(dissenting). In the 55 years since Gall v. Detroit Journal Co. (1916), 191 Mich 405, was decided, the Michigan Supreme Court has decided six tort cases where the question presented was whether a person injured by the negligent automobile driving of a delivery man may recover from the business concern which hired him to deliver its goods under the circumstance that the delivery man owned the automobile and was purporting to act as an independent contractor. In each and every case *491the Supreme Court ruled that the business concern was subject to liability. I have, therefore, concluded that Gall does not insulate a newspaper from liability for the negligent driving of a newsman delivering its newspapers.
A review of those six decisions is in order.
1. In Eber v. Bauer (1930), 252 Mich 571, a transit company appealed a jury verdict in favor of persons injured as a result of an automobile collision with a truck owned and driven by one Bauer. The Supreme Court declared that “the trial court was clearly right in holding that Bauer was an employee of the transit company” on the following facts: “The transit company was engaged in the delivery business. Bauer made trips for it from Chicago to points in Michigan and other states. He received instructions at the company’s office in Chicago as to what merchandise or goods he should take, where to go for them, and where to deliver them”. The Supreme Court declared:
“That he used his own truck instead of one furnished by the company did not change his status.”
2. In Marchand v. Russell (1932), 257 Mich 96, 101, the Supreme Court held that on the record presented the relation of master and servant existed at the time of the automobile accident, and upheld a jury verdict against the defendant driver, a traveling salesman, and the company that he represented. The salesman was the owner of the automobile. He was required to call on dealers, collect amounts due the company, establish new dealers wherever possible and promote the sale of the company’s products. The Supreme Court observed:
“Were it not for the fact that he used his own car, and that the expense of its operation and mainte*492nance, as well as his personal expenses when traveling ahont, was included in the weekly compensation paid him, the situation would be no different from that of the ordinary salesman traveling about and selling the goods of his employer.”
3. In Cooper v. Interstate Motor Freight Co. (1933), 264 Mich 131, the defendant freight company, like the defendant newspaper company in Gall, sold a motor truck to a person who then entered into a contract with the freight company to deliver articles for it “as a contractor and not as an employee”. The new owner of the truck was to use it exclusively in the service of the freight company and was to receive 70% oí the actual freight charges. No specific tonnage was guaranteed. He agreed to maintain schedules, give proper and efficient service and deliver and haul freight for the freight company in accordance with its methods of handling. The truck was actually driven by the new owner’s two sons. The Supreme Court declared “in the instant case a right of control was reserved and exercised by defendant to such a degree as to create the master and servant relationship”, and, therefore, the new owner of the truck was the servant of the defendant freight company, not an independent contractor.
4. In Lewis v. Summers (1940), 295 Mich 20, 22, the defendant Summers, a beer distributor, engaged defendant Kass and his truck to make deliveries of beer. Kass was paid an agreed price per case of beer delivered. This was Kass’ main employment. The Supreme Court declared that although Kass and not Summers owned the truck, “the issue of whether defendant Kass and his truck were in the employ of defendant Summers was for the jury”.
5. In Brinker v. Koenig Coal & Supply Co. (1945), 312 Mich 534, the Supreme Court again upheld a jury verdict in favor of persons injured by a deliv*493ery truck delivering the defendant’s goods although the truck was owned by the delivery man and not by the defendant. The truck was operated by an employee of Willie Sawyer, the owner of the truck. Sawyer had contracted with the defendant coal company to deliver its coal in his truck to customers of the coal company. The coal company selected the coal, weighed it and directed where coal should be delivered. Sawyer was paid $1.30 per ton for delivery plus a wheeling charge of 50^ per ton, if the coal had to be wheeled in. The Supreme Court ruled: “Under the law as established in this state, we believe that the driver was defendant’s employee”.
6. Finally, in Buehler v. Beadia (1955), 343 Mich 692, a jury verdict for the plaintiff was affirmed by an equally-divided court. Four of the justices were of the view that the trial judge erred in concluding that the plaintiff was free from contributory negligence and did not reach the question whether the defendant truck driver was employed by the defendant truck company. The driver was the owner of the truck, and had entered into a formal lease hiring himself and the truck to transport freight and merchandise for the truck company. Mr. Justice Butzel, in an opinion signed by Justices Talbot Smith, Boyles, and Kelly, declared that there could be no doubt that the freight company was the driver’s employer in light of the facts “that he was told where and when to go; that the company paid him [a flat amount plus a percentage of the gross freight bill]; that he worked for the company exclusively; and that his routes were generally restricted, et cetera”.
No tort cases presenting the employer-employee-independent contractor question have been decided by the Michigan Supreme Court since 1955.1
*494In Brinker, Lewis, Marchand, and Eber, the Court relied on Dennis v. Sinclair Lumber & Fuel Co. (1928), 242 Mich 89, 92, a workmen’s compensation case decided when the control test was still the standard by which the employer-employee relationship was determined in workmen’s compensation eases.2 In Dennis, John Dennis had been hired with the use of his truck to deliver coal in retail quantities to customers of a coal company. In holding that he was an employee, not an independent contractor, the Supreme Court observed:
“This Court has held that the test of the relationship is the right to control, whether in fact exercised or not [citation omitted]. Mr. Dennis served the lumber and fuel company, in accord with its direction as to each load, under its right to control his movements and command his services in carrying out its business requirements, and the company had a right to dispense with the same at will without liability.”3
Recently, in Osborn v. Recker (1969), 16 Mich App 701, we declared that whether a milk truck driver was an agent of the defendant corporation was a question of fact.
