¶1 On Application por Behearing.
¶2 On May 17, 1929, the following opinion was filed:
¶3 Workmen’s Compensation Acts — C. J. § 112 p. 115 n. 23; § 127 p. 123 n. 41.
¶4 See 28 R. C. L. 829; 4 R. C. L, Supp. 1872; 5 R. C. L. Supp. 1581; 6 R. C. L. Supp. 1766; 7 R. C. L. Supp. 1011.
¶5 The petition of the employe-relator for a rehearing is denied. But its criticism of the statement in the opinion that “there is no direct proof of the actual agreement” is well taken to the extent that the relator did testify that his “arrangement” with Amundson “ivas a dollar an hour, plus the material.” In form, that is direct proof, but taken with the whole record it does not answer unequivocally the question whether the “arrangement” made relator a mere employe or .an independent contractor. On that issue we have studiously re-examined the entire record and are confirmed in the conclusion that it presents a question of fact upon which the finding of the industrial commission is final.
¶6 The burden of proof was on relator, and his own testimony is not of such unequivocal character as to compel a finding in his favor. He admitted being told by Amundson that the latter “said he had a number of bids on the job;” that he then told Amundson that he “could do the job cheaper than anybody else;” that he “looked at the plans,” figured the work, and told Amundson “just about how much it would run to.” In that connection is exhibit 10, which relator, while hesitant and possibly evasive about it, admitted “might have been” an estimate submitted to Amundson for the tin work on the house on Avhich he was injured. That conclusion is tenable. If it was, and the referee said that “in all probability” it Avas, it is alone sufficient to sustain the conclusion that relator did the Avork in question as an independent contractor rather than a mere employe.