(after stating the facts). As I read the multitudinous pages and the various opinions one finds under the title of Sheppard v. Michigan National Bank, 348 Mich 577, our massive chirographic effort in that case arrived at this result; Mr. Justice Smith’s dissent in Wieda v. American Box Board Company, 343 Mich 182, 191, became and now re*699mains reliable Michigan law. In another related direction the same metamorphous change took place —that of adopting earlier dissenting opinions, and earlier prevailing opinions, as the law of onr State. I refer here to the succession of opinions shown in Dyer v. Sears, Roebuck & Company, 350 Mich 92; and Freiborg v. Chrysler Corporation, 350 Mich 104.

It is time now to complete the cycle of departure from and return to all of the measures by which, under the clear weight of authority in this country, the relationship of employer and employee is rightfully identified for compensatory purposes. I move,, then, with sight aimed at definite settlement of the steadily recurring question the parties — in the light of the quoted and adopted finding of facts — have stated and counter stated, that we now establish Mr. Justice Smith’s dissenting opinion in Powell v. Employment Security Commission, 345 Mich 455, 462, as proper guide to relevant interpretation of the workmen’s compensation law. Tested by such dissent, the appeal hoard was clearly right in holding that the relationship of employer and employee existed between plaintiff’s decedent, and the defendant Muskovitz, at the time of the fatal cave-in of the trench.

I vote to affirm the award.

(concurring). The opinion of this Court in Powell v. Employment Security Commission (1956), 345 Mich 455, reiterated and reapplied the rule constantly adhered to by this Court, as disclosed in the cases therein - cited and many others, that the test of the employer and employee relationship is the right to control. The referee’s finding of facts, adopted by the appeal hoard, contained a *700specific finding of certain facts, supported by competent evidence, bearing on the question of right to control. Applying, as he said, the test laid down and followed by this Court, that is the right to control test, the referee determined that the right to control existed in this case and that, accordingly, there was an employer-employee relationship between plaintiff’s decedent and defendant employer. Because the finding of such facts is supported by competent evidence and application thereto of said test permits of the result reached by the referee and affirmed by the appeal board, we, too, affirm.