Schaff v. Ray's Land & Sea Food Co., Inc.
45 P.3d 936
Or.
2002
Check Treatment

*1 2001, Appeals of Court of Argued decision and submitted November 9, 2002 May judgment court affirmed of circuit SCHAFF, Cindy Representative Personal Schaff, deceased, of Kevin the Estate Review, Petitioner INC., CO., FOOD LAND & SEA RAY’S an Oregon corporation, on Review. Respondent S48360) A110162; SC (99CV0025; CA 45 P3d 936 *2 J. Michael Alexander, Swanson, Lathen, Alexander & McCann, P.C., Salem, the cause argued and filed the briefs petitioner review.

95-a Lynch Hurley, Bend, P.C.,

Christopher Re,& Hatfield, of respondent on argued filed the briefs cause and review.

BALMER,J. opinion in which filed an Muniz, J., dissented

De joined. Riggs, JJ., Durham

95-b *4 96 J.

BALMER, case us requires to determine personal injury This in granting summary whether the trial court erred judgment for Plaintiff is the personal representative defendant. died in a Schaff, of Kevin who collision Adam estate Plaintiff claims that Stockert was Stockert caused. allegedly vicariously that defendant liable defendant’s employee by for caused Stockert’s damages negligence. to plaintiff defendant, summary court hold granted judgment trial law, that Stockert was an independent as matter of ing, defendant, rather than an and that contractor, therefore could not be liable caused injuries defendant The Court of affirmed without Appeals Stockert’s negligence. Co., Inc., Or Land & Sea Food Ray’s opinion. Schaff v. (2001). 170, follow, For the reasons that we P3d App the judgment the decision of the Court of Appeals affirm of the trial court.

I. FACTS deci- facts relevant to the trial court’s The historical 2,1998, driving On June Stockert was sion are not disputed. truck that truck that collided with Schaff pickup pickup died as a result of from injuries Both men driving. action noted, As filed this negligence collision. plaintiff collision, that, at the time arguing against Stockert was defendant’s employee. with corporation held closely Oregon

Defendant Frank and his wife. shareholders, Raymond pur- two Frank franchise a “Land & Sea Food Company” chased “Land & Sea Food registered him to use the which allowed thereafter, Shortly trademark in Oregon. Company’ out of the The business operates defendant. incorporated fish meat and prod- Frank residence. Defendant purchases Defendant sells and resells those products. ucts brokers to written “dealer- and, some customers directly pursuant to “dealers” who sells at wholesale agreements, also ship” one such “dealer.” Stockert was resell ultimate customers. a “dealership agree- and defendant signed agreement other things, 1994. January Among ment” *5 required purchase products Stockert to all his meat fish and promote products defendant, from to the sale of defendant’s to “at Stockert’s customers times and a manner within carry [Stockert’s] discretion,” and certain automobile agreement insurance. The also recited certain “understand- ings,” including authority that Stockert had no to bind defen- obligations; dant expenses, obligations, all costs, contracts or Stockert’s solely

and liabilities were “to be borne by “self-employed himself’; Stockert, and that as a individ- security subject to ual,” was federal social taxes and not was by unemployment compensation covered state or federal or compensation. agreement state workers’ The also contained following provision: “It is understood that [Stockert] is not an [defendant], but independent is an contractor in business for himself. [Defendant] shall have no control over doing [Stockert’s] mode of business.” agreement by party. was at will terminable either supplied refrigeration Defendant Stockert with a bearing unit the “Land and Sea Co.” name, Food which placed pickup Stockert in the back of truck that he leased daughter. refrigeration from his He used the truck and unit products supplied to deliver to his customers. Defendant also describing products, Stockert with brochures which products expressly packaged stated that the “are for dis- and by tributed contracted & ‘LAND SEA’dealers.” Defendant’s

president, by taking Frank, “trained” new dealers them on during training, generally sales calls and, with him selling techniques suggested advised new dealers on and prices. responsible determining

