Currie v. Dooley
| Decision Date | 27 April 1982 |
| Docket Number | No. 1,CA-CIV,1 |
| Citation | 647 P.2d 1182,132 Ariz. 584 |
| Parties | John Robert CURRIE and Diane Currie, his wife, Plaintiffs-Appellees, v. Ray DOOLEY and Betty Dooley, his wife, dba American Towing Company, Defendants-Appellants. 5561. |
| Court | Arizona Court of Appeals |
by John D. Lewis, Tempe, for plaintiffs-appellees.
Foley, Clark & Nye, P. A. by Richard Q. Nye and Daniel C. Turner, Phoenix, for defendants-appellants.
This case involves the liability of a towing company for its refusal to return possession of a car to the owner. We find no basis to reverse the directed verdict of liability or the judgment against the towing company.
Appellants Ray Dooley and Betty Dooley were doing business as the American Towing Company (Towing Company) in Tempe, Arizona. As part of its business, the Towing Company was employed by the owners of the Tempe Shopping Center (Shopping Center) to remove any vehicle parked in the Shopping Center parking lot while the driver was transacting business away from the center. The Shopping Center is adjacent to the campus of the Arizona State University and was often used by students to park their cars while attending class. Vehicles removed from the parking lot were taken to the Towing Company's storage lot and remained there until claimed by the owner. The parking lot was posted with a number of signs to warn and advise drivers that their vehicles could be towed away if they parked in the parking lot other than as customers of the Tempe Shopping Center. The signs read:
Private parking for Tempe Shopping Center customers only while transacting business herein. Violators will be impounded at vehicle owner's expense. To reclaim vehicle call 969-6602.
On October 2, 1975, appellee John Currie (Currie) parked a 1970 Buick Skylark automobile belonging to his father in the parking lot of the Shopping Center. Currie knew there were signs that authorized use of the parking lot while on business at the Shopping Center, but he had not read one. He parked there to go to school and to purchase an oil pan at one of the stores in the Center to change the oil in another car. He attended his class knowing that by leaving the Center he might be violating his permission to park there. After class Currie purchased an oil pan from the automotive store where his car was parked.
When Currie left the automotive store, an operator for the Towing Company had pulled the car out of its parking place and had hoisted it up onto a dolly preliminary to towing the car away. Currie testified, without dispute, that he asked the operator what he was doing and the operator indicated that he was preparing to tow the car away. Currie said he would remove the car and the operator said that he would first have to "receive a fee of $25.00 before he would let (him) take it off the lot." Currie did not have $25; he told the operator he would not pay $25 and to put the car down. The operator told Currie that he could call the number on the sign and claim the vehicle later. Currie was not told that there would be additional charges. The operator towed the car away.
Currie telephoned the number on the sign to get his car back and was told by a representative of the Towing Company that "the charges had gone up to $50.48." Currie told her that the price was unreasonable, but she would not negotiate or budge. Currie telephoned his father in Texas who in turn telephoned the Towing Company and requested the return of the car.
Currie retained a lawyer who, by letter dated October 10, 1975, demanded that the car be returned. The demand was not honored by the Towing Company. Currie brought suit shortly thereafter against the Shopping Center and the Towing Company. The Towing Company released the car to Currie in August, 1976, upon payment of $47.25.
The complaint against Tempe Shopping Center was dismissed by the trial court pursuant to a motion for summary judgment. This court upheld the summary judgment. Currie v. Sechrist, 119 Ariz. 466, 581 P.2d 700 (App.1978). The court, for the purposes of that appeal, determined that the relationship between the Shopping Center and the Towing Company was that of employer and independent contractor. 119 Ariz. at 469, 581 P.2d at 703.
The following issues are raised on appeal by the Towing Company:
I. Did the trial court err in directing a verdict for Currie on grounds that there was no evidence which would support a jury finding that Currie consented to the towing and storage of his automobile and to pay the charges for those services, thereby giving the Towing Company a lien pursuant to A.R.S. § 33-1022(B)?
II. Was there competent evidence of the value of Currie's car on the date it was towed, or, in the alternative, the reasonable value of the loss of use of the vehicle which would support a jury award of compensatory damages?
