning and I didn’t have any scaler for the saw gang. * * * I generally furnished and had a scaler in the woods to scale for the flatheads; that morning I had none. The scaler I had been using,. I stopped him off at Bessmay to scale for the trucks. He was doing the scaling on the track and woods too, had been; so we had to load that day and we didn’t have a scaler in the woods. Major Kelly was the scaler at the track. I had a talk with Mr. Fitts about the matter; I asked him if he would scale some saws that day; he told me no, he couldn’t scale, he had all he could do to take care of the other; I said all right, I don’t want you to scale if you don’t have time. He told me he didn’t have time, he couldn’t keep up with his crew and the sawyers both; I told him that was all right, I would have them scaled on the track. I went with Fitts out where the sawyers were; we went around and showed him' where the logs was and told the sawyers we would scale them on the track, told all of them we would scale them on the track. * * *
“Mr. Fitts was present at the time I was talking to the sawyers; I know he was part of the time; I think he- went all the way around. I told them we would scale them on the track, to mark the logs; nearly every sawyer has got his brand. The purpose of having a saw brand is the scaler scales them in the woods and has to have them branded to know this man’s logs from the other; Fitts’ logs were scaled by the company on the track. Fitts’ scale, as a contractor, was never made by the company out in the woods. I dropped Major Kelly that morning at Bessmay. ⅜ ⅜ ⅜
“After I got out to the woods I sent some word back to Mr. Kelly; I sent the word by Joe Ramsey. He was a fellow that had a truck, working for Mr. Fitts. I saw Joe Ramsey in the woods. I sent this word that I have testified about before Fitts was killed, and after I talked with Mr. Fitts about scaling for me that day. Ramsey’s truck had left the woods going to Bessmay before Fitts was killed. Mr. Fitts was present when I sent the word to Mr. Kelly. I sent word to him to scale the logs on the track for the contractor and sawyer. * * *
“In making scales in the woods when there was a scaler there to scale the logs the flatheads cut, or on the switch track either, those scales were made upon cards. The Peavy-Moore Lumber Company used cards altogether. The Peavy-Moore Lumber Company had been using the card system ever since I have been there, twelve or fourteen years. In employing a scaler to scale logs there in the woods, if I employed one, I furnished him with cards to make his scale upon. Keel' was used by Peavy-Moore in the woods by its scalers; it was blue in the woods. * * * The purpose of that was, you take a sawyer cuts a tree and puts a chunk on the stump and the scaler comes along, knocks the chunk off and marks the stump with blue; if you don’t mark the stump possibly they might slip the chunk back on it and you wouldn’t know whether it was scaled or not.
“I had some of these blank scale cards with me that morning if I had procured a scaler. I figured I would need those scale cards that morning. I knew I didn’t have a scaler and I also figured on trying to hire Mr. Fitts. I did not deliver to Mr. Fitts that day any scale cards nor any scale book. I did not deliver him any keel. I saw Mr. Fitts scale some of his own logs that he hauled on his trucks. Peavy-Moore Lumber Company scaled his logs at the track and paid him by our scale.
“I don’t know the names of the men who were driving Fitts’ trucks. I don’t know who was driving Fitts’ teams. I didn’t pay a great deal of attention to those details at that time; I didn’t have anything to do with it. All I was concerned with was getting the logs to the mill and seeing that the woods was cut clean and the work was kept up. I was there in the woods all time, supervised the work, looking after it. I was there very near every, day. I didn’t have a woods foreman in there. I had a man in there scaling in the woods and to look after the sawyers; directing that cutting, telling them where to cut and how to cut. And that man was Major Kelly. I went out there that morning with the purpose and intention of employing Mr. Fitts in Mr. Kelly’s place to look after his business for him that day. On account of the absence of Mr. Kelly, because I deemed it necessary for the efficient operation of our business to have a man in that capacity, I had the purpose and intention of employing Mr. Fitts to take Mr. Kelly’s place for that day. I knew something about Mr. Fitts, about his experience and ability and I knew he could fill that place. I carried a scale stick and some cards along for him. We use the card because a card is more convenient than a book would be. Every time a man scaled a log he put it down on the card. Then at the close of the day he bundled up the cards and had them all together and brought them in. When he scaled a log he would ordinarily put it down on the card and put it in his pocket; he carried the card around with him. When he got his pocket full of cards he sent them in to the office and changed cards the next morning.
“The only business Mr. Fitts had scaling any logs — he would derive benefit from it, if he had to take our scale anyhow. Somebody came after me when Mr. Fitts was killed and told me he was dead. It is a fact Mr. Fitts wasn’t working for me on that day. One of the hands came down there and told me he was killed. I went straight up there. He wasn’t working for me by the day. Mr. Fitts was going around looking out his logs to see where to load his truck after I had gone. He was not there looking after my business. He wasn’t getting any pay to look after it and didn’t have any authority. I offered to pay him. And if he had worked for me I would have paid him, in addition to what his contract called for for hauling those logs. If he had worked for me T would have paid him $3.50 a day. If he had worked for me after I was gone I would still owe him for that part of a day’s work. If he worked for me I never did pay him; he didn’t work for me. I know he didn’t work for me. I wasn’t there. I have no interest in this law suit. * * *
“I left the woods just as soon as I went around after talking to Mr. Fitts. I knew when I left there that day that business was in good hands, I had it all arranged. Mr. Fitts wasn’t going to run it; I am sure about it; I am positive for he told me he wasn’t.”

