dissenting.
Today’s decision marks a return to the era when the FELA was interpreted in a hostile and restrictive manner by the federal judiciary. Accordingly, I am constrained to register my dissent.
The first Employers’ Liability Act was enacted in 1906, 34 Stat. 232, and this Court responded by holding the Act unconstitutional. Employers’ Liability Cases, 207 U. S. 463 (1908). Congress tried again in 1908 and produced the Act which is now in effect. 35 Stat. 65, 45 U. S. C. § 51 et seq. This time the Court upheld the statute, Second Employers’ Liability Cases, 223 U. S. 1 (1912), but judicial hostility did not end. The defense of assumption of risk was, for the most part, held to be still available to the employer. Seaboard Air Line R. Co. v. Horton, 233 U. S. 492 (1914). The Act sought expressly to control the use of a contributory negligence defense, but the Court circumvented this to a considerable degree by developing the doctrine of “primary duty.” See Great Northern R. Co. v. Wiles, 240 U. S. 444 (1916). *334Finally, in 1939, the Congress decided that further legislation was needed. 53 Stat. 1404. The result was a more liberal view of the Act which did not provide the employer with so many defenses. See Tiller v. Atlantic Coast Line R. Co., 318 U. S. 54 (1943).
Since 1939 this Court has interpreted the Act in the spirit of those amendments. Gradual liberalization has occurred, and the narrow, technical approach of earlier years has been eschewed. See W. Prosser, Law of Torts 536-537 (4th ed. 1971). This development did not occur without dissent. Divisions of opinion occurred on the merits and also on the question of whether the Court should involve itself in this area at all. See, e. g., Rogers v. Missouri Pacific R. Co., 352 U. S. 500 (1957). Nevertheless, the Court continued to oversee the application of the Act and to insist that judicial interpretations be consistent with the Act's overall purpose.
One of the questions which has arisen under the Act has been the definition of employment. Section 1 of the FELA, 45 U. S. C. § 51, provides that the carrier is liable in damages for injury or death resulting to an employee from the carrier’s negligence. But the damage must be done to the one injured or killed “while he is employed” by the carrier. In the past judges have sometimes tried to give this requirement a rigid, technical content, but such an approach has been rejected by this Court.
In Baker v. Texas & Pacific R. Co., 359 U. S. 227 (1959), the petitioner’s decedent had been hired as a workman by W. H. Nichols & Co., a firm which had entered into a contract with the respondent railroad. The decedent was working along the main line of the railroad performing various operations designed to strengthen and stabilize the roadbed. He was killed when he was struck by a train. The trial judge refused to submit the issue of employment to the jury and held that as a matter of *335law the decedent was not in an employment relationship with the railroad at the time of his death. This Court reversed on the ground that whether the decedent was an employee within the meaning of the Act was properly a question for the jury. Noting that the terms “employee” and “employed” are not used in any “special sense,” the Court reasoned that the issue of employment “contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law. See Restatement, Agency 2d, § 220, comment c; § 227, comment a.” Id., at 228.
Ward v. Atlantic Coast Line R. Co., 362 U. S. 396 (1960), involved similar considerations to those in Baker. The petitioner was employed as a laborer by the railroad, but he was working on his day off with a crew which was fixing a siding track that belonged to a third party. Since the petitioner was being paid by this third party on the day of the injury, a question existed as to whether the petitioner was an employee of the railroad at the time of the accident. We held that the trial judge had improperly charged the jury to consider only one factor, that of the awareness of the victim that he was working for a third party on the day in question. We noted that a number of factors must be considered under Restatement (Second) of Agency § 220.
