Appeal from the Circuit Court of Cook County, the Hon. Arthur
J. Dunne, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Orval McCabe (claimant) filed a claim against Red Top Cab Company and Globe Cab Company (respondents) under the Workmen's Compensation Act (Ill. Rev. Stat. 1971, ch. 48, par. 138.1 et seq.) to recover for injuries he sustained when an automobile hit the cab he was driving. After a hearing, the arbitrator denied the claim for compensation because the relationship of employee and employer did not exist between claimant and respondents. The Industrial Commission, without hearing additional testimony, found that the relationship of employee and employer did exist and reversed the arbitrator's decision. The circuit court of Cook County confirmed the Commission's decision. Respondents appealed to this court under Supreme Court Rule 302(a)(2) (73 Ill.2d R. 302(a)(2)).
The only issue before the court is whether the claimant was an employee of Red Top Cab Company (Red Top) or Globe Cab Company (Globe), rather than an independent contractor.
At the hearing before the arbitrator, the claimant testified he was employed as a cab driver by Red Top on December 27, 1972, the date of the accident. Claimant testified that on April 5, 1971, he filled out an application with Red Top and signed a "Cab Leasing Agreement." The lease provided the following pertinent provisions:
"1. The Company agrees to rent to the Lessee a taxicab, if available, to be used only in the taxicab business. Said cab is to be operated for hire in the City of Chicago, Illinois and its surrounding territory.
3. The Company agrees to provide the taxicab in acceptable operating condition. Lessee agrees to purchase all of the gasoline necessary for the operation of the taxicab.
4. Lessee agrees to report to the Company any mechanical defects or damage to said taxicab.
5. In the event of damage or destruction of the taxicab and/or its equipment from any cause whatsoever * * *, the said Lessee agrees to pay the Company forthwith the cost of repairing or replacing the damaged taxicab and/or its equipment.
7. Lessee agrees to furnish the Company a daily report setting forth a true and correct statement of the total of all fares procured by said Lessee during lease period. Lessee shall pay his rental to the Company on a daily basis. The minimum daily rental shall be $5.00.
8. If the leased taxicab is seized by authority of law while under the operation or control of the Lessee, Lessee agrees to pay all charges for releasing the taxicab and all costs attendant thereto.
9. This lease is agreed to be personal in nature and Lessee agrees not to sublease said taxicab to anyone else.
10. Lessee agrees to report all accidents to the Company immediately in writing, giving all information including the names and addresses of all witnesses and agrees to actively cooperate in the investigation and defense of any claims growing out of the same whenever called upon by the Company or its representatives.
13. The Company shall accept no responsibility for injury to Lessee resulting from the use or operation of said automobile or taxicab or while the same is in the possession, either actual or constructive, of the Lessee."
The lease was also signed by "Chicago Red Top Cab Company, Lessor" through the signature of the overseer. Claimant, furthermore, posted a $100 bond with Red Top.
Claimant testified he had to pay for the cab six days a week even though he actually drove it fewer times. However, if he called the Red Top overseer in advance to tell him he would not use the cab on a certain day, the overseer might give the cab to someone else on that date and not charge the claimant. Claimant, moreover, said because he paid for six days a week, he was entitled to first preference on getting a cab each day.
Claimant also testified he would go to the Red Top station to pick up the cab he would drive. The overseer set the hours for the shifts, and claimant's shift was from 4 p.m. to 4 a.m. Claimant stated that although he was not required to sign in or punch in when he arrived, "they'd just see you." Claimant's cab would be driven by someone else in the previous shift, so claimant would have to wait for that driver to return with the cab and refill it before he could take it out on the streets. If the previous driver was late, he would pay claimant a late fee. A waiting driver usually expected a late fee of $5 because that is the amount he might have earned.
Furthermore, claimant testified he usually drove the same cab every shift. His cab was red and white and had a picture of a red top on it. The company's phone number and the words "Red Top" were printed on the cab. On the dashboard ...