Major Kelly:

“I am employed by Peavy-Moore Lumber Company at this time. I have been connected with that company right about nine years, practically, scaling logs. I am at present scaling logs. I was employed with the company in that same line of work on the 5th of September, 1934.
“I remember and recall the occasion of the death of R. U. Fitts. I was scaling logs on that day. The place of my work that day was on the O. & N. W. at Bessmay. * * * I was scaling for the Peavy-Moore Lumber Company that day. The purpose of my scaling that day was for the contractor and for some saws, both together. * * * I don’t remember all of the contractors. R. U. Fitts was one of them. He had been such with Peavy-Moore about a month, maybe a little longer. He had three trucks, I think, and there was another one working there with him; that was Joe Ramsey’s truck. The Ramsey truck had nothing to do with the Fitts contract than that he was loading his truck with his teams. * * •* I had worked the day before the 5th day of September, 1934, right there at the same place; on the track. I had worked in the woods a right smart as a scaler. It was the usual and customary thing for Peavy-Moore to have a scaler in the woods. They always have a scaler in the woods for scaling the saws, practically always. The scale in the woods is just for the saws alone; for the flatheads alone. The scale for the contractor was usually always made on the track; there at the place wherever the .unloading at the track was going on.
“I don’t remember just exactly the time I commenced scaling on the track at Bess-may. I was scaling there on the 5th of September, 1934. I was scaling there the day before. I can’t hardly recall how many days just back of that we had been working there, but a good many; I went to work on the morning of the 5th of September about seven o’clock. I got to Bess-may that day in an automobile with Mr. Walter Bean. Mr. Bean left me there on the skidway of the track. That was somewhere about seven o’clock, between six and seven o’clock. Mr. Bean and I knew at that time that there was no scaler for the flatheads to work in the woods that day. Mr. Bean and I had an understanding with respect to whether the scaling might be carried on in the woods that day for the flatheads before we separated. It was somewhere between six and seven o’clock that morning that we had that understanding and separation. I next heard from Mr. Bean about the matter of the understanding about eight o’clock. I got that information and communication from Joe Ramsey; he was a log hauler. I saw him there on the track, he come by the skidway where I was. He brought a load of logs there on a truck; I scaled the logs. Mr. Ramsey told me Mr. Bean said for me to go ahead and scale the logs for the saws, he wouldn’t have any scaler in the woods; I went ahead and done it just like he told me to do it. In scaling the logs at the track the record would be put right on the card, same as the contractor. I have seen the piece of paper .some ten inches long and three inches wide and one-ninety-sixth of an inch thick which you hand me. * * *
“I carried that card to the office, Peavy-Moore Lumber Company’s office. There are some marks or symbols on this card, dated 5th day of September, 1934, made by me outside of the scale figures; I got the saw brand up here. The sawbrand up there on that card is — well the flat-heads cut them a little V brand back in the end of the log with an axe. I am familiar with the saw brands of the flat-heads working out in the woods. I had been familiar with that brand on the date I made that card quite a while, a good long while. I put that symbol on that card so. I would know who that card belonged to, what flathead it was. That kind of record would inform me as to what each flathead would be entitled to in the log scale that day; I always put the flathead’s name on the card from their brand, because I knew whose brand that was. Those symbols enabled me to carry each flathead’s log scale clearly into my report; that is what they were for. I don’t know of any other report that went into the office except the report I made as based upon the flathead’s symbol. No one else would make the report to the office besides the scaler that I know of. I was the only scaler working there on the track that day. On the days when Peavy-Moore Lumber Company had a scaler in the woods scaling the logs for flatheads they did not have a scaler at the track scaling the logs for the flatheads. The scaler at the track would scale the logs for the contractor when a scaler was in the woods. The fact that has been shown me and which I have in my hand dated the 5th day of September, 1934, was the character of card that was universally used by Peavy-Moore Lumber Company at that time for log scales; that kind of card has been in such use by Peavy-Moore ever since I have been there; I never knew of Peavy-Moore Lumber Company using any other kind of card in connection with the scaling of logs; I never did use it. Peavy-Moore Lumber Company has never at any time during my connection and experience with the company used a scale book for keeping the scale of logs as I know of; if they had used any book I suppose I would have known it. I was the chief log scaler for Peavy-Moore at that time, that is, during the month.of September, for the contractor. Mr. Tom Smith was the chief log scaler for the flatheads in the woods. He was working that day in the woods; he was on the same, about the same tract of land over there where these fellows were working, just a different tract.”

