
    U-DRIVE-IT Co., Plaintiff, v MONKIEWIEZ, Defendant.
    Municipal Court, Dayton Ohio.
    No. 81135.
    Decided January 28, 1948.
    Clifford R. Curtner, Dayton, for plaintiff.
    George F. Holland, Dayton,' for defendant.
   OPINION

By McBRIDE, J:

In this case, defendant expressly, and in writing agreed to assume all damages or loss to the rented motor vehicle * * * caused from collision * * * or in any other manner, whether by the negligence of the renter (defendant) or otherwise. „ '

The vehicle was damaged in a collision and abandoned in Indiana.

The case of the Triangle Film Corporation v Sakes, 7 Oh Ap, 458, appears to be in point. The opinion is brief and requires no. repetition here. As indicated in that case, the written contract is too plain to be construed in any other way.Under the contract, the defendant became the insurer of the property and the burden would be upon him to prove any circumstances which might relieve him.

In short, the test is not ordinary care, but rather the degree of responsibility imposed by the contract.

See also 346 Pa 348, 150 A. L. R. 266 and annotations.

The Court finds that the contract out of which this action arose was in writing and that this action is not barred by §11221 GC.

Plaintiff specially alleged damages which resulted from the breach of contract; that is, the expense of returning the car, damages to repair, and loss of use. All of these damages reasonably result from the breach of the contract.

It is true the plaintiff did not plead the damages to the vehicle in the usual form, however, no objection was made thereto and the case was tried on the merits for the actual cost of repair. The only witness, a local officer for the company, testified as to the value and cost to it of the repairs made under his supervision as well as to the other special damages. Ford Motor Co v Potomac Insurance Co, 27 Oh Ap 279.

The Court finds that the damages were:

Transportation • $ 20.00

Repairs 234.88

Loss of use 50.00

Bal on rental 13.05

$317.93

Therefore the Court finds in favor of the plaintiff and against the defendant for $317.93.  