Stockert, however, many products purchase, work, and when how how and prices charge what to his His customers. income was based charged on the difference between he and what his customers expenses, paid his which included the amounts that he defen- products. dant for Dealers own selected and established their generally agreement, and, routes oral did sell informal not initially Eugene territory. in each other’s in the Stockert sold Oregon. area, but then decided to start a route central provide Defendant list, did not a customer and Stockert with never asked have, for, and not copy defendant did out Stockert worked list. of Ids home. He Stockert’s customer business in the yellow had as listing had no did no and workers’ advertising, compensation pages, or insurance employees. would from pick up

Stockert typically products needed, and Stockert had little con- defendant weekly he other than when purchased tact with defendant products. not, to, and were dealers did not expected other on a basis other regular they than when report most of Stockert’s income products. Although purchased also purchased came defendant’s selling products, elsewhere at wholesale resale to his vitamins spices *6 customers. BELOW

II. PROCEEDINGS As that noted, alleged defendant plaintiff that Stockert was in the course acting Stockert’s employer, collided scope employment negligently and his when lia- Schaff, vicariously that defendant therefore was with that Stockert had caused. Defendant injuries ble Schaffs it had no summary filed a motion for that judgment, arguing a matter an inde- because, law, as Stockert was liability a rather Plaintiff filed contractor than an employee. pendent a mat- that, as summary judgment asserting cross-motion for an sum- law, ter of Stockert was that employee partial favor. In plaintiff’s should be entered mary judgment alternative, motion, arguing plaintiff opposed defendant’s law, an as a that, if Stockert was not matter employee conflicting from the facts nevertheless could draw therefore, as to status and, reasonable inferences Stockert’s that sum- there were issues of fact disputed precluded that trial defen- for defendant. The court mary judgment granted motion the ground motion and denied on plaintiffs dant’s con- law, an that, as a matter of Stockert was without As the Court of affirmed noted, Appeals tractor. opinion.

III. ANALYSIS is no there when Summary judgment is appropriate moving party issue as to material fact and any genuine matter of law. ORCP C. judgment entitled to as There is fact if, no issue material upon as to “based genuine in a manner record before court viewed most favorable to objectively no reasonable party, juror adverse return a for the adverse that party verdict matter Id.1 summary motion On subject judgment.” summary judgment, review of a motion for we view evi- all inferences that dence and reasonable be drawn from may the evidence favor of the adverse party. Robinson Thriftway, 453, 461, Lamb’s Wilsonville P3d 421 (2001). below, we detail explain may

As be held liable for vicariously Stockert’s if defendant had negligence control the manner in which Stockert right performed services for defendant. Plaintiff that, although the argues historical facts are undisputed, jury could draw inferences facts those that would it to conclude permit to control sufficient to establish existed in status Therefore, this case. plaintiff argues, trial court erred in defendant’s granting summary motion, judgment because there was a genuine issue material fact for the Defen- jury. dant trial argues court correctly concluded that anwas independent contractor a matter of law. follow,

For reasons that we defen- agree with dant. Based upon summary us, record before judgment viewed in a manner most favorable to hold plaintiff, we reasonable could conclude that defendant had a suf- ficient control Stockert’s him performance for to be considered employee. We, therefore, conclude *7 anwas as of independent contractor a matter law. A. “Right to Control” Test

Whether an individual is an or an inde pendent contractor is a conclusion. legal conclusion, That however, depends a factual determination of extent the 1 pending This case in the trial court a 1999 when amendment ORCP effective; therefore, applies. 47 C became of C amended version ORCP 47 See (2001) 453, Thriftway, 457-58, Robinson v. Lamb’s Wilsonville 332 Or 31 P3d 421 cases). (describing application However, pending 1999 amendment and the 1999 change quoted not portion amendment did of C text ORCP 47 in the and does analysis not affect this case. has the to control the right employer the purported which individual. Jenkins v. AAA by services of performance 421 P2d 971 382, 386-87, 245 Or Inc., & Heating Cooling, (1966). this court stated: extent to which an measure ofthe simple there is no

