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12/08/75 THOMAS v. CHECKER CAB COMPANY

December 8, 1975

THOMAS
v.
CHECKER CAB COMPANY, INC.



Appeal from Wayne, Charles Kaufman, J.

Leave to appeal applied for.

Bronson, P. J., and V. J. Brennan and D. E. Holbrook, Jr., JJ. D. E. Holbrook, Jr., J., concurred. V. J. Brennan, J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. Torts -- Employers -- Employees -- Vicarious Liability -- Independent Contractors -- Estoppel.

Generally, an employer is vicariously liable for the torts of his employee committed while the employee is acting within the scope of his employment, but is not similarly liable for the tortious actions of independent contractors; however, where one holds himself out as the employer of a person, and there is reliance, that apparent employer is estopped from arguing that such person is an independent contractor.

2. Estoppel -- Taxicabs -- Negligence -- Employers -- Employees -- Injuries to Third Parties -- Reliance.

A taxicab company cannot be estopped from denying liability for injuries to nonpassengers caused by a negligent cab driver because of a lack of employer-employee relationship where the cabs are owned by independent operators because such third parties have not relied upon the employer-employee relationship between the taxicab company and the operator of the cab.

3. Negligence -- Taxicabs -- Custody and Control -- Presumptions -- Jury Question.

Evidence establishing that a defendant taxicab company's name and colors are upon a taxicab creates a prima facie case that the company has custody and control of the cab, whether the company owned it or not; this presumption of custody and control is sufficient to avoid a directed verdict at the close of plaintiff's proofs on the question of whether the taxicab company is liable for injuries caused by a negligent driver to a nonpassenger.

4. Negligence -- Taxicabs -- Custody and Control -- Presumptions -- Burden of Proof -- Burden of Going Forward.

The rule which creates a presumption of custody and control of a taxicab where a taxicab company's name and colors appear on the cab affects only the burden of going forward with the evidence; the ultimate burden of proof is still upon the plaintiff.

5. Negligence -- Taxicabs -- Trial -- Directed Verdict -- Presumptions -- Jury Question.

A directed verdict for a defendant taxicab company cannot be granted at the close of the plaintiff's proofs where there is a presumption of an employer-employee relationship between the company and the negligent cab driver because the company name and colors appear on the cab, which presumption is evidence to go to the jury; a directed verdict can properly be granted at the close of all proofs in the proper circumstances, but generally whether the effect of the presumption was overcome by the defendant's evidence is a question for the jury.

6. Negligence -- Taxicabs -- Trial -- Directed Verdict -- Presumptions -- Employers -- Employees -- Degree of Control.

The propriety of a directed verdict for a defendant at the close of all proofs is doubtful where the plaintiff, a party injured by a negligent taxicab driver, did not rely solely upon the presumption that the defendant, a taxicab company which did not own the cab, was the employer of the negligent driver, but where testimony established at least some degree of control by the company over the activities of the drivers.

7. Release -- Covenant Not to Sue -- Principal and Agent.

Execution by a plaintiff of a "covenant not to sue" in exchange for payment from a taxicab owner does not operate as a release of a taxicab company under ...


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