Johnson v. R.T.K. Petroleum Co.
| Decision Date | 29 July 1942 |
| Citation | 44 N.E.2d 6,289 N.Y. 101 |
| Parties | JOHNSON v. R. T. K. PETROLEUM CO., Inc., et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Second Department.
Action by John F. Johnson against R. T. K. Petroleum Company, Incorporated, and Charles Hunt, and another, to recover for injuries received as the result of the alleged negligent operation of a truck. From a judgment entered upon an order of the Appellate Division, 263 App.Div. 338, 33 N.Y.S.2d 18, reversing on the law judgment in favor of plaintiff and against the defendant R. T. K. Petroleum Company, Incorporated, entered upon a decision of the court at a Trial Term, Stoddart, J., presiding, a jury having been waived, and directing dismissal of the complaint as to such defendant, plaintiff appeals.
Judgment of the Appellate Division reversed and judgment of the Trial Term affirmed. Harry A. Spiegelman, John M. Wilson, Joseph J. Schwartz, and J. George Silberstein, all of New York City, for appellant.
William C. Goodson, of Brooklyn, and Alexander D. Diamond, of New York City, 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. Mendelson, 233 N.Y. 122, 135 N.E. 198;Matter of Glielmi v. Netherland Dairy Co., 254 N.Y. 60, 171 N.E. 906;Irwin v. Klein, 271 N.Y. 477, 3 N.E.2d 601;Fritz v. Krasne, 273 N.Y. 649, 8 N.E.2d 330. 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.
Judgment accordingly.
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