{ "id": 1702722, "name": "Red Top Driv-Ur Self v. Munger", "name_abbreviation": "Red Top Driv-Ur Self v. Munger", "decision_date": "1959-01-26", "docket_number": "5-1760", "first_page": "998", "last_page": "1006", "citations": [ { "type": "official", "cite": "229 Ark. 998" }, { "type": "parallel", "cite": "320 S.W.2d 97" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "82 A. 2d 629", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "146 Me. 381", "category": "reporters:state", "reporter": "Me.", "case_ids": [ 663200 ], "opinion_index": 0, "case_paths": [ "/me/146/0381-01" ] }, { "cite": "301 S. W. 2d 141", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10167440, 10167312 ], "opinion_index": 0, "case_paths": [ "/sw2d/301/0141-02", "/sw2d/301/0141-01" ] }, { "cite": "28 A. L. R. 1298", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "139 N. E. 229", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "235 N. Y. 168", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1899881 ], "opinion_index": 0, "case_paths": [ "/ny/235/0168-01" ] }, { "cite": "54 A. L. R. 845", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "156 N. E. 650", "category": "reporters:state_regional", "reporter": "N.E.", "pin_cites": [ { "page": "652" } ], "opinion_index": 1 }, { "cite": "245 N. Y. 158", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1979766 ], "pin_cites": [ { "page": "165" } ], "opinion_index": 1, "case_paths": [ "/ny/245/0158-01" ] }, { "cite": "6 A. 2d 722", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1939, "opinion_index": 1 }, { "cite": "122 N. J. L. 560", "category": "reporters:state", "reporter": "N.J.L.", "case_ids": [ 159141 ], "year": 1939, "opinion_index": 1, "case_paths": [ "/njl/122/0560-01" ] }, { "cite": "51 A. L. R. 2d 917", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1955, "opinion_index": 1 }, { "cite": "262 Ala. 373", "category": "reporters:state", "reporter": "Ala.", "case_ids": [ 8487567 ], "weight": 2, "year": 1955, "opinion_index": 1, "case_paths": [ "/ala/262/0373-01" ] }, { "cite": "179 N. E. 389", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "258 N. Y. 211", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1999758 ], "opinion_index": 1, "case_paths": [ "/ny/258/0211-01" ] }, { "cite": "38 N. E. 2d 540", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "312 Ill. App. 337", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5645066 ], "opinion_index": 1, "case_paths": [ "/ill-app/312/0337-01" ] }, { "cite": "28 A. L. R. 1298", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "139 N. E. 229", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "235 N. Y. 168", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 1899881 ], "opinion_index": 1, "case_paths": [ "/ny/235/0168-01" ] } ], "analysis": { "cardinality": 805, "char_count": 16887, "ocr_confidence": 0.489, "pagerank": { "raw": 4.5330875625009783e-08, "percentile": 0.2838864350778752 }, "sha256": "06a9b6b28e3623bf7b0fe1a08ceba9e7f4f4be98f00ee8dd2a5565fb938f7423", "simhash": "1:bff94b469035c0f4", "word_count": 2878 }, "last_updated": "2023-07-14T16:19:04.434209+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "McFaddin, Robinson, and Johnson, JJ., dissent." ], "parties": [ "Red Top Driv-Ur Self v. Munger." ], "opinions": [ { "text": "J. Seaborn Holt, Associate Justice.\nAppellee, Hunger, on October 30,1957 executed a \u2018 \u2018 Standard Bental Agreement\u201d 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.\u201d Bed Top initialed the box which entitled Munger to protection. Another section of this rental agreement provides: \u201cThe 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\u2019s immediate family, the renter\u2019s employer, or a person driving the car pursuant to said person\u2019s usual and customary employment by the renter, and in the course of said driver\u2019s regular and usual employment for the renter.\u201d 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\u2019s 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, \u2014 she was still driving, \u2014 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.\nIt 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 \u201coperated\u201d as used in the rental agreement. In this connection appellant says, \u201cThe 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 \u2018operated\u2019 is limited to physical control of the automobile.\u201d\nAppellee, on the other hand, says, \u201cThe term \u2018operated\u2019 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.\u201d\nAfter a careful review of the facts presented we have reached the conclusion that the appellant\u2019s contention is correct and must be sustained. We do not agree with appellee\u2019s argument that the word \u201coperated,\u201d 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 \u201coperator\u201d 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 \u201cby 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\u2019s immediate family, etc.\u201d This language certainly makes clear that the term \u201coperator\u201d means \u201cdriver,\u201d for one does not need a driver\u2019s license to merely sit and tell somebody else where to go. Subsection (d) clearly has reference to who may drive the car, and Munger\u2019s 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 \u201coperator\u201d in this language: \u201cOperator. Every person (other than a chauffeur) who is in actual physical control of a motor vehicle upon a highway.