Marshall v. Checker Cab Co.

348 P.2d 372, 141 Colo. 194, 1959 Colo. LEXIS 281
CourtSupreme Court of Colorado
DecidedDecember 7, 1959
DocketNo. 18,012
StatusPublished

This text of 348 P.2d 372 (Marshall v. Checker Cab Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marshall v. Checker Cab Co., 348 P.2d 372, 141 Colo. 194, 1959 Colo. LEXIS 281 (Colo. 1959).

Opinion

Mr. Justice Hall

delivered the opinion of the Court.

The parties appear here in the same order they appeared in the trial court. We refer to plaintiffs in error as plaintiffs, to Checker Cab Company as CHECKER; to Yellow Cab Company of Colorado and Yellow Cab, Inc. (though mentioned in the caption of the complaint as a defendant, there is no Yellow Cab Company of Colorado), as YELLOW; Checker Cab, Inc., a new corporation organized by Yellow to take title to the assets purchased from Checker, as PURCHASER, and to Paul Johnson as Johnson.

The action was commenced December 29, 1950, as a class action, by the three named plaintiffs in behalf of themselves and all others similarly situated (about 500 previous cab owners and drivers of Checker).

Plaintiffs prayed for an injunction to halt a proposed sale and transfer by Checker to Yellow of certain two-way radio equipment, a Federal Communications Commission permit issued in the name of Checker to operate two-way radio, a permit or license issued by Denver to operate a taxi service, good will of Checker, and other assets. In a second claim plaintiffs seek to compel Checker and Johnson to account for all proceeds of a so-called “Drivers’ Crash Fund” and “Drivers’ Radio [196]*196Fund.” Hearing was had on the request for a temporary-injunction, on completion of which it was ordered that $7,000.00 of the proceeds of the proposed sale be, by Yellow, deposited in the registry of the court; this was done, and the prayer for an injunction was denied. Thereafter plaintiffs continued to press their claims for accounting, alleging by bill of particulars and amendment and supplement to their complaint, that they were entitled to recover for the conversion of the equipment, permits, licenses, loss of use of equipment, trade name, good will, etc., of Checker. Plaintiffs contended that they were engaged in a joint enterprise with Checker; however, when it was developed by the evidence that Checker had sustained an operating loss of $15,000.00 during the period in question, the matter of joint venture was further urged, if at all, with abated vigor.

Yellow filed its answer and admitted that it had a contract to purchase and intended to buy Checker’s assets, including the items claimed by plaintiffs.

Checker answered and alleged that it was the owner of the items in question and that it had agreed to sell and had sold the same to Yellow. It denied that it had been engaged in any joint venture with plaintiffs. Purchaser answered and admitted that it had acquired through Yellow the assets in question. Johnson answered and set forth that he had properly administered and accounted for all monies paid to “Drivers’ Crash Fund” and “Drivers’ Radio Fund.”

The court appointed John J. Morrissey, Esq., as master to determine all issues of fact and questions of law and to report such determination to the court.

Taking of testimony required thirteen days, embracing nearly 3000 folios. The report of the master contains 43 folios. The master found the facts adversely to plaintiffs’ contentions, except as to an item of $1834.71, and recommended that judgment be entered in favor of the plaintiffs and against Checker for $1834.71, payable out of the $7000.00 paid into the registry of the court, and [197]*197that all other claims of plaintiffs be dismissed. Plaintiffs and Checker filed objections to the report of the master, which objections were heard and overruled and judgment entered in conformity with the master’s recommendations.

Plaintiffs are here by writ of error, seeking review and reversal, “with instructions to award plaintiffs judgment for the full measure of damages which they have sustained.”

The record contains testimony to the effect that prior to 1941, Checker operated its business with cabs owned by it. In that year it changed its system of operation from company-owned cabs to what is known as the “owner-operator” or “pay-off” system. Each cab was operated each day in two twelve-hour shifts. The driver on each shift paid to Checker the sum of $4.00, plus the cost of gas and oil consumed during the shift; he also paid a contribution to what was known as the “Crash Fund,” from which fund damages to the owners’ cars caused by accidents and not covered by deductible insurance policies carried by the company were paid.

One of the two $4.00 payments made each twenty-four hours was turned over to the car owners; the other $4.00 payment was retained by Checker. In return for these payments retained by Checker it furnished services which included taxicab stands, licenses and permits, advertising, garage facilities, telephone switchboard service, insurance and bookkeeping service.

In July 1947, the car owners and drivers, in order to meet competition and hoping to enhance their earnings, determined to install two-way radio equipment in the taxicabs operated by Checker under the above plan. Checker refused to assume any financial responsibility for either the purchase price, installation or cost of maintaining or operating such equipment.

The drivers and car owners, in order to carry out this program, formed a voluntary association which they denominated the “Checker Drivers’ Radio Fund.” A [198]*198committee consisting of' three members was elected by the members of the association to govern its activities. The fund was: “for the purpose of purchasing, acquiring, financing, retaining the title to and disposing of two-way radio equipment to be installed in taxicabs now and hereafter operated in the name of Checker Cab Company.”

The document forming the association provided that any such equipment should at all times be and remain the property of the Checker Drivers’ Radio Fund and should not become the property of any member, car owner or driver of the association. On formation of this association and election of the committee, the committee took over the operation of the so-called Crash Fund. Subsequent to July 15, 1947, the administration of the Crash Fund and the Radio Fund was in the hands of this committee, and the company had no control over either fund; Johnson, a member of the committee, actively managed both funds. The car owners and drivers agreed among themselves as to the amount of the contribution that would be made for each shift to each of those funds and the committee purchased radio equipment which was installed in November 1947.

Checker, in furtherance of the efforts of the drivers and owners to acquire two-way radio service, applied to the Federal Communications Commission for a permit in its name authorizing two-way radio service in connection with the operation of its taxicabs, which application was granted. On October 25, 1947, the Radio Fund entered into a written agreement with Checker, which, in part, provided that Checker was recognized as the owner of this permit and the association should not acquire any interest in or to the same. However, Checker agreed to allow the association full use of the permit, the association agreeing to lease the car radio equipment to drivers and owner-drivers. It was agreed that Checker should employ the necessary personnel for the efficient operation of the equipment and the association would [199]*199reimburse Checker for salaries of any persons so employed. Thereafter, when a cab was placed in service the owner was required to sign a written agreement to the effect that he acknowledged that all two-way radio equipment was the sole property of the Radio Fund.

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348 P.2d 372, 141 Colo. 194, 1959 Colo. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marshall-v-checker-cab-co-colo-1959.