Burkhardt v. A. & H. Karsten, Inc.

(dissenting in part). There was no credible evidence that plaintiff was employed by the corporate defendant on the day of the accident, and any finding that he was employed by Schroeder on the truck on that date with the knowledge or consent of the corporate defendant was clearly against the weight of evidence.

In view of the lack of proof of employment, it was prejudicial error to receive evidence concerning the failure of the corporate defendant to procure workmen’s compensation insurance for plaintiff, and then submit the case to the jury on the theory of common-law negligence.

The judgment should be affirmed as to the defendant Schroeder, with costs, and reversed as to the corporate defendant, the action severed and a new trial ordered as to said defendant, with costs to said defendant to abide the event.

Glennon, Untermyer and Cohn, JJ., concur in decision; Callahan, J., dissents in part in opinion in which Martin, P. J., concurs.

Judgment affirmed, with costs. No opinion.