(dissenting). The board, by decision filed October 30,1970, found “ that the claimant was jointly employed by both Market Haulage Company and the Grand Union Company.” The majority opinion holds that claimant was under simultaneous control of both employers, and that he had been shifted from one to the other during the course of a working day. The board made no findings of fact upon which to base a conclusion of simultaneous control, and there is further no evidence in the record to support such a conclusion.
The board did find that claimant performed similar duties for both Market Haulage and the Grand Union Company, averaging four days a week for the former, and one or two days a week for Grand Union. In addition, the board found that claimant “ on the day of the accident, he was performing work *458solely for the Grand Union Company. * * * That loading or unloading freight car duties were performed by Grand Union employees; and that the premises were the property of the Grand Union Company.” Grand Union paid claimant directly for the work he performed for Grand Union. The accident happened on July 20, 1966 while he was unloading a freight car for Grand Union, and Grand Union paid compensation benefits for over two years before its carrier asserted that Market Haulage was jointly liable. •
“ Joint employment occurs when a single employee, under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. ” (1A Larson, Workmen’s Compensation Law, § 48.40.) The theory behind joint employment is that the employee is continuously serving both employers under the control of both.
It is undisputed that claimant was injured while he was unloading a freight car for Grand Union on Grand Union’s premises. It is also undisputed that Market Haulage was a trucking company,, and its employees loaded products from a loading platform on Market trucks for delivery to Grand Union stores. The bookkeeper for Market Haulage testified that its employees did not unload freight cars when working for Market Haulage.
The record herein does not support the determination of joint employment: There is no proof that claimant was under simultaneous control of both employers. On the day of the injury, claimant was working exclusively for Grand Union, was paid by Grand Union, and was under the exclusive control of the Grand Union foreman, and the services being performed were not the same as the services to be performed under the contract between Market Haulage and Grand Union.
There is, thus, no substantial evidence to support the determination of the board, and the decisions should be reversed.
Cooke and Main, JJ., concur with Herlihy, P. J.; Staley, Jr., and Reynolds, JJ., dissent and vote to reverse in an opinion by Staley, Jr., J.
Decisions affirmec), with one bill of costs to respondents filing briefs.