“While of his performance in the may control a worker employer relationship, con- master-servant creating a task without defi- test. The principal remains performance trol over (Second), Agency, the Restatement § of a servant in nition 220(1) courts. It reads: (1958), accepted by most generally “ employed perform services person ‘A is a servant phys- respect who with of another and the affairs subject of services performance conduct in the ical ” right to control.’ the other’s control or added). Larry Angell Meskimen v. See also (emphasis Id. (1979) P2d 1014 87, 91-92, (quoting Co., 286 Or Salvage Richard, v. 266 Or test); Jorgensen Restatement Jenkins and (1973) test); Restatement 265, (quoting 512 P2d 991 263, 598, 386 594, 235 Or v. Valley Oregonian, Stages Wallowa (“[T]he (1963) to control employer of P2d 430 for imposing advanced commonly is the basis most workman Kowaleski, 235 v. Kowaleski liability upon employer.”); (1963) the master to con by (“Right P2d 611 454, 458, 385 Or of approach is the favorite of the driver trol the conduct court.”). courts, including Jury Role Test and to Control” “Right

B. of to control do not dispute The parties as to whether However, they disagree here.2 test is applicable merits, whether plaintiff this court to reconsider invites In her brief on the liability context should “right control” test used in the vicarious the traditional in cases aris that which is used of work” test similar to a broader “nature include Farms, Inc., Nagaki compensation Compare Rubalcaba ing laws. under workers’ (2002) (workers’ require compensation court to 614, 627, laws 43 P3d 1106 333 Or test), Peeples v. Kawasaki “right with control” of work” test and consider “nature (1979) (questioning Indust., 146-47, but Ltd., Heavy 603 P2d 765 imposing only vicari using “right test for acknowledging practice of control” plaintiff presented on liability). However, legal question that that is not the ous * * * employee or an inde question as an “[Wlhether is: one’s status That review. pendent uncontroverted, but facts are when the contractor is decided Moreover, in her else nowhere facts.” inferences can be drawn from those different argument that she plaintiff specificity the petition with for review did articulate 9.05(b) ORAP Accordingly, it. See we decline to consider now seeks to advance. presented on question legal (petition for review must contain statement concise

101 a court a to draw inferences from undis- may permit jury facts control, historical when the puted regarding inferences that are drawn for all practical purposes will decide the whether an individual is an legal question or contractor. In defendant’s independent view, employee jury draw such inferences would allowing improperly to decide a matter of jury allow law.

Defendant out that an individual’s correctly points an an status as contractor is a con and, such, clusion of as not law would be matter typically However, situations, for a to decide. in some jury legal conclusion on the jury’s will determination depend facts to control the manner and regarding employer’s right work. In cases in which the facts or performance inferences reasonable a conclusion that there is an support employer-employee court allows the relationship, jury render a verdict as to the individual’s status— employment a conclusion of although by way of con resolving any law — facts or flicting inferences on the basis of instruc proper 3 tions. This court has that “this acknowledged may practice always not lend itself to a fastidious of the rule application that the decides fact and the court decides law.” Wallowa 235 Or at Valley Stages, 600.4 petitioner proposes established, allowed); review and rule of law if to be review Chevrolet, (2001) Inc., 537, 3, 17 (decliningto