*495In the intervening period between the time Gall was decided and the present, I find but two cases decided in this state, one by the Supreme Court and the other by our Court, holding that a business concern named as a defendant and alleged by the plaintiff to be the driver’s employer was not his employer.
Holloway v. Nassar (1936), 276 Mich 212, is distinguishable because in that case the traveling salesman only occasionally delivered goods. Most of the goods he sold were delivered by company trucks. Additionally, in contrast with the present case, he could attend customers by telephone as well as personally and could add new customers or drop old ones as he saw fit.
Kaniewski v. Warner (1968), 12 Mich App 355, was decided by our Court on the authority of Gall and Holloway. No mention was made of the other Supreme Court decisions above cited. In KamewsM the owner-driver, Robson, was not obliged to purchase oil from defendant Warner and could, in contrast with the present case, have delivered someone else’s oil products. Therefore, Robson, unlike newsman Cobb, could not have been put out of business at the whim of the enterprise defendant.
The facts of this case, as revealed in Cobb’s depositions, demonstrate that it was at least a jury question whether he was an employee of the Benton Harbor News Palladium; a summary judgment should not have been granted. Cobb obtained his route in response to an ad for a motor route operator which he observed in the male help-wanted section of the Benton Harbor News. The route was owned by the newspaper; it was merely leased to Cobb under a lease cancellable by the newspaper at any time without notice “for good faith reason”. Cobb agreed not to deliver other publications and he had no other occupation. He was paid $28 a *496week as reimbursement for the cost of operating his automobile. When he experienced difficulty an agent of the newspaper would ride with him in an effort to iron out the problem; this occurred a number of times.
It is obvious that the nature of the task to be performed was such that there was little, if any, room for independence in performance by a news delivery man. The delivery procedure was structured so that he had hardly any individualized judgment to exercise except in the operation of his automobile.
The newspaper route customers were the newspaper’s, including any new customers that Cobb might obtain. Cobb could not cancel a customer except for nonpayment without first consulting the defendant newspaper and receiving permission.
Defendant Benton Harbor News determined when the newspapers were to be picked up and the time within which they were to be delivered, a span of just a few hours. It directed the manner in which the newspapers were to be rolled, banded, and deposited in tubes, which it supplied, mounted on stands along the side of the road. It established billing procedures and credit policies and the manner of bookkeeping. It is hard to imagine what, if anything, was left for Cobb to decide.
Cases from other jurisdictions affirming verdicts against newspapers or setting aside directed verdicts in their favor where the plaintiff’s injuries were caused by the neligence of a newsboy or distributor using his own vehicle include Wilson v. Times Printing Co. (1930), 158 Wash 95 (290 P 691); Wallowa Valley Stages, Inc. v. The Oregonian Publishing Co. (1963), 235 Or 594 (386 P2d 430); Harris v. Cochran (Tex Civ App, 1956), 288 SW2d 814; *497Dispatch Publishing Company v. Schwenk (1941), 109 Ind App 223 (34 NE2d 150); Femling v. Star Publishing Co. (1938), 195 Wash 395 (81 P2d 293); Semper v. American Press (1925), 217 Mo App 55 (273 SW 186); Hampton v. Macon News Printing Co. (1940), 64 Ga App 150 (12 SE2d 425); Joslin v. Idaho Times Publishing Co. (1939), 60 Idaho 235 (91 P2d 386); Callaher v. Ricketts (La App, 1939), 187 So 351; Cooper v. Asheville Citizen-Times Publishing Co. (1963), 258 NC 578 (129 SE2d 107).4
Cf. Schenk v. Packaging Corp. of America (WD Mich, 1966), 267 *494F Supp 439, 440, where a United States district court, in granting a summary judgment to defendant packaging corporation, declared: “While it is possible that the Michigan Supreme Court will at some time in the future apply this principle [economic realities test] in the area of tort liability, at the present time the test for an independent contractor relationship is the right to control.”
In Tata v. Muskovitz (1959), 354 Mich 695, 699, and Goodchild v. Erickson (1965), 375 Mich 289, 293, the control test was abandoned as the exclusive criterion for determining the existence of an employer-employee relationship for purposes of remedial social legislation.
See Foster v. Employment Security Commission (1968), 15 Mich App 96, 99, 100.
Similarly, see Tuttle v. Embury-Martin Lumber Co. (1916), 192 Mich 385, 400; Van Simaeys v. George R. Cook Co. (1918), 201 Mich 540, 546; Sector v. Cadillac Plumbing & Heating Co. (1924), 226 Mich 496, 503.
See, generally, Restatement of the Law 2d, Agency, § 220, p 485, and accompanying commentary, regarding the criteria for determining who is a servant.