Brown v. Five Points Parking Center

• Decision Date: 27 May 1970
• Docket Number: Nos. 1,No. 44945,3,2,44945,s. 1
• Citation: 175 S.E.2d 901,121 Ga.App. 819
• Parties: Ellis R. BROWN v. FIVE POINTS PARKING CENTER
• Court: Georgia Court of Appeals

Page 901

175 S.E.2d 901

121 Ga.App. 819

Ellis R. BROWN v. FIVE POINTS PARKING CENTER.

No. 44945.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

May 27, 1970.

Syllabus by the Court

1. (a) As a general rule the relationship of bailor and bailee is created when one parks his automobile in a parking garage or a parking lot.

(b) By contract, however, a different relationship may arise.

2. It is the duty of one who contracts to read and inform himself of the contract's terms.

3. (a) Insurance is a matter of contract, and the contract must be wholly in writing.

(b) A sign at the entrance to a parking garage indicating that it is an 'insured garage' does not amount to insurance itself, nor is it sufficiently definite to amount to a contract to procure insurance coverage.

4. No fraud and deceit appears in connection with the making of the parking contract.

5. By the specific terms of his contract plaintiff assumed the risk of loss by theft and he cannot recover therefor.

6. The measure of damages for breach of a contract of bailment, or of license, is the fair market value of the property lost, or, if damaged, the difference in the market value before and after the damage.

Plaintiff, E. R. Brown, rented space from Five Points Parking Center for the parking of his automobile on a monthly basis at the rate of $35 per month. No specific space was rented or assigned to him, but he was permitted to place his car in the parking garage and in an available space selected by him, on a 'park and lock' basis, i.e., he parked his car, locked it and took the key with him. On each occasion when he parked his car plaintiff was issued a ticket by the garage on which was printed 'Five Points Parking Company. Give ticket to attendant at exit when car is removed. This is a license, no bailment is created. Holder may park one automobile in this area at his own risk of any fire, theft or damage to auto or contents of same.' There was a sign at the garage entrance carrying the legend: 'Park-30cents 1/2 Hr. Clean-Dry-Protected. Insured Garage. Elevators to Peachtree and Decature Streets.'

Plaintiff testified that each time when removing the car he signed the ticket on the back, as was required, and surrendered it to the attendent on duty.

On April 24 he parked his car in accordance with this practice, received a tacket with the above terms thereon, locked the car and took the key with him. When he returned later in the day to get the care he discovered that the battery and the top of the battery box had been removed,-presumptively stolen. It was necessary that he secure a new battery before the car could be moved, and he did so. He made claim against the garage for the cost of the battery, battery box top and for his loss of time in procuring and installing, as well as the cost of transportation in obtaining it. His claim was refused and he brought suit therefor, claiming additionally attorney's fees and exemplary damages.

Defendant answered, asserting that the relationship between it and plaintiff had been that of licensor and licensee, that due care had been exercised for the property of a licensee, and that under the express terms of plaintiff's contract with defendant, as carried on the parking tickets issued to him, plaintiff had assumed the risk of any theft or damage to the automobile or its contents.

After trial before a jury a verdict was returned for the defendant by direction of the court, and plaintiff appeals.

I. J. Parkerson, Atlanta, for appellant.

I. J. Parkerson, Atlanta, for appellant. Gober, Atlanta, for appellee.

EBERHARDT, Judge.

1. (a) As a general rule the relationship of bailment is created when one parks his automobile with a garage or parking lot. Code § 12-403; Bunn v. Broadway Parking Center, 116 Ga.App. 85, 156 S.E.2d 464; AAA Parking v. Black, 110 Ga.App. 554, 139 S.E.2d 437; Nelliger v. Atlanta Baggage & Cab Co., 109 Ga.App. 863, 137 S.E.2d 566. But the parties may, by agreement, create a different relationship, and it is our view that when plaintiff accepted the parking tickets, parked his car pursuant thereto, and signed the tickets for delivery back to the garage as evidence of the contract under which the car had been parked and that he had removed it from the garage, he was bound by the terms. He thus recognized that there was no bailment relationship and that he specifically assumed the risk of loss by theft. Cf. Holly v. Southern R. Co., 119 Ga. 767, 47 S.E. 188; Central of Ga. R. Co. v. Glascock, 117 Ga., 938, 43 S.E. 981; Cooper v. Raleigh & Gaston R. Co., 110 Ga. 659(4), 36 S.E. 240.

(b) Although Code § 12-403 would, absent a contract or arrangement to the contrary, raise the relationship of bailment, the parties are not prohibited from creating a different one. As an illustration, joint tenancy is abolished in this State by the provisions of Code § 85-1002, but, as the Supreme Court and this court have held, it is not prohibited and the parties may, by special contract create a relationship of joint tenancy in property. Equitable Loan &c. Co. v. Waring, 117 Ga. 599(9), 44 S.E. 320, 62 L.R.A. 93, 97 Am.St.Rep. 177; Wilson v. Brown, 221 Ga. 273(2), 144 S.E.2d 332; Sams v. McDonald, 117 Ga.App. 336, 160 S.E.2d 594.