Parrott v. Carr 331 Or 541 n P3d 473 review). presented petition consider issue not 3 argues contrary Woody Defendant that this court announced a rule in (1976). Waibel, case, 554 P2d 492 In that this court stated that “where dispute arrangement is, question employee there is no pendent as to what the or inde Woody, contractor is one of law for the court.” Id. at 192-93n 3. We find respect compensation statutes, case decided with to workers’ to be of limited rele vance to our discussion of the role of the court and in the context of common- (“The liability. See, e.g., compen law vicarious sation Moreover, contrary id. at 193 criteria in the workmen’s laws.”). keyed purpose compensation cases are of the workmen’s assertions, Woody change to defendant’s did not this court’s practice ing liability permitting jury in vicarious cases of to decide between conflict relating control, reasonable inferences drawn from undis (so facts, puted arriving general Meskimen, at a at 91 verdict. See Or demonstrating). James, Harper, Fleming Jr., Gray, See also Fowler V. 3 The Law & Oscar S. (2d 1986) (“It today commonplace questions 340-41 ed Torts is a of law are of for the court and questions jury, of fact for the whatever the historical vicissitudes may just commonplace, profession, of this notion have been. It is at least in the branches, fully that this statement has never us been true in either ofits tells nothing helpful.”). little or that is example, driver who Valley Stages, In Wallowa customers for a and solicited pub- newspapers distributed and that “self-employed” that he was lisher claimed on the manner publisher no direction received 235 Or at 601-02. However, services. he was perform which that “circulation representatives” also disclosed the facts *9 the driver. Those facts visited per- frequently the newspaper exercised control that the newspaper mitted an inference the court’s which, in operations driver’s method of over the to conclude that the jury a view, sufficient to permit was that the holding In employee. the newspaper’s driver was submitted employee/independent the properly trial court court stated: to the jury, contractor issue or the con- person is the servant given or not a “Whether law, where the ordinarily question tractor of another is however, in it dispute, Where the facts are facts are clear. the offact to necessary questions to submit at least becomes from the may one inference be drawn If more than jury. arriving general at a the selection in facts, jury makes verdict.”

Id. at 600. reached the the same rule but court applied

This a directed Jenkins, when it affirmed in conclusion opposite that an holding employer, favor of the putative verdict as a matter law. contractor independent was an individual fur- for the defendant’s case, that a salesman 245 Or 382. In stat- explicitly a contract signed business had nace-cleaning This court contractor. he was an independent that ing of the salesman’s jury to submit question refused in Wallowa that, although status, explaining employment repre- that employer there had been evidence Valley Stages “no there was the driver frequently, had visited sentatives Thus, the court deter- in Jenkins. Id. at 387. such evidence” decide, jury there was no factual dispute mined that drawn inferences the facts and reasonable because the salesman not a conclusion support them could rea- Id. In so business. furnace-cleaning employee holding: earlier the court reiterated its soning, supra, Oregonian, Stages Valley “As noted Wallowa or an inde- is a servant given whether a question person facts are law, if the one of pendent ordinarily contractor one only if reasonable inference dispute not can be drawn from facts.” 386.5

Id. at foregoing discussion of this summary, court’s case law establishes whether an individual is an liability or an contractor for vicarious of law. However, legal conclusion purposes question a constellation of facts ultimately depends relating to control. A or other must factfinder render a ver right jury dict on an individual’s if the facts employment any status reasonable inferences could draw from those facts a conclusion that the support putative employer had the to control the work employee’s putative performance. Wallowa See 235 Or at 600 Valley Stages, (jury selects verdict). inferences in conflicting general between arriving If the facts and reasonable that a inferences draw from those facts not support would conclusion that the putative employer had to control putative work then there is no employee’s performance, triable issue fact, and a is entitled to have issue decided matter as a of law. 245 Or at 386. court’s deter *10 mination the form may ruling come in of a on a motion for verdict, Jenkins, directed as in or a on a ruling motion for here. summary judgment, as

