Bratt v. Midland Asphalt Corporation

Full title: FRANK BRATT et al., Appellants, v. MIDLAND ASPHALT CORPORATION, Respondent

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Nov 11, 1959

9 A.D.2d 860 (N.Y. App. Div. 1959)

Opinion

November 11, 1959

Appeal from the Chautauqua Trial Term.

Present — McCurn, P.J., Kimball, Williams, Bastow and Halpern, JJ.

Judgments and order affirmed, with costs.

All concur, except Bastow and Halpern, JJ., who dissent and vote for reversal on the law and facts and for granting a new trial in the following memorandum:

Upon the evidence in this case it was error for the trial court to charge as a matter of law that the codefendant trucker was an independent contractor and not a servant of the defendant-respondent for whose negligence the latter might be vicariously liable under the doctrine of respondeat superior. The tests to be applied have been frequently stated. (Restatement, Agency 2d, § 220; 2 Harper James, Law of Torts, § 26.11; Prosser, Torts [2d ed.], pp. 351-354.) The nature of the relationship was a question of fact to be determined by the jury (cf. Johnson v. R.T.K. Petroleum Co., 289 N.Y. 101; Rich v. Colony Fuel Oil Co., 277 App. Div. 888). The trial court further erred in refusing to charge that liability could be imposed upon the defendant-respondent, even if the codefendant trucker was an independent contractor, if the former knew or should have known that the trucker "was overloading his truck" and that the truck "had a defective left front tire." (Restatement, Torts, § 411, comment a; Mechem, Outlines of Agency [4th ed.], § 494; Kuhn v. Carlin Constr. Co., 154 Misc. 892; cf. Rosenberg v. Schwartz, 260 N.Y. 162, 166; Katapodis v. La Salle Trucking Corp., 293 N.Y. 229.)