
    Enders et al. v. Clarke.
    (Decided May 16, 1932.)
    
      Mr. August A. Bendigs, Jr., and Mr. Edward Lee Meyer, for plaintiffs in error.
    
      Mr. D. D. Woodmcmsee, Mr. Nathaniel H. Maxwell and Mr. Ervin L. Bramlage, for defendant in error.
   Hamilton, J.

Martin Clarke, plaintiff below, sued Alexander Enders, seeking recovery for personal injuries received by him on being struck by an automobile rented by Alexander Enders, as bailee, and driven at the time and place of the injury by one Stanley Bailey.

The trial of the case resulted in a verdict for Clarke. Judgment was entered on the verdict, and no error proceedings were prosecuted, and the judgment in favor of Clarke became a finality. The judgment was not paid and Clarke brought his action against the defendant, the Employers Reinsurance Corporation, plaintiff in error here, under favor of Sections 9510-3 and 9510-4, General Code.

Enders rented the automobile which caused the accident from “The Saunders System,” which carried a policy of the defendant corporation covering loss or damage from the operation of the automobile while in the hands of the bailee.

The corporation admitted the existence of the policy, and admitted the injury to the plaintiff and the recovery of the judgment against Enders.

The defense of the corporation was that Enders violated certain conditions of the rental contract, and was violating them when the accident happened, thereby relieving the corporation of liability under the terms of the policy; and, further, that under the facts the assured was not covered.

The pertinent conditions of the contract of rental are:

6. “The customer agrees not to permit said automobile let hereunder to be driven by another except his servants or employees while acting for him in the due course of his business.”

7. “It is expressly agreed that said indemnity protection shall not inure to the benefit of the customer during the time when any of the provisions, conditions and stipulations of this contract are being violated by the customer or his servants or employees acting for him in the due course of his employment.”

This case was tried to the court, which rendered judgment in favor of Clarke against the corporation. From that judgment, the corporation prosecutes error to this court.

It is argued in the brief, and is the sole point made here, that the judgment obtained by Clarke in the original action was based on agency; that Stanley Bailey, who was driving the car at the time of the accident, was the agent of Enders and the terms and conditions of the policy and the contract of rental do not cover an agent; that coverage is limited to the customer, his servants or employees, as specifically stated in conditions 6 and 7, above quoted.

It is argued that the relation of principal and agent creates a larger, more comprehensive relationship than that of master and servant, or employer and employee; that the express terms limit coverage to the customer, his servants or employees, and are not broad enough to include an agent; that this limitation is placed in the contract for the purpose of preventing the customer or bailee from indiscriminately letting others drive the car under bailment.

There is much force in this argument, and we are of opinion, without further discussion, that liability is restricted to the customer, his servants or employees, and the policy does not indemnify when the rented car is being driven by another, not the customer, servant or employee.

However, we have the situation that a final judgment was had by Clarke against Enders and that all questions which were presented as issues in the case under the pleadings were determined by the jury.

The petition alleges: “At said time and place one Stanley Bailey, acting by the authorization and direction of, and with the permission of, defendant, Alexander Enders, and being in the service of defendant, was driving an automobile southwardly on Sycamore Street at a high and dangerous rate of speed,” etc. Thus, we have the allegation that Bailey was in the service of Enders at the time of the accident.

“Service” is defined by lexicographers as the “state of being a servant; the position of a servant; employment in the interests of a person or of a cause.” This definition of “service” brings the relationship between Bailey and Enders clearly within the express terms of the policy and contract of rental. The machine was operated by Enders’ servant or employee.

It is claimed that at the trial of the original case the evidence did not disclose the relationship of servant or employee, but disclosed the relationship of principal and agent, and the court charged the jury on that question.

It must be borne in mind that the verdict of the jury and the judgment in that case are not subject to attack here. The allegation in the petition is that Bailey was in the service of Enders at the time of the accident. This was one of the issues in the original case. A motion might have been addressed to the petition requiring the petitioner to state the character of the service as between Bailey and Enders, but no such motion was filed. The case, therefore, went to the jury on that issue. The presumption is, therefore, that the jury found at the time of the accident and injury that Bailey, when driving for Enders, was in the service of the defendant, and, as we have before stated, that service may have been as servant or employee. No interrogatory was submitted to the jury as to the character of the service, and this court is not at liberty to examine the evidence to ascertain the answer to that question. The judgment in the original case being res judicata of the issue that Bailey was in the service of Enders at the time, and that allegation bringing the assured within the protection of the policy, there was no error in the judgment of the court of common pleas finding in favor of Clarke and against the corporation.

Judgment affirmed.

Ross, P. J., and Cushing, J., concur.  