\u201d\nIn 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, \u201cthe word \u2018operate\u2019 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.\u201d\n\u201cWhen 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.\u201d\nIn Blashfield on automobiles we find this statement on the construction of the word \u2018operate.\u2019 (Blashfield 6, Part 1, Section 3941) \u201c. . . 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.\u201d\n\u201cOccasionally 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.\u201d\n\u201cThe word \u2018operate\u2019 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, . . .\u201d\nIn 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, \u201cAppellant next complains of that portion of the court\u2019s charge in which he instructed the jury-that they might convict if they found that the appellant did \u2018drive and operate\u2019 a motor vehicle on the grounds that the complaint and information charged only that he did \u2018operate\u2019 a motor vehicle. We hold such terms to be synonymous, and the court\u2019s charge to be proper.\u201d\nAnd in State v. Sullivan, 146 Me. 381, 82 A. 2d 629, the Supreme Judicial Court of Maine said: \u201cAccording to popular acceptance, the meaning of the term \u2018to operate a motor vehicle\u2019 is the same as to \u2018drive\u2019 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 . . . \u201d\nWe conclude therefore that the word \u201coperate\u201d 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.\nMcFaddin, Robinson, and Johnson, JJ., dissent.", "type": "majority", "author": "J. Seaborn Holt, Associate Justice." }, { "text": "Sam Robinson, Associate Justice, dissenting.\nThe majority starts off by saying that Munger executed a \u201cStandard Rental Agreement\u201d with Red Top. True, the printed form containing the terms of the agreement between the parties, prepared by Red Top, is designated thereon as \u201cStandard Rental Agreement.\u201d But there is no showing that snch a form is actually standard. Certainly there is no indication that it is one of such wide use that it is generally understood by the public.\nThere is a principle of law so firmly established that it needs no citation to support it, to the effect that an ambiguous written contract will be construed more strongly against the party that prepared it. Such an ambiguity exists in the case at bar, and in my opinion the majority is departing from a principle of law that has heretofore been followed in dozens of cases.\nIn the fine print on the back of the written agreement is the provision that\u2018\u2018 The vehicle described on the reverse side hereof shall not be \u2018operated . . . By any person other than the renter who signed the rental agreement . . . \u2019.\u2019\u2019At the time of the collision the vehicle was being driven by a young lady, at the direction of Hunger, who had rented the car. Incidentally, the young lady was a regular employee of Red Top. However, she was not on duty at the time of the collision. If the provision of the contract relieving Hunger from liability for damages to the automobile in the event of a collision is not applicable unless Hunger actually was sitting under the steering wheel and driving the car, then the contract should have so provided in unambiguous language. It is a matter of common knowledge that the driver of a passenger automobile is not ordinarily referred to as the \u201coperator\u201d of the vehicle. In all fairness, did anyone ever hear of an \u201cautomobile operator\u201d? The license to drive an automobile is called a \u201cDriver\u2019s License.\u201d In this State, printed on the front of the license is \u201cArkansas Driver\u2019s License.\u201d Undoubtedly one who drives an automobile is an \u201cautomobile driver.\u201d But \u201cdriver\u201d is not synonymous with \u201coperator.\u201d Roget\u2019s Thesaurus, New Ed., p. 169, par. 10, deals with the term \u201cAutomobile driver\u201d and gives as synonyms: \u201cautomobile driver, automobilist, autoist, motorist, chauffeur, James [slang]; truck driver, truckman, speed demon or racer; road hog [slang], Sunday driver [joc.]; joy-rider [coll.]; hit-and-run driver; back-seat driver [joc.]; bus driver; taxi or taxicab driver; jitney driver; cabdriver, etc. \u2019 \u2019 It will be noticed that tbe Thesaurus does not give \u201cautomobile operator\u201d as being synonymous with \u201cautomobile driver,\u201d although just about every other term imaginable is used.\nIn the majority opinion it is stated: \u201cClearly we think this collision protection was meant to be, and was, strictly personal, applying only to Hunger and in no sense general insurance for the benefit of some unknown operator.\u201d The appellee, Hunger, makes no contention in this case that the insurance was for the benefit of some unknown operator. It is his contention that he is the operator within the meaning of the contract and is therefore entitled to the collision protection. The majority cites Ark. Stats., \u00a7 75-303, defining \u201coperator\u201d as one who is in control of an automobile on the highway. The term as used in the statute is merely for the purpose of distinguishing chauffeurs from other drivers. If the majority is depending on that definition as applying to the case at bar, then a chauffeur who rented an automobile and had a collision would not be protected under the contract because of the fact that he was a chauffeur and not an operator.