dissenting.
As I cannot agree that the Savannah city ordinance requires that we find either Karwoski or the driver in Smith v. Yellow Cab Co. of Chatham County, 223 Ga. App. 143 (476 SE2d 887), was an employee of Yellow Cab, I must respectfully dissent.
The majority’s premise in this case that these Savannah taxicab drivers must be employees is based upon its conclusion that, as the *66Savannah taxicab ordinance requires that taxicabs be driven by one who possesses both a taxicab business license and a taxicab driver’s permit, if one has only a driver’s permit, he must be classified as an employee of the entity that has the taxicab business license. I cannot agree with this conclusion. Even though we may conclude that the ordinance requires that independent contractors, i.e., owner/operators, in the taxicab business possess both taxicab business licenses and taxicab driver’s permits, it is a great leap to conclude that this scheme demands the conclusion that independent contractors who do not possess taxicab business licenses must be employees of the entity who leases them taxicabs.
The definition of an independent contractor under workers’ compensation law is contained in OCGA § 34-9-1 (2). The Savannah city ordinance on taxicabs does not alter that result. Although we have in other cases found that some local ordinances require that taxicabs be driven only by the owners of taxicab businesses or their employees (see Atlanta Million Cooperative Cab Co. v. Wilson-Acomb, 108 Ga. App. 465 (133 SE2d 437); Malone v. Gary, 98 Ga. App. 699 (106 SE2d 320); Diamond Cab Co. v. Adams, 91 Ga. App. 220 (85 SE2d 451)), the Savannah ordinance contains no such requirement. Thus, in Savannah there is no restriction on the legal status of persons who drive taxicabs as long as they have the required licenses.
Consequently, as I know of no rule of law that requires that we hold that one who does not have a valid business license becomes the employee of one who does (a proposition that should send tremors through the ranks of lessors), I must dissent from the majority’s opinion in Karwoski.
In Smith we considered whether the driver was an actual employee or an independent contractor under tort law, and the facts required the conclusion that the driver was an independent contractor. Because Smith was an actual independent contractor and not an actual employee we reached the correct result in Smith: Yellow Cab was not liable as respondeat superior, even if a non-licensed operator violated the Savannah city ordinance by driving a cab without a taxicab business license. That Yellow Cab allows unlicensed independent contractors to lease its cabs may be of interest to enforcers of the city code, but it does not require us to deem an actual independent contractor to be an “employee” so as to hold Yellow Cab liable in tort to third parties for the acts of an actual independent contractor. Yellow Cab may have been subject to prosecution for violation of the city code, but this does not make it vicariously liable to third parties under respondeat superior.
Accordingly, I would reverse the judgment in Karwoski and not overrule Smith. I am authorized to state that Chief Judge Andrews, Presiding Judge Pope and Judge Smith join in this dissent.
*67On Motion for Reconsideration.
The case law dealing with the use of independent contractors as drivers of taxicabs within municipalities has become blurred and confused over the years. These cases generally divide into two lines: those tort cases involving the doctrine of respondeat superior and those workers’ compensation cases involving coverage for injured drivers. In each category, the plaintiffs seek to hold the taxicab company liable as the employer of the driver-employee, while the taxicab companies seek to avoid liability on the basis that the drivers are independent contractors, not employees.
While the case law has become confused, the statutory law is quite clear. OCGA § 46-1-1 (9) (C) (ii) and its predecessor statute provide that “[tjaxicabs . . . which operate within the corporate limits of municipalities . . . are subject to regulation by the governing authorities of such municipalities!’ (Emphasis supplied.) See Brunson v. Valley Coaches, 173 Ga. App. 667 (327 SE2d 758) (1985). It is clear, therefore, that individual cases in this area are controlled by the applicable city ordinance where it addresses such issues, directly or indirectly. The first step in analyzing these cases is to look to the applicable city code. Where such code addresses the issue, it is controlling. Where it does not, then general law would apply.
The case law confusion has arisen because: (1) the applicable city ordinance has not always been raised, or addressed where raised; (2) appellate opinions have relied upon cases involving the ordinances of different cities which vary greatly, or upon different versions of the same city ordinance; and (3) appellate opinions have sometimes erroneously relied on prior decisions which properly applied the general law, but which general law did not control the case being decided. For example, if the subject city ordinance in the prior case did not address the issue of the employment status of taxicab drivers, and the case was decided based on general law, such case could not properly control a present case wherein the city ordinance was raised, and it required that all taxicab drivers be either an owner or an employee of the taxicab company.
