Claim of Mead v. Cole

8 A.D.2d 904, 186 N.Y.S.2d 969, 1959 N.Y. App. Div. LEXIS 8324

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 9, 1959
• Status: Published

Opinion

Appeal by an uninsured employer from a decision and award of the Workmen’s Compensation Board which held that appellant was the general employer and Flag Lines, Inc., was the special employer of the claimant, and provided that each be jointly and severally liable for the award. Appellant claims that claimant was not an employee but was an independent contractor, or that claimant and appellant were engaged in a joint venture. Appellant was the owner of a highway tractor. The tractor had been used principally for hauling loaded trailers owned by Flag Lines, Inc. Pursuant to an oral agreement claimant began to operate the tractor, and was to receive 25% of the gross receipts. When claimant drove the tractor and hauled Flag Lines’ trailers he would obtain a cheek from Flag Lines payable to appellant and would deliver the check to appellant. The only expenses which claimant paid were his own personal expenses for food and lodging while on the road. He worked on the tractor at the garage when it was not in service. Appellant also received some payments from carriers other than Flag Lines. Appellant had the absolute right to terminate claimant’s services as a driver at any time by simply withholding his vehicle from the highways. Ordinarily the question of whether a person is an independent contractor, a joint venturer or an employee, is a question of fact, and this ease is no exception. The board has found that claimant was an employee. We may not say as a matter of law that there is no substantial evidence to support such a finding. Decision and award unanimously affirmed, without costs. Present — Foster, P. J., Bergan, Coon, Herlihy and Reynolds, JJ.