(specially concurring).
The complaint under which the second trial was had, having in one place denied that the deceased was an invitee and having asserted in other places that the defendant had supervision and control of the deceased, came perilously near to an admission as a matter of law that deceased was a special employee of defendant. It at least placed plaintiffs in poor position to assert that Amacker was not such employee, particularly in view of the inference of consent that might reasonably be drawn from the fact that he had hired himself as one of a crew whose usual function was to do the work of a service organization for third parties.
Under the amended pleadings of the plaintiffs, upon which the case was tried the last time, there is an absence of an admission of any supervision and control, or right of supervision and control, of the deceased by the defendant. The question of whether or not: (1) the defendant had the right of supervision and control of the deceased; and (2) whether or not the deceased, by joining himself to the crew of Gibbins & Heasley to be solely occupied in the rendition of services to third parties, and by so engaging in rendering such services to defendant on the occasion in question, thereby impliedly consented co become the special employee, and subject to supervision and control, of the defendant, were factual questions for the jury.