
    Marshall HOPPER v. Ralph BILLS and Jenny Bills d/b/a Jenny and Shorty’s.
    No. 7581.
    Court of Appeal of Louisiana. First Circuit.
    March 10, 1969.
    Rehearing Denied April 14, 1969.
    
      Patsy Jo McDowell, Baton Rouge, for appellant.
    J. J. McKernan, of Brown, McKernan, Ingram & Breaux, Steve A. Alford, Jr., Baton Rouge, for Department of Public Safety.
    Before LOTTINGER, ELLIS and BAILES, JJ.
   LOTTINGER, Judge.

This is a suit for damages for the wrongful detention of a logging truck belonging to the plaintiff. The Trial Court found in favor of the defendants and rejected the demands of the plaintiff. From this judgment the plaintiff has appealed.

The defendant-appellees, Ralph and Jenny Bills, are the owners and operators of a truck stop and cafe and also operate a wrecker service, under the name of Jenny and Shorty’s. On November 19, 1966, the desk sergeant on duty at Troop “A” Headquarters, Louisiana State Police, called the defendant-appellees and requested that they send a wrecker to remove an overturned log truck. The logging truck in question belonged to the plaintiff, Marshall Hopper, and had overturned off of the shoulder of the highway when the driver thereof swerved to miss another vehicle. The overturned truck was located anywhere from four to thirteen feet from the blacktop portion of the highway and was approximately three miles south of the East Feliciana Parish line of the Parish of East Baton Rouge.

Upon arrival at the scene of the overturned truck, it was necessary that the defendant request the aid of a larger wrecker so that the overturned vehicle could be righted in order that it be removed from the scene. From the scene of the accident it was hauled to the defendant’s truck stop. On approximately December 1, 1966, plaintiff-appellant made inquiries of Mr. Bills relative to the release of his logging truck. Mr. Bills informed the plaintiff that he would be happy to release the truck upon payment of the towing charges plus any storage charges which had accrued to that date. On January 4, 1967, the plaintiff caused a Writ of Judicial Sequestration to be issued.in conjunction with the instant proceeding, and under the writ was made custodian of the vehicle. He subsequently amended his original petition to pray for additional damages.

The plaintiff contends that the defendants unlawfully and illegally held his truck and in so doing committed the tort of conversion. In support of his contention the plaintiff has cited the case of Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d 574 (1957) for the proposition that if after demand has been made upon the individual who has possession of the merchandise, he wrongfully refuses to return the merchandise to the owner, such refusal constitutes a tortious conversion even though the original possession was lawful.

In the case at bar the Louisiana Department of Public Safety acting through a desk sergeant at Troop “A” Headquarters requested that the defendants pick up and remove a certain vehicle which was wrecked. This the defendants did.

Although under R.S. 32:2 and 32:3, the Department of Highways and the Department of Public Safety have the authority to regulate and control traffic on the highways, no regulations have been enacted by them thereunder authorizing the state police to remove vehicles from the highway in a situation such as this. Neither is such authority granted by R.S. 32:141 and 32:142, or R.S. 48:342, 48:347.

However, it cannot be denied that the custom of removing vehicles from the highways and the roadways of the state in such a situation as this is not unusual. Although the State Police exceeded its authority in this case, it cannot be denied that the defendants herein acted in good faith.

We find that the defendants received a deposit of the truck from one who had the apparent authority to make it.

As to whether the overturned truck was four feet or thirteen feet from the blacktop portion of the highway is of no moment. The defendants are in the wrecker service business and are called by the state police quite often to remove wrecked vehicles which are impairing the normal flow of traffic. They did not pick up this truck at the request of a complete stranger, but from one who had the apparent legal authority to remove same. Therefore, we must conclude there was nothing wrong in the manner in which the defendants obtained possession of this truck.

Of course, it would be the contention of the plaintiff under the theory of Import-sales, Inc. v. Lindeman, supra, that even though the original possession was lawful, the defendants’ refusal to return the truck to its rightful owner constituted a conversion.

