Appellant Martin, an employee of Plant Maintenance, filed a complaint alleging that he sustained personal injuries as the result of Phillips’ negligence while working on its property. Phillips denied negligence and, as a special defense, alleged that at the time of the accident Martin was the special employee of Phillips. The majority of this court affirmed the trial court’s judgment that Martin was a special employee of Phillips and as such was barred from maintaining an action for damages for personal injuries. The burden of proving the affirmative defense of “special employment” was, of course, upon Phillips who asserted it.
Whether the special employment relationship existed in the present case is dependent upon the facts. As the facts here are undisputed, the ultimate conclusion to be drawn from these facts is a question of law for the appellate courts. (Morrison v. State Board of Education (1969) 1 Cal.3d 214, 238 [82 Cal.Rptr. 175, 461 P.2d 375]; Jones v. Workmen’s Comp. Appeals Bd. (1971) 20 Cal.App.3d 124, 127 [97 Cal.Rptr. 554]; Rullman v. State Farm Mut. Automobile Ins. Co. (1970) 8 Cal.App.3d 606, 609 [87 Cal.Rptr. 551].)
The majority in arriving at their opinion that a special employment relationship existed did so on the basis that (1) the contract establishing the rights and duties of Phillips and Plant Maintenance does not control the question of Phillips’ relationship to Martin and, in fact, is evidence that their independence is fictitious; (2) the totality of circumstances, particularly the control Phillips exercised over Plant Maintenance employees, showed a special employment relationship; and (3) the contract between Plant Maintenance and Phillips did not estop Phillips from asserting the defense of special employment.
I am in agreement with the majority that Phillips was not estopped by the provisions of the contract between Phillips and Plant Maintenance to assert the defense of the special employment relationship between Phillips and Martin. It is my position that Phillips could assert that defense but failed to sustain its burden of proving it.
The majority’s disparagement of the contract between Plant Maintenance and Phillips is, in my opinion, illogical, suggesting, as it seems to, *924that the very attempt to be specific and inclusive is evidence of sham.1 I agree that the work of Plant Maintenance employees while at the Phillips plant was for the benefit of Phillips, but that fact is irrelevant to the issue of the existence of a special employment. All independent contractors, maintenance firms performing janitorial services for a third party or any other, benefit the recipient of those services. That is. exactly what they are paid for. Just as obviously, Plant Maintenance receives a benefit since it is by their work that Plant Maintenance fulfills its obligations. There is nothing suspect in the provision that any supervision by Phillips’ foremen would be for the benefit of Plant Maintenance. Plant Maintenance had the obligation of furnishing supervision of its employees and, if Phillips undertook this work, it would relieve Plant Maintenance of a portion of its obligation. There could be a multitude of reasons why this arrangement might be the most economical or efficient. No evidence has been' offered *925that the parties’ attempt to cover all contingencies was anything other than an effort to clarify their relationship, certainly a goal of most contracts.
The majority recognizes that a conclusion that Martin was a special employee of Phillips “cannot be squared with the terms of the contract” between Phillips and Plant Maintenance. The majority asserts, however, that the “true relationship” of the parties must establish their rights and duties, thus suggesting that the parties did not, in fact, adhere to the terms of their agreement. The only specific, however, to which the majority points to substantiate this assertion is the supervision and control oí Plant Maintenance employees by Phillips.
The only evidence in the record on the subject of control and supervision is that, after receiving their initial work assignments from Plant Maintenance each day, the Plant Maintenance employees dispersed to their work around the Phillips plant and during the day received any further work directions from Phillips. There is no testimony as to just what or how much supervision was required. “The fact that instructions are given as to the result to be achieved does not require the conclusion that a special employment relationship exists.” (McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698, 704 [343 P.2d 923].) There is no evidence that Phillips instructed Plant Maintenance employees in the use of equipment or in the performance of their duties. Since Plant Maintenance personnel were in the business of maintenance work and Phillips was in the oil refinery business, it seems unlikely that Phillips gave instructions other than those which are “merely directions as to the result to be accomplished, such as are required in the nature of things to be given to independent contractors in any case.” (Umsted v. Scofield Eng. Const. Co. (1928) 203 Cal. 224, 230 [263 P. 799]; see also Miller v. Long Beach Oil Dev. Co. (1959) 167 Cal.App.2d 546, 550 [334 P.2d 695].)
We cannot speculate, however, as to the extent or kind of supervision Phillips gave. Phillips had the burden of establishing that a relationship of special employment existed. They clearly did not do so by merely showing, without more detail, that they directed some of the work of Plant Maintenance personnel. The important factor in determining whether a special employment existed is the right to control the employees’ duties and activities. The giving of instructions relative to details of what is to be accomplished is not determinative. In Industrial Ind. Exch. v. Ind. Acc. Com., 26 Cal.2d 130 [156 P.2d 926], the court said: “The right to control and direct the activities of an alleged employee or the manner and method in which the work is performed, whether exercised or not, gives rise to the employment relationship.” (Italics added.) (See also McFarland v. Voorheis-Trindle Co., supra, at p. 704.)
*926Furthermore, under the Plant Maintenance-Phillips agreement, Phillips was acting for Plant Maintenance when it furnished any of the supervision which was the obligation of Plant Maintenance. The contract provided with specificity for Plant Maintenance supervision and assistant supervisors and the amount of salary Plant Maintenance was to pay those supervisors. The parties recognized that where necessary or economical, Phillips might supervise work but any such supervision was to be for Plant Maintenance’s benefit. By the terms of the contract, a legally enforceable duty was imposed upon Plant Maintenance to supervise, control and direct the activities of its employees on the Phillips premises.
