The majority starts off by saying that Munger executed a “Standard Rental Agreement” with Red Top. True, the printed form containing the terms of the agreement between the parties, prepared by Red Top, is designated thereon as “Standard Rental Agreement.” 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.
There 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.
In the fine print on the back of the written agreement is the provision that‘‘ The vehicle described on the reverse side hereof shall not be ‘operated . . . By any person other than the renter who signed the rental agreement . . . ’.’’At 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 “operator” of the vehicle. In all fairness, did anyone ever hear of an “automobile operator”? The license to drive an automobile is called a “Driver’s License.” In this State, printed on the front of the license is “Arkansas Driver’s License.” Undoubtedly one who drives an automobile is an “automobile driver.” But “driver” is not synonymous with “operator.” Roget’s Thesaurus, New Ed., p. 169, par. 10, deals with the term “Automobile driver” and gives as synonyms: “automobile 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. ’ ’ It will be noticed that tbe Thesaurus does not give “automobile operator” as being synonymous with “automobile driver,” although just about every other term imaginable is used.
In the majority opinion it is stated: “Clearly 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.” 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., § 75-303, defining “operator” 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.
To sustain the position that “operator” means “driver,” the majority relies heavily on the case of Witherstine v. Employers’ Liability Assurance Corp., 235 N. Y. 168, 139 N. E. 229, 28 A. L. R. 1298, where the word “operate” 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 “operate” is “to direct or superintend the working of,” 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: ‘ ‘ This policy shall be effective only while the within described automobile is being operated by the called Assured . . . ” [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: “Insofar as the quoted words carry the implication, that to ‘operate’ a motor vehicle, one must himself manipulate the steering wheel, they cannot be regarded as conclusively determining the significance of the word ‘operation’ or the word ‘operating’.”
In 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 “operated” within the meaning of a restrictive endorsement on a policy of liability insurance is ambiguous under “the well established and recognized rule of construction pertinent to written instruments, particularly to policies of insurance, ’ ’ and that the ambiguity must be construed against the party who prepared the written contract.
In 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: “The question is whether the word ‘operating’ 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’s 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 ‘operator’ and ‘operating’ 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.” The New Jersey court held that the insured was operating the automobile within the terms of the policy, even though the customer’s son was driving the vehicle and the customer was not in the car at the time of the accident.
In my opinion the great weight of authority is to the effect that the word “operate” 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 “ ‘did not abandon the car or its use when he surrendered to another the guidance of the wheel’; he was ‘still the director of the enterprise, still the custodian of the instrumentality confided to his keeping, still the master of the ship’ ”; he was still the operator.
For the reasons set out herein, I respectfully dissent.