Safety Cab, Inc. v. Indiana Employment Sec. Bd., 967A66
| Decision Date | 26 November 1968 |
| Docket Number | No. 1,No. 967A66,967A66,1 |
| Citation | 242 N.E.2d 25,143 Ind.App. 572 |
| Parties | SAFETY CAB, INC., Red Cab, Inc., Appellants, v. INDIANA EMPLOYMENT SECURITY BOARD: Albert L. Summers, Dr. I. Lynd Esch, Richard B. Stoner, Dallas Sells, and Albert H. Cole, Jr., members of the Indiana Employment Security Board; and Lewis F. Nicolini, Ex Officio Secretary to the Indiana Employment Security Board; and John C. Castelli, Liability Referee, Appellees |
| Court | Indiana Appellate Court |
John C. O'Connor, Ruckelshaus, Bobbitt & O'Connor, Indianapolis, for appellants.
William E. Matheny, Deputy Atty. Gen., John J. Dillon, Atty. Gen., of Indiana, for appellees.
This matter comes to us for a judicial review of a decision rendered by the Liability Referee of the Indiana Employment Security Board. The appellants initiated this action by filing with the Indiana Employment Security Board their individual protests to assessments and demands made upon them for payment of contributions as employers for the years 1961 through the third quarter of 1965, under the Employment Security Act. The appellants requested hearings on the protests and thereafter by agreement of the parties the hearings were consolidated and held on November 26, 1966, before John C. Castelli, Liability Referee.
The appellants contended two points in their protests: First, that the drivers were not employees of the taxicab owners, within the meaning of the applicable statutes, but that in fact they were independent contractors; and second, that the 1961 contributions claimed were barred by the statute of limitations.
The liability referee upon hearing the case, determined, that each of the appellants was subject to make such contributions under the Act as assessed, and from this ruling the appellants seek this review, asserting as error that such determination was contrary to law. The decision of the Liability Referee reads as follows:
'DECISION OF THE LIABILITY REFEREE
Rendered on the 1st day of August, 1967
'A protest was timely received from each of the above named parties to the Board's Notice and Demand for Payment of assessments, including interest and penalty, for the years 1961, 1962, 1963, 1964, and the 1st, 2nd and 3rd Quarters of 1965 in the following amounts:
Notice & Demand No. Total
------------------- -----
Safety Cab, Inc. 22270 $17,206.90
Red Cab, Inc. 22271 7,323.29
'Pursuant to notice to all interested parties, a hearing was set and evidence received at Indianapolis, Indiana on November 16, 1966, and by agreement of the parties thereat the above entitled matters were consolidated for the purpose of hearing such evidence and rendering a decision.
'The protesting employers entered an appearance by counsel, Mr. John C. O'Connor, Attorney at Law, 129 East Market Street, Indianapolis, Indiana. The Indiana Employment Security Division was represented by the Attorney General's office by Mr. William E. Matheny, Deputy Attorney General.
'The Section of the Indiana Employment Security Act involved in the instant case is 801 and subsection 801(a), which reads as follows:
'Sec. 801. 'Employment,' subject to the other provisions of this Section, means service, including service in interstate commerce performed for remuneration or under any contract of hire, written or oral, express or implied.
'(a) Services performed by an individual for remuneration shall be deemed to be employment subject to this Act unless and until it is shown to the satisfaction of the Board that (A) such individual has been and will continue to be free from control or direction over the performance of such service, both under his contract of service and in fact; and (B) such individual, in the performance of such services is engaged in an independently established trade, occupation, profession or business; or is an agent who receives remuneration solely upon a commission basis and who is the master of his own time and effort.'
'The question presented to the Liability Referee for decision in this matter is whether the lease drivers of the taxicabs owned by the protesting employers were in employment subject to contributions within the meaning of Section 801 and subsection 801(a) of the Indiana Employment Security Act during the periods in question.
'The Liability Referee finds as an ultimate fact that the individuals who performed services as lease drivers for the protesting employer cab companies performed services for remuneration and were in the employment of the protesting employers, pursuant to subsection 801(a) of the Indiana Act, and that the remuneration paid the taxicab drivers for such services was wages subject to contributions.
