As I understand their opinion, my brothers of the majority reason thus:
(a) a final judgment has been rendered against Davis growing out of James L. Carter’s negligent operation of the cab;
(b) Davis, having rented the cab from the owner, admittedly was insured under the owner’s policy; (c) therefore the insurance company is liable to the judgment creditor. Thus they hold the Virginia judgment against Davis to be conclusive of the insurance company’s liability. If this conclusion were correct, it would be enough and the majority need go no further. But, apparently realizing that an insurer’s liability is not necessarily coincident with that of its insured, they go on to hold that § 44-301, D.C. Code (1940), requires a cab to be insured as such, regardless of who is driving it; that therefore the policy, purporting to conform to the statute, covered any person who may have been operating the cab; and that the coverage could not be restricted by the policy to the named insured and persons using the cab with its permission.
I disagree as to both propositions. My view is that the Virginia judgment against Davis is not conclusive of Amalgamated’s liability, and that the policy, construed in the light of the statute, covered G & M Motors, Inc., and Louis Davis, but did not extend to James L. Carter who was using the cab without their knowledge or consent.
That the judgment did not fix liability upon Amalgamated merely because Davis was an insured person is settled, I think, by State Farm Mutual Automobile Insurance Company v. Coughran, 1938, 303 U.S. 485, 58 S.Ct. 670, 82 L.Ed. 970. In that case, after judgment against the car owner for damages caused by the negligent driving of the car, the injured party sued the owner’s insurance company on the judgment. The insurance company was permitted to show that the risk was not within the policy because the car was not being driven at the time by the insured or by his paid driver or a member of his family or a person acting under his authority, within the fair in-tendment of the policy. See also Farm Bureau Mutual Automobile Insurance Company v. Hammer, 4 Cir., 1949, 177 F.2d 793, 799-800, where the court said:
“It is, however, obvious that the binding effect of a judgment against the insured does not extend to matters outside the scope of the insurance contract, and that the Insurance Company is neither obligated to defend nor bound by the findings of the court if the claim against the insured is not covered by the policy. To hold otherwise would be to estop the Insurance Company by the acts of parties in a transaction in which *222it has no concern and over which it has no control, and to deprive it of its day in court to show that the transaction is foreign to the contract of insurance.”
Whether the judgment against Davis is conclusive as to the insurance company’s liability depends, therefore, upon whether the policy covered the cab while it was being operated by James L. Carter-without the knowledge or permission of-either G & M Motors, the owner, or Davis, the renter of the cab, and at a point more than one hundred miles distant-from the District of Columbia. As to that question Amalgamated is not bound by the Virginia court’s findings, as the-Fourth Circuit said in the Hammer case.
In order to ascertain whether James L. Carter, was insured, I shall briefly review the policy, the applicable statute, and the meager facts concerning the accident which the record contains. Amalgamated insured G & M Motors, the owner of Century Cab No. 5, against damages “caused by accident and arising out of the ownership, maintenance or use. of the automobile.” The policy also defined the term “insured” as including “any person while using the automobile * * * provided * * * that the actual use is with the permission of the named insured.”
The statute requires persons operating or renting cabs to provide either a bond or insurance conditioned for the payment of any judgment recovered against the owner “or renters of their cabs, for death * * * caused in the operation, maintenance, [or] use * * * of such motor cabs * * *(My emphasis.) In compliance with this statute the insurance company agreed by endorsement that its liability should
“ * * * become and be absolute for damages adjudged against the insured on account of injuries to or death of persons or damage to or destruction of property resulting from said insured’s ownership, maintenance or use of the motor ve-hide * * *(My emphasis.)
It is not suggested that this endorsement, which provides for absolute liability for damages resulting from the insured’s use of the cab, does not meet the requirements of the statute. Such a suggestion would be untenable, for one who rents a cab from its owner of course has his permission to use it ;1 so, in covering any person who used Century Cab No. 5 with G & M Motors’ permission, the policy extended to Louis Davis and was therefore as broad as the statute which; requires owners and their renters to be insured.
The question is, whose use of the cab does the statute require to be covered by insurance, and whose use of it was covered by the policy? I think it plain that the statute requires use by the owner or his renter to be covered, and that the policy here is slightly broader in that, it covers not only use by the owner and his renter but also use by any other person authorized by the owner. Quite contrary to this, the majority say, “It [the statute] provides that the policy must be for payment to ‘any person’ of ‘any judgment’ for death to ‘any person’ arising from the operation of the cab.” The quoted sentence goes too far, in my opinion, because it construes the statute as requiring insurance of the cab as such, without reference to whether it was being used by an insured person. The statute requires, and the policy provided, that the insurance company would pay “any judgment” for death to “any person” arising from the operation of the cab by G & M Motors or by anyone using the cab with its permission, including Davis.
