(dissenting).
In every argument, one or more premisses and a conclusion are asserted. It is fundamental, in establishing sound law or a decision, that an argument must be first recognized. My brothers fail to recognize appellant’s argument.
Salient facts of this case are not revealed to the reader in the majority decision. Hence, deduction of legal propriety of this decision is not possible. Ultimate facts are set forth only and they are quite concluso-ry; they are set forth in four sentences, at the conclusion of this opinion, in the penultimate paragraph.
Whether our argument concerns public affairs or some other subject we must know some, if not all, of the facts about the subject on which we are to speak and argue. Otherwise, we can have no materials out of which to construct arguments.
ARISTOTLE, Rhetoric
So I wish to furnish some (and perhaps not “all”) of the construction materials.
*5661. A jury heard the appellant’s case; the trial judge did not permit the jury to decide the case.
2. Upon a motion for directed verdict, the trial judge must determine if there is any substantial evidence to sustain the action. Sabag v. Continental, 374 N.W.2d 349, 355 (S.D.1985). In assessing this substantial evidence test, the trial judge must accept the evidence in the most favorable light for the non-movant (Goodman). All legitimate inferences of fact must be indulged in Goodman’s favor. Id.
3. Goodman’s right hand was crushed between the unguarded (apparently) machine owned by Sioux Steel.
4. In a prior ruling, before the directed verdict, the trial judge had ruled: “there exists a genuine issue of material fact as to whether or not there existed an implied contract of employment between the plaintiff and defendant, which issue is properly triable by a jury.” Thus, trial judge reversed himself in these proceedings.
5. During the trial, Goodman testified that Ms. Heesch told him, when he signed a contract of employment with Manpower, that he would not be working for Sioux Steel. In fact, he testified that she told him this over a half a dozen times.
6. Ms. Heesch told Goodman that he should not actively seek employment from Sioux Steel, per the testimony of Goodman.
7. Ms. Heesch testified that after the reviewing and application process, that employees would be employed by Manpower and would receive their pay and fringe benefits from Manpower. Not only Goodman, but other employees, in the interviewing process, were told that Manpower, not Sioux Steel, would be accountable for worker’s compensation and unemployment compensation.
8. Testimony went into the record, before the jury, that if employees had to call in sick or would be arriving late, they must call Manpower, not Sioux Steel.
9. Employees were given instructions by Manpower supervisors as to the type of clothing to be used when they worked.
10. The written agreement (contract) between Goodman and Manpower specified that Sioux Steel recognized Manpower’s employer-employee relationship; and that such matters as employment, job assignment, pay procedures were all matters that Manpower governed. This negates any implied consent on the part of Goodman to be an employee of Sioux Steel. There being an expressed contract of employment between Goodman and Sioux Steel and with the twenty-two recitations of fact set forth in this dissent, all militating against Goodman being an employee of Sioux Steel, there cannot exist a duality of employment of Goodman, as an employee, for both Sioux Steel and Manpower. See, 1-C Larson, Workman’s Compensation Law, at section 47.10.
11. Sioux Steel employees had a separate time clock which they punched; Manpower employees did not use this time clock.
12. Nelson, a Sioux Steel foreman for 20 years, told Goodman, per the testimony, that Goodman would become a Sioux Steel employee if he worked hard. He was never so notified.
13. Testimony disclosed that in the event that a Manpower employee decided that he or she no longer wished to work on the Sioux Steel job, that the employee was to inform Manpower, not Sioux Steel.
14. Goodman had a written contract with Manpower; he had no written contract with Sioux Steel. During trial, Sioux Steel stipulated that Goodman was a Manpower employee.
15. Sioux Steel never prepared a W2 or W4 for any Manpower employee or its premises.
16. Sioux Steel never paid worker’s compensation insurance nor unemployment compensation on Manpower employees.
17. Sioux Steel did not send a report of first injury; rather, it sent the form to Manpower to fill out. Under South Dakota law, employers must file a first report of injury with the State of South Dakota. Here, if Manpower employees were injured at the Sioux Steel worksite, Sioux Steel *567notified Manpower of the injuries by a “report form” designating these injured workers as being Manpower employees. Sioux Steel is on the printed page, bound by its own admission, that Goodman was not its employee. It beggars the legal imagination as to how, either the trial court, or the Supreme Court of this State can, by an implied contract of law, affix unto Goodman the label of “employee,” either as a singular employee of Sioux Steel or a dual employee of Sioux Steel.
