West End Cab Co. v. Stovall

• Citation: 106 S.E.2d 810,98 Ga.App. 724
• Decision Date: 14 November 1958
• Docket Number: No. 37280,No. 1,37280,1
• Parties: WEST END CAB COMPANY, Inc. v. Elizabeth STOVALL
• Court: Georgia Court of Appeals

Page 810

106 S.E.2d 810

98 Ga.App. 724

WEST END CAB COMPANY, Inc. v. Elizabeth STOVALL.

No. 37280.

Court of Appeals of Georgia, Division No. 1.

Nov. 14, 1958.

Rehearing Denied Dec. 1, 1958.

Syllabus by the Court

Where a taxicab bearing the name or markings of a common carrier is customarily operated in carrying on the carrier's business and when so operated is being driven by one, who is subject to the supervision and control of the carrier, traverses the public streets and thoroughfares, the presumption arises that the driver is acting within the scope of his authority and in the prosecution of the carrier's business.

Elizabeth Stovall filed suit against the West End Cab Company, Inc., d/b/a City Wide Cab Company for injuries sustained by the plaintiff in a collision between an automobile and a taxi which had the defendant's name written on its side, and was being driven by William M. Jackson, now deceased.

The collision occurred at approximately 11 a. m. on March 8, 1956, at the intersection of Lucille Avenue and Lawton Street in Atlanta, Georgia. The only issue to be decided by this court is whether there was evidence sufficient to present a jury question as to whether Jackson was the defendant's agent acting within the scope of his employment. Therefore, we will set out only the evidence pertinent to this issue.

W. F. Jones, president of the defendant corporation, testified in part that: the company had approximately 75 employees, who operated switchboards, supervised and drove cabs, Jackson worked for the defendant; on the date of the collision Jackson was driving a cab, owned by Jackson, on the defendant's cab line; the cab bore the markings of the defendant company; he did not know whether Jackson was working at the time; whatever shift Jackson was working it was up to the supervisor to direct the time he worked; Jackson paid the defendant a certain sum each week to operate his cab on the defendant's line; this fee was paid because the defendant furnished telephone service, and supervision and taking care of repair work on the cab; calls would come into the company and they were sent out to the cabs by radio or telephone; Jackson was employed as a desk clerk at the Hampton Hotel; Jackson worked one or two nights a week when he was off at the hotel; he could also work in the daytime; the defendant kept books of the mileage of the cabs because the defendant paid the city mileage tax; he considered Jackson an employee when he was on duty; Jackson had a permit from the Atlanta Police Department.

Bernard Bayliss, bookkeeper for the defendant, testified in part that: Jackson owned his own cab and paid the defendant $34.25 per week to participate in the calls of the company; Jackson was at liberty to use the cab as he pleased; the daily record sheets of the company do not show that Jackson worked nor that his cab was used on March 8, 1956; Jackson didn't have a regular shift but he usually worked about two nights a week; usually Jackson got off at the hotel at 11 p. m. and he would work a little and then take the cab home; he knew no reason why Jackson should have been in the vicinity of Lucille Avenue and Lawton Street; Jackson was free to go and come as he pleased; he imagined Jackson worked some in the daytime; when Jackson was not driving the cab the defendant would put a driver on it for him when drivers were available; he could not remember whether Jackson was working on March 8, 1956, but the records did not show that he worked on that date; he could not remember exactly what he was doing on March 8, 1956; Jackson used the defendant's radio and telephone service; when Jackson was working he took calls from the defendant's radio dispatcher; Jackson paid the employment tax on the driver of his cab; if a cab was not being operated properly the supervisor had the right to take the driver off.

On the trial, the jury returned a verdict for the plaintiff. The defendant filed a motion for a judgment notwithstanding the verdict which was denied. It is to this ruling the defendant excepts.

Ralph Spain, A. Walton Nall, Nall, Sterne, Miller, Cadenhead & Dennis, Atlanta, for plaintiff in error.

Calhoun & Calhoun, Walter W. Calhoun, Atlanta, for defendant in error.

QUILLIAN, Judge.

If the evidence showed the relationship between Jackson and the West End Cab Company, Inc., was that of master and servant there can be no question that the rule laid down in Yellow Cab Co. v. Nelson, 35 Ga.App. 694(1), 134 S.E. 822 is applicable to the facts of this case. In the Yellow Cab Co. v. Nelson, supra, it was held: 'Where it is shown, by evidence that an automobile was operated upon the public street in the usual way in which automobiles are operated, and that it was at that time in the possession and control of the owner's servant, the jury may infer that the servant was using it in the prosecution of the owner's business and within the scope of the servant's employment.'

Fidelity & Cas. Co. of New York v. Windham, 209 Ga. 592, 74 S.E.2d 835, 837 is a workmen's compensation case, and while it deals with the question as to who is an employer within the meaning of the Workmen's Compensation Act and the definition of Code § 114-101, it also holds that under the peculiar facts of that case the relationship of master and servant did not exist. The case turned upon the decision that one who rents a cab from a taxicab company at a stipulated price, with the understanding that the company will radio messages as to the location where prospective passengers may be found and furnished transportation does not create the relationship of master and servant. It is pointed out that under such arrangement the taxicab company has no supervision 'over the method, time, and manner in which the claimant operated the cab.' The case in effect places the claimant in the category of an independent contractor.

The facts upon which the decision there was made were diametrically opposite from those of the case we now review. There the driver was not subject to the orders of the taxicab company, here the undisputed evidence is that he worked under the supervision and control of the company. Hence Fidelity &...