1. If there is any doubt about the meaning of a contract when considered as a whole, it will be construed against the party who prepared it.
The plaintiff brought a contract action to recover damages occurring to its automobile while it was rented to the defendant under a contract which provides in part as follows:
"Standard Rental Agreement Page 1. In consideration of the covenants herein contained, the undersigned Lessor hereby leases to the undersigned Lessee, hereinafter called 'Renter' (including therein any additional renter signatory herein), upon the covenants, terms and conditions set forth on this page, the motor vehicle described in this agreement hereinafter referred to as 'said vehicle'. . .
"2. Renter acknowledges . . . that he received said vehicle in good and safe mechanical condition, and agrees that he will return said vehicle to Lessor . . . in the same condition as he received it, ordinary wear and tear excepted, . . .
"7. Renter expressly agrees to pay Lessor on demand: . . . a sum equal to the cost of all damages to said vehicle provided, however, that so long as said vehicle is operated in accordance with all the terms, conditions, and covenants of this rental agreement, the Renter's liability to Lessor for such damage (1) shall not exceed $100.00 or (2) shall be waived by Lessor if a special rental rate adjustment has been agreed upon herein and evidenced by initials of Lessor's agent in the space provided herein . . . [The contract shows that (2) above was not agreed upon.]
"10. The Renter expressly agrees that the motor vehicle leased to him shall not be operated: a. To carry passengers for a consideration, express or implied: b. In violation of any of the terms and conditions of this rental agreement: c. By any person in violation of law as to age: d. In any race or speed test or contest: e. To propel or tow any trailer or vehicle used as a trailer: f. By any person other than (A) the Renter who signed this rental agreement, or (B) any additional Renter who signed this agreement, or (C) with the written consent to the Lessor. g. By a Renter or Driver who has given a fictitious name or address to the Lessor: h. By any person under the influence of intoxicants or narcotics: i. For any illegal purpose. j. By a Driver outside his usual and customary employment by the Renter, or by a Driver outside the regular and usual employment of the Renter: k. In any instance where the speedometer of said vehicle has been tampered with or disconnected."
The petition alleged that the defendant breached the contract in that he allowed another person to drive the automobile without the plaintiff's consent, and the damage occurred while she was driving the car; in that he did not return the vehicle in the same condition as he received it; and in that he refused to pay to the plaintiff on demand the cost of the damages.
The defendant in his answer admitted the contract and alleged that he rented the automobile for the purpose of having it used in his business by his employee, and turned possession of it over to his employee for such use, and while she was so using it at his direction as his employee and agent and in the course and scope of her employment the automobile was struck and damaged by a truck negligently operated by a third party. The defendant denied breaching the contract and contended that the driving of the automobile by his employee was within the contemplation of the contract; and that under the terms of the contract his liability could not in any event exceed $100, inasmuch as paragraph 7 (h) (1) of the contract, quoted above, was applicable. The defendant filed a general demurrer to the petition. Both the plaintiff and the defendant filed motions for summary judgment, the defendant moving for an order barring the plaintiff from recovering any sum greater than $100. The defendant's motion was supported by affidavits of the defendant and of his employee who drove the car. The defendant assigns error on the orders of the trial court overruling his general demurrer, denying his motion for summary judgment, and granting the plaintiff's motion for summary judgment on the question of the defendant's liability and leaving the amount of damages for trial before a jury.
