Action to recover damages for personal injuries sustained by plaintiff when struck by an automobile operated by defendant George Gianeks and owned by defendant Agnes Gianeks, his wife. Appeal from judgment dismissing complaint as to defendant Toledo Scale Company at the close of plaintiff's case. Judgment affirmed, with costs. At the time of the accident, Gianeks was in the performance of his duties as general sales manager of defendant Toledo Scale Company. Under his contract of employment and all the circumstances appearing in the record, we hold, as a matter of law, that Gianeks was not an employee of the scale company, in the sense that the relation of master and servant as created would invoke the doctrine of respondeat superior, and, therefore, defendant, respondent, is not liable to the plaintiff.
Young, Scudder and Tompkins, JJ., concur; Lazansky, P.J., and Carswell, J., dissent and vote for reversal and a new trial, with the following memorandum:
The admission in the answer of respondent, Toledo Scale Company, and the facts indicate that Gianeks was an employee of said respondent and not an independent contractor. ( Lewis v. National Cash Register Co., 84 N.J. Law, 598.) Whether the use by Gianeks, in the course of his work, of an automobile not owned by said respondent was reasonably contemplated to be within the employment was a question of fact for the jury.