Appeal of Farwest Taxi Service, Inc.

• Decision Date: 06 June 1941
• Docket Number: 28235.
• Citation: 9 Wn.2d 134,114 P.2d 164
• Parties: Appeal of FARWEST TAXI SERVICE, Inc.
• Court: Washington Supreme Court

114 P.2d 164

9 Wn.2d 134

Appeal of FARWEST TAXI SERVICE, Inc.

No. 28235.

Supreme Court of Washington

June 6, 1941

Department 2.

Proceedings for unemployment compensation against the Farwest Taxi Service, Incorporated. From a judgment affirming an adverse decision of the Commissioner of Unemployment Compensation and Placement, the Farwest Taxi Service, Incorporated, appeals.

Affirmed.

Appeal from Superior Court, King County; Calvin S Hall, Judge.

Karr & Gregory and Carl G. Koch, all of Seattle for appellant.

Vanderveer Bassett & Geisness, of Seattle, and Smith Troy, Lyle L Iversen, Lawrence W. Thayer, and William J. Millard, Jr., all of Olympia, for respondents.

BEALS Justice.

The commissioner of unemployment compensation and placement of the state of Washington, after hearings Before that bureau, determined that certain persons who had filed claims for unemployment compensations were employees of Farwest Taxi Service, Inc., and as such employees were entitled to unemployment compensation, within the provisions of chapter 162, Laws of 1937 (known as the unemployment compensation act), as amended. The claimants were drivers of taxicabs, employed to operate taxicabs bearing the insignia of Farwest Taxi Service, Inc., at a per diem compensation. The claimants contended that they earned sufficient wages as employees of the Farwest Taxi Service, Inc., (hereinafter referred to as Farwest) in an employment covered by the act, to entitle them to the benefits of the statute. Farwest contended that the claimants were not in its employ, and had not reported claimants' earnings to the commissioner of unemployment compensation.

The unemployment compensation division ruled that the claimants were entitled to compensation, from which rulings Farwest appealed to the appeal tribunal, where the appeal examiner, after a full hearing was had on the consolidated appeals, ruled that the unemployment compensation division had correctly determined the question. The commissioner of unemployment compensation and placement affirmed the appeal examiner, and from this ruling Farwest appealed to the superior court, which affirmed the ruling of the department. From the adverse judgment entered by the superior court, Farwest Taxi Service, Inc., has appealed.

October 27, 1937, the unemployment compensation commissioner (hereinafter referred to as the commissioner) notified Farwest that after a study of its operations, it had been determined that the corporation was without the operation of the statute. Later, this ruling was reversed, the commissioner deciding that the corporation was within the scope of the statute. The latter ruling, as affirmed by the superior court, is that sought to be here reviewed.

Error is assigned upon the refusal of the superior court to review the findings of fact made by the appeal examiner, and upon the court's refusal to review the decision of the examiner ruling that an employer-employee relationship existed between Farwest and the persons claiming compensation. Appellant also contends that the superior court erred in refusing to allow the introduction Before it of additional testimony, and in limiting the scope of inquiry to the record as Before the appeal tribunal. Error is also assigned upon the entry of judgment sustaining the departmental ruling to the effect that the claimants were in the employ of Farwest, within the meaning of the unemployment compensation act above referred to.

In the present case, the appeal examiner made the following findings of fact:

'The Farwest Taxi Service, Incorporated, was organized under the general incorporation laws of the State of Washington. Its Articles, copy of which has been furnished by the appellant and is deemed a part hereof, provide for the operation of a general taxicab business within the state.

'A number of independent taxicab owners desired to provide themselves with a switchboard to service calls by patrons. Thereupon the Farwest Taxi Service was organized, commenced operations, and is now operating in the following manner:

'The corporation maintains a switchboard board in their offices at 1514 Terry Avenue, Seattle, Washington. Through it are routed calls to taxi stands in various parts of the city. For this service the owners contribute a 'nut' of $1.50 per day for each cab in operation. These 'nuts' comprise the entire income of the firm, out of which is paid all operating expenses and dividends, if any, to the stockholders.

'Each driver turns over his daily receipts to the corporation, which in turn, deposits $5.00 of that amount with its bank, and gives the remainder to the owner on his next call. The firm draws a check on its bank once a week for the entire driver payroll, and the men receive their wages at the appellant's offices every Wednesday. Their remuneration is $5.00 per day, the sum deposited, regardless of what their respective receipts were during the preceding week. The men look to the corporation for their wages but the corporation would look to the individual owner for reimbursement in the event a driver's receipts did not equal the wages paid him for that week.

'All cabs operated by the owners under contract with the appellant were painted the same colors and bore the same name and telephone number. All advertising was done, and the telephone listed, under the name of Farwest. The individual owners paid for gasoline, oil, repairs, insurance, licenses, storage, and all other items incidental to the actual operation of the cabs. Patrons' charge accounts are carried by the corporation and losses resulting therefrom are borne by the corporation.

'Each stockholder owns one or more cars, but all owners are not stockholders.

'On August 15, 1939, the appellant entered into a contract with the Taxicab Drivers and Chauffeurs Local Union No.

465. That contract was signed by the president and secretary of and in behalf of the appellant, and by the secretary of and in behalf of the union, and superseded a similar agreement signed by the appellant's manager and the Local's secretary. The present contract specifies the wages, hours and working conditions applicable to all drivers, and was consummated without the assent of the individual owners.

'Drivers are placed by the appellant's manager, by an individual owner, or by the union on the request of either manager or owner. All men, however, must obtain a permit from the Local Before reporting for work. The men thus employed are not restricted to driving the cab of one particular owner, but may and do work on other cars operating under the Farwest colors.

'Drivers are disciplined by the appellant, because '* * * these fellows have to be sort of held in line; you have to look after them in one respect of the word, so they don't get in wrong with the union.' In one case a driver was given a three day layoff by appellant's manager for some wrongdoing, in spite of the protest of the owner of the cab on which the man was working.

'Discharges and layoffs are under the control of the manager and are sometimes based on the recommendation of the owner. On one occasion, however, when an owner was asked to intercede for a discharged driver, he replied that 'he couldn't do anything about it whatsoever.'

'Counsel have stipulated that the evidence introduced shall apply to operations by all owners and drivers within the organization.'

In the recent case of In re St. Paul & Tacoma Lumber Co., Wash., 110 P.2d 877, 883, referring to the unemployment compensation act, it was held that: '* * * the administrative determination of the facts is conclusive on the court unless it be wholly without evidential support or wholly dependent upon a question of law, or clearly arbitrary or capricious.'

The appeal examiner's finding that the labor contract under which Farwest's drivers operate 'was consummated without the assent of the individual owners,' supra, is not supported by any evidence in the record. The record would not support a finding that there was such assent, but it fails to support the finding that there was not.

In so far as the findings purport to show the reasons for the disciplining of drivers of Farwest, they are not supported by the record. The record, however, does support the finding that the drivers were disciplined by Farwest as occasion arose.

With the exception of these minor matters, we accept as the facts in the case the findings of fact made by the appeal examiner, as hereinabove set forth.

The trial court properly refused to review the findings of fact made by the appeal examiner. In re St. Paul & Tacoma Lumber Co., supra.

Appellant's first assignment of error is without merit.

Appellant next contends that the trial court refused to review the decision of the appeal examiner, by which that official held that an employer-employee relationship...