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Paige v. Red Top Inc.

Decided: June 26, 1969.

FRANK E. PAIGE, PLAINTIFF-APPELLANT,
v.
RED TOP, INC., DEFENDANT-RESPONDENT, AND RUBIN B. WHITE, ET AL., DEFENDANTS



Goldmann, Kolovsky and Carton. The opinion of the court was delivered by Kolovsky, J.A.D.

Kolovsky

Plaintiff Paige, a passenger in a taxicab owned by Red Top, Inc. and driven by White, was injured on July 16, 1965 when the taxicab collided with another automobile.

Paige instituted this personal injury negligence action against Red Top, White, and the driver and owner of the other automobile. The latter cross-claimed for property damage against Red Top and White. At the close of the testimony and before summation, the trial court granted Red Top's motion to dismiss the action as against it. The jury found that the collision was attributable solely to White's negligence and awarded plaintiff Paige damages of $40,000 and $900 to the owner of the other car.

The matter is before us on plaintiff's appeal from the dismissal granted Red Top.

Red Top was the holder of a license issued by the City of Newark permitting it to operate its taxicab upon the streets of that city. By lease dated August 15, 1964 between Red Top as lessor and White as lessee, Red Top leased and rented its "Taxicab No. 7" to White "for the conveying, transporting and carrying all persons in and about the streets of the City of Newark, New Jersey, together with the fares, charges and profits of said taxicab at a daily rental of $10.00," to be paid each day in advance.

The lessor agreed to make all necessary repairs and replacements. The lease was terminable by either party on three days' notice and would immediately terminate if the lessor ceased to be a member of the Newark Twentieth Century Taxicab Association. The agreement further provided that the lessee was to be deemed an independent contractor, and

"that he is not accountable for the fares collected nor subject to the control and direction of the Owner, except that he will operate the taxicab in accordance with the rules and regulations of the Newark Twentieth Century Taxicab Association and the ordinance of the City of Newark, New Jersey."

Assignment or subletting without the lessor's written consent was prohibited, as was the employment by the lessee of any person to drive or operate the taxicab. The lessee agreed not "to suffer any act to be done which may cause a forfeiture of the franchise, permit or license of said taxicab" and also to pay Federal, state and municipal taxes. Finally, the agreement stipulated that the "Workmen's Compensation Act shall not apply to either of [the parties] or this contract."

In granting the dismissal as to Red Top, the trial court ruled that the relationship between Red Top and White under their written agreement was that of lessor and lessee of an automobile, so that the controlling principle was that normally applicable to the situation where a bailor for hire of a vehicle has been sought to be charged with the negligence of his bailee, viz. ,

"that in the absence of a showing of negligence by the bailor in renting to an irresponsible bailee, the bailor is not liable for the negligent use of the chattel by the bailee." (Schimek v. Gibb Truck Rental Agency , 69 N.J. Super. 590, 592 (App. Div. 1961).

But the lease here was not merely the lease of an automobile; it was the lease of a taxicab, "together with the fares, charges and profits of said taxicab." The applicable statute refers to ...


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