Richard Walters:

“I have worked for Peavy-Moore Lumber Company. I was working for that company on the 5th day of September, 1934. I was sawing logs for them; sawing down trees and sawing them up into logs. I had a partner on that day; he was J. W. Withers. I was working on the morning R. U. Fitts was killed. I suppose I was working about a hundred and fifty yards from where he was killed. I went to work that morning a few minutes after seven o’clock, pretty soon after seven o’clock. I recall an old tram road that ran through the woods there. It ran east and west. I was cutting on the north side of it. I had been in that woods there before that day cutting. * * * I had cut some logs the evening before. I had cut them something like a hundred and fifty yards from where he was killed; on the same side of the old tram road. The morning before the evening we began, we went to see Mr. Bean; we misled him at first and went down to the lower part and we found him in the bagóle looking after teams and things; we received instructions from him as to where to cut. Mr. Walter Bean’s connection with Peavy-Moore at that time was woods superintendent.
“I was familiar with the way timber would be stripped and run out for each contractor to work in. I was acquainted with R. U. Fitts. The evening before Mr. Fitts was killed was my first day in that section of the woods. Mr. Walter Bean, the woods superintendent, and Mr. Fitts came to where me and my partner were sawing that morning, the same day he was killed, after fifteen to twenty minutes before he was killed. When Mr. Fitts and Mr. Bean came to where I was sawing Mr. Bean told me to brand out logs separately, and said ‘we haven’t any scaler this morning, but I will try to get you one in two or three days; brand your logs so they can be scaled at the skidway; Mr. Kelly will scale them at the skidway.’ We branded our logs; we usually cut two * * * licks in the end of the log with two little slopes; that was my brand that was recognized that I had been giving when I branded my logs. Mr. Fitts carried a scale stick in carrying on his logging operations.”

Sid Crockett:

“I have worked for Peavy-Moore Lumber Company. I sawed logs for that company. I was sawing logs for them in September at the time R. U. Fitts was killed. I was out there in the woods that morning. I was doing sawyer work that day as a flathead. Mr. Guy Stanley was my partner. I was working about a hundred yards, maybe a hundred and forty, from the place where Mr. Fitts was killed. I didn’t see the accident when it first happened. * * * I went where it was. I am acquainted with Mr. Walter 'Bean. I had known him about twelve years at that time. * * * He was woods foreman for Peavy-Moore at that time. I saw him that morning. He came with R. U. Fitts to where me and Stanley were working, sawing logs that morning. He told me to be sure to brand my logs because there would not be any scaler with me that day, there would be a scaler at the track. I observed his instructions. There was no scaler there that day and I branded my logs. They were scaled at the track at Buna. I know who the scaler was.
“My partner and I had a V letter brand. That would be cut out of the end. We have had that brand all the time I had worked. We had that brand so they could tell my logs from the other sawyers’ logs. As a general thing before that day there would be a scaler that would scale our logs there in the woods. And the scaler in the woods would know our logs from the qther logs as he scaled; and as he scaled our scale was taken down and we paid no attention to it.
“I had known R. U. Fitts before that day. He scaled his own logs that his trucks hauled all along all time; I had seen him scaling. He had a scale stick of his own. He carried a scale stick all the time there principally as he was loading out logs in the woods; I noticed him around and he had his stick; I had been noticing that and observing his work for three weeks I know or longer, I had been on the job over three weeks with him. I don’t know whether he kept a scale book or not, I never paid strict attention as to whether he kept it all time. I didn’t see him scale any logs that morning at his truck. We had cut some logs on the evening before. I cut on the south side of this road. There was a road there; just an old tram road. It ran east and west as well as I could estimate it. I had cut there on the south side of this road the evening before. ⅜ ⅜ ⅜
“The first time I went in there to cut logs on that old road was the day before Mr. Fitts was killed- — on that old road. I had cut logs the day before Mr. Fitts was killed on the south side of that tram road. I have cut on the north side; Mr. Bean told me to do that. I didn’t know which strip was Mr. Fitts’ strip, that was being hauled by him. He was loading logs on his trucks on the north side of that old road that morning.”