C. Application “Right to Control” Test of legal mind,

With those in we turn principles once to the facts that again undisputed were before trial court on motion summary this case. The judgment deal ership agreement described relationship between above, Stockert and defendant. As noted the agreement recited that Stockert contractor, not an defendant; of had no control over Stockert’s “mode of that Stockert doing business”; and contractually. defendant had no other authority bind each misleading potentially Valley Stages We note that are Jenkins and Wallowa Jenkins, stating ordinarily question employment is one of law. of status 386; question always Valley Stages, one Wallowa 235 Or at 600. That law, jury of but this court when the has determined that it must be submitted underlying relating to dispute facts are in or inference more than one reasonable right to control can be drawn from those facts. or those in a dealer distributor terms such as Although agree- not of whether dealer is an ment are inde- dispositive of are evidence such a contractor, they pendent relationship. event, we see no any Or at 384-85. inference from the dealership agreement that a could draw jury that defendant had a plaintiffs favor con- position trol Stockert. based on

Further, think, do not the other facts in we record, could infer that reasonably that a Stockert in a manner inconsistent with the and defendant operated their terms of Frank testified that defendant agreement. the manner in exercised control over which Stockert con- his other than the business, ducted requirement not Stockert sell Stockert was free to competing products. he his saw fit. There is no evidence that conduct business defendant visited Stockert or his customers or decided how Stockert Defendant did not control the prices often worked. sold, he quantity products that Stockert charged, sold. Stockert sales, manner of or the customers whom he did, to, and sell noncompeting products was permitted he from wholesalers other than defendant. purchased draw inferences in favor of

Neither could from means which Stockert earned plaintiffs position Stockert received no the sale money products. reimbursements, commissions, guarantees, pay- wages, His dif- solely ments from defendant. income consisted from his ference between the amounts that collected cus- and his which included the cost of products tomers expenses, from defendant and other wholesalers. purchased that he insurance, expenses, including all his own took paid Stockert sales, loss his and received all benefit all risk of gain. to other facts. She notes that defen-

Plaintiff points of meat and fish supplier products dant was exclusive him unit and with a refrigeration pro- supplied not himself literature; *11 that Stockert did hold out as motional that did special not possess a separate enterprise; for over worked for defendant four skills; and that Stockert those facts and the reasonable infer- years. argues She them, in the light draw from viewed ences that a jury would allow plaintiff, most favorable reasonable jury had a conclude that defendant sufficient control the Stockert conducted his manner which sales to rise to give liability. vicarious

We Those facts an disagree. provide insufficient basis to conclude “with that, respect conduct physical services!,] performance [Stockert was] subject control to control.” [defendant’s] Restatement (Second) 220(1) (1958). Agency Given the undisputed § facts the financial regarding arrangement between Stockert defendant, and and the level of control that Stockert exer- he cised over the manner in which undertook to sell the prod- ucts, we conclude that the facts and inferences support only the conclusion that defendant did not have a sufficient right to control Stockert such that he could be considered an employee.

The dissent contends could find of the 10 some nonexclusive factors identified in the (Second) Restatement 220, section Agency, present are provide sufficient evidence to allow the conclude (see Stockert was an of defendant Kowaleski, 235 Or at (discussing 460-61 relevance Restatement factors control)). (De determining Muniz, J., 334 Or at 110-11 Schaff, factors). dissenting) (setting out Restatement That conclusion is inconsistent with decisions, this court’s which emphasize that “control over performance test,” remains the principal Jenkins, 245 Or at and which hold that the absence of may control found, law, be as a matter of despite evidence one or more of the factors identified in the subsidiary Restate- ment, see id. at 384-87 (describing evidence consistent with several factors, Restatement but control” holding “right law). as matter of

