Howkins v. Atlanta Baggage & Cab Co., 39797
| Decision Date | 15 November 1962 |
| Docket Number | No. 39797,No. 1,39797,1 |
| Court | Georgia Court of Appeals |
| Parties | J. H. HOWKINS v. ATLANTA BAGGAGE & CAB CO. et al |
Syllabus by the Court
1. If there is any doubt about the meaning of a contract when considered as a whole, it will be construed against the party who prepared it.
2. A contract enlarging or diminishing the common-law liability of a bailee for damages to property while in his possession will be given effect.
The plaintiff brought a contract action to recover damages occurring to its automobile while it was rented to the defendant under a contract which provides in part as follows:
'Standard Rental Agreement Page 1 In consideration of the covenants herein contained, the undersigned Lessor hereby leases to the undersigned Lessee, hereinafter called 'Renter' (including therein any additional renter signatory herein), upon the covenants, terms and conditions set forth on his page, the motor vehicle described in this agreement hereinafter referred to as 'said vehicle'. * * *
'2. Renter acknowledges * * * that he received said vehicle in good and safe mechanical condition, and agrees that he will return said vehicle to Lessor * * * in the same condition as he received it, ordinary wear and tear excepted, * * *.
'7. Renter expressly agrees to pay Lessor on demand: * * * (h) a sum equal to the cost of all damages to said vehicle provided, however, that so long as said vehicle is operated in accordance with all the terms, conditions, and covenants of this rental agreement, the Renter's liability to Lessor for such damage (1) shall not exceed $100.00 or (2) shall be waived by Lessor if a special rental rate adjustment has been agreed upon herein and evidenced by initials of Lessor's agent in the space provided herein. * * * [The contract shows that (2) above was not agreed upon.]
'9. * * * The policy [automobile liability policy under which Renter is an assured] does not cover the Renter or driver (employee of the Renter) for injuries sustained by guests or passengers or any other person while riding in or alighting from or getting into or on said vehicle * * *. The Renter or driver must immediately deliver to the Avis Station from which the vehicle is rented or to the insurance carrier as soon as practicable every process, pleading or notice of any kind relating to any and all claims, suits and proceedings received by the Renter or Driver. The Renter and Driver shall not in any manner aid or abet any claimant * * *.
The petition alleged that the defendant breached the contract in that he allowed another person to drive the automobile without the plaintiff's consent, and the damage occurred while she was driving the car; in that he did not return the vehicle in the same condition as he received it; and in that he refused to pay to the plaintiff on demand the cost of the damages.
The defendant in his answer admitted the contract and alleged that he rented the automobile for the purpose of having it used in his business by his employee, and turned possession of it over to his employee for such use, and while she was so using it at his direction as his employee and agent and in the course and scope of her employment the automobile was struck and damaged by a truck negligently operated by a third party. The defendant denied breaching the contract and contended that the driving of the automobile by his employee was within the contemplation of the contract; and that under the terms of the contract his liability could not in any event exceed $100, inasmuch as paragraph 7(h)(1) of the contract, quoted above, was applicable. The defendant filed a general demurrer to the petition. Both the plaintiff and the defendant filed motions for summary judgment, the defendant moving for an order barring the plaintiff from recovering any sum reater than $100. The defendant's motion was supported by affidavits of the defendant and of his employee who drove the car. The defendant assigns error on the orders of the trial court overruling his general demurrer, denying his motion for summary judgment, and granting the plaintiff's motion for summary judgment on the question of the defendant's liability and leaving the amount of damages for trial before a jury.
Paul C. Myers, Eugene O'Brien, Atlanta, for plaintiff in error.
Edward Andrews, Atlanta, for defendants in error.
1. In granting the plaintiff's motion for summary judgment against the defendant and leaving the amount of the damages to the jury, the trial court necessarily determined that the defendant breached the contract in permitting his employee to drive the rented automobile and consequently that the amount of damages was not limited to $100 under paragraph 7 of the contract quoted above. The plaintiff contends that the contract unambiguously prohibited the automobile being driven by the defendant's employee, calling special attention to paragraph 10(f), which provides: 'The Renter agrees that the motor vehicle leased to him shall not be operated by any person other than (A) the Renter who signed this rental agreement, or (B) any additional Renter who signed this agreement, or (C) with the written consent of the Lessor.' Paragraph 10(j) provides: 'The Renter expressly agrees that the motor vehicle leased to him shall not be operated * * * by a Driver outside his usual and customary employment by the Renter, or by a Driver outside the regular and usual employment of the Renter.'...
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