¶1(dissenting). The trial judge could properly direct a verdict in favor of defend*162ant Checker Cab Company; we err by disturbing his order. I believe the majority is wrong for several reasons.
¶2First, the status of Checker Cab Company as an employer is not, in this case, dependent on the factual question of control. Rather, the status is a question of law that has previously been resolved by the Michigan Supreme Court. In Flueling v Goeringer, 240 Mich 372; 215 NW 294 (1927), the Court stated:
"[T]he [Checker Cab] company does not own and operate a taxicab business but only serves as a medium for promoting and regulating the individual cab service rendered by its members … . It is true that the advantage of such association under incorporation and central regulation results in pecuniary profit to members, but such profit does not at any time belong to or come to the members through the company.” 240 Mich 372, 374-375.
¶3My reading of Fluelingis that Checker Cab cannot be dubbed an employer, but rather an association organized for the advancement of mutual interests.
¶4It is true, as the majority notes, that Flueling’s major holding, concerning the immunity of nonprofit corporations, appears to have been undercut by Parker v Port Huron Hospital, 361 Mich 1, 105 NW2d 1 (1960). However, Parkermakes absolutely no inroads on the Fluelinglogic quoted above. What was correct in 1927 is no less correct today: Checker Cab Company, as a matter of law, is not the employer of its members’ drivers and each member, not Checker, owns his own cabs. Because the question was one of law, the trial judge very properly granted a directed verdict.
¶5*163Even if I were to agree that Checker Cab’s status as employer is a factual question, I do not believe that plaintiffs introduced sufficient evidence to ward off a directed verdict. I do not believe that a reasonable jury could possibly find Checker Cab Company to be an employer of the negligent driver based on plaintiffs’ skimpy and inconsistent evidence. I cannot accept the majority’s proposition that proof of similarity of color and insignia and use of common switchboard constitutes a prima facie case; to me it constitutes only a weak attempt to find a deep pocket.
¶6The majority uses phrases such as, "presumption of control”, "burden of going forward”, "burden of introducing evidence of non-agency”. I sympathize with the defendant who must now produce evidence of "non-agency”.
¶7The majority’s opinion, I feel, fails also because it is conclusory. "[W]e find that proof that Checker held itself out as the employer of the drivers was sufficient to prevent a directed verdict … [because] that proof established a prima facie showing of an employer-employee relationship.” (Emphasis added.) The majority, by characterizing the proof as indicative of employer status, concludes that the proof is indicative of employer status. Common colors and common insignia do not intrinsically suggest an employer status; to assert that they do begs the question.
¶8The plaintiffs had their day in court, had the opportunity to employ powerful discovery tools, and yet still failed to convince the learned judge below that there was any merit to their case. The majority, by creating a presumption where none existed before, goes too far in aiding litigants who cannot prove their cases.