The dissent’s conclusion is inconsistent with also this court’s decision in the facts of which are strik- similar to this ingly case. As a trav- noted, Jenkins involved salesman for eling 245 Or 382. furnace-cleaning company. Stockert, Like con- signed contract as tractor that required him to insurance automobile purchase him of the com- prohibited from behalf contracting pany. contract also salesman prohibited *12 like advertising, although, Stockert, others employing free sell The products. company to other noncompeting order to necessary the salesman with an book provided per- will, form the The could be terminated at relationship work. to was free at a time and in a manner salesman work at This concluded that in which he saw fit. Id. 384-86. court a jury facts and the inferences could draw from foregoing them were insufficient to the conclusion that support thus, and, a control the salesman right had to company not Id. at 387. employee. the salesman was and inferences that and the dis- plaintiff facts a that defen- sent claim are sufficient conclusion support are, had in our not right view, dant a control Stockert For example, different from those Jenkins. materially facts and inferences con- support that the plaintiff argues that defendant was Stockert’s because clusion Stockert, little that neither Mr. question “[t]here can be general, actually have a distinct occu- nor the dealers homes, They all from their pation or business. work holding himself out a pretense Mr. Stockert made no cards, advertisements, He had no no separate enterprise. business, yellow listing, place of and no page no insurance.” compensation workerfs’] from the distinguishable facts are We fail to see how those door door Jenkins, facts in in which salesman worked and did no kind. telephone, advertising any or used the fact that Similarly, argues Or at 384. plaintiff Stockert and defendant was terminable between relationship relation- at is an employer/employee will “consistent with thus, a conclusion that such rela- and, could support ship” to see the of that existed. we fail tionship Again, significance between relationship fact in where light also was termi- furnace-cleaning company salesman and the at will. Id. at 385. nable distinguish- cases are

Indeed, to the extent even less that defendant had able, the facts in this case show than did the defendant to control its salesmen First, defendant in Jenkins reserved Jenkins. reason, negotiated its had any order salesmen

reject, at orders. 245 Or commissions on those and to refuse pay relationship— of the case, 384. In this namely, because nature purchased products Stockert that he sold— lacked similar control over the transactions Second, between Stockert and his customers. the defendant they expected in Jenkins informed its salesmen that were expec- make 10 to 12 at sales month. Id. 385-86. No similar placed undisputed tations were on Stockert. It that defen- requirement dant had no that dealers devote even a mini- selling products purchased mum number of hours to Finally, paid defendant. the defendant in Jenkins its sales- piece-work practice men basis, on commission and on a employer/employee least consistent with an relation- ship. pay Here, Id. at 384. defendant did not com- *13 simply products otherwise, mission or but sold to him for compensation arrangements resale. The difference in further demonstrates that defendant had less of to control performance Stockert’s than the defendant in Jenkins had performance over the of its salesmen.6 plaintiff suggests

Neither nor the dissent that incorrectly. plaintiff Jenkins was decided Indeed, does not briefing cite attempt in court, Jenkins her to this less much distinguish light it. In of both the factual similar- ities between Jenkins and and, above, this case as noted disposition differences, relevant we conclude same properly warranted here. concluded, The trial court a as mat- law, ter of that Stockert was not an of defendant. Accordingly, correctly granted the trial court defendant’s summary judgment. motion for Appeals judg-

The decision of the Court of and the ment of the circuit court are affirmed. dissenting, MUNIZ,

DE J., Nagaki Farms, In Inc., Rubalcaba v. (2002), that,

P3d 1106 this court of law, held a matter an individual truck, who owned and maintained his own along occasionally who, with owner-drivers, other hauled light here, comparison of our in Jenkins with those we fail to facts comprehend that, how the dissent nonetheless concludes “there was a complete salesmen, absence of control” over its without exercised the defendant reaching the same respect conclusion with this case. 334 Or at 110 n 1 (De Muniz, J., dissenting). was a worker and the the processor, a farmer to

onions for the workers’ compensation under employer farmer a subject on this court’s was based applica- That conclusion statutes. control” and “nature of “right created judicially tion I Rubalcaba, because opinion I joined the work” tests. to con- “right cases applying concluded that this court’s result. I of the work” tests compelled and “nature trol” “about face” however, to do conceptual am not willing, is not here, to conclude plaintiff does majority the same considera- essentially jury apply entitled to have a of vicarious whether, liability, deciding purposes tions defendant relationship a master-servant between there was and Stockert. stage. only summary judgment case is at the

