dissenting, in part, and concurring, in part.
I join in part II of the court’s opinion and concur, therefore, in the result. I disagree, however, with part I of the opinion.
First, there is no need to decide the issue discussed in part I. Second, I think the holding in part I is plainly wrong. Using the reasoning of the Oregon Supreme Court in Fuller v. Safeway Stores, Inc., 258 Or. 131, 481 P.2d 616, 617 (1971), I would hold AS 09.10.240 inapplicable in the case at bar.