O'Brien v. Isaacs

• Decision Date: 29 June 1962
• Citation: O'Brien v. Isaacs, 116 N.W.2d 246, 17 Wis.2d 261 (Wis. 1962)
• Parties: Clarence J. O'BRIEN, Respondent, v. Willard D. ISAACS, d/b/a Isaacs Service Station, Appellant.
• Court: Wisconsin Supreme Court

Page 246

116 N.W.2d 246

17 Wis.2d 261

Clarence J. O'BRIEN, Respondent, v. Willard D. ISAACS, d/b/a Isaacs Service Station, Appellant.

Supreme Court of Wisconsin.

June 29, 1962.

Thomas P. Maroney and Ward Dunphy, Milwaukee, for appellant.

Clarence J. O'Brien, South Milwaukee, for respondent.

WILKIE, Justice.

1. Defendant's right to retain possession of plaintiff's automobile. Defendant contends that he had a lien on plaintiff's car and therefore thad the right to retain possession until plaintiff paid him the amount due as a parking fee (namely the $1 charge for over parking). This argument presupposes that plaintiff owed defendant the dollar.

The relationship between the parties was that of bailor-bailee. Where a parking attendant is present at the lot to collect fees, moving the cars about when keys are left upon request, and tickets are issued as a means of identifying the cars upon redelivery, courts generally hold that a bailment has been established. Anno. 131 A.L.R. 1175. In Sandler v. Commonwealth Station Co. (1940), 307 Mass. 470, 30 N.E.2d 389, 131 A.L.R. 1170, the Massachusetts supreme judicial court held:

'The transaction of the parties was not merely the letting of a space where the plaintiff might leave his automobile. Upon the payment of the required charge, the defendant, through its agent, took possession of the automobile and, by reason of the requirement that the keys be left therein, the defendant could move the automobile to such part or parts of the public parking station as might from time to time suit the convenience of the defendant in the conduct of its business. On these facts relating to the character of the transaction between the parties a finding was warranted that the defendant was a bailee for hire. * * *'

Defendant apparently attempted to modify this legal relationship by the before-quoted stipulation printed on the parking lot ticket. However, courts almost uniformly hold that such provisions contained on parking identification tickets are not binding on the bailor unless actually read by him, or pointed out to him in some other fashion.

'Whether or not such provisions become a part of the contract is ordinarily determined upon the principle that one party can insist only upon such terms as are so set forth and so related to the writing and subject matter of the contract as fairly to manifest to the other party an intent that they are to be obligatory upon him; fair dealing to him, upon the assumption that he will act with reasonable caution, must be the test, and largely each case must stand by itself. In accordance with the foregoing principle, the general rule supported by the modern authorities appears to be that the bailor, unless his attention is called to the fact that such conditions are intended as a part of the contract, is not charged with notice, where he has no actual knowledge, of provisions limiting liability which appear upon something not apparently related to the contract itself, or given to the bailor ostensibly for some other purpose. There is authority which justifies the rule on the ground, among others, that the bailee, if he wishes to qualify his contract, should do so in an unmistakable manner, and it is not reasonably to be expected, nor is the bailer required to anticipate, that important terms of a contract will be found upon what is accepted merely as a means of identification or for some other purpose which to a reasonable man would not appear to be germane to the agreement itself.' 6 Am.Jur., Bailments, pp. 296, 297, sec. 178.

As a bailee, defendant would have no common law lien. In general, a bailee acquires a lien only where he has increased the value of the thing bailed, or is engaged in a public calling wherein he is required by law to accept the bailed...