Alford v. Victory Cab Co., Inc.

228 S.E.2d 43 (1976) 30 N.C. App. 657

Johnny ALFORD, Employee-Plaintiff, Appellant,
v.
VICTORY CAB COMPANY, INC., Employer-Defendant, and
American Mutual Liability Insurance Company, Carrier-Defendants, Appellees.

No. 7626IC345.

Court of Appeals of North Carolina.

September 15, 1976.

Barry M. Storick, Charlotte, for employee-plaintiff, appellant.

Hedrick, Parham, Helms, Kellam & Feerick by Philip R. Hedrick and Edward L. Eatman, Jr., Charlotte, for carrier-defendants, appellees.

ARNOLD, Judge.

This appeal presents the question of whether appellant was an employee or an independent contractor. Appellant contends that he was not an independent contractor. He supports his argument by several cases from other jurisdictions. Our research reveals additional authority outside this State in support of the contention that a taxicab driver who rents his cab and keeps his fares and tips as compensation is an employee. Naseef v. Cord, Inc., 48 N.J. 317, 225 A.2d 343 (1966); Hannigan v. Goldfarb, 53 N.J.Super. 190, 147 A.2d 56 (1958); Morgan Cab Co. v. Industrial Comm'n, 60 Ill. 2d 92, 324 N.E.2d 425 (1975); Golosh v. Cherokee Cab Co., 226 Ga. 636, 176 S.E.2d 925 (1970); White Top & Safeway Cab Co. v. Wright, 251 Miss. 830, 171 So. 2d 510 (1965). See, Salt Lake Transportation Co. v. Bd. of Review, 5 Utah 2d 87, 296 P.2d 983 (1956). Contra, Coviello v. Indus. Comm'n of Ohio, 129 Ohio St. 589, 196 N.E. 661 (1935).

Of the few states which have considered the employment status of a claimant on the facts as presented here a majority appear to consider the claimant an employee for purposes of workmen's compensation. In determining whether the claimant is an employee entitled to compensation many of these cases turn on the nature of the claimant's work in relation to the business for which the work is being done. (See, Larson, Workmen's Compensation, § 43.42 et seq. (1972 ed.).)

The test we must employ to determine appellant's employment status turns on the amount of control exercised over the claimant. As stated in Little v. Poole, 11 N.C.App. 597, 601, 182 S.E.2d 206, 209 (1971):

"The test for determining whether a relationship between parties is that of employer and employee, or that of employer and independent contractor, is whether the party for whom the work is being done has the right to control the worker with respect to the manner or method of doing work, as distinguished from the right merely to require certain definite results conforming to the contract."

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. Askew v. Tire Co., 264 N.C. 168, 141 S.E.2d 280 (1965); Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944); Millard v. Hoffman, Butler & Associates, 29 N.C.App. 327, 224 S.E.2d 237 (1976).

The opinion and award of the Industrial Commission is

Affirmed.

BRITT and MORRIS, JJ., concur.