Summary
In Johnson v R.T.K. Petroleum Co. (289 N.Y. 101, rearg denied 289 N.Y. 646), the owner of a truck, used exclusively for the past year to deliver gasoline for the corporate defendant, struck and injured the plaintiff.
Summary of this case from Bermudez v. RuizOpinion
Argued June 18, 1942
Decided July 29, 1942
Appeal from the Supreme Court, Appellate Division, Second Department, STODDARD, J.
Harry A. Spiegelman, Joseph J. Schwartz and John M. Wilson for appellant. William C. Goodson and Alexander D. Diamond for respondent.
On this record it was error to hold as a matter of law that the co-defendant driver and owner of the truck was an independent contractor rather than a servant of the corporate defendant. The nature of the relationship existing was a question of fact which the trier of the facts resolved in favor of the plaintiff. (See Braxton v. Mendelsohn, 233 N.Y. 122; Matter of Glielmi v. Netherland Dairy Co., 254 N.Y. 60; Irwin v. Klein, 271 N.Y. 477; Fritz v. Krasne, 273 N.Y. 649.) The evidence sustains that finding.
The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed with costs in this court and in the Appellate Division. (See 289 N.Y. 647.)
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur.
Judgment accordingly.