Summary
holding that a taxicab driver who leased his vehicle from a cab company was an independent contractor rather than an employee of the cab company, even though the driver was obligated by his contract to not possess a handgun while driving the cab and to prevent any other person from operating the cab, where the driver kept all his fees and tips, was not restricted to any geographic area and was free to refuse calls from the cab company's dispatcher
Summary of this case from Travelers Indemnity Company v. Crown Cab Company, Inc.Opinion
No. COA98-282
Filed 19 January 1999
1. Evidence — employer-employee relationship — memoranda and affidavit — dated after decedent's death — not probative
In a workers' compensation action arising from the death of a taxicab driver, an affidavit from another driver of taxicabs owned by defendant which contained memoranda should not have been relied upon by the Commission because the memoranda and affidavit were dated after the driver's death. They are not probative of whether an employee-employer relationship existed between the driver and defendant at the time of the driver's death.
2. Workers' Compensation — employer-employee relationship — leased taxicab
The Industrial Commission erred in a workers' compensation action by finding that an employer-employee relationship existed between a taxicab driver and defendant where the driver was fatally wounded while operating a taxicab leased from defendant. Standing alone, provisions in the contract between the driver and defendant regarding possession of handguns while driving the leased taxicab and permission for any other person to operate the cab do not establish that the driver was defendant's employee.
Appeal by defendant from opinion and award entered 5 September 1997 by the North Carolina Industrial Commission. Heard in the Court of Appeals 17 November 1998.
Parrish, Newton Rabil, LLP, by Daniel R. Johnston and Carl F. Parrish, for plaintiff-appellee Richard Dean Fulcher.
Davis and Hamrick, L.L.P., by Shannon L. Warf, L. Kathryn Slocumb, and H. Lee Davis, Jr., for defendant-appellant.
Defendant Willard's Cab Company has a franchise from the City of Winston-Salem to operate a taxicab business. It owns a number of vehicles equipped for use as taxicabs. On 26 October 1994, defendant and Byron Richard Wall entered into a contract in which defendant was designated as "lessor" and Wall was designated as "lessee." Defendant agreed to rent a taxicab in good condition to Wall, to provide liability insurance on the taxicab, and to maintain it. Wall was to pay defendant for the use of a taxicab each time he drove one. This "per-shift" fee was $55.00. The lease provided that Wall was free from defendant's "control or direction," and that he was to "exercise complete discretion in the operation" of the leased taxicab. Wall was to keep all fees and tips he collected, and he was not restricted to any specific geographic area in the operation of his taxicab. He was also free to take or refuse calls from defendant's dispatcher.
The lease expressly denied any employer-employee relationship between Wall and defendant. Defendant did not withhold income taxes or Social Security taxes from Wall. The lease further provided that Wall was not to "carry or possess a handgun" while operating the vehicle, and was not to "permit . . . the operation of the . . . vehicle as a taxicab by any person other than . . . himself." Wall was also required to comply with certain Winston-Salem ordinances regulating the operation of taxicabs.
On 1 November 1994, Wall was operating a taxicab leased from defendant. He accepted a dispatch to pick up a passenger at approximately 1:00 a.m. About 1:35 a.m., he was found outside his cab, bleeding from a gunshot wound to the back of the head. He later died as a result of the wound.
The decedent's estate filed a workers' compensation claim some time prior to 18 December 1995. Some time between 6 February 1996 and 6 June 1996, the decedent's dependent child, Richard Dean Fulcher, and the decedent's parents, Mr. and Mrs. R.H. Wall, were substituted as plaintiffs. Fulcher is represented by his mother and guardian ad litem, Barbara Wall.
Sustaining the decision of the deputy commissioner, the Full Commission found that an employer-employee relationship existed and that Wall was fatally wounded in the course and scope of his employment. It confirmed the award of benefits to the plaintiffs.
On appeal, defendant contends that the Commission erred by admitting into evidence the affidavit of Spurgeon W. Wood, by finding that an employer-employee relationship existed between Wall and defendant, and by finding that the death of Wall was attributable to an accident arising out of and in the course of his employment.
I
After evidence was presented to the deputy commissioner, plaintiffs were allowed to introduce into evidence an affidavit of Spurgeon Wood, who also drove taxicabs owned by defendant. The affidavit contained two memoranda dated 17 November 1994 and 22 August 1995 respectively. The November 1994 memorandum informed "All Drivers" that thenceforth, there would be different check-in times and the drivers could select their times. The August 1995 memorandum, addressed to "All Owner Operators," stated that they would "be given two weeks of vacation on their vehicles." Defendant contends that these documents should not have been admitted for the purpose of establishing that Wall was defendant's employee. We agree.
