specially concurring.
I concur in the result reached by the majority. With respect to the question raised by the majority whether the work of the dealer was both "subject to the * * * control or right of control” of Kawasaki Motors, and also "in (its) affairs,” I would point out, however, that:
(1) This court has held in many cases that the primary test to be applied in such cases is the right of the claimed master or principal to control the manner in which work is performed by the alleged servant.1 As held by the majority, there was ample evidence to support such a finding by the jury in this case.
(2) There was also ample evidence in this case from which the jury could properly find that Kawasaki Motors was in the business of selling motorcycles and that in performing the initial warranty inspection and repair work upon the motorcycle purchased by the plaintiff, this dealer was acting "in the furtherance of the business” of Kawasaki Motors and "in (its) affairs.”2
See, e.g., Meskiman v. Larry Angell Salvage Co., 286 Or 87,91-93,592 P2d 1014 (1979); May v. Broun, 261 Or 28, 36, 492 P2d 776 (1972); Great American Ins. v. General Ins., 257 Or 62,68,475 P2d 415 (1970); Jenkins v. AAA Heating, 245 Or 382,386,421 P2d 971 (1966); Wallowa Valley Stages, Inc. v. Oregonian, 235 Or 594, 601-603, 386 P2d 430 (1963); and Kowaleski v. Kowaleski, 235 Or 454, 458-59, 385 P2d 611 (1963).
See Jorgensen v. Richard, Gearhard, 266 Or 263, 265-66,512 P2d 991 (1973).