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Morgan Cab Co. v. Indus. Com.

OPINION FILED JANUARY 30, 1975.

MORGAN CAB COMPANY ET AL., APPELLANTS,

v.

THE INDUSTRIAL COMMISSION ET AL. — (NELSON ANDERSON, APPELLEE.)



Appeal from the Circuit Court of Cook County; the Hon. Edward F. Healy, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 24, 1975.

This is an appeal under our Rule 302(a) (Ill. Rev. Stat. 1969, ch. 110A, par. 302(a)) by the Morgan Cab Company from a judgment of the circuit court of Cook County, which affirmed a decision of the Industrial Commission holding that Nelson Anderson had established his claim under the provisions of the Workmen's Compensation Act (Ill. Rev. Stat. 1969, ch. 48, par. 138.8(a)(b)(c)).

The only question presented is whether the claimant was an employee of the Morgan Cab Company (hereafter, Morgan).

On November 23, 1970, at about 8:30 p.m., Nelson Anderson, whose claim was that he was an employee of Morgan, was driving his taxi south on Cottage Grove Avenue in Chicago. As he approached the corner of 49th Street a man flagged down his cab. Anderson pulled over and the man sat halfway in the cab leaving the door open. When Anderson turned around to ask him his destination he noticed a second man approaching his cab from behind some parked cars. At first Anderson thought the man was carrying a pipe but then saw he was carrying a shotgun. When Anderson tried to close the shield that separates the driver's area from the passenger section of the cab he was shot in the left hand. Anderson managed to turn around and put his foot on the accelerator, which caused the two men to jump from the cab. As a result of the shotgun blast Anderson lost his left little finger and required a number of operations on his left hand, including surgery for a bone graft and for the insertion of steel pins. He was unable to continue his work as a cab driver because of his disability. The nature and extent of his injuries are not in dispute.

Morgan contends the decision of the Industrial Commission holding that the claimant was its employee was error. It argues that the evidence showed him to be an independent contractor and thus not subject to the provisions of the Workmen's Compensation Act.

Morgan owns approximately 30 cabs. All cabs are painted alike and have the company's name and telephone number printed on their sides. The cabs are registered in James Morgan's name. Nelson Anderson testified that in March 1968 he was walking past the Morgan Cab Company when he noticed a sign which said "Drivers wanted." He went inside and talked with the owner, James Morgan, about employment. James Morgan asked him if he had previous experience driving a cab and a chauffeur's license. When he answered yes, James Morgan offered him a job after being assured by the claimant that he did not gamble or drink. James Morgan told him the terms under which the claimant would drive the cab. They were: the claimant was required to pay $12.50 a day, which had increased to $18 at the time of incident here, to operate the cab; he was to buy $2 worth of gas at the Morgan garage on turning in his cab so that the next driver would be able to begin his tour of duty; the claimant would keep all moneys from the fares and tips; Morgan would not withhold social security or State and Federal taxes from any moneys the claimant would receive; the claimant would purchase all of the gasoline his driving would require; he had to pick up at least 10 passengers a day in response to calls from Morgan's radio dispatcher (a sign in the garage also stated that drivers were responsible for picking up 10 passengers a day in response to such calls); if the taxi's radio malfunctioned the claimant was to have it repaired at a company at 5400 South Kostner, regardless of his cab's location when trouble occurred; he would be required to bring his cab for servicing or for an inspection by a city inspector when notified by the dispatcher; although he could drive his cab anywhere in Chicago he was "encouraged" to stay on the south side because Morgan's business was dependent on the dispatcher calls which reached only that area and also because there were 25 cab stands in the area where fares might be picked up; if he was involved in an auto accident the claimant was to report it to Morgan's office; and Morgan was to provide needed oil, grease, repairs and tires.

The claimant testified all drivers worked a 12-hour shift and when one shift brought their cabs in to the garage the other shift took them out. The two drivers who shared the driving of a cab could agree upon the times of the shifts. However, if the drivers could not reach an agreement, one driver would pick up his cab at 5 o'clock in the afternoon and return it to the garage at 5 o'clock in the morning. Not all drivers drove on a shift basis. Some drivers leased cabs with an option to buy the cab, and other drivers worked on a part-time basis.

Anderson testified that James Morgan told him the company had the necessary workmen's compensation insurance to take care of everything when he visited him in the hospital. After the claimant was discharged from the hospital he went to the garage and asked James Morgan how he should go about filing claim for workmen's compensation. Morgan sent him to see a Mr. Daige, who was an insurance agent. Daige told the claimant to complete claim forms and told him the insurance company would call him. After a month he called Daige, who arranged to meet with him. Anderson testified Daige offered him an undisclosed amount of money to settle his claim. Anderson refused the money and filed a claim with the Industrial Commission.

An arbitrator found the relationship of employer and employee existed between Morgan and the claimant on November 23, 1970. He found that the claimant had sustained accidental injuries arising out of and in the course of employment and entered an award for 27 weeks of compensation for temporary total disability, an award of 114 weeks for 60% permanent and complete loss of use of his left hand and $5,502.20 for medical, surgical and hospital expenses.

On review before the Industrial Commission, Mansfield Zinamon, the manager of the Morgan Cab Company, testified that a driver was not under obligation to answer calls from the dispatcher, even though there was a sign posted in the garage to that effect. On cross-examination he testified that he inspected the drivers each day to insure they were sober. If a driver was not sober Zinamon would not permit him to drive a cab. He said that he had authority to refuse to let a driver have a cab if there had been serious customer complaints against him and he exercised that authority on occasion. The witness said that he had also refused to let a driver have a cab because he had used "foul language" in the garage and that he had refused to let drivers take cabs because of other reasons. He admitted that he, too, had told the claimant after his injury that he believed the claimant was covered by the company's workmen's compensation insurance. Morgan made an offer of proof that the reason the company had secured the workmen's compensation insurance was because the city's commissioner of taxicabs would not issue a license for any cab, whether it was used as a leased cab or not, without a workmen's compensation policy being issued to cover the cab's driver.

There is no inflexible rule applicable in all situations to determine whether one is an employee or has some other status. O'Brien v. Industrial Com., 48 Ill.2d 304, 305.

In Lawrence v. Industrial Com., 391 Ill. 80, where the issue was whether the claimant was an independent contractor or an employee, this court said:

"The existence of the master and servant relationship is primarily, in any given case, a question of ultimate fact, involving in its determination a conclusion derived from a consideration of all the evidentiary facts disclosed by the evidence, in connection with the application ...


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