'The Liability Referee finds the following evidentiary facts:
'1. A duly authorized Auditor of the Indiana Employment Security Division investigated the business operation of the above employers and, based upon information derived from such investigation the Indiana Employment Security Board issued Notice and Demand for Payment Nos. 22270 and 22271 on November 16, 1965, notifying the employing units of the assessments for additional contributions, interest and penalty in the amounts of $17,206.90 and $7,323.29, respectively, for the years 1961, 1962, 1963, 1964 and the 1st, 2nd and 3rd quarters of 1965.
'2. On November 29, 1965, the employers herein entered protests to the assessments for contributions, interest and penalty, as reflected by Notice and Demand for Payment Nos. 22270 and 22271 issued on November 16, 1965.
'3. Each cab driver herein involved operates a taxicab pursuant to the following Lease Agreement entered into between the individual drivers and the protesting employers:
'LEASE AGREEMENT
'This agreement made the day and date hereinafter named, between _ _ hereinafter designated as 'Lessor' and the driver hereinafter designated as the 'Lessee'.
'WITNESSETH:
'That in consideration of the promise and agreement of the parties hereto and the sums of money hereinafter agreed to be paid:
'1. The Lessor agrees to lease to the Lessee a taxicab maintained in proper operating condition as shall be prescribed by the laws governing the operation of taxicabs in the city of Indianapolis during the hours of the day and the days of the week as shall be designated by the Lessor. And, the Lessee agrees to lease such taxicab from the Lessor during such period as above.
'II. The Lessor Agrees:
'1. That the maintenance of such taxicab, taxicab meter and other equipment as above mentioned, as to labor, parts and other materials shall be furnished at its own expense and shall include necessary washing, greasing and mechanical services and repairs, replacement of tires and servicing of same, all at its own discretion: except that cost of repairs of replacement brought about by Lessee's abuse or carelessness or unlawful operation of such taxicab or equipment thereon may be charged to and become the responsibility of the Lessee.
'2. To provide at its own expense all necessary license fees or taxes having to do with the ownership of such vehicle or other equipment or brought about from the operation of such taxicab, except that any personal licenses or taxes from whatever source derived shall be the sole responsibility of the Lessee.
'3. To furnish a parking area for such taxicab covered by this agreement together with all necessary gasoline and oil: all of which shall be furnished at its expense, but the Lessor shall not be responsible for any gasoline or oil or other material purchased by the Lessee from an outside source, except under emergency conditions, and then only in such amount which is necessary and according to Lessor's direction.
'4. To provide protection against bodily injury or death to persons other than the Lessee and damages to property of such other persons brought about by the Lessee's operation of such taxicab, such protection to be of such limits and such type as shall be prescribed by the ordinances of the City of Indianapolis, governing the operation of taxicabs.
'5. Lessor shall maintain for and supply to each Lessee for his use in calculating his Federal and State tax liability, records of taxicab fares as recorded on the meter, lease rental, mileage and any other charges paid to or for the Lessor by the Lessee.
'6. Lessor shall furnish an acceptable form of workmen's compensation insurance.
'III. The Lessee on his part agrees:
'1. To operate such taxicab in accordance with all the laws of the City of Indianapolis governing the operation of taxicabs and motor vehicles and in accordance with all Indiana State laws and Federal laws governing such operations and to operate said taxicab in a safe manner and to conduct such operation in an orderly fashion.
'2. To abide by the policies set out by the Lessor for the maintenance of good public service and to do everything in his power to enchance (sic) good public relations.
'3. There shall be a deposit required of $15.00 to be utilized to reimburse the Lessor for any amount due the Lessor throught (sic) shortages, advancements, etc.
'4. The Net Rental Return to the Lessor shall be $_ _ per shift (12 hours constitutes a shift) in addition the Lessee shall pay the Lessor 5 cents per mile for all miles driven. A 'Hold Bac' (Twenty-four hours) the net shall be $_ _ per day and 5 Cents per mile driven.
'5. Lessees who check in late, shall pay the Lessor for all the time in excess of fifteen (15) minutes the sum of $_ _ (_ _) cents per hour or fraction thereof shall be additional.
'6. Reduction of charges under any emergency conditions shall be at the sole decision and discretion of the Lessor.
'7. Lessee shall maintain accurate trip records complete as required by city ordinances and shall supply these records at the expiration of each rental period. The Lessee shall also be obligated to immediately report, upon its happening or occurrence, any accident in which said...
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