(dissenting).
A summary judgment should be granted only when there is a clear showing that as a matter of law the loser is not entitled to any relief.1 And in determining this question we should construe all of the facts and circumstances in the light most favorable to the party against whom the summary judgment is awarded.
Under Sec. 35-1-62, U.C.A.1953, if a workman’s compensable injury is caused by the wrongful act or neglect of another person who is “not in the same employment” as the person injured, such injured employee may claim compensation and may also have an action for damages against the person causing the injury. I do not think that the fact that Kiewit is sharing in the profits with Coker Construction, Inc. for the construction of this tunnel as a joint venture necessarily requires that all the employees of both Kiewit and Coker are in the same employment. That in my opinion would depend on how they divided the work and whether the employees of one of the parties had any supervision or control over the employees of the other party.
I find no showing in this record whatever that Coker or its employees executed *26or retained any supervision or control over the work being 'done by Kiewit; or that Kiewit employees exercised any supervision or control over the employees of Coker. In the absence of such a showing under Sec. 35-1-42, U.C.A. 1953, it seems clear to me that the employees of Kiewit were not in the same employment as the plaintiff Cook,2 and he is entitled to prosecute this action for damages against Kiewit.
'However, I make no claim whatever that such a showing could not be made in the trial of the case. But until there is such a showing I think that there is no justification for the summary judgment.
. Utah Rules of Civil Procedure, Rule 56, and annotations to that rule both in Vol. 9 and pocket supp. of 9, U.C.A.1953, and particularly the following eases: Home Town Finance Corp. v. Frank, 13 Utah 2d 26, 368 P.2d 72; Tanner v. Utah Poultry, 11 Utah 2d 353, 359 P.2d 18; Bullock v. Deseret Dodge Truck Center, Inc., 11 Utah 2d 1, 354 P.2d 559; In re Williams’ Estate, 10 Utah 2d 83, 348 P.2d 683; Abdulkadir v. Western Pacific Railroad Co., 7 Utah 2d 53, 318 P.2d 339; Ulibarri v. Christenson, 2 Utah 2d 367, 275 P.2d 170; Holland v. Columbia Iron Mining Co., 4 Utah 2d 303, 293 P.2d 700, 702-708.
. See Murray v. Wasatch Grading Co., 73 Utah 430, 274 P. 940; Weber County Ogden City Relief Comm. v. Industrial Comm., 93 Utah 85, 71 P.2d 177.