If, despite its contract, Phillips can be held to be a special employer on the facts of this case, then I find it difficult to imagine any situation where the employees of an independent contractor would not also be the employees of the person contracting for their services.2 Phillips had no voice in the hiring of Plant Maintenance employees; did not pay them; did not keep required employment records such as social security and withholding; did not provide unemployment insurance. Plant Maintenance employees were kept physically separate from Phillips employees—'they wore distinctive badges, reported to a separate office, had separate washroom and locker facilities. Phillips had no right to discharge a Plant Maintenance employee. The fact that Phillips could get a man “out” if not satisfied with his work would be expected in any situation where the employees of an independent contractor are dispatched to work on the premises of another. Plant Maintenance could then simply have reassigned its employees to another oil company to which it assigned workers.3
*927Plant Maintenance furnished a fluctuating number of employees each day to Phillips, normally between 15 and 40, although the number could be raised “on a turnaround situation” to 200 or 300. The fact that appellant Martin had worked for Phillips for at least a year is not important in determining the relationship. That fact attests only to his satisfactory performance. Martin shares the same relationship with Phillips as did the other Plant Maintenance employees assigned to Phillips. The accident could as easily have happened to a man assigned for a single day to Phillips.
I conclude that Phillips did not carry its burden of demonstrating that it actually exercised the control and supervision of an employer over Plant Maintenance’s employees, which, contrary to the terms of its contract, specifically did not give Phillips the right to exercise such control except when the supervision was “for Contractor’s [Plant Maintenance] benefit.”
In summary, I would hold that no special employment relationship existed between Martin and Phillips; therefore, Martin’s rights as to workmen’s compensation benefits as against Plant Maintenance and his personal injury claim against Phillips are both protected. Also, such conclusion preserves the right of Plant Maintenance and Phillips to enter into a contract, legal in both its contents and objectives, without infringement by courts or otherwise. I would reverse the judgment and remand the matter for trial for determination of the merits of Martin’s claim for personal injuries.
Petitions for a rehearing were denied December 4, 1974. Brown (H. C), J., was of the opinion that the petitions should be granted. The petition of the plaintiff and appellant for a hearing by the Supreme Court was denied January 2, 1975. Mosk, J., was of the opinion that the petition should be granted.
Provisions pertinent to this case read as follows:
“First: Except as otherwise specified, Contractor agrees to furnish all necessary labor, supervision, mechanics, materials, tools, implements and appliances, and to do and perform such maintenance jobs and work at Tidewater’s Avon Refinery, Amorco ■Terminal, or Port Costa County, California (hereinafter designated as job site) as may be required by Tidewater from time to time under written orders as hereinafter specified. Contractor shall supply a minimum of fifteen (15) employees including supervisory and clerical personnel who shall be familiar with Tidewater’s mechanical requirements and shall be immediately available to direct and assist any size crew that Tidewater may request in accordance with the provisions provided elsewhere in this agreement.
“Third: Contractor is not the agent of Tidewater but is and always shall be deemed an independent contractor, maintaining complete control over Contractor’s employees and all subcontractors (if any), notwithstanding that, as an aid to Contractor, some of said employees may work wholly or partially under the direction or supervision of Tidewater; it being agreed that any such direction or supervision by Tidewater shall be for Contractor’s benefit and account and shall in no way limit or affect Contractor’s responsibility under this agreement. (Italics added.)
“Seventh: Contractor shall constantly superintend said work by its duly authorized superintendent, who shall be deemed for all purposes the representative of Contractor, and instructions or information given him shall be deemed to have been given Contractor. Additional supervisory personnel shall be furnished as requested by Tidewater.
“Ninth: Contractor agrees to protect Tidewater, its lands and other property, from and against all liens or claims of lien filed or made in connection with the work done hereunder, and agrees to cause any such lien which may be filed or made to be immediately released and discharged of record.
“Contractor agrees promptly to pay for all labor supplied or performed on said work and for all materials furnished in connection with said work, except materials furnished by Tidewater.
“Tenth: Contractor shall select, employ and carry on its payroll, all labor and supervision of whatever kind required for the performance of the work; and all such employees shall be deemed to be the employees of Contractor for all purposes, notwithstanding any finding that their work is wholly or partially under the direction or supervision of Tidewater.” (Italics' added.)
The majority of this court cite Oxford v. Signal Gas & Oil Co. (1970) 12 Cal.App.3d 403 [90 Cal.Rptr. 700], which shares a basic factual similarity to the case at hand. In the Oxford case, the court concluded that there was a dual employment relationship which rendered both companies liable under the Workmen’s Compensation Act and excluded the injured employee from pursuing a claim for personal injuries agaipst the special employer who, it was claimed, negligently caused the injury. The basic similarity consists of the fact that the injured worker in Oxford was the general employee of a company, which, furnished employees on a regular basis to an oil company. There is no evidence related in the opinion of physical separation of the employees or of the specificity of the contract in which the two companies defined the relationship of each with the furnished employees. In Oxford the contract made no provision for any possible supervision by the company contracting for the service of the employees. I consider it questionable that the oil company in Oxford established the existence of a special employment relationship as a matter of law. In any event, however, Oxford is not controlling. The question of special employment depends upon the facts peculiar to each case.
If Phillips’ management was dissatisfied with a worker, Phillips was required to report its complaint to Plant Maintenance’s supervisor who then decided on the disposition of that employee, such disposition could result in either reassignment of that employee or dismissal. Employee grievances were processed by the terms of a union *927bargaining agreement between Plant Maintenance, as the employer, and the union. Phillips had its own union contract for its employees which did not include the employees of Plant Maintenance.