Red Top Driv-Ur Self v. Munger

J. Seaborn Holt, Associate Justice. Appellee, Hunger, on October 30,1957 executed a ‘ ‘ Standard Bental Agreement” with Bed Top Driv-Ur Self Co. Inc., owner, (at the airport in Little Bock) for the use of one of- its cars. The above rental agreement contained these provisions, "Collision Protection. If the box has been initialed on behalf of owner, then for an additional fee of $1 per day (with a maximum of $5 per week) owner agrees to relieve renter of all liability for collision damage to the rented vehicle referred to above while it is operated in conformity with this rental agreement, but renter shall be fully liable for all such damage if said vehicle is operated in violation of any law or this rental agreement.” Bed Top initialed the box which entitled Munger to protection. Another section of this rental agreement provides: “The vehicle described on the reverse side hereof shall not be operated: . . . (d) By any person other than the renter who signed the rental agreement or, provided he is a qualified licensed driver, by a member of the renter’s immediate family, the renter’s employer, or a person driving the car pursuant to said person’s usual and customary employment by the renter, and in the course of said driver’s regular and usual employment for the renter.” The facts disclose that at about 8 P. M. on November 2,1957 Munger picked up a young lady, an employee of appellant, at her apartment, and they liad dinner at the Tia-Wanna Club west of Little Bock. It appears undisputed that the young lady’s employment with Bed Top was concluded at 5 P. M. and that her association with Munger was unrelated to her employment. They left Tia-Wanna at about 10 P. M., driving toward Little Bock and when about a mile from Little Bock, on the way to their destination in North Little Bock, the young lady, who apparently was better acquainted with the road, took the wheel and undertook to drive, with Munger on the front seat beside her. She drove first to Levy to a drive-in where they had coffee and on leaving, — she was still driving, — a wreck occurred damaging the automobile practically beyond repair, such damages amounting to approximately $1,500. Appellant demanded payment from Munger for these damages, and upon his refusal to pay, brought the present suit. Trial before the court sitting as a jury resulted in a judgment in favor of appellee Munger and this appeal followed. It appears that material facts are not in dispute and only a question of law is involved. Our decision must turn on the meaning and application of the word “operated” as used in the rental agreement. In this connection appellant says, “The provision of the rental agreement withholding collision protection except when the automobile was being used in conformity with the agreement is perfectly clear and not susceptible to construction. The word ‘operated’ is limited to physical control of the automobile.” Appellee, on the other hand, says, “The term ‘operated’ as employed in the rental contract is ambiguous and therefore subject to judicial construction, and the proper construction of the term is that it comprehends the directing, superintending or overseeing of the driving of the vehicle.” After a careful review of the facts presented we have reached the conclusion that the appellant’s contention is correct and must be sustained. We do not agree with appellee’s argument that the word “operated,” in the sense used here, is ambiguous. One of the specific requirements effecting collision protection to Munger is the stipulation that it applies only when the car is being operated by the person who signed the agreement, in this instance, Munger. Clearly we think this collision protection was meant to be, and was, strictly personal, applying only to Munger and in no sense general insurance for the benefit of some unknown operator. As indicated, it is undisputed that Munger was not at the wheel of the car when the mishap occurred and it does not appear that he was advising or instructing the driver in any manner. The young lady was physically driving. She was not acting as the agent of Munger, was not his employee, and there is no contention that any family relationship existed or that Munger was not a qualified, licensed driver. Granting, however, that the word “operator” may, in a general sense, be ambiguous (there being instances where it has been used to denote the driver of the car and also instances where it referred to the person who had control of the vehicle), we hold that it is not ambiguous as used in this particular rental agreement. Subsection (d), heretofore quoted, provides that the rented vehicle shall not be operated “by any person other than the renter who signed the rental agreement or, provided he is a qualified licensed driver, by a member of the renter’s immediate family, etc.” This language certainly makes clear that the term “operator” means “driver,” for one does not need a driver’s license to merely sit and tell somebody else where to go. Subsection (d) clearly has reference to who may drive the car, and Munger’s companion is not included. Under our statutes as applied to motor vehicles, their operation on the highways, etc., Sec. 75-303 Ark. Stats. 1947 defines the word “operator” in this language: “Operator. Every person (other than a chauffeur) who is in actual physical control of a motor vehicle upon a highway.” In the case of Witherstine v. Employers Liability Assurance Corporation, 235 N. Y. 168, 139 N. E. 229, 28 A. L. R. 1298, there was involved an insurance policy providing for a reduced rate when the car insured was being operated by the insured himself, a situation similar in effect to that presented here. In that case the court said, “the word ‘operate’ is used throughout the statute as signifying a personal act in working the mechanism of the car. The driver operates the car for the owner but the owner does not operate the car unless he drives it himself. If the meaning were extended to include an owner acting either by himself or by agents or employees the provisions of the highway law would be replete with repetitious jargon.” “When the meaning of the contract appears, it is the duty of the court to give them effect even when the words have been selected by an insurance company. Construction must not extend to the creation of a new contract for the parties.” In Blashfield on automobiles we find this statement on the construction of the word ‘operate.’ (Blashfield 6, Part 1, Section 3941) “. . . if a policy distinctly limits its protection to cases of injury occurring while the owner is operating the car, personal operation thereof by the owner is contemplated, and the insurer is not liable in any other event.” “Occasionally the policy restricts the coverage in this manner in certain states of fact and contingencies, and, when the situation at the time of the accident comes within a state of fact as to which the restriction applies, there is no liability upon the insurer for operation by persons other than the named insured.” “The word ‘operate’ read in the light of the context of the policy and in view of the meaning attached to the word in automobile statutes, may be construed as describing the personal act of the owner in working the mechanism of the car, and hence as excluding liability when the owner is not personally driving at the time of the accident, although he is present and directing another as to the route, speed, and general manner of operation of the car, . . .” In the case of Galan v. State, 164 Tex. Cr. Rep. 521, 301 S. W. 2d 141, The Court of Criminal Appeals of Texas used this language, “Appellant next complains of that portion of the court’s charge in which he instructed the jury-that they might convict if they found that the appellant did ‘drive and operate’ a motor vehicle on the grounds that the complaint and information charged only that he did ‘operate’ a motor vehicle. We hold such terms to be synonymous, and the court’s charge to be proper.” And in State v. Sullivan, 146 Me. 381, 82 A. 2d 629, the Supreme Judicial Court of Maine said: “According to popular acceptance, the meaning of the term ‘to operate a motor vehicle’ is the same as to ‘drive’ it. It usually means that a person must so manipulate the machinery that the power of the motor is applied to the wheels to move the automobile forward or backward . . . ” We conclude therefore that the word “operate” as used in the rental agreement here is plain and unambiguous and means that Munger was not protected for the reason that he was not operating the car at the time the car was wrecked. Accordingly the judgment is reversed and the cause remanded with directions to proceed in a manner consistent with this opinion. McFaddin, Robinson, and Johnson, JJ., dissent.