Caldwell v. Yellow Cab Service, Inc.
| Decision Date | 04 May 1970 |
| Docket Number | No. 205--40523--I,205--40523--I |
| Parties | Joseph Lee CALDWELL, Appellant, v. YELLOW CAB SERVICE, INC., a corporation, Respondent. |
| Court | Washington Court of Appeals |
Schroeter & Jackson, Paul W. Whelan, Seattle, for appellant.
McMullen, Brooke, Knapp & Grenier, E. H. Knapp, Jr., Seattle, for respondent.
Joseph Caldwell appeals from the entry of a judgment summarily dismissing his suit against Yellow Cab Service, Inc. Caldwell seeks damages for personal injuries he allegedly sustained in a fall on Yellow Cab's premises.
Yellow Cab advances two theories in support of the summary judgment. The first is that the cognizable evidence demonstrates that Caldwell was the employee of Yellow Cab and therefore barred by the Industrial Insurance Act from bringing a civil action against Yellow Cab. 1 Yellow Cab's second theory is that even if Caldwell was not an employee of Yellow Cab, he is estopped from maintaining this action because he applied for an received an industrial insurance award.
Yellow Cab submitted an affidavit signed by an individual who identified himself as the 'superintendent' of the corporation. The affidavit in its entirety is as follows:
The plaintiff, Joseph Lee Caldwell, was an employee of Yellow Cab Service, Inc., and in the scope of his employment at the time of his accident. He was covered by the Washington State Workmen's Compensation Act and has applied for and received the benefits due him under that act for the injuries he is suing for in this lawsuit. Copies of portions of the State Industrial file are attached showing the defendant is the plaintiff's employer--and that the plaintiff has received the benefits of the act.
Attached to the affidavit is a copy of a Department of Labor and Industries form entitled .' The form was signed by a 'manager' of Yellow Cab, and it names Yellow Cab Service, Inc., as Caldwell's employer. It states that the business of the employer is 'Taxi' and that the occupation of the workman is 'Driver.' (Caldwell's occupation, taxicab driving, is classified as 'extrahazardous' by RCW 51.12.010.) It further reports that the period of employment has been one year and nine months and that the workman's hours have been included in payrolls reported to the Department of Labor and Industries.
Copies of other forms attached to the affidavit indicate that Caldwell has been awarded time loss compensation for the injuries he received.
Although not included (apparently by oversight) in the agreed statement of facts as authorized by CAROA 34(4), Caldwell admits in his brief that he completed a 'Workmen's Report' form. The form, which is reproduced in Yellow Cab's brief, lists 'Yellow Cab Co.' as Caldwell's employer. Caldwell's signature appears below the statement, 'I declare that the foregoing statements are true to the best of my knowledge and belief.'
Yellow Cab made no other showing in support of its motion for summary judgment.
In his own affidavit in opposition to Yellow Cab's motion for summary judgment, Caldwell said,
That he is the plaintiff in the aboveentitled action and that he commenced working with the Yellow Cab organization in August, 1963.
That he drove cab Number 99 and Number 168 and that he believed these cabs to be owned by Dick Furley. Whenever the cab broke down, he took the cab to Mr. Furley's garage for repair. Mr. Furley's garage is in an alley between Boylston and Broadway Streets, Seattle, Washington.
In conversation with Mr. Furley, he indicated that he paid the dispatcher and for gasoline and insurance.
The only thing in the cab that Mr. Furley did not fix in his garage were the meters, which hed to be done in the meter shop.
I knew that the amount of money I took in eventually went to Mr. Furley, although it was turned in at the Yellow Cab Garage at 902 Madison, Seattle, Washington.
Yellow Cab Service, Inc. took out all the expenses for insurance, gas, dispatcher, etc. and the remainder went to Mr. Furley.
When I was working back in 1963, all the cabs including those I drove for Mr. Furley, used to have 'DRIVER-OWNER' painted on their doors.
An affidavit of Caldwell's attorney states that in other litigation handled by his law firm, officers of Yellow Cab had admitted that its business is solely that of providing services to individual owners of taxicabs and that it has nothing to do with the operation of the cabs. Counsel's affidavit includes quotations from the depositions of the president and secretary of Yellow Cab to support this assertion.
Caldwell's showing in opposition to the motion for summary judgment would permit a finding that although Yellow Cab in some instances arranges for the hiring of drivers for the individual cab owners, it employs no drivers on its own account; that although it forwards industrial insurance premiums to the Department of Labor and Industries on behalf of the drivers, it does so as part of its services to the individual cab owners, charging the owners' account for industrial insurance just as it does for wages, social security, unemployment compensation, and income tax withholding.
Yellow Cab argues, citing Loss v. DeBord, 67 Wash.2d 318, 407 P.2d 421 (1965), that the affidavit of Caldwell's counsel may not be considered because it fails to comply with CR 56(e), which provides that
Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissable in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions or by further affidavits.
Specifically, Yellow Cab notes that the evidentiary facts stated in counsel's affidavit are not based upon his personal knowledge. For that reason, says Yellow Cab, the affidavit was entitled to no consideration in determining whether summary judgment should be entered.
Counsel's affidavit, however, was merely a vehicle for bringing evidentiary facts to the record. It is true that counsel had no testimonial knowledge of omst of the material evidentiary facts presented in his own affidavit, but he stated under oath that officers of Yellow Cab had made sworn statements in pretrial...
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