18. The report form designated Goodman as a Manpower employee, not a Sioux Steel employee.
19. Goodman received his compensation benefits from Manpower’s insurer, not Sioux Steel’s carrier.
20. OSHA demanded that Sioux Steel furnish a report and requested an explanation as to why Sioux Steel failed to file a report; Sioux Steel’s plant manager, Siglin, told OSHA officials that these employees (including Goodman) were not considered “company employees.”
21. On the record, trial judge expressed: “Manpower had the right to hire or fire the plaintiff (Goodman).”
22. Goodman’s paycheck was issued by Manpower.
In short, Sioux Steel never, at any time, claimed Goodman as one of its employees, until after Goodman’s injury; and the decision of this Court is to affix an employer-employee relationship by implication. I must dissent, under these facts. Goodman was the sole employee of Manpower but he worked at Sioux Steel under the guidance, supervision, and control of Manpower. If, indeed, Sioux Steel had some control over Goodman, that did not create a new, independent contract of employment. Certainly, in the field of commerce, it is nothing out of the ordinary to work for some employer at another place of business.
The majority apparently takes the position that Goodman is a “loaned servant.” The facts in this case simply do not fit into that theory.
This is a provocative case. Often, if I may philosophize momentarily, an interest in general ideas exemplifies an absence of particular knowledge. Sioux Steel has raised the affirmative defense of the “loaned servant doctrine.” 1 As such, the burden falls squarely upon the defendant asserting such a defense. Sioux Steel has not met that burden; it has not even come close to it; quite to the contrary, the facts of this case militate strongly in favor of this injured worker that this “doctrine” should not apply. Newland v. Overland Exp., Inc., 295 N.W.2d 615 (Minn.1980). See, Rademaker v. Archer Daniels Midland Co., 310 Minn. 240, 247 N.W.2d 28 (1976). In said case, it is held, moreover that: “Every employment relationship is based upon a contract, express or implied, and the employee’s consent is essential to the validity of that contract.” Here, it is obvious that Goodman never consented. How could he possibly “consent” when he was told, over and over again, that Manpower was his employer, and that Sioux Steel was not his employer? Sioux Steel refused to recognize that he was one of their employees. After crushing his hand, apparently, by failing to provide a safety guard or shield on some equipment, to hide behind worker’s compensation law, it says: “Hey, you didn’t know it, but now you’re our employee.” Shame on Sioux Steel. Shame on such a phony pretense to deprive this seriously injured, disabled, and deformed man the opportunity to have his case decided by a jury under the American System of Law.
I would follow the lead of the Nebraska Supreme Court. Nebraska Justices recognized that the relationship of employer and employee is one which is dependent upon consent by both parties and that the rela*568tionship is not one which could be unilaterally thrust upon the employee contrary to his wishes. In Nussbaum v. Wright, 217 Neb. 712, 350 N.W.2d 559 (1984), the Nebraska Supreme Court denied workers’ compensation benefits to Nussbaum (an alleged “loaned” employee) who sought to recover benefits for injuries while lent to the defendant (the alleged “special” employer). The Nussbaum Court denied these benefits, holding that the plaintiff was not an employee of the defendant.
When an employee enters the service of another at the command and pursuant to the direction of the master, no new relationship is created. While the employee may be subject to the direction of the temporary master, he is there in obedience to the command of his employer, and in doing what the new master directs him to do he is performing his duty to the employer who gave the order. * * * Consent cannot be inferred merely from the fact that the employee obeyed the commands of his master in entering the services of another. * * * Before such new relationship can be made effective, the servant must understand that he is submitting himself to the control of the new master.
(emphasis added).
Nussbaum, 350 N.W.2d at 562.
