(concurring). I agree with plaintiff that the contract between defendant and the Sumner Sollitt Company does not affect or abrogate his right to *30maintain the canse upon which he declares. The reason is simple. Plaintiff was not a party to the contract. Whatever its terms, he conld not and did not become an employee of defendant by force thereof. To become defendant’s employee for any legal purpose, including those of the workmen’s compensation law, it was necessary either that he enter into a contract of employment with defendant, express or implied, or that he become defendant’s employee by operation of law, in this case section 10, subd (a) of part 1 of the workmen’s compensation law (CLS 1956, § 411.10 [Stat Ann 1957 Cum Supp § 17.150]). So, there being no claim of contractual relationship between plaintiff and defendant other than by the terms of defendant’s said contract with Sumner Sollitt, the only question before us is whether, in these pleading-presented circumstances, plaintiff at the time of injury was a statutory employee of defendant within the intent and purpose of said section 10, subd (a).
By force of plaintiff’s contract of employment with Sumner Sollitt he was an employee of that company when his injury was sustained. That injury was received in the course and out of his employment by Sumner Sollitt. Sumner Sollitt had duly become subject as an employer to the workmen’s compensation law and had provided for its employees — plaintiff included- — the compensable benefits of that law. Such status consequently prevented plaintiff’s becoming an employee of defendant within or for the purposes of said section 10, subd (a).
This case and its presented question may be recapitulated properly this way: Prior to plaintiff’s injury the parties plaintiff and defendant had never entered into a contract of employment, expressly or otherwise; no provision of the workmen’s compensation law had created the relation of employer and employee between these litigant parties, and no other *31provision of law or contractual undertaking had theretofore created such relationship. Plaintiff and defendant accordingly remained legal strangers so far as concerns the workmen’s compensation law. Their legal relationship as of the time of plaintiff’s injury was and is determinable according to the common law.
So far as applicability of said section 10, subd (a) is concerned, I would adopt Judge Levin’s eminently thoughtful opinion in Miller v. J. A. Utley Construction Co. (ED Mich), 154 F Supp 138* That opinion is supported by the weight of relevant judicial interpretation of these “contractor-under” statutes. This the annotator has noted in the successive annotations appearing in 151 ALB 1359 and 166 ALB 813. The heading of the latter is “Common-law remedy against general employer by employee of independent contractor or against [principal] contractor by employee of subcontractor, as affected by specific provisions of workmen’s compensation act relating to employees of such persons.” A correct summary of the pertinent cases is given on the same page, this way, by the annotator:
“The later cases bear out the observation made in the original annotation that the cases involving compensation acts imposing liability upon the principal contractor for compensation to employees of independent contractors or subcontractors in case he does not require the independent contractor or subcontractor to carry compensation insurance are generally in favor of the retention of the common-law rights of the employee against the principal.”
We should emphasize that the presented question comes here on appeal from an order granting defendant’s motion to dismiss. No testimony was taken for *32the purpose of determining plaintiff’s actual status at the time he undertook and proceeded with the work as alleged in his declaration (see Mathews v. United Association, 351 Mich 293). There might, in fact, have been an implied contract of employment between plaintiff and defendant which these pleadings do not disclose, and there lies the trouble with the practice of attempted determination of decisive questions of law, on bare pleadings, when a testimonial inquiry possibly might disclose what such pleadings do not. Our decision, then, should be confined to a determination that plaintiff’s declaration is good as against defendant’s said motion.
For stated reasons I concur in reversal.
Voeliier and Kavanagh, JJ., concurred with Black, J.Judge Holtzoff has recently considered the question and has ruled as Judge Levin did. Thomas v. George Hyman Construction Co. (DC DC), 173 D Supp 381.