Union County U-Drive It v. Blomeley

• Decision Date: 06 January 1958
• Docket Number: No. A--650,U--DRIVE,A--650
• Citation: 48 N.J.Super. 252,137 A.2d 428
• Parties: UNION COUNTYIT, a New Jersey corporation, Plaintiff-appellant, v. Ralph BLOMELEY and Blomeley Engineering Corp., a corporation of the State of New Jersey, Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 252

48 N.J.Super. 252

137 A.2d 428

UNION COUNTY U--DRIVE IT, a New Jersey corporation Plaintiff-appellant, v. Ralph BLOMELEY and Blomeley Engineering Corp., a corporation of the State of New Jersey, Defendants-Respondents.

No. A--650.

Superior Court of New Jersey Appellate Division.

Argued Dec. 16, 1957.

Decided Jan. 6, 1958.

Wallace P. Berkowitz, Jersey City, for plaintiff-appellant (Berkowitz & Lester, Jersey City, attorneys).

Baruch S. Seidman, South River, for defendants-respondents (Burton & Seidman, South River, attorneys).

Before Judges GOLDMANN, FREUND and CONFORD.

The opinion of the court was delivered by

CONFORD, J.A.D.

Plaintiff is in the business of renting motor vehicles for hire. It rented a Ford van to the defendants under a standard rental agreement prepared by plaintiff which provided that the 'renter' (defendant) agreed to return the vehicle in the same condition as received, ordinary wear and tear excepted, but also, more particularly, that the renter would pay the owner all damages to the vehicle 'provided however that renter's liability shall be limited to $100.00 unless vehicle was operated in violation of any of the provisions of this rental agreement.' While being driven by an agent of defendants in Connecticut the car was in an accident involving damage to the vehicle to the extent of $2,200. The agent was arrested and tried on a charge of reckless driving in this connection, and, after pleading 'not guilty,' was convicted and fined $50.

In this action to recover its full loss plaintiff contended the $100 loss limitation provision of the agreement was not applicable because, in violating the traffic laws of Connecticut, defendants by their agent were operating the vehicle 'in violation of' a specific provision of the agreement that the renter would not 'use it (the vehicle) in violation of any Federal, State, provincial of Municipal law, ordinance, rule or regulation governing the use or return thereof; * * *.' The trial court granted a motion by defendants for summary judgment in favor of plaintiff for a sum not in excess of $100 and entered judgment for plaintiff for $100. The trial court made a distinction between 'operation' and 'use' of the vehicle and held that the range of prohibited 'operation,' for purposes of the limitation of liability clause, was spelled out by certain verbiage on the back of the agreement. That language, after reciting that the renter participates in the benefits of an automobile public liability and property damage insurance policy, and stating certain of the conditions and limitations thereof, then proceeds as follows: 'The vehicle described on the reverse side hereof shall not be operated' (a) in violation of the terms of the rental agreement; (b) by persons under age or one giving false name, age or address; (c) 'for any illegal purpose, in any race, speed test or contest, to propel or tow any vehicle or trailer or by any person while under the influence of intoxicatns or narcotics'; (d) by any person other than the renter (with certain qualifications). Finding that reckless driving did not come within any of the said prohibited species of 'operation' the court held the loss limitation clause inapplicable.

It may be questioned whether the provisions on the back of the agreement should be considered a part of the agreement proper, other than in connection with any question which might arise in relation to a claim by a renter for inclusion within the insurance coverage adverted to, or as to a provision for reimbursement of the insurance company by the renter in case of claims arising out of violation of the conditions on the back of the agreement. Moreover, the distinction drawn between 'use' and 'operation,' is, at best, rather tenuous. See Cronan v. Travelers Indemnity Co., 126 N.J.L. 56, 58, 18 A.2d 13 (E. & A.1941).

Defendants offer the alternative ground of sustaining the judgment that the use prohibition clause relied upon by plaintiff must, or its face, be deemed referable only to such federal, state, municipal, etc. laws, ordinances, etc. as govern 'the use or return' of the vehicle, I.e., which are exclusively concerned with the subject of the use and...