In the case at bar, was the refusal of the defendants to return the truck to Mr. Hopper until he had paid the wrecker service and storage charges a conversion? We must answer that it was not.

The Louisiana Civil Code in Article 3224 very expressly provides:

“He who, having in his possession the property of another, whether in deposit or on loan or otherwise, has been obliged to incur any expense for its preservation, acquires on this property two species of rights.” (Emphasis added).

The “two species of rights” are spelled out in Article 3225, to-wit:

A gainst the owner of the thing, his right is in the nature of that of pledge, by virtue of which he may retain the thing until the expenses, which he has incurred, are repaid.” (Emphasis added).
“He * * * purpose.”

Mr. Bills, the defendant, had in his possession the property of another, Mr. Hopper, the plaintiff. The defendant did incur expense for the preservation of this logging truck i. e., wrecker service and storage. The defendant had the right to retain possession of .the logging truck until the expenses were repaid. See In re Parking Service, Inc., 232 La. 133, 94 So.2d 7 (1957). Therefore, since the Louisiana Civil Code granted the defendants the right to retain the truck until their expenses were repaid, there can be no unlawful detention or conversion on their part.

Therefore, for the above and foregoing reasons, the judgment of the Trial Court is affirmed. All costs of this appeal are to be paid by plaintiff-appellant.

Judgment affirmed.

BAILES, Judge

(dissenting):

I respectfully dissent from the majority holding in this case. The effect of this holding is to recognize a lien on the property of another when none is provided by law. The question before us here is, what is the legal effect of a state trooper having a wreckerman remove a wrecked truck from the highway right of way (not the paved or main traveled part of the highway) insofar as such action creates a lien and privilege in favor of the wreckerman against the wrecked truck. Another question which concerns us is whether the retention of the truck by the wreckerman is a conversion of the truck.

LSA-R.S. 32:142 provides, in part:

“§ 142. Officers authorized to remove illegally stopped vehicles
“A. Whenever any police officer finds a vehicle standing upon a highway in violation of any of the provisions of R.S. 32:141, he is hereby authorized to move such vehicle, or require the driver or other person in charge of the vehicle to move it to a position off the paved or main traveled part of the highway. (Emphasis added)
* *

The above quoted statute is certainly no authority for the state trooper to call a wreckerman, such as defendant, to remove plaintiff’s property from the highway right of way and/or from the scene of the accident to the wreckerman’s place of business. However, the majority holding does not stop there. The majority holds that through custom, regardless of the above statutory provision expressly limiting the state trooper’s duty and authority of removing the truck to a position off the paved, or main traveled part of the highway, where it was already, the state trooper has the authority to deposit the plaintiff’s property with the wreckerman and thereby create a lien and privilege in his favor against plaintiff’s property, and further, that,tlie wreckerman had the authority to hold said property until all charges are paid.

While the majority recognizes the fact that there was no legal authority for the action of the state trooper, it holds that the trooper did have apparent authority, and that through the exercise of this apparent authority, the trooper could make a legal deposit of plaintiff’s property with the defendant wreckerman, that although acting with apparent authority only, the trooper could by the exercise thereof create a lien on plaintiff’s property in favor of the defendant. I say that consideration of apparent authority has no place in adjudging plaintiff’s claim until we come to the point of assessment of damages. The fact that defendant received plaintiff’s property from one who had apparent authority should be considered in mitigation of damages only, and not for the purpose of determining whether a lawful deposit had been made of plaintiff’s property.

It has long been the law of this state that statutes creating liens and privileges must be strictly construed, and that the courts can neither add to nor detract from the laws creating them, and further that the law cannot be liberally construed in favor of the lien claimant. The liens must be strictly construed against the lienor. Cases are legion which hold to these principles.

Rehearing denied.

BAILES, J., dissents from the denial of the Court to grant a rehearing.  