McKINNEY, J.
This suit was instituted under the Workmen's Compensation Statute (Pub. Acts 1919, c. 123, as amended by Pub. Acts 1923, c. 84).
The chancellor found that petitioner, Odom, was not an employee of Sanford & Treadway, and dismissed the suit as to them. Mann Hughes was also made a defendant, and the suit was likewise dismissed as to him.
Sanford & Treadway, a partnership, owned a large boundary of timber in Carter county. On January 29, 1924, they entered into a written contract with Birchfield & Garland for the cutting and hauling of said timber. Subsequently, Birchfield & Garland sublet a part of said work to the defendant Mann Hughes, and petitioner was engaged in cutting said timber for Mann Hughes when a tree fell on him and seriously injured him. In the written contract, Sanford & Treadway were referred to as parties of the first part and Birchfield & Garland as parties of the second part.
The contract provided that parties of the second part were to cut, skid, log, and deliver to a certain mill site all of the timber on the described tract of land, estimated to be 1,500,000 feet. The contract then proceeds:
"The second parties agree to cut this timber into logs, cutting 50 per cent. or more 14 and 16 feet long, the oak and chestnut to be cut 16 inches and over in diameter measuring 12 inches above the ground, the balance of the timber and different varieties growing on this property is to be cut 8 inches and over in diameter measuring 12 inches above the ground.
"All this timber is to be cut under the direction and supervision of the first parties or their agent, all to be sound timber, and special care is to be taken in cutting and falling the timber so as to do as little damage in splitting and breaking the trees in felling them as it is possible to do. * * *
"All the logs and timber that the first parties want cut to this set for the sum of $7.50 per thousand feet, measurement to be made by log scale and the scale to be made by the first parties or their agents, second parties can be present if they so desire when the measurements are made. All logs to be measured straight and sound cutting out all defects. * * *
"The second parties agree and bind themselves to keep logs on the skidway and the logyard at all times in sufficient quantity to keep the mill running until the job has been completed."
The contract then provides where the parties of the second part are to begin cutting, and provides for advances to parties of the second part. The contract contains this provision:
"It is understood and agreed that the second parties are to be continuously on this job and at work until it has all been completed and the job of cutting, skidding, and delivering the logs has been looked over by the first parties and the contract is released."
The contract then provides that, if the second parties fail or refuse to deliver this timber as agreed to, the parties of the first part are authorized to have said timber cut and delivered, etc.
Finally the contract provides the following:
"It is agreed that in cutting and logging and delivering this timber to the mill that the second parties shall cut and deliver such logs and trees as the first parties want and leave what they do not want standing in the woods, and this all to be done under the supervision and directions of the first parties."
So far as exercising active control over the operations by Sanford & Treadway, Miller, who was in charge for them, testified that he called their attention to the fact that they began cutting at a different place from that provided in the contract, and that, when they had finished he pointed out to them four or five trees that had been overlooked, and that, with these two exceptions, he gave no instructions or directions with respect to the cutting and hauling of said timber. This testimony, under the rule, must be accepted as true, and affords some evidence in support of the chancellor's decree.
It follows, therefore, that, unless the written contract constitutes Birchfield & Garland employees of Sanford & Treadway, they must be treated as independent contractors.
Counsel for petitioner rely chiefly on the provision of the contract which provides that "all of the timber is to be cut under the direction and supervision of the first parties or their agent." This in and of itself does not constitute the second parties employees.
In 31 C. J. 473, under the title "Independent Contractor," it is said:
"Generally the term signifies one who exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of the work, and who has the right to employ and direct the action of the workmen, independently of such employer and free from any superior authority in him to say how the specified work shall be done or what the laborers shall do as it progresses; one who undertakes to produce a given result without being in any way controlled as to the method by which he attains that result. It is impossible to lay down a rule by which the status of men working and contracting together can be definitely defined in all cases as employees or independent contractors. Each case must depend on its own facts, and ordinarily no one feature of the relation is determinative, but all must be considered together. Ordinarily the question is one of fact. The principal consideration in determining the question is the right to control the manner of doing the work. Generally speaking, it may be stated that, if the employee is under the control of the employer, he is a servant or employee and not an independent contractor, but, if in the performance of the work he is not under the control of the employer, he is an independent contractor. However, it is not the actual exercise of the right by interfering with the work but the right to control which constitutes the test. The test oftenest resorted to is the ascertainment of whether the employee represents the employer or master as to the result of the work or only as to the means; if only as to the result, and in the employment of the means he acts entirely independent of the master, he must be regarded as an independent contractor."
Under the same title in 14 R. C. L., beginning on page 67, it is said:
"The vital test in determining whether a person employed to do certain work is an independent contractor or a mere servant is the control over the work which is reserved by the employer. Stated as a general proposition, if the contractor is under the control of the employer, he is a servant; if not under such control, he is an independent contractor. So, where the contractor lets a portion of the work to another contractor, the latter's independence is to be determined by the same criterion of the control of the work. In this connection, the ultimate question is not whether the employer actually exercises control over the doing of the work, but whether he has the right to control. The employer may in fact leave to the contractor the details of the work, but, if the former has the absolute power to control the work, the contractor is not independent. But whether or not the employer exercises control may, however, be a fact to be considered in determining the precise relations of the parties. The circumstance that an employer has actually exercised certain control over the performance of the work may not only render him responsible for the acts done under his direction, but may be considered as a factor tending to show the subserviency of the contractor. In other words, the fact that the employer has actually exercised control is properly considered as tending to show that he has a right to control. And, on the other hand, the fact that during the performance of the work the employer has exercised no control may be considered as tending to show that he has no right to control. But the mere fact that the employer was present and made suggestions or requested...