This there to decide whether Thus, permitted must be relationship a master-servant between unless we liability, Stockert, sufficient vicarious impose in a manner most record, declare on this “viewed that, can objectively juror reasonable [plaintiff], favorable * * ORCP 47 C return a verdict [plaintiff] added). (emphasis following: acknowledges The majority inferences facts or reasonable “In cases in which the employer-employee conclusion that there support a a verdict as render relationship, this court allows although a conclu- employment to the individual’s status — conflicting facts or by way resolving those sion of law — *14 of proper inferences on the basis instructions.” 101. at the role in jury’s However, having acknowledged the imposed, should be liability whether vicarious deciding follow, I that to it. For the reasons majority proceeds ignore dissent. respectfully that the or assumed

This court said “frequently [has] is to be deter relationship of a master-servant existence to con had the right master mined to whether the according v. Kawasaki Peeples the servant.” trol the conduct of alleged (1979). 765 Indust., P2d 143, 146, 603 Heavy Ltd., 288 Or that, for purposes concluding follows that majority approach,

109 to control” test is “right only of the the test liability, vicarious Or at 100-01. As I point below, that should be 334 out applied. because, cases, earlier tort that conclusion is dubious this consider court has indicated that a factors to jury may similar in the “nature of the work” test those identified in deciding liability. whether vicarious Nevertheless, even impose only that the court should use the assuming “right to control” test the presents to determine whether record as to dispute the fact, material errs its majority application record, the below, test. There is evidence in which I list would to infer permit juror reasonably that defendant had to control” the “right Stockert’s work. performance

First, defendant had the right to terminate employment time lia relationship without contractual bility. Rubalcaba, court emphasized to terminate “employer’s power particularly evi strong [is] dence to control, power [the because ‘effect to terminate] possessed by company required respondent operation conduct this at all might times as it please ” logging company Rubalcaba, its Or at manager.’ (citing Bowser State Indus. Or Comm., Accident (1947)) added). 42, 56, 185 P2d 891 (emphasis Although same should reasoning here, accords no apply majority at all in this case weight discharge.

Second, defendant had economic control over by Stockert requiring Stockert his entire meat purchase and fish requirements from defendant. Defendant supplied credit, to Stockert on which products Stockert settled with defendant a 30-day basis. As finan- security cial arrangement, contract Stockert required prepay $1,000 to defendant.

Third, defendant provided most important necessary to equipment perform Stockert’s work fiirnish- ing $5,000 with unit with the name refrigeration “Land and Sea Food Co.” on its side.

Finally, defendant Stockert with brochures supplied describing salesmen, and defendant “trained” products, like them Stockert, on sales calls and by taking advising them of effective selling techniques suggested prices.

110 factors, reasonably

A those jury, considering of control exercised a over the degree conclude that defendant work, his sufficient performed manner which Stockert That is all that liability.1 the of vicarious imposition justify at The stage 47 of the requires proceedings. ORCP and plain- concludes otherwise majority incorrectly deprives is of the trial which she entitled. tiff is, however, major- to this than the There more issue that, In the this court has commented acknowledges. past, ity the existence of a master-servant determining relationship the liability, jury may of vicarious consider purposes (Second) Agency, factors outlined in Restatement various of (1958). 220 See v. Valley Stages Oregonian, section Wallowa (1963) (so Section 220 stating). 386 P2d 430 provides:

“(1) perform serv- person employed A servant is a respect and to the in the affairs another who with ices of the services is sub- physical performance conduct ject or to control. to the other’s control

“(2) acting for another is a determining whether one contractor, following matters servant or others, fact, among are considered: “(a) which, by agreement, the extent of control work; of the may exercise over the details master “(b) in a engaged employed or not the one whether business; occupation or distinct “(c) whether, occupation, with reference the kind usually done under the direction locality, in the the work by specialist supervision; employer without “(d) occupation; particular skill in the required extensively majority in Jenkins AAA on this court’s decision relies (1966). majority 382, 421 According ofthis “the facts Heating, P2d 971 Or * * materially 334 Or at 106. In case are not different from those in case, complete in which the the manner was a absence of control over there provide an heating company order All did did their work. salesmen Here, company. as set out pay brought and commissions order book will, provided key relationship earlier, defendant had the to terminate the itself, product supplied regarding product and equipment, brochures facts alone are sufficient product. Those some economic risk in the sale of the bore distinguish this case Jenkins.

