Gaulkin, Collester and Labrecque. The opinion of the court was delivered by Labrecque, J.A.D.
Appellants P & M Taxi, Inc. (P & M) and Nat Eckel t/a Garden State Taxi Co. (Eckel) appeal from a judgment of the Essex County Court affirming a compensation award in favor of petitioner John V. Lyons.
The facts are substantially undisputed and may be summarized as follows. Prior to March 1963 P & M was the owner of a taxicab, a taxi operator's license issued by the City of Newark and a taximeter. On March 7, 1963 it entered into a lease and purchase agreement with Nicholas P. Zoppi (Zoppi), whereby Zoppi leased the taxi for a two year period for a consideration of $400 down and $25 per week for 104 weeks. At the end of the contract period the taxi, a 1960 Dodge Dart, was to belong to Zoppi. The meter went with the cab but was to be returned to P & M, at the end of the term fixed, in good working order. Under the agreement Zoppi was to retain all fares and tips collected and to pay all expenses of operation, including fees, licenses and premiums on a liability insurance policy covering P & M and himself which he obligated himself to procure. The only specific restrictions on Zoppi's use of the cab were that it was to be operated under the colors and name of "Garden State Taxi Association," in accordance
with the regulations of the City of Newark and to be kept garaged within Essex County.
At the time the Zoppi contract was entered into the stockholders of P & M were Rita Eckel, a full-time schoolteacher, and her parents, Mr. and Mrs. Alberts. They were also the sole stockholders in two other corporations (Crestview Enterprises and Merele). The Garden State Taxi Association was not a corporation but a name (unregistered) adopted by P & M and the two other corporations referred to. Each corporation was licensed to operate one taxi which bore the name Garden State Taxi and was painted yellow and black. The same name and colors had been used by at least one other unaffiliated corporation of different ownership. P & M's only income receipts were the rental and insurance payments from Zoppi. At the time of the occurrence of the events here involved P & M's funds were being handled through the checking account of Crestview, assertedly because P & M was only issuing about one check a month.
Appellant Nat Eckel's income was derived from his operation of the cab owned by Crestview for which he paid a rental fee of $8 or $9 a day. In addition to operating his cab he also performed some errands -- without pay -- for the three companies in which his wife, Rita, had an interest. Among them were the collection of rental and insurance premiums due from Zoppi and delivery of the insurance stickers required by the city ordinance to be displayed on each cab.
In February 1964 Zoppi and Lyons made an oral agreement for the operation of the P & M cab by Lyons for part of each day (12 hours) for a consideration of $7 a day payable by Lyons to Zoppi. Lyons was to pay for gas and oil used, and keep all fares collected during his 12-hour stint. One month later they entered into a written agreement whereby each was to operate it for 12 hours a day. The agreement provided that each was to retain his own fares and pay for his own gas and oil, repair expenses were to be shared, and Lyons was to pay Zoppi $500 plus $20.62 weekly (the latter was said to represent one-half of Zoppi's obligation under
the arrangement with P & M). The agreement provided that Lyons was acquiring no right of ownership in the taxicab, but upon the expiration of the P & M lease the cab was to be the sole property of Zoppi. The contract was drawn by Zoppi's attorney without the consent or participation of either P & M or Eckel, although Zoppi's lease with P & M had forbidden him to sell, transfer or assign his rights without P & M's consent. While the lease was in effect, Zoppi had had trouble with the Dodge Dart and had substituted for it a Plymouth which he paid for. However, in order that the registration might correspond with the taxi operator's license, the Plymouth was registered under the name of P & M.
On October 31, 1964, while it was being operated by Lyons, the Plymouth was involved in a collision in which he sustained severe injuries. A petition for compensation was filed against P & M, Eckel and Zoppi.
At the trial Zoppi testified that his agreement with P & M did not require him to buy gas and oil at any particular place, he was not part of any radio group (the cab had no radio) and he received no directions as to when or where to operate the cab. Lyons testified he considered himself Zoppi's "working partner." He would sometimes come across Eckel while they were operating their respective cabs, but Eckel never told him how or where to operate the P & M cab or gave him any other instructions. Additional facts will be referred to in connection with the portion of the discussion to which they are pertinent.
The judge of compensation dismissed the claim as to Zoppi and no appeal has been taken from this finding. He determined that Lyons was an employee of P & M and Eckel and entered an award against both. On appeal to the Essex County Court, there was an affirmance. The present appeal followed. The sole issue involved is whether, under the facts adduced, ...