"`As a general rule, mere . . . proof of the existence of a condition or state of facts at a given time . . . does not raise any presumption that the same condition or facts existed at a prior date.'" Sloan v. Light Co., 248 N.C. 125, 133, 102 S.E.2d 822, 828 (1958) (quoting 31 C.J.S. Evidence, § 140). The memoranda and affidavit are dated after Wall's death. They are not probative of whether an employee-employer relationship existed between Wall and defendant at the time of Wall's death. The Commission should not have relied on them to reach its decision. The Commission's Finding of Fact Number Nine, to the effect that on 1 November 1994 defendant had "a schedule requiring drivers to check in at specified times," is not supported by competent evidence.
II
We next consider whether Wall was an employee of defendant at the time of his death. "[T]he existence of the employer-employee relationship at the time of the accident is a jurisdictional fact. . . . The reviewing court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record." Lucas v. Li'l General Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976). The law applicable to this issue is summarized in Gordon v. Garner, 127 N.C. App. 649, 658-59, 493 S.E.2d 58, 63 (1997) (footnotes omitted), disc. review denied, 347 N.C. 670, 500 S.E.2d 86 (1998):
In Hayes v. Elon College, [ 224 N.C. 11, 29 S.E.2d 137 (1944),] our Supreme Court concluded that the central issue in determining whether one is an independent contractor or an employee is whether the hiring party "retained the right of control or superintendence over the contractor or employee as to details." [ Id. at 15, 29 S.E.2d at 140.] The court then went on to explain that there are generally eight factors to be considered, none of which are by themselves determinative, when deciding the degree of control exercised in a given situation. These factors include whether . . . "[t]he person employed (a) is engaged in an independent business, calling or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time." [ Id. at 16, 29 S.E.2d at 140.]
In this case, the Commission's findings of fact do not support its conclusion that an employer-employee relationship existed between defendant and Wall. These findings indicate that "the right of control did not rest" with defendant. Alford v. Victory Cab Co., 30 N.C. App. 657, 661, 228 S.E.2d 43, 46 (1976).
Alford also involved a taxicab driver who leased his vehicle for a fixed amount per shift and retained his fares and tips. There, on the issue of the driver's employment status, we said,
Findings of fact support the Commissioners' conclusion that appellant was an independent contractor, because the right of control did not rest in Victory. Claimant rented a taxicab from Victory for a twenty-four hour period for a flat fee of $15, and Victory had no supervision or control over the manner or method claimant chose to operate that cab. Claimant had complete control over his work schedule while he used the cab. He could disregard the radio dispatcher, use the cab for his own purposes during the time it was rented, and he kept all the fares and tips he earned.
Id. at 661, 228 S.E.2d at 46 (citations omitted).
Plaintiffs argue that this case is distinguishable from Alford because here, (1) Wall was obligated by his contract with defendant not to carry or possess a handgun while driving defendant's taxicab and not to permit any other person to operate the cab, and (2) the contract states that the handgun restriction was "in the interest of both parties to enhance the public image, promote personal safety and increase revenues." While these provisions do show that defendant exerted some control over Wall's work, they are the only such evidence of an employer-employee relationship. Standing alone, they do not establish that Wall was defendant's employee.
As noted above, the Hayes court indicated that when a worker has the "free[dom] to use such assistants as he may think proper," it suggests that he is an independent contractor rather than an employee; in contrast, Hayes implies, a worker is more likely to be an employee of another when the other party has prohibited him from procuring and using assistants. 224 N.C. at 16, 29 S.E.2d at 140. In this case, however, the contractual provision prohibiting non-lessees from operating defendant's taxicabs does not demonstrate defendant's employer-like control over Wall. Rather, this provision was designed to protect defendant's property from being operated by persons it had not approved. This case is not a case like Hayes, where a contract for the installation of six telephone poles and the transfer of electrical wires from old poles to the new poles prohibited the installer from choosing and hiring his own assistants. Performance of the Hayes contract required the labor of many people, whereas the performance of Wall's side of the contract in this case required the labor of just one person: Wall, the cab driver.
The Commission's findings do not show that defendant had the right to exert an employer's degree of control over Wall. Because an employer-employee relationship is a prerequisite to coverage by, and recovery under, the Workers' Compensation Act, see N.C. Gen. Stat. § 97-2 (Cum. Supp. 1997), § 97-3 (1991); Lucas, 289 N.C. at 218, 221 S.E.2d at 261, and because that relationship is lacking in this case, we need not reach defendant's remaining assignment of error.
Reversed.
Judge HORTON concurs.
Judge GREENE concurs in the result.