Nesbit v. Powell
| Decision Date | 05 December 1977 |
| Parties | Ulyses NESBIT, Individually and d/b/a Friendly Cab Company, Appellant, v. Jesse POWELL, Appellee. 558 S.W.2d 436 |
| Court | Tennessee Supreme Court |
Jef Feibelman, Feuerstein, Feibelman & Kaminsky, Memphis, for appellant.
Walter Buford, Memphis, for appellee.
The only issue on the appeal of this workmen's compensation case is whether a taxicab driver was properly held to be an employee of the owner of the taxicab company 1 or whether he was an independent contractor. The trial court held that there was an employment relationship and awarded workmen's compensation benefits. We find material evidence to support this conclusion and affirm.
The driver of the taxicab, appellee, suffered total permanent disability when his cab was struck by another automobile. In a third party claim, he recovered the liability insurance policy limits from the operator of the other vehicle. Credit for that recovery has been applied against the workmen's compensation judgment pursuant to T.C.A. § 59-914. The taxicab driver was rendered quadriplegic as a result of spinal injuries suffered in the accident.
Appellant holds a franchise from the City of Memphis to operate a taxicab company, and he is the owner of a fleet of thirty-seven cabs. The name of the company and other information concerning the business are painted on the vehicles. All of the cabs are radio dispatched, and at the time of the accident in question appellee was driving his vehicle in response to a message from the dispatcher. While there is testimony in the record that the cab drivers are not required to answer calls from the dispatcher, such calls are an important source of passenger fares for most drivers. In addition, appellant holds contracts with certain firms in Memphis for the delivery of packages, and drivers of the various units usually make deliveries pursuant to calls from the dispatcher. All fares are prescribed by ordinances by the City of Memphis, and each driver collects his own fares and tips. He pays to appellant a fixed fee, or rental charge, for each shift and in addition usually purchases about three dollars worth of gasoline each day from pumps operated by appellant. These gasoline purchases are not mandatory but are customary. Appellant exercises some supervision over the operation of the cabs, and at one time he had a cab with the word "supervisor" painted on it. Appellant does not withhold income taxes or pay social security taxes on the drivers. He does supply oil for each vehicle, and his supervisors check cabs for cleanliness. It is the insistence of appellant that he is basically in the business or renting or leasing vehicles, and that the taxicab drivers are independent contractors.
While there have been no reported cases in this state on the subject, this insistence has been made in a number of other states with respect to the drivers of taxi cabs. The question has arisen in workmen's compensation cases and in other contexts, such as unemployment insurance or social security claims. While divergent results have been reached, usually dependent upon the particular facts and circumstances of each case, most of the more recent decisions involving workmen's compensation claims support the conclusion by the trial judge in the instant case that a relation of employer-employee exists between the holder of a taxicab franchise and the vehicle drivers. Some of the cases turn on factual aspects of the relationship, such as the right to control, right to terminate, etc., while others emphasize the fact that the holder of a taxicab franchise operates as a common carrier for hire and that the drivers are utilized by him in the conduct of a public franchise which may not be assigned or delegated.
In the recent case of Morgan Cab Co. v. Industrial Comm'n, 60 Ill.2d 92, 324 N.E.2d 425 (1975), the Supreme Court of Illinois affirmed a workmen's compensation award in favor of a taxicab driver on facts very similar to those in the present case. There the owner operated a fleet of some thirty taxicabs which were painted alike with the name and telephone number of the company on the doors. Each driver paid a fixed rental for a twelve-hour shift and purchased two dollars worth of gas each day from the company. Each driver was required to pick up ten passengers daily on dispatcher's call. The owner did not withhold taxes or pay social security on the drivers, but was required to carry workmen's compensation...
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Yellow Cab Cooperative, Inc. v. Workers' Comp. Appeals Bd.
...supra, 53 N.J.Super. 190, 147 A.2d 56; Ziegler v. Fillmore Car Service, Inc. (1981) 83 App.Div.2d 692, 442 N.Y.S.2d 276; Nesbit v. Powell (Tenn.1977) 558 S.W.2d 436; Department of Labor v. Tacoma Yellow Cab Co. (1982) 31 Wash.App. 117, 639 P.2d 843; Employment Sec. Comm'n v. Laramie Cabs (W......
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