The Act does provide, to be sure, that not only the owners but the “renters of their cabs” shall be insured against damages caused in the operation or use thereof. But I suggest that the operation or *223use must be that of the owner or the renter of the cab, and that liability cannot attach when damages result from the operation or use by some person unknown to and unauthorized by the owner, for such a person is not a “renter” within the meaning of the statute. It must be that a “renter” is one who rents from the insured owner; the word does not include one who rents from the original renter without the knowledge or consent of the insured owner. We so held, in effect, when we said, in Simon v. City Cab Company, 1935, 64 App.D.C. 364, 365-366, 78 F.2d 506, 507, certiorari denied 296 U.S. 640, 56 S.Ct. 173, 80 L.Ed. 455:
“It is difficult to conceive of a case, where the owner of an automobile, used privately, for business purposes, or publicly as a taxicab, could be held liable for an accident caused by the car while operated by a person unknown to the owner and without his express or implied permission. Clear it is, that the agent of the owner, in whatever capacity he is charged with the use or operation of the car, cannot without the knowledge or consent of the owner transmit his agency to a person unknown to the owner, and thereby impose liability on the owner for the reckless or negligent operation of the car.”
While the Simon case was decided before the enactment of § 44-301, D.C.Code (1940), there is nothing in that statute which is contrary to, or which detracts from, the principle stated in the language just quoted. Here, James L. Carter was neither the original renter from G & M Motors, nor was he a renter from Davis. He had not been authorized by either to operate the cab.
I turn now to the record to ascertain, if possible, the circumstances in which the accident occurred. No evidence was introduced on that subject. The only witnesses were the District of Columbia Commissioner of Insurance and the chief clerk of the Public Utilities Commission, who knew nothing of the accident and of course did not undertake to testify concerning it. There was no stipulation of facts except, as shown by the pretrial order, that the scene of the accident was approximately fifteen miles north of Charlottesville, Virginia.
All else we know of the facts comes from statements made to the court by the attorney for the insurance company. Counsel for the administrator would not stipulate to his adversary’s narrative. When the trial judge made the following suggestion to him:
“ * * * You can agree those are the facts, and then the only thing I will have to determine, outside of the representative [sic] of the Public Utilities Commission, is whether or not the doctrine of res judicata applies * *
appellant’s counsel responded thus:
“ * * * We will accept as fact only the findings of fact of that Court which had all the argument [sic. Evidence?] before it.”
He did agree, in accordance with the court’s later suggestion, that “for the sake of discussion” he would assume the facts to be as stated by appellee’s attorney and would “let the doctrine of res judicata apply.”
Apparently the trial judge treated this as a stipulation, and based his findings of fact upon the narrative of the counsel for the insurance company. For that reason, I summarize the facts stated by counsel:
The taxicab, owned by G & M Motors, Inc., was rented by it to Louis P. Davis pursuant to a written application which contained the following agreement on his part:
“I further agree not to allow any person other than myself to drive the aforementioned automobile without written permission from the G. & M. Motors, Inc., or their duly appointed agents. This auto may not be taken out of the metropolitan area of Washington, D. C., without written permission of G. & M. Motors, Inc., or their agents.”
On May 3, 1947, without permission from G & M Motors, Davis rented the *224cab for a flat price of twenty or thirty dollars, to John Fleming2 3 for the purpose of taking a trip down into Virginia.3 Fleming then “made arrangements” with Howard Carter and his brother, James L. Carter, to take the cab to a place near Charlottesville, Virginia. As they set out, Fleming was driving and the Carter brothers and two girls were in the cab. In the vicinity of Fredericksburg, Virginia, James L. Carter, who did not have a D. C. hacker’s license, relieved Fleming at the wheel and was driving the cab when the acciednt occurred in which his brother was killed.
Thereafter Howard Carter’s administrator filed suit in the Circuit Court of Greene County, Virginia, against G & M Motors, Inc., Louis P. Davis, John Fleming and James L. Carter, as well as other persons and corporations. He was awarded judgment for $7,500 against Davis, Fleming and Carter. The action was dismissed by the court as to G & M Motors on the ground that Davis was not its agent.4
The Virginia judgment contains the following, denominated “findings of fact”:5
“1. That James Landers Carter and John Fleming were guilty of negligence.
“2. That the defendants John Fleming and James Landers Carter were acting as the agents of Louis Davis.
“3. That no agency relationship was proven to exist between Louis Davis and any of the defendant companies.”
Having so found, the court proceeded to give the administrator judgment against Davis, Fleming and Carter. These findings do not bind Amalgamated unless, as I have said, its policy covered James L. Carter at the time of the accident. As to that question, which was not before the Virginia court and about which it did not undertake to adjudicate, Amalgamated was entitled to its day in court under the Supreme Court’s decision in the Coughran case.