Many Courts of Appeals have been confronted with problems similar to those in Baker and Ward, and they too have taken a nontechnical approach based on the various aspects of the particular case presented. For example, in Missouri K-T R. Co. v. Hearson, 422 F. 2d 1037 (CA10 1970), the injured worker was a car cleaner. The railroad had stopped doing its own car cleaning and had hired a firm to do the job, and the injured worker was nominally the employee of this hired firm. But, upon examining all the factors, the Court of Appeals affirmed *336the District Court ruling that reasonable men could not differ in the conclusion that the victim was in an employment relationship with the railroad for FELA purposes. In Schroeder v. Pennsylvania R. Co., 397 F. 2d 452 (CA7 1968), the deceased worker was nominally an employee of a trucking company which was under contract to perform certain pickup and delivery services for the railroad. Considering all the facts the Court of Appeals held that the trial judge had properly submitted to the jury the question of whether the deceased had been employed by the railroad for FELA purposes. Many more cases of a similar nature exist. See, e. g., Byrne v. Pennsylvania R. Co., 262 F. 2d 906 (CA3 1958); Cimorelli v. New York Central R. Co., 148 F. 2d 575 (CA6 1945). But see, e. g., Fawcett v. Missouri Pacific R. Co., 242 F. Supp. 675 (WD La. 1963), aff’d, 347 F. 2d 233 (CA5 1965).
The case most clearly in point from another Court of Appeals is Smith v. Norfolk & Western R. Co., 407 F. 2d 501 (CA4 1969). There the injured worker was also employed by a company which unloaded autos from railroad ears, and, like the petitioner here, the worker fell to the ground from the top tier of one of the cars. The District Court granted the worker summary judgment, since it had no doubt that he was an employee of the railroad within the meaning of the FELA. The Court of Appeals affirmed, using the following language: “Though employees of independent contractors are not accorded coverage under the Act... if the injured worker is employed by an agent or adjunct of the railroad he will be treated as an employee of the railroad for purposes of the Act.... Thus traditional concepts of agency extend the coverage of the Act.” Id., at 502. The District. Court in this case relied on the language of the Court of Appeals in Smith v. Norfolk & Western R. Co., supra. The Court today holds that this language misstates the law.
*337All servants1 are agents of their masters. Restatement (Second) of Agency § 2 (2). But many agents are not servants within the meaning of § 220 of the Restatement. For example, an agent may be an independent contractor, but an independent contractor may never be a servant. Id. § 14 N, comment a. In Baker and Ward we referred to the Restatement as a source of principles which provide a basis for the factual decision as to whether an individual is an employee for FELA purposes. Under those principles an employee must be a servant and not merely an agent.2
Because the District Court in the present case used the word "agent” rather than "servant” or “employee” it committed a technical error. But our inquiry here should not be limited to a narrow examination of whether the right form of words was used to support a judgment in favor of a seriously injured worker. The District Court found that the requisite relationship was present to permit a recovery under the FELA, and we should ask whether the findings of fact that were made were sufficient to support that conclusion under the legal standard as correctly described.
The District Court made numerous findings of fact which support its conclusion that the FELA is applicable here, and these findings have not been held to be "clearly erroneous” under Fed. Rule Civ. Proc. 52 (a). Petitioner had been working in the job of unloading automobiles from respondent’s railroad cars for eight years. Restatement (Second) of Agency §§220 (2)(f), 227, *338comment c. The work performed was that of respondent, to be performed in the general course of respondent’s business pursuant to its contractual responsibilities. Id. §220 (2)(h). The work was of an unskilled variety. Id. §§ 220 (2)(d), 227, comment c. Petitioner was paid by the hour. Id. § 220 (2)(g). The record was unclear as to who supplied the necessary hammers and wrenches, but respondent clearly supplied the necessary ramps and working area, and it was responsible for safety. Id. § 220 (2)(e). Respondent had the immediate responsibility for supervision and control of the work, though this task was carried out by others who, like petitioner, were servants of Pacific Motor Trucking Co. Id. §220 (2)(a).3
There are basically two reasons for the Court of Appeals’ reversal of the District Court’s holding in peti*339tioner’s favor. First, the District Court found that petitioner was an employee of the trucking company. But this does not mean that petitioner was not also an employee of the railroad for the purposes of the FELA. In Byrne v. Pennsylvania R. Co., 262 F. 2d, at 910; the victim was an employee of Westinghouse who was working on a railroad locomotive at the time of his death. The Court of Appeals noted in that case that “[t]here is, of course, no question but that [the victim] was an employee of Westinghouse. The issue is whether sufficient evidence was adduced to enable the jury to conclude that [the victim] was also an employee of the Railroad.” See Restatement (Second) of Agency §§ 226 and 227. If the mere fact that an individual is on the payroll of someone other than the railroad sufficed to make that individual not an employee of the railroad for FELA purposes, then this Court would not have found it necessary to reverse in the Baker case.. Such a simple test could be devised, but whether such a change in the law is to be made should be up to Congress to decide.