1. In granting the plaintiff's motion for summary judgment against the defendant and leaving the amount of the damages to the jury, the trial court necessarily determined that the defendant breached the contract in permitting his employee to drive the rented automobile and consequently that the amount of damages was not limited to $100 under paragraph 7 of the contract quoted above. The plaintiff contends that the contract unambiguously prohibited the automobile being driven by the defendant's employee, calling special attention to paragraph 10(f), which provides: "The Renter agrees that the motor vehicle leased to him shall not be operated by any person other than (A) the Renter who signed this rental agreement, or (B) any additional Renter who signed this agreement, or (C) with the written consent of the Lessor." Paragraph 10(j) provides: "The Renter expressly agrees that the motor vehicle leased to him shall not be operated . . . by a Driver outside his usual and customary employment by the Renter, or by a Driver outside the regular and usual employment of the Renter." We cannot look at either paragraph 10(f) or paragraph 10(j) alone to determine the intent of the contract. If we looked at paragraph 10(f) alone, we could conclude that the person who signed the contract agreed not to permit an employee to drive. If we looked at paragraph 10(j) alone we could conclude that the contract contemplated that employees of the renter were permitted to drive the car in their usual and customary or regular employment. This subparagraph places limitations on the purposes for which a renter's employee may use the car in addition to the use limitations placed on the renter by subparagraphs (a), (d), (e) and (i) of paragraph 10. When we look at the contract as a whole, we cannot agree that it is unambiguous. The terms "Renter" and "Driver" are used, but the only places where the terms are in any way defined are at the beginning of the agreement, quoted above, and in paragraph 9: ". . . the Renter or Driver (employee of Renter) . . ." This portion of paragraph 9 and paragraph 10(j) indicate that it was contemplated that the contract authorized an employee of the renter to drive. While the plaintiff contends that the renter is not entitled to have his employee drive the vehicle unless the employee has signed the contract as an additional renter, the contract in no way attempts to define the term "Additional Renter." There is no language in the contract that states positively that a "Driver (employee of Renter)" must sign the contract or have the written consent of the lessor, or that the renter cannot operate the vehicle through an employee.
The record shows that this "Standard Rental Agreement" of Avis Rent-A-Car System was executed on a form 3 5/8" x 8 7/8" having on one side 12 paragraphs in fine print (paragraphs 10, 11, and 12 having a heading in larger print), and on the other side a form with spaces for certain information to be filled in, including the name, home address, firm name, firm address, and driver's license number of the renter, and lines for "Signature of Renter" and "Additional Renter." Under these lines for signatures is the following: "(subject to terms and conditions on page 1, also printed on reverse side)." Obviously this is a contract which was prepared by experts at the instance of the lessor and adhered to by the renter, who had no voice in its preparation. If there is any doubt about its meaning it must be construed against the lessor. Johnson v. Mutual Life Ins. Co., 154 Ga. 653
, 656 (115 SE 14
); Moorefield v. Fidelity Mut. Life Ins. Co., 135 Ga. 186 (69 SE 119)
; Hill v. John P. King Mfg. Co., 79 Ga. 105
, 109 (3 SE 445
); Mutual Life Ins. Co. of N. Y. v. Camp, 77 Ga. App. 288
, 290 (48 SE2d 493
); Johnson v. U. S. Fidelity &c. Co., 93 Ga. App. 336
, 341 (91 SE2d 779
); Continental Life Ins. Co. v. Wells, 38 Ga. App. 99 (142 SE 900)
. It should be construed favorably to the renter as it could have been reasonably understood by him. Loftin v. United States Fire Ins. Co., 106 Ga. App. 287
, 294 (127 SE2d 53
Considering the construction less favorable to the lessor, we are unable to say as a matter of law that the defendant breached the contract in permitting his employee to drive the car. The trial court erred therefore in granting the plaintiff's motion for summary judgment holding as a matter of law that the defendant was liable.
2. In support of its general demurrer to the petition the defendant argues that paragraph 7 of the contract, which the plaintiff alleges the defendant breached, imposes no liability greater than that imposed by common law on the defendant for damages to the bailed automobile while in the bailee's possession. At common law in a bailment for the mutual benefit of the parties the bailee is liable only for damages caused by his failure to exercise ordinary care. Renfroe v. Fouche, 26 Ga. App. 340 (106 SE 303); Loeb v. Whitton 77 Ga. App. 753, 755 (49 SE2d 785). But a contract enlarging or diminishing the bailee's common law liability will be given effect. Fain v. Wilkerson, 22 Ga. App. 193 (95 SE 752); Wilensky v. Martin, 4 Ga. App. 187, 190 (60 SE 1074); St. Paul Fire &c. Ins. Co. v. Charles H. Lilly Co., 46 Wash. 840 (286 P2d 107); Sun Printing &c. Co. v. Moore, 183 U.S. 642, 654 (22 SC 240, 46 LE 366); 8 CJS Bailments, 22, 26 (c,d); 6 Am. Jur. 300, 183; Anno. 150 ALR 269.
Since paragraph 7 of the present contract provided that the defendant should be liable for damages to the automobile regardless of his fault, the trial court did not err in overruling the defendant's general demurrer.
3. We do not pass on the assignment of error on the order denying defendant's motion for summary judgment, as such order is not subject to review. Code Ann. 110-1208.