Opinion
37418.
DECIDED NOVEMBER 14, 1958. REHEARING DENIED NOVEMBER 25, 1958.
Workmen's compensation. Dougherty Superior Court. Before Judge Crow. August 20, 1958.
Robert M. Drake, Rosser Malone, Robert D. Hedrick, for plaintiff in error.
Durden Durden, A. N. Durden, contra.
The judge did not err in affirming the award of the Workmen's Compensation Board.
DECIDED NOVEMBER 14, 1958 — REHEARING DENIED NOVEMBER 25, 1958.
An application for compensation under the Workmen's Compensation Act was filed by Green H. Gary against Joe Malone, doing business as the Harlem Cab Company.
On the hearing it was stipulated that: Joe Malone applied for and obtained a permit to operate thirty-nine taxicabs in Albany, Georgia. The evidence disclosed in part that: each of the thirty-nine cabs had "Harlem Cab Company" written on its side; Malone owned only one of the thirty-nine cabs; he allowed the owners of automobiles to operate on his line for a fee of $3.00 per week; the owners of the cabs made their own financial arrangements with the cab drivers; the claimant drove a cab owned by George Holliday which was operated on the Harlem Cab Company line; the claimant earned an average weekly wage of $45; the claimant was injured while changing a tire on the cab he was driving.
The ordinance under which Malone obtained the license to "engage in the business of operating taxicabs" provides:
"Taxicabs and Vehicles for Hire. Article I. In General.
"Sec. 1. Definitions. The word `taxicab' as used in this chapter is defined to be a motor driven vehicle seating not less than five passengers and not more than seven passengers, including the driver.
"The word `driver' as used in this chapter shall mean and include any and every person in charge of or operating a taxicab, as herein defined, whether as owner, agent, employee or otherwise. (Ord. No. 1434.)
"Sec. 2. Permit required; compliance with chapter. It shall be unlawful for any person to engage in the business of operating taxicabs on the highways of the city until they have secured a permit and otherwise complied with provisions of this chapter. (Ord. No. 1434.)
"Sec. 3. Application for permit; information required. Every person desiring to engage in the business of operating taxicabs in the city shall, in each and every year in which the business is proposed to be carried on, first make a written application to the police committee of the board of commissioners for a permit to operate such business on the streets and highways of the city. Such application shall be in writing, verified under oath that the contents are true, and shall be filed with the city clerk. The application shall contain the full name and address of the applicant and the location from which the proposed business is to be operated; if a corporation, the name of all the officers; if a partnership, the name of all the partners; the number of vehicles to be operated under such permit, if granted; the type of automobiles to be used together with the motor number and tag number of each vehicle, and such other information as the police committee may require. (Ord. No. 1434.)
"Sec. 4. All vehicles to be owned by applicant. All of the vehicles operated under a permit, required by Section 2, of this chapter, must be owned by the applicant. (Ord. No. 1434.)
"Sec. 5. Investigation of applicant for permit. The police committee shall make or cause to be made an investigation including any hearing deemed to be necessary as to each application for a permit for the operation of such taxicabs. In determining whether a permit shall be issued the police committee may investigate the fitness of the applicant to engage in the business of operating taxicabs and whether or not the public interest requires the services. (Ord. No. 1434.)
"Sec. 6. Refusal of permit; right of appeal. If the police committee should find that the public convenience and necessity do not justify the services, or that the applicant is not a fit and proper person or not qualified to engage in the taxi business, the permit, required by section 2 of this chapter, may be refused. From the decision of the police committee in refusing any permit the applicant shall have the right to file an appeal to the board of commissioners. Such appeal shall be in writing and filed with the city clerk within five days from the decision complained of. The decision of the board of commissioners shall be final. (Ord. No. 1434.)
"Sec. 7. Issuance of permit. If the application for a permit is approved by the police committee, the committee shall issue the applicant a permit to operate a designated number of taxicabs upon compliance with all of the provisions of this chapter. (Ord. No. 1434.)
"Sec. 8. Issuance of licenses; posting, etc. The applicant shall then present the permit to the city clerk and shall likewise deposit with the city clerk an insurance policy as required by section 9 of this chapter, and shall satisfy the city clerk that each vehicle has been properly inspected and approved by the chief of police. Upon payment of the license fees prescribed by the city, and upon compliance with the provisions of this chapter, a license shall be issued by the city clerk by delivering to the owner for each car a suitable card, signed by the city clerk, which shall contain the official license number of the taxicab. Such card shall be continuously displayed in a conspicuous place in the taxicab. (Ord. No. 1434.)