The effect of the current structure for the control of taxicab companies in the area of tort and workers’ compensation liability has been to create an erratic body of state case law where the true controlling authority is assorted city ordinances, resulting from the legislature’s delegation of such authority to the municipalities under OCGA § 46-1-1. In his special concurrence in Loudermilk Enterprises v. Hurtig, 214 Ga. App. 746 (449 SE2d 141) (1994) (physical precedent only), Judge Johnson called upon the legislature and local governments to re-examine their policies in connection with the regulation of the taxicab industry for the protection of the public. I second *68Judge Johnson’s call for action.
On motion for reconsideration, Yellow Cab contends that this case is controlled by our decision in Smith v. Yellow Cab Co. of Chatham County, 223 Ga. App. 143 (476 SE2d 887) (1996), a case in which this author concurred. Smith was a negligence action arising from an automobile collision in which this Court affirmed the trial court’s grant of summary judgment to Yellow Cab based on a determination that the driver therein was an independent contractor rather than an employee. Smith involved the Savannah city ordinance which was properly raised and presented as an issue in the trial court and to this Court. Smith was wrongly decided, as this Court decided same based on the general law, rather than the Savannah city ordinance as required by OCGA § 46-1-1 and Worrell v. Yellow Cab Co., 146 Ga. App. 748 (247 SE2d 569) (1978).
This Court held in Smith that “[tjhis case is controlled by Loudermilk” Id. at 144. Loudermilk is a one-judge panel opinion, in which one judge concurred specially and the other judge on the panel concurred in the judgment only. Although the case arose in the City of Atlanta and the City of Atlanta ordinance in effect at the time would have applied, the same was not raised or addressed in the opinion, and the case was determined under general law. The opinion found that the driver therein was an independent contractor and that there was insufficient evidence to establish that an employer-employee relationship existed between the driver and the cab company. This Court reversed the trial court’s denial of the defendant cab company’s motion for directed verdict and the jury verdict in the amount of $74,046.61. As Loudermilk is physical precedent only, it cannot be cited as authority and did not control Smith. Court of Appeals Rule 33 (a).
Smith also cited another case which is physical precedent only and may not be cited as authority, West End Cab Co. v. Stovall, 98 Ga. App. 724 (106 SE2d 810) (1958). West End is a panel case in which one of the judges concurred in the judgment only. West End also was set in Atlanta and was subject to the Atlanta City Code, but this issue was not raised in the case or addressed at any level.
A review of the cases reveals that city ordinances sometimes address the issue of the status of drivers directly by requiring that drivers be either owners or employees. See Diamond Cab Co. v. Adams, 91 Ga. App. 220, 221 (85 SE2d 451) (1954) (a case involving the City of Atlanta ordinance); see also Malone v. Gary, 98 Ga. App. 699, 700 (106 SE2d 320) (1958) (a case involving the City of Albany Code which required that all taxicabs be owned by the owner of the taxicab business).
Savannah City Code § 6-1423 provides in part, that “(a) No person . . . shall operate a business involving the use of one (1) or more *69taxicabs on the streets of the City unless a license for such business has first been granted by the City.” In addition, each driver, including owners, must have a taxi driver’s permit issued by the City under Savannah City Code § 6-1422 (f). Therefore, any true independent contractor who was operating a taxicab under Yellow Cab’s name would not be controlled by Yellow Cab and would be required to have a taxicab business license for its independent business in addition to a taxi driver’s permit. It is undisputed in Smith and the present case that the drivers had only a taxi driver’s permit and not a business license.
Decided March 6, 1997 Reconsideration, denied April 4, 1997 Before Judge Freesemann. Parkerson, Shelfer & Groff, David B. Groff, for appellant. Jones, Boykin & Associates, Noble L. Boykin, Jr., for appellee.In Worrell, supra, this Court held that where a taxicab company failed to comply with the relevant requirements of the applicable city ordinance, it could not avoid its obligations to provide workers’ compensation coverage, and that a finding was therefore demanded that the relationship of employer and employee existed between the claimant and the defendant taxicab company. In Smith and here, with knowledge of Yellow Cab, these drivers were permitted to operate without a business license for their “independent” businesses. As in Worrell, such facts demand a finding that the relationship of employer and employee existed in Smith and the present case and Yellow Cab is estopped to deny such relationship. For the above reasons, our opinion in Smith is overruled and our holding herein is unchanged.