
    Fred Anette AINSWORTH, Plaintiff-Appellee, v. HENRY & HALL et al., Defendants-Appellants. New Amsterdam Casualty Company, Intervenor.
    No. 8059.
    Court of Appeal of Louisiana. Second Circuit.
    Dec. 2, 1953.
    Rehearing Denied Dec. 29, 1953.
    Writ of Certiorari Granted Feb. 15, 1954.
    Theus, Grisham, Davis & Leigh, Monroe, for appellant.
    Parker & Parker, Jena, for appellee.
    George J. Ginsberg, Alexandria, for in-tervenor.
   GLADNEY, Judge.

Fred Anette Ainsworth, plaintiff herein, by this tort action seeks recovery for personal injuries received on August 13, 1951, when he was driving a dump truck along a dusty road in Caldwell Parish, Louisiana, and was involved in a collision with a similar truck operated by Daniel Guin. The defendants in this cause are Henry & Hall, a partnership, its individual members, Reginald T. Henry and Melvin Hall, Jr., and their insurance carrier, The Aetna Casualty & Surety Company. Also made defendants were Daniel Guin and George E. McCart, owners of the truck operáted by Guin. Judgment by default was rendered against Guin and McCart and no appeal has been taken from this judgment. The facts determinative of liability herein are fully stated in Amyx v. Henry & Hall, La.App., 69 So.2d 69, which case was consolidated with the instant case for trial and appeal, and was this day decided by this court.

The New Amsterdam Casualty .Company has intervened herein to secure reimbursement for workmen’s compensation paid in its capacity as insurer of Ainsworth’s employer, Quality Gravel Company. After trial the court of original jurisdiction rendered judgment in favor of Ainsworth for $7,500, $3,170 of which was directed to be paid to the intervenor, New Amsterdam Casualty Company. From the judgment so rendered defendants therein, other than .Mc-Cart and Guin, have appealed. ■

For the reasons set forth in Amyx v. Henry & Hall, supra, the judgment from which- appealed is, therefore, annulled, set aside and reversed insofar as it imposes liability upon appellants, and in all other respects the judgment is affirmed. Costs of this appeal are to be borne equally between •appellee, Fred Anette Ainsworth and the New Amsterdam- Casualty Company. Dan Guin and George McCart are taxed with all other costs.

HARDY, J., dissents, giving written reasons.

HARDY, Judge

(dissenting).

With the utmost respect I am impelled to dissent from the majority opinion in this case and the. consolidated suit of Amyx v. Henry & Hall, because I differ with the conclusions reached as to the nature of the relationship which existed between Guin and the partnership of Henry & Hall.

Despite the pronouncements in the majority opinion to the effect that no one test is conclusive; that many factors enter into the question, and that the terms and conditions and the attitude of the parties are influential, I think that the opinion disregards all of these factors. The opinion attempts to determine the question of the existence of a contract solely upon the consideration of the understanding and interpretation of one of the parties, that is, the defendant, Henry & Hall. There is not the slightest evidence in the record which would indicate that Guin considered himself to be an independent contractor. He applied to the defendant partnership for work and, as a tool or implement of his calling he evidenced the right .to the use of his truck.

I am persuaded that the truck, jointly owned by Guin and McCart, should be considered in this instance only in the .light of a tool or implement. A woodsman is not an independent contractor because he owns the axe which he uses in the felling of trees. A carpenter is not accorded the status of an independent contractor because he bears a kit of tools to the job upon which he is engaged.

As to the purported contract to which the majority refers “the contract for services rendered was an oral one * * * ”, I find nothing of a contractual nature. The essence of a contract lies in the existence of mutual obligations as between the parties. In this case Guin had no obligations except with respect to his own wishes. After his employment he could haul one load, a thousand loads, or no load of gravel. He did not contract, that is, agree and obligate himself to do anything.

I feel that the error evidenced in the* majority opinion lies in the fact that it has considered only one phase of the relationship between the parties involved, and, for the reasons above set forth, I respectfully dissent.  