The question simply is, was James L. Carter an “insured” under the policy and the statute? To be sure, G & M Motors and Davis were insured but, under the Simon case, Davis could not extend coverage to John Fleming without the knowledge and consent of G & M Motors, and certainly Fleming could not extend it to James L. Carter.
The majority opinion says,
“ * * * The key fact here is that the appellant administrator has a final judgment against Davis, the renter of the cab, on account of damages arising from operation of the cab.”
But, as I have suggested, the damages did not arise from Davis’ operation of the cab, and Amalgamated had insured only against damages so arising. As I have heretofore indicated, I think the majority are mistaken in holding that Amalgamated had insured the cab as *225such, regardless of who was driving.6 Such ruling may well make taxicab liability insurance difficult, if not impossible, to obtain, or prohibitive in cost, since the insurance company will now be liable in a case where a cab has been stolen and an accident occurs while it is being negligently operated by the thief. “Under no circumstances in such a case,” we said in the Simon opinion, “could the owner of the car be held liable.”
The administrator alleged in his complaint that the policy contained the following provision:
“It is understood and agreed that anything in this policy to the contrary, notwithstanding the coverage afforded under this policy, * * * is afforded without regard to the boundaries of the District of Columbia. This endorsement is effective on or about 12:01 a. m., May 26, 1946.”
As a matter of fact the policy contained no such provision. An endorsement to that effect was submitted to the Superintendent of Insurance by Amalgamated on April 29, 1946, but was later withdrawn and never became effective as an endorsement to the master policies issued by Amalgamated. Colloquies between court and counsel show that the proposed endorsement is the same as that which we had before us in Bennett v. Amalgamated Casualty Insurance Company, 1952, 91 U.S.App.D.C. 279, 200 F.2d 129. There we held the provision, alleged by the present appellant to have been a part of the contract of insurance, never became effective. Consequently the policy provision restricting use of the cab to the District of Columbia remained in effect. In the Bennett case where the contractual definition of the word “insured” was the same as that involved here, we held the negligent driver of the cab, who had rented it directly from the owner, was not an “insured” at the time of the accident, which occurred in North Carolina, because he did not have the permission of the named insured to use it as he did.
The present case is much stronger for the insurance company in that the negligent operator of the cab was neither the owner nor the renter. He was not even a renter from a renter. He did not have the permission of the owner or the original renter to operate the cab even in the District of Columbia, and certainly not at a point in Virginia more than one hundred miles distant from the District. Moreover, the record does not show that the decedent was a paying passenger.
I would affirm the judgment of the District Court on the authority of the Bennett case.
. I put aside for the moment the question of the validity of the policy provision restricting use to the District of Columbia. For purposes of the present discussion, I assume, -without conceding, that the policy covered one insured thereunder, no matter where he might take the cab.
. The majority opinion refers to Fleming as a “hacker,” no doubt because the trial court’s findings of fact described him as “a licensed hacker.” I find nothing in the record to support the finding.
. My brothers are mistaken in referring to this as a group arrangement. They speak of “The arrangement by Davis with Fleming, Garter, et al.” Davis dealt only with Fleming. It does not appear that he dealt with or even knew the Garters.
. The Virginia court had before it the written application under which Davis rented the cab from G & M Motors. This appears from the copy in our record wbieb is certified by the clerk of that court as a copy of an exhibit in that proceeding.
. These findings do not bind Amalgamated, but it is interesting to speculate as to how Fleming could have been negligent when James L. Carter was driving. Perhaps the court thought he was negligent in yielding the wheel to Garter. It is also interesting to note that the Virginia court held the rental agreement between G & M Motors and Davis did not create an agency, but nevertheless held that the rental agreement between Davis and Fleming made both Fleming and Carter agents of Davis.
. The majority opinion, in attempting to distinguish Bennett v. Amalgamated Casualty Insurance Co., expressly disclaims making this holding. It says:
“* * * This statute did not provide an all-inclusive liability insurance for the vehicle as such or the driver as such; it was a provision imposed upon the operation of taxicabs as common carriers.” But the majority opinion also contains the following:
“* * * And the policy defines ‘insured’ to include not only the named insured but also any person using the automobile or legally responsible for its use. To be sure, a proviso is added to the policy definition, the proviso being that the actual use is with the permission of the named insured. But that proviso is clearly a condition or provision in the policy, and the endorsement signed and filed by the Insurance Company provides that, any condition or provision in the policy to the contrary notwithstanding, the liability of the Company is absolute for damages adjudged against the insured.”
This seems to me to bo a fiat holding that the policy covered any person using the automobile, whether or not he had permission from G & M Motors. It is therefore a holding that the policy insured the cab as such, regardless of whether the driver was an “insured” within the meaning of the contract or the statute.