Oscar Crockett:

“I have worked for Peavy-Moore Lumber Company. I sawed logs for the company. We stopped sawing down there in December I believe, before Christmas; last Christmas. I was working for Peavy-Moore Lumber Company on the Sth day of September, 1934, when R. U. Fitts was killed. I was an eye witness to that killing. I was sawing logs that day; that is what is called flatheading. Cornelius Westbrook was my partner. * * *
“I knew R. U. Fitts before he was killed; we had been working in the crew about a couple of months I believe. I knowed him when I started working on that job. I knew him first at Boat Lake. We cut the evening before in that location where Mr. Fitts was killed, we cut a few logs and we started back there that morning. I remember seeing an old tram road running through there. I don’t remember which side of that tram road we cut on on the evening before, seems to me like we cut on the southeast corner of the field and we cut some on the northeast, we cut some at one place and moved up to another place. We was cutting on the north side of that road the morning Mr. Fitts was killed.
“I am acquainted with Walter Bean. I just got acquainted with him when I went to sawing down there. He was woods boss for Peavy-Moore. He in company with R. U. Fitts came to where me and my saw partner were working that morning a little while before Mr. Fitts was killed. He came to us and told us to brand our logs because— ‘I wont have a scaler out for a few days, brand them so they can be scaled at the track.’ I understood they were going to be scaled after they were hauled to the. roll-way at the track. We have a brand as a flathead, me and my partner. I don’t remember what — exactly our brand, we used so many different brands I don’t remember what our brand was. As a general thing before then our logs had been scaled by someone scaling there in the woods. Mr. Major Kelly was the scaler, but he was not out there that day. * * *
“Me and Cornelius Westbrook was sawing down the tree that killed Mr. Fitts. It was a small tree, I imagine about between ten and eleven inches at the butt. We was in open piney woods. I first saw him when I threw my saw out and I looked back and he was in reach of the tree when I saw him; I hollered at him and I hollered a second time and he checked there and looked up and kinda turned to the side like that; the tree was falling then. He turned to the side and looked up and stood there. The tree hit him in the side of the head, the limb on the tip end of the tree, top end of the tree. He didn’t live over three minutes, because when I hollered me and my partner ran to him. My partner said' this man is hurt. I hollered for another pair of sawyers; I hollered for them and hollered for one of the chauffeurs that was going out to bring Mr. Fitts’ car. Mr. Fitts’ truck was about to go out. I don’t know exactly whether any of the other trucks had gone , out that morning, they could have. One of Mr. Fitts’ trucks had been loaded and started out when I seen them and hollered at them; I don’t know whether they had gotten clear out or not.”

Cornelius Westbrook:

