Gregg v. Dallas & Mavis Forwarding Co.

• Decision Date: 01 May 1969
• Citation: 32 A.D.2d 678,299 N.Y.S.2d 499
• Parties: Claim of Harley W. GREGG, Respondent, v. DALLAS & MAVIS FORWARDING CO. et al., Appellants. Workmen's Compensation Board, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 499

299 N.Y.S.2d 499

32 A.D.2d 678

Claim of Harley W. GREGG, Respondent, v. DALLAS & MAVIS FORWARDING CO. et al., Appellants.

Workmen's Compensation Board, Respondent.

Supreme Court, Appellate Division, Third Department.

May 1, 1969.

Neal M. McMahon, Buffalo, for claimant-respondent.

Frank C. Roberts, Lake View, for appellants.

Louis J. Lefkowitz, Atty. Gen., Daniel Polansky and Morris N. Lissauer, Asst. Attys. Gen., for Workmen's Compensation Bd.

Before GIBSON, P.J., and HERLIHY, REYNOLDS, AULISI and GREENBLOTT, JJ.

HERLIHY, Justice.

Appeal by the employer and its insurance carrier from a decision of the Workmen's Compensation Board filed January 2, 1968 awarding benefits to the claimant.

The appellants contend that as a matter of law the board could not find an employer-employee relationship upon the present record.

The claimant was the operator of a tractor-trailer truck at the time of the accident. The proper title to the units was in claimant's stepfather, Harry R. Gietter. The board found that claimant was in the process of buying the tractor-trailer from Geitter. Upon the present record it would appear that claimant was an equitable owner of the vehicle, the financing agreement for the truck having Geitter listed as a cosigner. On May 2, 1966 the claimant as the agent of Geitter signed a lease agreement with the appellant employer. Pursuant to the agreement, the lessor would haul freight for the lessee and would receive a percentage of the amount paid to the lessee for such hauling. The lease provided that the lessor was an independent contractor and that the driver of the units would not be an employee of the lessee. However, the appellants concede that this declaration of status is not controlling and is merely evidence of the intention of the parties.

The appellants first contend that since the lessor was Geitter, the legal owner of the vehicle, the lessee could not be the employer of claimant and cite Matter of Williams v. Solomon, 13 A.D.2d 159, 214 N.Y.S.2d 928. The Williams case is not controlling since the only issue before the court was whether or not the board Could find the lessor to be the sole employer. Matter of Williams v. Solomon (supra) does not stand for the proposition that a lessee cannot be the employer of the drivers of the lessor as a matter of law. As noted in Matter of Smith v. Refrigerated Food Express, 27 A.D.2d 601, 275 N.Y.S.2d 793 the issue of employer-employee relationship is generally one of fact...