"Sec. 9. Liability Insurance. No person shall be allowed to drive or operate a taxicab in the city, and it shall be unlawful so to do, unless and until a liability insurance policy is procured and filed with the city clerk. Such policy must be signed by a surety or insurance company authorized to do business in Georgia, and the form of policy shall be approved by the city attorney and the police committee. The amount of liability insurance for each taxicab shall be as follows: An amount of not less than five thousand dollars for personal injury for any one accident, and not less than one thousand dollars for property damage in any one accident. A policy in the above amount shall be furnished for each car or taxicab operated The policy may be in the form of a `fleet policy' covering all taxicabs operated by any one owner, in which event such policy shall provide the minimum amount of coverage, as above enumerated, for each taxicab operated by the owner. Before any policy of insurance as hereinbefore provided shall be cancelled for nonpayment of premiums or otherwise, notice in writing must be given to the city clerk at least ten days before the same shall take effect. The liability insurance required by this section shall be for the benefit of the city and for the use and benefit of the public. (Ord. No. 1434.)
"Sec. 13. Name of owner and `taxicab' to be painted on each vehicle. It shall be necessary for every vehicle for hire or taxicab to have a sign plainly painted on each side and on the rear of each vehicle in letters not less than three inches in height, the full name of the company or individual owning or operating the vehicle, and also the word `taxicab'. (Ord. No. 1434.)
"Sec. 14. Number. There shall be painted on each side and on the rear of every vehicle for hire or taxicab a number, such number to be a separate and distinct number from that on any other taxicab in the city. The number shall be assigned to the vehicle or taxicab and the owner thereof by the chief of police of the city and shall not be altered or changed without the consent of such officer. (Ord. No. 1434.)
"Sec. 15. Register is to be kept by the city clerk. The city clerk shall keep a register of the name of each person owning and operating a taxicab licensed under this chapter, containing the description, make of car, and number of the vehicle assigned by the chief of police. Such records shall be open to inspection by the public at all reasonable hours. (Ord. No. 1434.)"
The director found in favor of the claimant, and the alleged employer appealed to the full board. The full board affirmed the award and the alleged employer then appealed to the superior court. The judge affirmed the award, and it is to this ruling exception is taken.
Malone insists he was not the claimant's employer because he merely charged Holliday a fee for allowing him to operate the cab in his line and the claimant's dealings were with Holliday and not him. Malone applied for and obtained a license to engage in "the business of operating taxicabs in the City of Albany." While he did not comply with the provisions of the ordinance which required him to own the taxicabs under the license issued to him, this would not relieve him of the responsibilities imposed by such ordinance. "Individuals do not have the inherent right to conduct their private businesses in the streets of a city. A city can prohibit the owners or operators of taxicabs and buses from transporting passengers for hire in such vehicles upon the streets of the city. The transportation of passengers for hire in such vehicles or otherwise is a privilege which the municipality can grant or withhold. As the owners or operators of taxicabs or jitney-buses have no right to transport passengers for hire on the streets of the city, and as the city can prohibit wholly or partially the conduct of such business in its streets, if the city sees fit to grant permission to individuals to conduct such business in its streets it can prescribe such terms and conditions as it may see fit, and individuals desiring to avail themselves of such permission must comply with such terms and conditions, whether they are reasonable or unreasonable. Schlesinger v. Atlanta, 161 Ga. 148 ( 129 S.E. 861)." Clem v. City of LaGrange, 169 Ga. 51 (4) ( 149 S.E. 638, 65 A.L.R. 1361). It is clear from the language of the ordinance that it was the intent that whoever obtained such license did so for the purpose of actually engaging in the business of operating taxicabs. This being true the person obtaining such a license would not be allowed to avoid the duties of operating the company by allowing automobile owners to operate as independent contractors on his line for a certain fee, and thereby avoid liability under the Workmen's Compensation Act. Under authority of Diamond Cab Co. v. Adams, 91 Ga. App. 220 ( 85 S.E.2d 451); Aetna Cas. c. Co. v. Prather, 59 Ga. App. 797 ( 2 S.E.2d 115), Malone was the claimant's employer and is liable for compensation due him under the Workmen's Compensation Act.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.