(concurring specially).
I concur in the result reached by the majority but I do not agree that it is proper for this court to establish the rule set forth in Syllabus 5 of the majority opinion. This syllabus, which now becomes law, establishes an entirely new test to determine coverage in workmen’s compensation cases and wipes out a firmly established precedent. The majority, by judicial decree, legislate coverage to many who were not heretofore covered by the Act. The test adopted in Syllabus 5 is much broader in scope than previous tests used in this State and will include under workmen’s compensation coverage a large segment of services heretofore excluded under the law as interpreted without any change in the statutes. It is a policy change without the benefit of legislative action.
I do not feel it is - the function of this court to effect a policy change but this is a function left exclusively to the discretion of the legislature.
*806It appears to me that Syllabus 5 extends coverage to a large number of persons who were not heretofore classified as employees. Some examples of expanded coverages may be as follows: An architect who, on a recurring basis, calls on heating engineers, lighting engineers or structural engineers to assist him by supplying technical engineering data for the preparation of plans and specifications for buildings may be required to carry workmen’s compensation coverage on the engineers, even though they are an independent professional business; a retail business that calls on the layout man from an advertising agency or newspaper on a recurring basis to assist in setting up its weekly advertising may be required to carry coverage on the advertising agency’s layout man; or a wholesaler which has a fleet of trucks which it has serviced and repaired by a garage on a recurring basis must carry coverage on the workmen of the garage that do the work. It may include an office, employing machine operators and typists, which had contracted with a repair agency to keep its office machines in repair. Perhaps it may include a church contracting with a janitorial service to clean its church building once each week. It may even extend coverage as in Colorado in Industrial Commission v. Moynihan, 94 Colo. 438, 32 P.2d 802, where a lawyer who maintained a general law practice and received a retainer from a utility company, which gave the utility the right to his services on legal matters, was injured while enroute to a hearing before the Public Service Commission to plead for a certificate of public convenience and necessity for the utility. It may also reverse Mutual Life Insurance Company of New York v. State, 71 N.D. 78, 298 N.W. 773, 138 A.L.R. 1115, which holds that insurance agents soliciting to sell life insurance in North Dakota on a commission basis, under agency contracts, are independent contractors. However, I agree with the result reached by the majority in the application of the “right to control test.”
The question here is: When is an employee not an employee under the workmen’s compensation laws?
Brown was a regular company employee working at the company yard and hauling the company’s products, using the company’s truck tractor to pull the company’s trailer carrying the company’s product to the company’s customer for which he was paid an hourly wage. By arrangement, however, because Brown also owned a truck tractor, it was agreed that on occasion Brown could use his own truck tractor to pull the company’s trailer .carrying the company’s product to the company’s customers, in which event he would be paid at the rate of 27-1/⅛ per mile. During the time of employment, Brown was a full-time employee of the company. He did not hold himself out as an independent carrier or a carrier for hire to others. In fact, his truck was not licensed for that purpose. It seems apparent that the lease of the truck to the company was entered into to circumvent the law governing motor carriers. However, the lease on its face appears legal and I know of no reason why the lease arrangement could not have been carried out. The arrangement which the company now maintains it orally entered into with Brown makes him an unlicensed carrier for hire.
An examination of the evidence does not disclose that the element of control exercised was any different whether Brown drove the company’s truck tractor or his own truck tractor in pulling the company’s trailer hauling the company’s product to the company’s customers. Certainly the company had control of its trailers, whether they were being pulled by Brown’s truck tractor or one of its own truck tractors. It appears there was no definite period of employment and no definite period of contract hauling at 27\/2‡ per mile, but the latter was dependent upon the former. The work of delivering the company’s product was an integral part of the company’s business. The specific hours of em*807ployment do not appear to have been any different whether Brown was driving his own truck tractor or one of the company’s vehicles. The trailers in either instance were loaded at the company’s yards, at company time and expense. If Brown assisted in loading, he was paid his regular hourly rate. It also appears that if Brown were to haul the company’s product, using his own truck tractor, that he would have to have his truck tractor available and attached to the company’s trailer at the time it was to be loaded on company time and expense. This was an element of control which was exercised. It appears to me the company had the same right to control whether Brown drove his own truck tractor or one belonging to the company, which is the governing factor. Bernardy v. Beals, 75 N.D. 377, 28 N.W.2d 374.
For the reasons aforesaid, .1 concur in the result that Brown was an employee of the company within the definition of the workmen’s compensation laws when he lost his life.