Redwine v. Wilkes

• Decision Date: 01 February 1951
• Docket Number: No. 33410,No. 2,33410,2
• Citation: 83 Ga.App. 645,64 S.E.2d 101
• Parties: REDWINE, Revenue Comm. v. WILKES
• Court: Georgia Court of Appeals

Page 101

64 S.E.2d 101

83 Ga.App. 645

REDWINE, Revenue Comm. v. WILKES.

No. 33410.

Court of Appeals of Georgia, Division No. 2.

Feb. 1, 1951.

Rehearing Denied March 20, 1951.

SYLLABUS BY THE COURT.

Where, as here, one obtains a city franchise as a common carrier under the provisions of which he operates under a firm name as a taxicab company, and owns and operates a place of business with waiting room for patrons and telephone switchboard, including telephone relay system throughout the city as call stations to inform the drivers of calls; pays all license fees, taxes and insurance, owns all taxicabs and has them uniformly painted with the name and telephone number of his company thereon, and reserves and exercises the right to dismiss drivers for discourtesy, reckless driving or other causes, an arrangement between such person and the drivers whereby the drivers pay a fixed sum per diem to the company and retain all sums in excess thereof paid to them as fares (the rate of such fares being also fixed by the owner) is not a mere rental agreement, but such drivers are the employees of the company under the terms of the Unemployment Compensation Law.

The plaintiff, J. R. Wilkes, filed suit against Charles D. Redwine, in his representative capacity as State Revenue Commissioner, to recover sums paid under protest by the plaintiff as contributions under the Unemployment Compensation Law (Ga.L.1937, p. 806 et seq.) said payments being made to satisfy executions issued for such contributions by the State Revenue Commissioner in accordance with assessments by the Commissioner of Labor. The petition sets out in substance that the Commissioner of Labor contended that certain taxi drivers who had a working arrangement with the plaintiff were in fact his employees; that the relationship between the plaintiff, who was doing business as Everready Cab Company and the taxi drivers was that the plaintiff owned taxi cabs which he leased to certain drivers for the sum of $6 per day, the drivers retaining the entire amounts paid them by passengers for transportation, that the plaintiff paid the drivers nothing, had no right of control over them, did not require them to report for duty at any special time or to use his telephone system to accept calls, or to do any amount of work, and that the drivers bought their own gasoline and oil and were carrying on an independent business and were not his employees so as to make him subject to the provisions of the Unemployment Compensation Act. On the trial of the case the plaintiff testified that he owned the taxicabs in question and rented them out to drivers at a flat rate of $6 for a 12 hour shift; that he supervised the conduct of the operation of the cabs after they were qualified and approved by the city authorities; that he exercised no control over the drivers except to see that the operation of the car was in compliance with the city ordinances; that he kept a telephone system in connection with his business and had a switchboard and telephone operator to receive and relay calls and also a telephone system over town where drivers might call in to see whether there were calls available; that it was compulsory for drivers to buy from him gasoline and oil for their cabs when they checked in but not at other times; that he did not know how many passengers the drivers had or how much they earned; that often they would not report on getting their cars but would go for customers already contracted for; that during the time he was in business no driver provided a place of business or any taxicab or had any investment in the business; that he kept a room at his place of business where passengers might wait for cabs to come in, and that each automobile had the words 'Everready Cab Co.' and his telephone number thereon; that this listing also appeared in the classified directory, that no driver had an individual telephone or listing; that the cabs were all uniform in appearance; that when a driver came on the lot the plaintiff designated what cab he was to have; that he ran two shifts a day; that his dispatcher assigned calls on a 'first in, first out' basis, unless the call specified a particular driver; that if a driver appeared in an intoxicated condition he refused to let him have a cab and for a second offense dismissed him; that he had also withdrawn cabs from drivers for reckless driving, and that courteous and orderly conduct was insisted upon; that it was customary for the drivers to buy all their gasoline from the plaintiff, and that they received it for less than retail price; also, that the plaintiff made and paid for the repairs and upkeep of the taxicabs, tires, oil and license tags. An ordinance of the City of Athens provided for two classifications of franchises; first, a permit to operate a public taxicab business as a common carrier, which was owned by the plaintiff, and, second, a license authorizing a driver to operate a taxicab under such permit, which licenses were held by the individual drivers. The...