Opinion
33410.
DECIDED FEBRUARY 1, 1951. REHEARING DENIED MARCH 20, 1951.
Refund of contributions; from Clarke Superior Court — Judge West. November 14, 1950. (Application to Supreme Court for certiorari.)
Clifford Walker, J. Benton Evans, for plaintiff in error.
James Barrow, John L. Green, contra.
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.
DECIDED FEBRUARY 1, 1951. REHEARING DENIED MARCH 20, 1951.
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 taxicabs 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 plaintiff carried all insurance, paid all premiums and settled and negotiated all claims. The plaintiff set a uniform rate for fares charged by the drivers. Drivers were supposed to report to the plaintiff before going out of town, and had to pay additional charges for long distance trips out of town.
A verdict was found for the plaintiff for that portion of the sum stipulated by the parties as not barred by the statute of limitations. The defendant then filed a motion for a new trial on the general grounds which was overruled, and this judgment is assigned as error.
The purpose of the Unemployment Compensation Law as set out in Chapter 54-6, Code (Ann. Supp.) is to prevent economic insecurity due to unemployment by encouraging employers to provide more stable employment and to accumulate funds to provide benefits for periods of unemployment, and for this purpose it must be liberally construed and applied. Code (Ann. Supp.) § 54-602; Young v. Bureau of Unemployment Compensation, 63 Ga. App. 130 ( 10 S.E.2d 412), at page 135.
Code (Ann. Supp.) § 54-657 (h) (6) provides as follows: "Services performed by an individual for wages shall be deemed to be employment subject to this Chapter, unless and until it is shown to the satisfaction of the Commissioner that: (A) Such individual has been and will continue to be free from control or direction over the performance of such services, both under his contract of service and in fact; and (B) Such service is either outside the usual course of the business for which such service is performed, or that such service is performed outside of all the places of business of the enterprise for which such service is performed; and (C) Such individual is customarily engaged in an independently established trade, occupation, profession or business." Code (Ann. Supp.) § 54-657 (n) defines wages as "all remunerations for personal services, including commissions and bonuses and the cash value of all remuneration paid in any medium other than cash."
As to subsection (A) the undisputed testimony showed that the drivers of the plaintiff's taxicabs, while free from his direction and control in certain respects, were under his direction and control in that they were subject to dismissal for discourtesy to patrons, intoxication, reckless driving and so on, and that this dismissal could be summary in nature, and was not subject to any period of time set out in any lease or rental agreement. As to subsection (B) the evidence showed that the service was performed in the usual course of the business of the Everready Cab Company which was also in the usual course of the business of the individual taxicab drivers, and was performed in part at least within the place of business of the enterprise for which it was performed, in that the company received telephone calls for patrons and relayed them to drivers over its own system, with the operation of which the drivers were not concerned, and also that the company provided waiting rooms for patrons and a place where the taxicabs came into the premises and waited in line to receive patrons waiting for such transportation. As to subsection (C) the evidence was undisputed that in order for any taxicab driver in the City of Athens to operate a cab in that city it was necessary not only that he have an individual license, but that this license be used under and in connection with a franchise or permit granted to some person, firm or corporation who had qualified as a common carrier for hire and who carried insurance and otherwise fulfilled the conditions of the franchise. None of the drivers in question had such a franchise, nor did they customarily engage in an independently established trade or occupation. There was evidence that when they desired to do so they would leave the plaintiff's company and work for Veterans Cabs or some other taxicab company, and perhaps later return to the plaintiff's company. It is therefore apparent that the drivers in question fall under none of the exceptions to the word "employment" as defined in the act, and that their remuneration consisted of wages as defined by subsection (n) of Code (Ann. Supp.) § 54-657 in the amount of the fares which they were able to collect less the stipulated sum of $6 per day which was paid to the plaintiff.
Where a corporation merely leases space within its building to another who there conducts an independent business which is in no way controlled by the corporation, an employee of the lessee who is paid wages by him is not an employee of the corporation under the terms of the Unemployment Compensation Law. Huiet v. Great A. P. Tea Co., 66 Ga. App. 602 ( 18 S.E.2d 693). Where, however, the owner of a barbershop "leased" chairs to individual barbers under an agreement whereby the barbers worked in the defendant's shop, furnished their own tools, and paid to the defendant 40% of their collections, they were employees and receiving wages under the terms of the act, and "it is immaterial whether the parties come within the relation of master and servant or independent contractors." Young v. Bureau of Unemployment Compensation, 63 Ga. App. 130 (supra). To the same effect see also Brewster v. Huiet, 69 Ga. App. 593 ( 26 S.E.2d, 198); Kaus v. Unemployment Compensation Comm., 230 Iowa 860 ( 299 N.W. 415); Fitzgerald v. Cardwell, 207 Mo. App. 514.
It is apparent in this case, as in the Young case, that the relationship of the plaintiff and his drivers was not that of a mere leasing of property, such as existed in the A. P. Tea Co. case where said company leased space to another to conduct an independent business, but that on the contrary the sums received by the drivers were wages in contemplation of the act, the drivers not coming under the exceptions stated in subdivisions A, B and C of Code (Ann. Supp.) § 54-657 (h) (6). This being so, the trial court erred in overruling the defendant's motion for a new trial.
Judgment reversed. MacIntyre, P.J., and Gardner, J., concur.