BROWN v. FIVE POINTS PARKING CENTER

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 — 30¢ 1/2/Hr. Clean — Dry — Protected. Insured Garage. Elevators to Peachtree and Decatur 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 attendant on duty.

On April 24 he parked his car in accordance with this practice, received a ticket with the above terms thereon, locked the car and took the key with him. When he returned later in the day to get the car 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.

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 c. 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 when he 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 G. 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 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 S.E. 320, 62 LRA 93, 97 ASR 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 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 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 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 S.E. 41, 68 ALR 1166). 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 loss resulting from fire or theft. Code § 12-403 does not purport to pre-empt the type of arrangement which the parties may agree upon; its effect is simply to provide what the relationship will be when there has been no contract otherwise. It prescribes no penalty for contracting otherwise. See Southern Flour Grain Co. v. Smith, 31 Ga. App. 52 ( 120 S.E. 36).

(c) 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 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 Assn. 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, 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 contract's terms. Truitt-Silvey Hat Co. v. Callaway, 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.

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 elements necessary for the showing of fraud and deceit do not appear. Daugert v. Holland Furnace Co., 107 Ga. App. 566, 569 ( 130 S.E.2d 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 S.E.2d 129). And see Parks v. Harper, 43 Ga. App. 269 ( 158 S.E. 454); Ga. Box Mfg. Co. v. Southern Bottlers' Service Co., 25 Ga. App. 360 ( 103 S.E. 188). Insurance is a matter of contract, which must be in writing. Code Ann. § 56-2402; Mitchener v. Union Central Life Ins. Co., 185 Ga. 194, 195 ( 194 S.E. 530). Nor can the contract be made partly in writing and partly in parol. Athens Mut. Ins. Co. v. Evans, 132 Ga. 703 (4) ( 64 S.E. 993). Insurance contracts are to be governed generally by the rules of law which govern other contracts. Clay v. Phoenix Ins. Co., 97 Ga. 44, 53 ( 25 S.E. 417).

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 S.E. 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 S.E.2d 777); Farmers Merchants Bank v. Winfrey, 89 Ga. App. 122 ( 78 S.E.2d 818).

Moreover, we held in Renfroe v. Fouche, 26 Ga. App. 340 (6) ( 106 S.E. 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."

4. 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 S.E.2d 917).

5. 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 S.E. 676) and Red Cross Laundry v. Tuten, 31 Ga. App. 689 (1) ( 121 S.E. 865). They are, however, distinguishable from the situation here upon two grounds. First, there was a bailment relationship between the laundry and its customer, for it did have an independent and exclusive possession, and the contract raised no other relationship. Secondly, and while the validity of the basis may be seriously doubted, plaintiff here was required to sign and return the parking ticket with the limiting terms on it.

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 S.E. 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 S.E. 650); Southern R. Co. v. White, 108 Ga. 201 ( 33 S.E. 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 S.E. 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 S.E. 56); King v. Smith, 47 Ga. App. 360 ( 170 S.E. 546); Brady v. Glosson, 87 Ga. App. 476 ( 74 S.E.2d 253); Hawes v. Central of Ga. R. Co., 117 Ga. App. 771 ( 162 S.E.2d 14). Cf. Golden v. National Life c. Ins. Co., 189 Ga. 79 ( 5 S.E.2d 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.

6. 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 time and place of loss. Warren v. Mitchell Motors, 52 Ga. App. 58 (4) ( 182 S.E. 205); American Ins. Co. v. Keene, 61 Ga. App. 754, 756 ( 7 S.E.2d 427). His right to recover, if any, arises out of contract. "Damages growing out of a breach of contract, in order to form the basis of a recovery, must be such as can be traced solely to the breach, must be capable of exact computation, must have arisen naturally and according to the usual course of things from such breach, and must be such as the parties contemplated as a probable result of the breach." Sanford Brown Co. v. Patent Scaffolding Co., 199 Ga. 41 ( 33 S.E.2d 422). Plaintiff has the burden of showing both the breach and the damage. James v. Emmco Ins. Co., 71 Ga. App. 196 ( 30 S.E.2d 361). It cannot be left to speculation, conjecture or guesswork. Studebaker Corp. v. Nail, 82 Ga. App. 779 ( 62 S.E.2d 198). Punitive or exemplary damages are not recoverable. Hadden v. Southern Messenger Service, 135 Ga. 372 (2) ( 69 S.E. 480). Neither bad faith nor stubborn litigiousness arises from a mere failure to settle a claim, or in defending an action thereon. Macon, Dublin Savannah R. Co. v. Stewart, 125 Ga. 88 (2) ( 54 S.E. 197); State Mut. Ins. Co. v. McJenkin Ins. c. Co., 86 Ga. App. 442 (2) ( 71 S.E.2d 670). Consequently, neither attorney's fees nor exemplary damages could be recovered in this action.

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 S.E. 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. Judgment affirmed. Bell, C. J., Jordan, P. J., Hall, P. J., Deen, Quillian and Whitman, JJ., concur. Pannell and Evans, JJ., dissent.