“I have worked for Peavy-Moore. I sawed logs, loaded logs. I have done the work that is called flat-heading. I was working for Peavy-Moore on the 5th of September, 1934, when R. U. Fitts was killed. * * * I was a witness to that killing. I am acquainted with Walter Bean. I have been working for Mr. Bean off and on ever since about 1930. He was running the woods the way I understood, woods superintendent, woods boss, for Peavy-Moore Lumber Company at the time Mr. Fitts was killed. Oscar Crockett was my saw partner that day. It was pretty early in the morning when Oscar and I went to work, I don’t know just exactly what time. It must have been between seven and eight o’clock, right about eight o’clock, when Mr. Fitts was killed. My partner and I must have been pretty close to the old tram road that runs through there sawing logs, I don’t just recall, but there was one right around there somewhere, but we was right close to the road the people use to go from the settlement to the river. We was on the north side of the road. Mr. Fitts was killed on the north side of the road. We must have started cutting down trees in this section alongside the tram road the evening before. It must have been the middle of the evening when we started; we made a start so they could have some logs the next morning. Mr. Fitts and Paul Stanley placed us out there to do the work the evening before. We cut on both sides of the old road the evening before. They told us to cut towards the north side of the road that morning.
“When we were cutting there that morning Mr. Fitts and Mr. Bean came to where me and my partner were sawing. Mr. Bean told me and my partner how to cut the logs,' how high, what size tree to cut, how small to cut the timber, and told us to be sure and brand the logs — T won’t have a scaler today, Mr. Kelly will scale your logs at the track.’ We observed his instructions. Our brand was a ‘miss lick.’ We have had it nearly ever since me and Oscar had been sawing, that was the brand we used at Boat Lake. As to whether generally there was a scaler in the woods to scale our logs, well, Mr. Kelly scaled for us at Boat Lake, in the woods. This day there wasn’t any scaler whatever.
“I was sawing the tree' down that fell upon Mr. Fitts. Mr. Fitts had some trucks there in the woods, there was some trucks loading east of us. I don’t know exactly whether any of his trucks had been loaded that morning or not. I don’t know whether or not he had scaled any logs to go on his truck that morning. I had worked at Newton and at Boat Lake in the woods in connection with his logging operations. He scaled his logs as a general thing, that his trucks hauled. He had his own scale stick, I suppose he did, he kept one all the time.” * * *
“I was sawing the tree down that fell upon Mr. Fitts. When we cut a tree to fall, you see, it is quite natural among flatheads, when timber goes to fall he makes a holler of some kind to notify the timber is falling. Oscar hollered and threw his saw out of the tree and he hollered the second time. As he went to oil the saw and when I looked Mr. Fitts was coming and when he hollered the second time he stopped and looked up and made about two steps backward and it whipped him down.”

Opinion.

We have carefully reviewed the entire statement of facts; the summary of the testimony made above correctly reflects ap-pellee’s theory of the employment. Giving due weight to every circumstance in the record, it is our conclusion that the verdict of the jury finding that R. U. Fitts was killed in the course of his employment as log scaler is wholly without support in the evidence.

There is no material conflict in the evidence that R. U. Fitts was hauling logs as an independent contractor; that Walter Bean approached him on the morning of September 5th, to employ Kim as log scaler for that day; that the regular log scaler, Major Kelly, was not in the woods that day; that R. U. Fitts was killed on his logging territory; that he had with him a scale stick and a scale book at the time he was killed — these facts were all clearly established. No not heard Fitts’ answer to Bean’s offer of employment; Bean said he made the offer and Fitts refused it. There is testimony from Major Kelly that he received word from Mr. Bean, sent after Bean’s conversation with Fitts, that there was no log scaler in the woods for that day and' that he must scale the logs for-the sawyers by their private marks. The log sawyers testified that Mr. Bean came to them in the woods that morning and in the presence of Mr. Fitts told them to mark their logs with their log mark as there would be no log scaler in the woods that day. The testimony was to the effect that the scaler used a card in scaling behind the sawyers and not a scale book — Mr. Fitts had with him ho cards but his scale stick and his own scale book. The scaling done by Mr. Fitts that morning, his mark or brand on the logs and stumps, were all done as in the regular course of his work as an independent contractor. Appellee gives weight to the circumstance that, standing together, when Bean made Fitts an offer of employment he used his hand as if marking out certain territory; that was explained by Mr. Bean’s statement that he was pointing out to Fitts his logging territory, and there was no rebuttal to Mr. Bean’s explanation.

As we construe the evidence in this case the circumstances all rebut the theory that Fitts accepted Bean’s offer of employment. The burden was on appellee to establish the employment by a preponderance of the evidence; she has not discharged that burden.

Time was an immaterial element on the issue of employment. Had Fitts accepted Bean’s offer and entered upon the discharge of the duties of log scaling, though only for the short time indicated by the evidence, ap-pellee would have been entitled to recover.

It follows that the judgment of the lower court in appellee’s favor must be reversed and judgment rendered in favor of appellant that it go hence without day and recover its costs.

Reversed and rendered.  