dissenting:
I respectfully dissent. The findings of the court of an employer-employee relationship is amply supported by the evidence.
First of all, there is evidence of control of performance. Prior to the accident, Erickson showed Sparrow and her sister how to operate the stand. They had worked at the stand while he supervised before he let them operate it on their own. The fact that some decision-making authority was delegated to Sparrow is not inconsistent with an employment relationship.
Secondly, Erickson’s statement of December 9, 1982 evidences a wage arrangement with a possibility of commissions, rather than a profit-splitting arrangement necessary for a joint venture:
Q. Was Terri and (sic.) be on an hourly wage rate then or how was her arrangement?
A. Well, I just told her I expected to pay her a minimum and then I thought maybe if she worked as hard, made a lot of money well then I would give her some of the profit.
Q. Okay, so if I understand you right then up to this June 20, 1982, incident then she was paid by the hour and not on commission or anything like this?
A. Right, no up until then there would have been no commissions I suppose after she got doing it full time, she would have had a chance to make more than an hourly wage and that’s what she was intending on doing.
Another, factor to be considered is the furnishing of tools or materials. Most of the materials were furnished by Erickson, *17as the owner of the Taco John’s. In his statement, Erickson said that all of the meat and paper products used by the stand came from the restaurant. There was no separate accounting between Taco John’s and the concession stand. Bills against the stand were paid out of the “take” or by a Taco John’s check.
Also there is evidence of control of the trailer by Erickson. The trial judge was presented with conflicting documentary testimony by Erickson. Erickson stated at his deposition that Sparrow had arranged to have the trailer at the community event. In his earlier statement, he maintained that he had made the fairgrounds arrangements himself. The statement was made about six months after the event, while the deposition was taken later. Erickson alone retained title to the trailer. As pointed out by the trial court, this fact tends to negate Sparrow’s claim of joint venture. Because Erickson was the sole owner, he had the power to control the premises. He exercised that control by delegating authority to Sparrow. It should be noted that Erickson has an interest in the outcome of this case because of his relationship to Ms. Sparrow (brother and sister) who seeks compensation.
Based upon well-recognized considerations of witness credibility, particularly the interest in the outcome of the case, the relationship to the parties and the opportunity to remember facts, the trial court found the earlier statement more credible.
As to the right to discharge, the trial court justifiably found that Erickson reserved the power to terminate Sparrow’s use of the trailer because he was the sole owner of the trailer.