“(e) or the employer whether the workman supplies tools, place instrumentalities, of work for the work; person doing

“(f) time for length which the person is *16 employed;

“(g) payment, by the method of whether by time or the job;

“(h) a part regular whether or not of work is of the employer; business

“(i) they whether or not the believe parties are creat- ing servant; the relation of master and and

“(j) whether is principal or is not in business.” (Footnote omitted.) Valley Wallowa Stages, court, referring in

factors identified section 220 the Restatement, stated: “If the foregoing considerations in are used the trial of cases, jury ultimately the trial court jurors, has to tell the general least in a way, apply how to to the case at hand their or negative affirmative answers the Restatement They tests. general must arrive at a upon verdict based their decision that actor a given was, not, in case or was Thus, a servant. the trial courts understandably rely control, strongly upon control, the element or the and in their instructions general relate con- concept of suggestions, trol such other like those §in 220 found Restatement, they may as see to use.” fit added). Or at 599 (emphasis As applicable case, to this Wallowa Valley Stages clearly that, established in determining whether rela- between Stockert is tionship defendant and of nature suffi- cient to justify vicarious is imposition liability, consider, entitled to, some the factors may weight give outlined in section 220 of the The factors out- Restatement. in lined section 220 closely parallel of the Restatement “nature of work” test that this court Rubalcaba applied hold as a matter of a worker and law that the claimant was farmer also Woody was a See subject employer. (1976) Or 554 P2d 492 (identifying

Waibel, factors). test the “nature of the work” applying find that a number of the Here, factors and, are Restatement when consid- present identified to control are factors, with the suf- primary ered along liability. ficient to vicarious impose conforming to Restatement factors Evidence is a following: corporation include the Defendant sells sale of defendant’s products. products meat and fish salesmen, Stockert, is like who public accomplished to customers in certain areas. geographic sell

Stockert was not in a distinct engaged occupation, is the case with contractors. The skill usually independent fish of a route selling products typical used meat and one of master- salesman, relationship usually and that no business in the listing servant. Stockert had directory, advertising, did telephone yellow pages “Adam business cards himself as identifying and used *17 (Empha- Land & Sea Food Co” Stockert, representative added.) had own. At the time employees his sis for four death, Stockert’s had existed relationship auto insurance in the carried commercial years. Stockert $300,000, to show defendant as an addi- amount of endorsed insured. tional had determined Stages,

In Wallowa Valley jury east- Oregonian newspapers who distributed Badgett, Oregonian an purposes ern was Oregon, court, this the Oregonian On liability. appeal of vicarious an that, independ- a matter of was law, Badgett contended permitted and the should not have been jury ent contractor against affirming judgment the issue. decide the court stated: Oregonian, exercised supervision

“We do not hold that the amount of an Badgett to constitute the case bar was sufficient can we hold employee as a matter of law. Neither as matter of law. contractor Badgett which the We hold that there was evidence from own on the matter” draw its inferences added). Or at 602 (emphasis Conceptually, case is indistinguishable cases like Wallowa Valley Stages. evidence of control and the evidence consistent with the factors identified in the not, Restatement are as a matter of law, sufficient one way the other to define the between relationship defendant and However, Stockert. the record does contain evidence that sufficient for a decide whether is of relationship type justifies the imposition of vicarious liability. That is all that is under this required court’s cases.

Durham and Riggs, JJ., join this dissenting opinion.