It is a general rule of contract law that unless prohibited by statute or buplic policy the parties are free to contract on any terms and about any subject matter in which they have an interest, and any impairment of that right must be specifically expressed or necessarily implied by the legislature in a statutory prohibition and not left to speculation. Harris v. Runnels, 12 How. 79, 53 U.S. 79, 13 L.Ed. 901; Toole v. Wiregrass Development Co., 142 Ga. 57, 82 S.E. 514; Mutual Life Ins. Co. v. Durden, 9 Ga.App. 797, 72 S.E. 295; Restatement, Contracts § 580. 'A contract can not be said to be contrary to public policy unless the General Assembly has it to be so, or unless the consideration of the contract is contrary to good morals and contrary to law, or unless the contract is entered into for the purpose of effecting an illegal or immoral agreement or doing something which is in violation of law.' Camp v. Aetna Ins. Co., 170 Ga. 46, 50 ,152 S.E. 41, 43. A contract of license or for the simple rental of space in a garage or parking lot is not one forbidden by law, nor is there any inhibition against the specific assumption of loos resulting from fire or theft. Code § 12-403 does not purport to preempt the type of arrangement which the parties may agree upon; it effect is simplt to provide what the relationship will be when there has been no contract otherwise. It prescribes no penalty for confracting otherwise. See Southern Flour & Grain Co. v. Smith, 31 Ga.App. 52, 120 S.E. 36.

(c) Appellant urges that since plaintiff parked his own car, locked it and took the key him a bailment could not have arisen, citing Atlantic Coast Line R. Co. v. Baker, 118 Ga. 809(1), 45 S.E. 673 where it was held that 'In order to create a bailment the bailee must have an independent and exclusive possession of the property,' a principle which we recognized in Southeastern Fair Ass'n. v. Ford, 64 Ga.App. 871, 14 S.E.2d 139 and Hartley v. Robinson, 78 Ga.App. 594, 51 S.E.2d 617. It is settled that, absent a contract creating some different relationship, there is a bailment when the owner of an automobile leaves the key with the operator of the garage or parking lot, or is required to do so-for without question that does give the operator an independent and exclusive possession. See Elliott v. Levy, 77 Ga.App. 562, 49 S.E.2d 179; AAA Parking, Inc. v. Black, 110 Ga.App. 554, 139 S.E.2d 437, supra, and Parker Motor Co. v. Spiegal, 33 Ga.App. 795, 127 S.E. 797.

We have recently held that when the customer of a bank rents a safety deposit box and places money or securities therein the relationship of bailor and bailee arises between him and the bank. Buena Vista Loan &c. Co. v. Bickerstaff, 121 Ga.App. 470, 174 S.E.2d 219. Whether our holding in that case may conflict with that of the Supreme Court in the Baker case and in Tow v. Evans, 194 Ga. 160, 163, 20 S.E.2d 922 need not be considered here, since we conclude that the specific terms of the contract raised a different relationship between the parties, and the matter of independent and exclusive possession of the automobile is not a matter necessary to the reaching of our conclusion.

2. That plaintiff did not read the terms of his contract as printed on the parking tickets cannot excuse him. It appears that he is engaged in the practice of law, and we must assume that he is fully capable of reading and understanding them. He had been parking at the facility for several weeks, receiving a similar ticket each time. It is the duty of one who contracts to read and inform himself of the contracts' terms. Truitt-Silvey Hat Co. v. Callaway, & Truitt, 130 Ga. 637(2), 61 S.E. 481; Lewis v. Foy, 189 Ga. 596, 6 S.E.2d 788. He cannot be excused from so doing because he may have been 'in a hurry,' W. P. Brown & Sons Lbr. Co. v. Echols, 200 Ga. 284, 287, 36 S.E.2d 762, or because he was 'too busy.' Stoddard Mfg. Co. v. Adams, 122 Ga. 802, 50 S.E. 915. Thus, he is charged with knowledge of the terms which by his conduct he accepted and became bound by.

3. If the complaint can be construed as asserting a claim for fraud and deceit by reason of the sign at the entrance indicating that the facility was an 'insured garage,' the proof wholly fails. The language of the sign is too vague and uncertain to form the basis for any enforceable contract. Wells v. H. W. Lay & Co., 78 Ga.App. 364(2), 50 S.E.2d 755. It does not represent that the garage carries liability insurance or theft insurance protecting customers whose cars are parked therein, nor are any terms of insurance carried on the sign. We cannot know, nor is there any proof, as to the type or kind of insurance referred to, or the terms, conditions or amount thereof. Consequently, the...