The second reason the Court of Appeals used for reversing the District Court was that the District Court had rejected a finding that petitioner was an employee of the railroad. The trial judge was relying on the “agency” language of Smith v. Norfolk & Western R. Co., supra, and he therefore apparently had his labels confused. He was using the concept of employment in a narrow and restricted way, yet was expanding it to accommodate decisions such as Baker by including both employment and agency relationships within the scope of the FELA. If the District Judge did not find an employment relationship in this narrow sense, that fact is unimportant, for he did find a relationship sufficient to satisfy the correct test. While he used language of agency he gave that language the substantive content *340of Baker and of the source relied upon by Baker— Restatement (Second) of Agency §220. He made findings of fact easily sufficient to support the existence of an employment relationship under the correct substantive test, and he in fact found that the requisite relationship existed. The fact that he used the word “agency” rather than the word “employment” to describe this relationship is thus of no more than technical, abstract concern. This is not the sort of concern that should motivate us in the FELA context.
The majority here has taken a different tack from that of the Court of Appeals. Citing numerous cases from the era before the 1939 amendments to the Act, the majority argues that the railroad here exercised insufficient control over the petitioner to establish the requisite employment relationship. Under the approach taken in Baker and Ward, however, the existence of a master-servant relationship is to be determined from an examination of many factors. This is quite different from the majority’s concentration on technical distinctions regarding kinds and degrees of control and cooperation.4 As I have indicated, I think that a judgment in favor of the petitioner is quite justified on the basis of facts already found by the District Court. I have no strong objection to the decision that the case be remanded for new findings in light of the correctly stated legal standard, but I dissent from the rigid and old-fashioned standard of liability which the majority indicates should be made applicable.
In a strictly doctrinal sense this case may not have a great impact on the coverage of the FELA, but I fear *341that the precedent set today bodes ill for the future. It distorts the accepted meaning of the Act and reflects a judicial hostility to the FELA of the kind that existed prior to the 1939 amendments.
I would reverse the judgment below.
The term “servant” as used in the Restatement expresses the same concept that “employee” does within the meaning of the FELA. Restatement (Second) of Agency § 220, comment g.
Support for this point is found in the fact that, as noted by the Court of Appeals below, Congress once rejected a proposal that suppliers of accessorial services to railroads be included under the FELA. See S. Rep. No. 661, 76th Cong., 1st Sess., 2 (1939).
The value of examining multiple factors such as these is that it permits the analyst to avoid reliance on abstract inquiries as to kinds and degrees of control. Some factors — such as who is responsible for supervision, whose work is being performed, and who supplies the tools and place of work — are of obvious relevance. Other factors, though perhaps of less weight, are also helpful. For example, the skill of the worker and the manner in which he is paid are relevant to the ease with which control over him may be shifted from one master to another. And the length of time that the nominal servant of one master has been aiding in the business of another is likewise indicative of a shift in control.
Section 220 (2) of the Restatement provides a number of factors which it states should be considered “among others.” Another factor which might be considered in this case is that Pacific Motor Trucking Co. is a wholly owned subsidiary of respondent. The Court of Appeals noted that no case has been made for piercing the corporate veil and thus disregarding the fact that the railroad and the trucking company are separate entities. Indeed, petitioner does not urge that we do so. Brief for Petitioner 6 n. 3. If the corporate veil were to be pierced that would presumably end the inquiry, an inappropriate result on this record. Nevertheless, it seems reasonable to take into account as one of many factors the relationship between the trucking company and the respondent.
The majority relies on two modern cases, Baker v. Texas & Pacific R. Co., 359 U. S. 227 (1959), and Shenker v. Baltimore & Ohio R. Co., 374 U. S. 1 (1963). But there is nothing in these cases to indicate that technical distinctions between control and cooperation are the only subjects of investigation in considering whether a master-servant relationship exists under the FELA.