\nTo sustain the position that \u201coperator\u201d means \u201cdriver,\u201d the majority relies heavily on the case of Witherstine v. Employers\u2019 Liability Assurance Corp., 235 N. Y. 168, 139 N. E. 229, 28 A. L. R. 1298, where the word \u201coperate\u201d was construed as signifying a personal act in working the mechanism of the car. There was a strong dissent in the Witherstine case and later, in Snyder, et al. v. United States Mutual Ins. Co., 312 Ill. App. 337, 38 N. E. 2d 540, the Illinois court approved and followed the dissenting opinion in the Witherstine case, pointing out that one of the common and ordinary meanings of the word \u201coperate\u201d is \u201cto direct or superintend the working of,\u201d and since the defendant insurance company had prepared the policy and used the word it should be given the broadest meaning in favor of the plaintiff and not be interpreted in its strictest sense. The Snyder case involved a policy limitation as follows: \u2018 \u2018 This policy shall be effective only while the within described automobile is being operated by the called Assured . . . \u201d [italics supplied]. In that case the court also pointed out that the New York court had in a later case, Arcara v. Moresse, 258 N. Y. 211, 179 N. E. 389, followed the dissent in the Witherstine case and not the majority opinion. In other words, the principal case relied on by the majority in the case at bar has been overruled or seriously impaired. In the Arcara case, in speaking of the Witherstine case, the New York court said: \u201cInsofar as the quoted words carry the implication, that to \u2018operate\u2019 a motor vehicle, one must himself manipulate the steering wheel, they cannot be regarded as conclusively determining the significance of the word \u2018operation\u2019 or the word \u2018operating\u2019.\u201d\nIn the case of Trans-Continental Mutual Ins. Co. v. Harrison, 262 Ala. 373, 78 So. 2d 917, 51 A. L. R. 2d 917 (1955), the Snpreme Court of Alabama held that the word \u201coperated\u201d within the meaning of a restrictive endorsement on a policy of liability insurance is ambiguous under \u201cthe well established and recognized rule of construction pertinent to written instruments, particularly to policies of insurance, \u2019 \u2019 and that the ambiguity must be construed against the party who prepared the written contract.\nIn the New Jersey case of Neel v. Indemnity Ins. Co. of N. A., 122 N. J. L. 560, 6 A. 2d 722 (1939), it is said: \u201cThe question is whether the word \u2018operating\u2019 as used in the policy is to be limited to the manual control by the customer personally or is comprehensive of the act of the customer\u2019s servant. Our study of the dictionary definitions and of legal usage as reflected in the books brings us to the belief that sound support may be found for the use of the word with either meaning; and this presents an ambiguity. Decisions which have construed statutes with a criminal or quasi criminal aspect rather uniformly limit the words \u2018operator\u2019 and \u2018operating\u2019 with respect to driving an automobile to the person exercising immediate physical control. So, too, some of the cases which construe contracts obviously based upon the language of such statutes. But here we have a contract drafted by the defendant insurer independent of the statute and in the preparation of which the plaintiff had no part.\u201d The New Jersey court held that the insured was operating the automobile within the terms of the policy, even though the customer\u2019s son was driving the vehicle and the customer was not in the car at the time of the accident.\nIn my opinion the great weight of authority is to the effect that the word \u201coperate\u201d in the sense that it was used in this contract, is ambiguous, and since Bed Top prepared the contract, such ambiguity should be construed more strongly in favor of Hunger, the other party to the contract. As was said in the Arcara case, in a quotation from an earlier opinion by Judge Cardozo (Grant v. Knepper, 245 N. Y. 158, 165, 156 N. E. 650, 652, 54 A. L. R. 845), he \u201c \u2018did not abandon the car or its use when he surrendered to another the guidance of the wheel\u2019; he was \u2018still the director of the enterprise, still the custodian of the instrumentality confided to his keeping, still the master of the ship\u2019 \u201d; he was still the operator.\nFor the reasons set out herein, I respectfully dissent.", "type": "dissent", "author": "Sam Robinson, Associate Justice, dissenting." } ], "attorneys": [ "Wood & Smith, for appellant.", "Mehaffy, Smith & Williams, by Robert V. Light, for appellee." ], "corrections": "", "head_matter": "Red Top Driv-Ur Self v. Munger.\n5-1760\n320 S. W. 2d 97\nOpinion delivered January 26, 1959.\nWood & Smith, for appellant.\nMehaffy, Smith & Williams, by Robert V. Light, for appellee." }, "file_name": "0998-01", "first_page_order": 1022, "last_page_order": 1030 }