III. Was there sufficient evidence that the conduct of the Towing Company was wilful, wanton, or malicious to support a jury award of punitive damages?
We affirm the directed verdict and judgment in regard to these issues.
The statute under which the Towing Company claims a lien provides:
Proprietors of garages, repair and service stations shall have a lien upon motor vehicles of every kind, and the parts and accessories placed thereon, for labor, materials, supplies and storage for the amount of the charges, when the amount of the charges is agreed to by the proprietor and the owner.
In Currie v. Sechrist, supra, this court assumed for the purposes of that appeal that Currie could demonstrate there was "no valid garageman's lien for towing and storage charges under A.R.S. § 33-1022(B) because he (Currie) had not agreed to the charges and had, in fact, demanded the return of his car." 119 Ariz. at 469, 581 P.2d at 703. In the record of this appeal, the only testimony as to what happened at the Shopping Center came from Currie. The tow truck operator did not testify.
The key determination to be made is whether a lien attached to the car at any time when it was parked in the Shopping Center parking lot. The only conclusion that can be reached is that no such lien attached on behalf of the Shopping Center or the Towing Company.
The right to a lien for storage costs did not exist at common law. The existence of such a lien is strictly statutory and, being in derogation of the common law such a right is entirely conditional on the statutory wording.
Fitzhugh v. City of Douglas, 122 Ariz. 599, 600, 596 P.2d 737, 738 (App.1979).
The signs posted in the parking lot by the Shopping Center did not create any implied contract since, even if Currie agreed to compensate the Shopping Center, the contract would not have been enforceable because there was no agreement as to the rate of compensation to be paid the Shopping Center or anyone acting on its behalf. See Savoca Masonry Co. v. Homes & Son Construction Co., 112 Ariz. 392, 542 P.2d 817 (1975); Aztec Film Productions v. Tucson Gas and Electric Co., 11 Ariz.App. 241, 463 P.2d 547 (1969). See generally Osborn v. Boeing Airplane Co., 309 F.2d 99 (9th Cir. 1962). Even assuming that the Shopping Center was the "proprietor" referred to in A.R.S. § 33-1022(B), the car was parked in the parking lot and not in a garage, repair or service station. Again, assuming that the Shopping Center as "proprietor" could assign its right to the Towing Company, it would stand in no better position than the Shopping Center. The lien for "storage" only applies to garages, repair, and service stations. Also, as in Fitzhugh v. City of Douglas, supra, there was no agreement as to "the amount of the charges" between the "proprietor" and Currie. 112 Ariz. at 600, 596 P.2d at 738. See also Fields v. Steyaert, 21 Ariz.App. 30, 515 P.2d 57 (1973).
The Towing Company states in its brief:
A reasonable man could have found Plaintiffs impliedly consented to the towing and storage and impliedly agreed to the amount of charges for storage for their automobile giving American Towing Company a statutory lien and the right to possess the automobile until the charges were paid, entitling a verdict in the favor of Defendants.
However, the record reflects that not only did Currie not agree to pay $25 for "the towing and storage" in the parking lot of the Shopping Center, but that he did not agree to any additional amount of charges for towing the car from the parking lot to some other place of storage. There is no rational way to find that Currie "impliedly consented" to pay monies which he specifically refused to pay. The Towing Company did not have a lien on the car before the conversation with Currie, and it did not secure a lien by virtue of the conversation.
Although the Towing Company stated in its brief that "plaintiffs agreed to pay a reasonable amount for the charges," it is clear that the statutory requirement that there be an agreement as to "the amount of the charges" was not met.
The 1970 Buick Skylark had been purchased by Currie's father for $2,000 nine months before it was towed away. This testimony, along with the other testimony relating to compensatory damages, was uncontroverted by the Towing Company. Currie called an expert witness who had been employed by Avis, National Car Rental, Easy Haul, Dollar-A-Day Rent-A-Car, and Mesa Leasing. He testified that car rental agencies did not rent out 1970 vehicles but gave the following information for rental of a then-current 1975 vehicle: The basic rental rate for a comparable but newer vehicle would be $220 per month, which for 10.8 months equals $2,376. The mileage rate of $.08 per mile at the average of 41 miles per day would be $3.28 per day for 330 days which would total $1,082.40. The expert testified...
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