A mutual assent and a meeting of the minds must exist for there to be a binding contract between master and servant. I support this statement by a decision of the Justices of the Supreme Court of the State of Washington and the case of Novenson v. Spokane Culvert and Fabrication Co., 91 Wash.2d 550, 588 P.2d 1174 (1979) (en banc) holding there with supporting cases, the highest court of that state expressed: “for purposes of workmen’s compensation, an employment relationship exists only when (1) the employer has the right to control the servant’s physical conduct in the perform-anee of his duties, and (2) there is consent by the employee to this relationship.” Accord: Opinion of the Justices of the Supreme Court of Kentucky on May 2, 1985 in M.J. Daly Co. v. Varney, 695 S.W.2d 400. There, the Justices in the penultimate paragraph on page 403, opined: “The bottom line is that the parties are free to contract as they wish. We are obliged to accept its status which they have expressed for themselves.” (Emphasis supplied mine). Professor Larson, in his well recognized treatise on Workers’ Compensation law, emphasizes that a “contract for hire” is critical to the existence of the employer-employee relationship. As stated at 1 — C Larson, Workmen’s Compensation Law, § 48, p. 8-405:
When a general employer lends an employee to a special employer, the special employer becomes liable for workman’s compensation [and thus, presumably, immune from suit] only if (a) the employee has made a contract of hire, express or implied, with the special employer.... (emphasis added).
Id. As further stated by Larson:
... the spotlight must now be turned upon the employee, for the first question of all is: did he make a contract of hire with the special employer? If this question cannot be answered ‘yes’, the investigation is closed, and there is no need to go into tests of relative control and the like.
1-C Larson, Workmen’s Compensation Law, § 48.11, p. 8-409. As further stated by Larson:
This must necessarily be so, since the employee loses certain rights along with those he gains when he strikes up a new employment relationship. Most important of all, he loses the right to sue the special employer at common law for negligence2; and when the question has *569been presented in this form, the courts have usually been vigilant in insisting upon a showing of a deliberate and informed consent by the employee before employment relationship will be a bar to common law suit.
(emphasis added).
Id. § 48.12 at p. 8-409. I submit that this worker never made a “deliberate and informed consent.”
I would not countenance a jury of Goodman’s peers to eagerly listen to — and weigh — this evidence for days; and, then, peremptorily tell them: “Ladies and gentlemen of the Jury, you will not be permitted to decide this case.” Was there, at least, my dear reader, a question of fact for the jury to decide? Of course, there was. See, point of law expressed in Whitehead v. Safway Steel Products, 304 Md. 67, 497 A.2d 803 (1985), 497 A.2d at 804 expressing: [the] question whether employer-employee relationship exists is a question of fact for jury if there are conflicting inferences, evidence, on [the] issue of control in performance of a given function; overruling L. & S. Construction Company v. State Accident Fund, 221 Md. 51, 155 A.2d 653 (1959). Accord: O’Brien v. Garden Way Mfg., Inc., 72 A.D.2d 860, 421 N.Y.S.2d 729 (1979). I close my solitary cry of dissent with the words of the giant from Illinois:
Woe unto the world because of offenses, for it must needs be that offenses come; but woe to that man by whom the offense cometh.
Abraham Lincoln, his Second Inaugural address at Washington, D.C., March 4, 1865.
. This case was fully heard by a jury; Egemo was not; it was an administrative appeal. Here, we are concerned with the "loaned servant” doctrine and whether it applies under the facts; in Egemo, our analysis centered upon "independent contractor" or "employee" under the facts. Obviously, different facts and issues. In Egemo, we held the facts supported an independent contractor/contractee relationship. Acting Justice Hertz wrote in Egemo, inter alia: “We have often stated that each case must be decided on its own facts ..."
. Goodman sued for proximate injuries sustained by the negligence of Sioux Steel. Sioux Steel defended upon (a) Goodman was negligent himself and (b) Goodman’s claims were barred by SDCL 63-3-2. This statute is the exclusivity provision of the South Dakota Worker's Compensation Law. If Sioux Steel is an employer of Goodman within the meaning of SDCL 62-1-2, Goodman is barred from recovering in tort against Sioux Steel. Was Goodman an employee of Sioux Steel? Trial court bifurcated that issue alone for a jury to decide. Thus, there is a great difference as to whether Goodman draws worker's compensation from Sioux Steel or Manpower. The trial court's ruling barred Goodman from suing in tort. Thus, he could *569not recover damages from a company which crushed his hand.