The evidence is sufficient to sustain the verdict on the main bill of exceptions, and it follows that the cross-bill is dismissed.

Huey A. Truelove, Jr., entered suit against Robbins Home Improvement Company, Inc., on a written contract whereby the defendant was to make certain improvements on the plaintiff's house for a specified price. During the progress of the work on the house it caught fire. The building and certain personal property therein was damaged, and the plaintiff, who was in the house at the time was injured. The action sought to recover damages for alleged negligence on the part of the defendant. The suit as originally filed was brought in one count based on the principle of master and servant under the doctrine of respondeat superior. Two counts of the petition were stricken on demurrer. Prior to the case going to trial before a jury the plaintiff amended his petition the fourth and last time. This last amendment related only to count 1, the only count then remaining in issue. The case proceeded to trial before a jury on the cause of action pleaded in count 1 of the plaintiff's petition as amended and as above stated, based on the principle of respondeat superior. The plaintiff contended that the defendant was liable for the negligence of Raymond Perry, alleged to have been an employee of the defendant acting within the scope of his authority. At the close of the evidence the defendant moved for a directed verdict on the ground that the evidence introduced demanded a finding in his favor; that there was no evidence introduced to establish agency between the defendant and the party charged with the acts of negligence; that the evidence showed that Raymond Perry, the alleged employee of the defendant, was not an employee of the defendant and was not subject to his direction or control; and upon the further ground that the plaintiff failed to prove his case as alleged in that he failed to show how the fire originated. The motion for a directed verdict was denied and thereafter the jury returned a verdict in favor of the plaintiff. The defendant then filed a motion for a judgment notwithstanding the verdict, and it is on the denial of this motion that the case is here for review on the main bill of exceptions.

The questions to be considered are: (1) Does the evidence introduced demand a verdict for the defendant? (2) Does the evidence establish the relationship of master and servant between the defendant and Raymond Perry? (3) Does the evidence support the cause of action declared upon by the plaintiff? (4) Does the evidence establish the relationship of employer and independent contractor between the defendant and the party charged with the acts of negligence? (5) Does the evidence support the allegations that the fumes were ignited by coming in contact with the embers in the remains of the fire in the fireplace in the front bedroom of the plaintiff's premises?

The facts substantially show that the plaintiff and his wife entered into a contract with the defendant for certain repairs, as stated hereinabove. The repairs included replacing the floors with hardwood in three rooms and replacing floors with rubber tile in two other rooms and replacing a door. The agreement between the parties included the application of finishing material and shellac to the new hardwood floors. The new floors were laid in two of the three rooms, that is the two bedrooms, by Wednesday, November 5th. The president of the defendant company came by the house in the late afternoon. The plaintiff and the president of the defendant company talked about sanding and shellacking the floors. The president stated that he would send men out the next day to do that work. After the conversation the president came out on Thursday morning with two colored men. That was on November 6th. The president, Mr. Robbins told one of the two colored men, Raymond Perry, how to go about doing the sanding, finishing and shellacking. The other colored person was named Birdsong. Mr. Robbins did not say anything about Birdsong or Perry being subcontractors, nor did he state that Perry was not employed by the defendant. To all appearances Perry was an employee of the defendant. Mr. Robbins stated that the boy Birdsong had another job somewhere and had to go. Mr. Robbins called the colored help "My men." On the day of the fire at 8 or 8:15 in the morning, the plaintiff built a fire in the front bedroom with scrap hardwood flooring. About 8:45 a. m., six or seven similar pieces of scrap hardwood flooring were put on the fire. It was about 9 a. m. when Mr. Robbins left. Birdsong left soon thereafter. The plaintiff helped Perry move furniture out of the bedrooms. By 10:30 or 10:45 a. m. Perry had sanded the floors in two of the bedrooms. It took Perry about fifteen minutes per room to apply the filler and finishing material to the floors preparatory to the application of shellac. The windows were closed, but could have been raised. Perry applied the finishing material in the back bedroom and thereafter he stated that he started applying the finishing material in the front bedroom. The finishing material was volatile and highly inflammable. It had a flash point of 25 degrees Fahrenheit. It consisted half of a solid material and half of a solvent. The solid was nitrocellulose, (which is gun cotton) and a resin, and this combination had a flash point of 25 degrees Fahrenheit. The solvent was pe-

troleum oil with a flash point of 25 degrees Fahrenheit. Every one of the ingredients burns very readily and has a low flash point. The particular finishing material being used was substantially identical with all floor finishing materials in general use, all of them being substantially the same in composition, flash point and volatility. Raymond Perry was applying finishing material preparatory to the application of shellac.

Mr. Truelove and his friend, Mr. Glow, who had come by to see him, were in the living room near the doorway to the front bedroom. All the gas had been disconnected. There were no lights on in the bedrooms. The telephone did not ring. No one was smoking. The television had been moved into the living room, and was not in use. Vapor from the finishing material was very pungent. No sparks were seen. Perry was putting finishing material on the floor in front of the fireplace when a sudden fire appeared in front of him and was all over him. He rushed into the living room and he and the plaintiff and Mr. Glow tried to open the front door but could not do so. They broke out of the house in three different ways. The fire made no noise except the noise of burning. The evidence does not reveal that the fire originated in any place other than in the front bedroom. Birdsong claimed to be an independent contractor, but he had no written contract. Mr. Robbins telephoned him to do the job. From previous work on other jobs, a price of 10 per sq. ft. had been developed. He described himself as a painter. He had no license as a contractor, no building permit, kept no Social Security records, and withheld no income taxes. He had no place of business. The sanding machine he used was rented for the particular job. Mr. Robbins telephoned Birdsong about the floor job, whereupon Birdsong asked Perry to help. Birdsong, Perry and others hung out in front of Crescent Paint Company, hoping to get jobs. It was for that reason Robbins telephoned Birdsong about the job in the instant case.

We have given considerable time to the study of this record. To us the evidence clearly makes an issue of facts to be determined by a jury. The jury were authorized to find, under the evidence, that Raymond Perry was the employee of the defendant. This being true, we deem it useless to cite any authority. Counsel for both the plaintiff and the defendant argued the question in an issue of facts as to whether or not under all the facts and circumstances submitted to the jury Raymond Perry was the agent of the defendant or an independent contractor or an agent of the alleged independent contractor Birdsong. The jury resolved this issue against the defendant. The evidence sustains the verdict of the jury. There being no error of law committed, the judgment is affirmed.

Judgment affirmed on the main bill. Cross-bill of exceptions dismissed. Townsend and Carlisle, JJ., concur.