National Car Rental System, Inc. v. Council Wholesale Distributors, Inc.

393 F. Supp. 1128, 1974 U.S. Dist. LEXIS 11531
CourtDistrict Court, M.D. Georgia
DecidedDecember 18, 1974
DocketCiv. A. 74-3-Alb
StatusPublished
Cited by4 cases

This text of 393 F. Supp. 1128 (National Car Rental System, Inc. v. Council Wholesale Distributors, Inc.) is published on Counsel Stack Legal Research, covering District Court, M.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
National Car Rental System, Inc. v. Council Wholesale Distributors, Inc., 393 F. Supp. 1128, 1974 U.S. Dist. LEXIS 11531 (M.D. Ga. 1974).

Opinion

OWENS, District Judge:

National Car Rental System, Inc. 1 (National), filed its diversity jurisdiction complaint against Council Wholesale Distributors, Inc. 2 (Council) seeking to recover the $14,923.35 fair market value of a semi-tractor and trailer rig leased 3 from National by Council and wrecked by Council’s driver, Bobby Sherman.

The pleadings, depositions and answers to interrogatories together with the affidavits show that the defendant’s driver, Bobby Sherman, departed driving the leased rig from somewhere near Akron, Ohio, and around ten o’clock at night stopped at a Lexington, Kentucky, interstate highway ramp to pick up two teen-age boys who were hitchhiking south. He told the boys “he was pretty tired and he needed somebody to talk to to keep him awake.” (Deposition of Steve Lawson at 11). About an hour later the driver stopped at a truck stop and got something to eat. They continued south and after crossing into Tennessee pulled off and into a roadside fireworks place remaining there about an hour while the driver slept. The boys at the direction of the driver woke him up, and they continued south. Sometime later — “maybe half an hour or something” — (Deposition of Ray Peters at 13), the driver stopped at a restaurant, Ray Peters went in and got french fries and coffee for him and he slept about twenty minutes. Then the driver started again.

Around eight o’clock in the morning defendant’s driver with his hitchhikers still aboard was proceeding south on I-75 in the vicinity of Calhoun, Georgia. Defendant’s driver was in the right-hand lane and ahead of him was another semi-tractor and trailer rig. Seated to *1131 the right of defendant’s driver was hitchhiker Ray Peters; hitchhiker Steve Lawson was sleeping in the sleeper berth. As Ray Peters testified: “I was laying with my head over the window and I looked up and I seen this green truck about a hundred yards or something like that . . . ” travel-ling the same direction that we were on the interstate highway. “I kept staring at that truck and we got close to it. I looked over at the driver and looked at the truck.” I didn’t think the driver gave any acknowledgment that he had seen the truck. He “was a little slumped but it didn’t really look like he was asleep too much to me. So then I yelled, watch out, and, you know, he straightened his head up and started to turn the wheel to the left then he clipped the back corner of that truck in front of us. . . . ” (Deposition of Ray Peters at 15, 16). The leased rig went to the driver’s left into and across the median, into and across the northbound lane and off the side of the highway into two trees. The tractor and trailer were damaged beyond repair, and the driver was killed. Both hitchhikers received only minor injuries.

National contends that Council’s employee by (a) driving more than 10 hours without resting for eight hours before continuing again; (b) driving in a fatigued condition, and (c) giving a ride to two hitchhikers violated Department of Transportation Regulations §§ 392.3, 4 392.60 5 and 395.3. 6 National further contends that Council’s driver violated certain motor vehicle laws of the State of Georgia. These actions National states violated Council’s agreement in paragraph “(3) that he will not cause or permit the vehicle to be used in violation of any local, county, state or federal law, ordinance or regulation. .”, and thus makes Council responsible for the loss in question because of Council’s agreement “(12) to release, indemnity and hold Lessor harmless from and against: . . . (c) all loss, damage, cost and expense resulting from customer’s violation of any terms of this agreement or breach of customer’s convenants as expressed herein”

*1132 Defendant responds by contending that National charged and defendant paid for collision and comprehensive coverage without any deductible as shown by the collision damage waiver which Council accepted, to wit:

“In consideration of the C.D.W. rate agreed upon herein, lessor agrees to relieve customer of liability for damages caused by collision as provided in paragraph 11 on page 1 hereof, but customer shall be fully liable for all damages of any nature if the vehicle described herein shall be operated in violation of any of the provisions of this rental agreement and for all overhead damages. CUSTOMER ACCEPTS OR DECLINES PURCHASE OF C.D.W. AT RATE SPECIFIED. C.D.W. IS APPLICABLE ONLY IF ACCEPTED. IF DECLINED — DEDUCTIBLE IS $500 FOR VAN TRUCKS — $1,000 FOR TRACTOR, TRAILER OR REFRIGERATED VAN.”

that National indicated on the front of the agreement “G H NATL. SUPPLIES INSURANCE” and that the term “operated” in the Collision Damage Waiver is plainly not intended to encompass the previously quoted portion of paragraph 3 which according to Council, restricts the “use” tout not the “operation” of the vehicle. Council further contends that whatever its driver did or failed to do was done in the operation of National’s vehicle and was not done in using National’s vehicle. Therefore Council says National’s contentions are without merit.

“The construction of a contract is a question of law for the court. Where any matter of fact is involved (as the proper reading of an obscurely written word), the jury should find the fact.” 1933 Georgia Code Annotated § 20-701. When there is an ambiguity in a written contract, its construction using rules of construction laid down by the Supreme Court of Georgia, is still a matter for the court. Only if an ambiguity remains after application of the applicable rules of construction, is there a question to be decided by a jury. Chalkley v. Ward, 119 Ga.App. 227, 235, 166 S.E.2d 748 (1969).

The defendant Council has moved for summary judgment pursuant to Rule 56, Federal Rules of Civil Procedure. That rule provides that “the judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Rule 56(c). For reasons hereinafter stated the court, after considering the entire case, is of the opinion that there is no genuine issue as to any material fact 7 and that the defendant is entitled to a judgment as a matter of law.

The contracts in question are identical printed forms authored and prepared by plaintiff National. As printed by National, Exhibit “A” is a seven-copy carbonized snap-out form. The front page denominated “ORIGINAL” but not otherwise numbered, has many blank spaces to be completed, a signature line for the customer and above that signature line the following:

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Cite This Page — Counsel Stack

Bluebook (online)
393 F. Supp. 1128, 1974 U.S. Dist. LEXIS 11531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/national-car-rental-system-inc-v-council-wholesale-distributors-inc-gamd-1974.