Claim of Mandatto v. Hudson Shoring Co.

H. T. Kellogg, J. (dissenting):

The claimant was . an independent contractor, who had a contract to make an excavation which he was performing through his own labor and that of his meñ, by the use of a derrick, a gas engine and other equipment. He was asked by *73the Hudson Shoring Company, which also had a contract relating to the same job, to assist with his derrick in lifting a timber for that company. The claimant complied with the request, and in the course of lifting the timber caught his foot in a rope and was injured. In all of the cases dealing with the subject of a general and a special employer there is invariably present a contract relationship of master and servant, of an employment for hire, a condition of subjection of one person as a servant to the orders and directions of another person as an employer. The general employer hires the servant for a consideration to be paid, and loans the servant so hired to the special employer, to whose orders he is subjected by the direction of the general employer, and the relationship of a subordinate to a superior continues as well as the payment of compensation. In this case the claimant had no general employer, and having none his services were not loaned by such an employer. A new relationship of master and servant was not created for the reason that the claimant was to receive no wages, and in no wise subjected himself to the orders of the Hudson Shoring Company as a subordinate servant subjects himself to the orders of a superior master. Therefore, I think the award should not have been made.

Award affirmed.