DocketNumber： 44945
Citation Numbers： 175 S.E.2d 901, 121 Ga. App. 819, 1970 Ga. App. LEXIS 1372
Judges： Eberhakdt, Bell, Jordan, Hall, Deen, Quillian, Whitman, Pannell, Evans
Filed Date： 5/27/1970
Status： Precedential
Modified Date： 10/19/2024
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 SE2d 464); AAA Parking v. Black, 110 Ga. App. 554 (139 SE2d 437); Nelliger v. Atlanta Baggage &c. Co., 109 Ga. App. 863 (137 SE2d 566). But the parties may, by agreement, create a different relationship, and it
Although Code § 12-403 would, absent a contract or arrangement to the contrary, raise the relationship of bailor and bailee, 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 SE 320, 62 LRA 93, 97 ASR 177); Wilson v. Brown, 221 Ga. 273 (2) (144 SE2d 332); Sams v. McDonald, 117 Ga. App. 336 (160 SE2d 594).
It is a general rule of contract law that unless prohibited by statute or public 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. (53 U. S.) 79 (13 LE 901); Toole v. Wiregrass Development Co., 142 Ga. 57 (82 SE 514); Mutual Life Ins. Co. v. Durden, 9 Ga. App. 797 (72 SE 295); Restatement, Contracts §-580. “A contract can not be said to be contrary to public policy unless the General Assembly has declared 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 SE 41, 68 ALR 1166). A contract of license or for the simple rental of space in a garage or parking
Appellee urges that since plaintiff parked his own car, locked it and took the key with him a bailment could not have arisen, citing Atlantic C. L. R. Co. v. Baker, 118 Ga. 809 (1) (45 SE 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 Assn. v. Ford, 64 Ga. App. 871 (14 SE2d 139) and Hartley v. Robinson, 78 Ga. App. 594 (51 SE2d 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 SE2d 179); AAA Parking, Inc. v. Black, 110 Ga. App. 554, supra, and Parker Motor Co. v. Spiegal, 33 Ga. App. 795 (127 SE 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 SE2d 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 SE2d 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.
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
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 SE2d 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 elements necessary for the showing of fraud and deceit do not appear. Daugert v. Holland Furnace Co., 107 Ga. App. 566, 569 (130 SE2d 763). “The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance, where these are essential. Its terms must be such that neither party can reasonably misunderstand them. It would be inequitable to carry a contract into effect where the court is left to ascertain the intention of the parties by mere guess or conjecture, because it might be guilty of erroneously decreeing what the parties never intended or contemplated.” Williams v. Manchester Building Supply Co., 213 Ga. 99, 101 (97 SE2d 129). And see Parks v. Harper, 43 Ga. App. 269 (158 SE 454); Ga. Box & Mfg. Co. v. Southern Bottlers’ Service Co., 25 Ga. App. 360 (103 SE 188). Insurance is a matter of contract, which must be in writing. Code Ann. § 56-2402; Mitch
This is not a suit against the defendant or against an insurance company on a policy of insurance. There is no proof that there was any policy written by or for the defendant for the benefit of the plaintiff. There is no contention and no proof that the defendant contracted with the plaintiff to obtain or carry insurance for his benefit. See Crozier v. Provident Life & Acc. Ins. Co., 53 Ga. App. 572 (2) (186 SE 719). Such a contract, to be enforceable, would, inter alia, have to reveal the kind, type, and amount of insurance to be obtained,—the hazard to be insured against. Cf. Farlow v. Barton, 60 Ga. App. 287 (3 SE2d 777); Farmers & Merchants Bank v. Winfrey, 89 Ga. App. 122 (78 SE2d 818).
Moreover, we held in Renfroe v. Fouche, 26 Ga. App. 340 (6) (106 SE 303) that “[a] bailee cannot by the posting of a notice to the effect that he will not be responsible for damage to articles bailed by fire or theft or relieve himself of his common law liability to exercise due care in preserving the property against damage from such causes,” and it must follow that if the bailee can neither limit nor relieve himself of his responsibility by the posting of a sign, because the sign does not become a part of the contract, he should not be held to increase his liability by posting a sign to the effect that his is an “insured garage.”
No fraud or deceit appears in the transaction by which plaintiff entered into his contract with the defendant for the storing of his car. He was fully informed of the terms each time the car was stored. Camp Realty Co. v. Jennings, 77 Ga. App. 149 (1) (47 SE2d 917).
Since plaintiff specifically assumed the risk of loss from theft in storing his car in defendant’s garage, no right to recover any amount is shown.
We are not unmindful of the rulings in American Laundry Co. v. Hall, 27 Ga. App. 717 (109 SE 676) and Red Cross Laun
The case of Renfroe v. Fouche, 26 Ga. App. 340 (6), supra, ■does not require a different conclusion here. While the provision of a posted notice does not become a part of the terms of the contract, the terms printed on the receipt for the item bailed or on a parking ticket delivered when the car is parked, or those printed on a railroad ticket are binding. Southern R. Co. v. Dinkins & Davidson Hardware Co., 139 Ga. 332, 334 (77 SE 147, 43 LRA (NS) 806). And see Moses v. East Tennessee, Va. &c. R., 73 Ga. 356; Lewis v. Western & A. R. Co., 93 Ga. 225 (18 SE 650); Southern R. Co. v. White, 108 Ga. 201 (33 SE 952); Holly v. Southern R. Co., 119 Ga. 767, supra.
Where the owner of mules hired them to another and agreed to assume the risk of injury to them, the bailee was not responsible for injuries to them while in his possession unless resulting from gross neglect or wilful misconduct on his part. Evans & Pennington v. Nail, 1 Ga. App. 42 (57 SE 1020). In the absence of a statute to the contrary a party may contract against liability resulting from his own negligence. Ashley v. Central of Ga. R. Co., 7 Ga. App. 711 (1) (68 SE 56); King v. Smith, 47 Ga. App. 360 (170 SE 546); Brady v. Glosson, 87 Ga. App. 476 (74 SE2d 253); Hawes v. Central of Ga. R. Co., 117 Ga. App. 771 (162 SE2d 14). Cf. Golden v. National Life &c. Ins. Co., 189 Ga. 79 (5 SE2d 198, 125 ALR 838).
The evidence did not authorize a finding of either gross negligence or wilful misconduct by the defendant in keeping plaintiff’s car while it was stored.
Whether the relationship was that of bailor and bailee, as contended by the plaintiff, or of licensor and licensee, as contended by the defendant, the measure of damages was the fair market value of plaintiff’s battery and battery box top at the
It may be that the operation of a parking garage or of a. parking lot has become so affected with a public interest in these days when the number of automobiles is constantly increasing and the available space for parking grows less that they should be prohibited from limiting their liability for loss or damage to-the vehicle while parked, as was done to the railroads when they sought to limit their liability for goods shipped (see Code § 18-102; Hearn v. Central of Ga. R. Co., 22 Ga. App. 1, 3 (95 SE 368)), or as was done when employers sought to exempt themselves from liability to their servants for negligence (see-Code § 66-302), or that they should be required to carry adequate insurance to protect their customers against losses from fire, theft, etc., as is done to public warehousemen (see Code Ann. § 111-402). But that is a matter for the General Assembly, or perhaps for the Mayor and Aldermen of Atlanta.