jury selects between conflicting inferences in arriving at general verdict
How later courts described this case
- jury selects between conflicting inferences in arriving at general verdict
- “Whether or not a given person is the servant or the contractor of another is ordinarily a question of law, where the facts are clear.”
- “[T]he right of the employer to control the workman is the basis most commonly advanced for imposing liability upon the employer.”
Written by the judges who cited it.
Later courts went against this
Overruled in part, on other grounds by Woody v. Waibel, 276 Or. 189 (1976)
235 Or 594, 596-97, 386 P2d 430 (1963), overruled in part on other ground, Woody v. Waibel, 276 Or 189, 192, n 3, 554 P2d 492 (1976).
The opinion
PERRY, J.,
dissenting.
I am unable to agree with the majority since, in my opinion, there is no substantial evidence in the record that the publishing company had the right to exercise control over the manner in which the defendant Badgett controlled and operated his newspaper delivery business.
In my opinion the posture of the case is such that the jury is left to speculate as to what may or may not be the relationship between the publishing company and Badgett. The publishing company was entitled to an instruction as a matter of law that there was a *605 failure of proof on the part of the plaintiff to establish that defendant Badgett was an agent of the company.
I would reverse.
Mr. Justice Rossman concurs in this dissent.