Boss v. City of Spokane, 36396

• Decision Date: 27 November 1963
• Docket Number: No. 36396,36396
• Citation: 387 P.2d 67,63 Wn.2d 305
• Parties: Martin G. BOSS, Respondent, v. CITY OF SPOKANE, and Clifford Payne, as Chief of Police, and Paul D. Warrington, Appellants.
• Court: Washington Supreme Court

Page 305

63 Wn.2d 305

387 P.2d 67

Martin G. BOSS, Respondent, v. CITY OF SPOKANE, and Clifford Payne, as Chief of Police, and Paul D. Warrington, Appellants.

No. 36396.

Supreme Court of Washington, En Banc.

Nov. 27, 1963.

John P. Tracy, Jr., City Atty., Howard A. Anderson, Theodore R. Fournier, Jr., Robert F. Ewing, Frank C. Hutchins, Spokane, for appellants.

William P. Fite and Gale D. Barbee, Seattle, for respondent.

FINLEY, Judge.

The respondent, Martin G. Boss, instituted this lawsuit on the theory of a tortious conversion of his automobile by the defendants-appellants, City of Spokane, Police Chief Payne, and Police Officer Warrington. This alleged wrongful conversion took place on or about December 15, 1960, when the police department impounded Boss's car because seven previous unpaid parking violations were outstanding against it and/or Mr. Boss, the owner. Mr. Boss did not reclaim his car after paying the tickets, although he was tendered a claim check of the towing company. Instead, he brought the present action for the market value of the car at the time it was impounded.

The 1954 Ford automobile was in the possession of Mr. Boss from the time he purchased it on October 11, 1960, until it was impounded two months later. During this interval, the car had been ticketed seven times for overtime parking at one-hour meter zones in the Spokane downtown area. In each instance the car was unoccupied. On the day in question, defendant Officer Warrington ordered and arranged for the car to be towed away by a private towing company. This was pursuant to order and policy of the Spokane Police Department, enunciated by defendant, Chief of Police Payne, to the effect that, if a vehicle had five outstanding parking violations against it and was found parked in violation of the city ordinances, it could be impounded. There is a dispute as to whether the driver of the tow truck, after hooking up to the car, waited until the meter showed a violation before he towed the car away.

The first question presented is whether the impounding was unlawful and amounted to a conversion of the car by the defendants. As authority for the policy action by the police department, the appellants rely on Spokane City Ordinance No. C 12833, the pertinent section of which is as follows:

'46.48.300 Removal of Vehicles by Peace Officer. Whenever a peace officer finds a vehicle unattended in such a position that it constitutes an obstruction to traffic, blocks the use of a fire hydrant, provides a danger to travel, * * * he is hereby authorized to remove and tow away said vehicle. * * *' (Italics ours.)

The appellants contend that the policy of the police department was a valid interpretation of this ordinance, in that a vehicle parked overtime is an 'obstruction to traffic' in the sense that it is a nuisance to the general public, who are entitled to the use of available parking space in the ordinary and customary manner. Such a construction would be a strained and unusual interpretation of the word obstruction. It is well established that city ordinances must be interpreted according to the plain and ordinary meaning of the language used. Sandona v. Cle Elum (1951), 37 Wash.2d 831, 226 P.2d 889. Neither the ordinary meaning of the word, nor its use in proximity to the terms 'fire hydrants' and 'danger to travel,' indicates that obstruction was intended to include the use of an automobile in such a manner as to inconvenience the public in finding a place to park. We conclude that the impounding of the vehicle was not authorized by this ordinance and, therefore, amounted to a conversion of it by the defendants.

While the plaintiff has established a conversion of his car by the defendants, more was required to support a right to recover damages from the defendant City of Spokane. As previously pointed out, the plaintiff at no time filed his tort claim with the city, but relied instead on the notice conveyed to the city when he served the summons and complaint in this action on the city on January 3, 1961; (the complaint was filed on April 4, 1961). The pertinent section of Article XII of the Charter of the City reads as follows:

'Section 115. Claims for Injuries. All persons having claims for...