Supreme Court of Tennessee, at Nashville.

Betty J. ALLEN, Plaintiff-Appellee, v. HYATT REGENCY-NASHVILLE HOTEL, Defendant-Appellant.

March 26, 1984.

Rehearing Denied April 23, 1984.

FONES, C.J., and COOPER, J., concur.

DROWOTA, J., files dissenting opinion, joined therein by BROCK, J.

Laurence M. Papel, Taylor, Schlater, Las­siter, Tidwell & Trentham, Nashville, for plaintiff-appellee.

James R. Kniffen, Barnett & Alagia, Nashville, for defendant-appellant.

James I. Vance Berry, Peter H. Curry, Nashville, amicus curiae Allright Parking, Inc. and Central Parking, Inc.

OPINION

HARBISON, Justice.

In this case the Court is asked to con­sider the nature and extent of the liability of the operator of a commercial parking garage for theft of a vehicle during the absence of the owner. Both courts below, on the basis of prior decisions from this state, held that a bailment was created when the owner parked and locked his vehi­cle in a modern, indoor, multi-story garage operated by appellant in conjunction with a large hotel in downtown Nashville. We affirm.

There is almost no dispute as to the relevant facts. Appellant is the owner and operator of a modern high-rise hotel in Nashville fronting on the south side of Union Street. Immediately to the rear, or south, of the main hotel building there is a multi-story parking garage with a single entrance and a single exit to the west, on Seventh Avenue, North. As one enters the parking garage at the street level, there is a large sign reading “Welcome to Hyatt Regency-Nashville.” There is another Hyatt Regency sign inside the garage at street level, together with a sign marked “Parking.” The garage is available for parking by members of the general public as well as guests of the hotel, and the public are invited to utilize it.

On the morning of February 12, 1981, appellee’s husband, Edwin Allen, accompa­nied by two passengers, drove appellee’s new 1981 automobile into the parking ga­rage. Neither Mr. Allen nor his passen­gers intended to register at the hotel as a guest. Mr. Allen had parked in this partic­ular garage on several occasions, however, testifying that he felt that the vehicle would be safer in an attended garage than in an unattended outside lot on the street.

The single entrance was controlled by a ticket machine. The single exit was con­trolled by an attendant in a booth just opposite to the entrance and in full view thereof. Appellee’s husband entered the garage at the street level and took a ticket which was automatically dispensed by the machine. The machine activated a barrier gate which rose and permitted Mr. Allen to enter the garage. He drove to the fourth floor level, parked the vehicle, locked it, retained the ignition key, descended by ele­vator to the street level and left the ga­rage. When he returned several hours la­ter, the car was gone, and it has never been recovered. Mr. Allen reported the theft to the attendant at the exit booth, who stated, “Well, it didn’t come out here.” The at­tendant did not testify at the trial.

Mr. Allen then reported the theft to se­curity personnel employed by appellant, and subsequently reported the loss to the police. Appellant regularly employed a number of security guards, who were dressed in a distinctive uniform, two of whom were on duty most of the time. These guards patrolled the hotel grounds and building as well as the garage and were instructed to make rounds through the garage, although not necessarily at specified intervals. One of the security guards told appellee’s husband that earlier in the day he had received the following report:

“He said, ‘It’s a funny thing here. On my report here a lady called me some­where around nine-thirty or after and said that there was someone messing with a car.’”

The guard told Mr. Allen that he closed his office and went up into the garage to investigate, but reported that he did not find anything unusual or out of the ordi­nary.

Customers such as Mr. Allen, upon enter­ing the garage, received a ticket from the dispensing machine. On one side of this ticket are instructions to overnight guests to present the ticket to the front desk of the hotel. The other side contains instruc­tions to the parker to keep the ticket and that the ticket must be presented to the cashier upon leaving the parking area. The ticket states that charges are made for the use of parking space only and that appellant assumes no responsibility for loss through fire, theft, collision or otherwise to the car or its contents. The ticket states that cars are parked at the risk of the owner, and parkers are instructed to lock their vehicles.1 The record indicates that these tickets are given solely for the pur­pose of measuring the time during which a vehicle is parked in order that the attend­ant may collect the proper charge, and that they are not given for the purpose of iden­tifying particular vehicles.

The question of the legal relationship between the operator of a vehicle which is being parked and the operator of parking establishments has been the subject of fre­quent litigation in this state and elsewhere. The authorities are in conflict, and the re­sults of the cases are varied.2

It is legally and theoretically possible, of course, for various legal relationships to be created by the parties, ranging from the traditional concepts of lessor-lessee, licensor-licensee, bailor-bailee, to that described in some jurisdictions as a “deposit.”3 Sev­eral courts have found difficulty with the traditional criteria of bailment in analyzing park-and-lock cases. One of the leading cases is McGlynn v. Parking Authority of City of Newark, 86 N.J. 551, 432 A.2d 99 (1981). There the Supreme Court of New Jersey reviewed numerous decisions from within its own state and from other juris­dictions, and it concluded that it was more “useful and straightforward” to consider the possession and control elements in de­fining the duty of care of a garage opera­tor to its customers than to consider them in the context of bailment. That Court concluded that the “realities” of the rela­tionship between the parties gave rise to a duty of reasonable care on the part of operators of parking garages and parking lots. It further found that a garage owner is usually better situated to protect a parked car and to distribute the cost of protection through parking fees. It also emphasized that owners usually expect to receive their vehicles back in the same con­dition in which they left them and that the imposition of a duty to protect parked vehi­cles and their contents was consistent with that expectation. The Court went further and stated that since the owner is ordinari­ly absent when theft or damage occurs, the obligation to come forward with affirma­tive evidence of negligence could impose a difficult, if not insurmountable, burden upon him. After considering various policy considerations, which it acknowledged be the same as those recognized by courts holding that a bailment is created, the New Jersey Court indulged or authorized a pre­sumption of negligence from proof of dam­age to a car parked in an enclosed garage. 432 A.2d at 105.4

Although the New Jersey Court conclud­ed that a more flexible and comprehensive approach could be achieved outside of tradi­tional property concepts, Tennessee courts generally have analyzed cases such as this in terms of sufficiency of the evidence to create a bailment for hire by implication. We believe that this continues to be the majority view and the most satisfactory and realistic approach to the problem, un­less the parties clearly by their conduct or by express contract create some other rela­tionship.

The subject has been discussed in numer­ous previous decisions in this state. One of the leading cases is Dispeker v. New Southern Hotel Co., 213 Tenn. 378, 373 S.W.2d 904 (1963). In that case the guest at a hotel delivered his vehicle to a bellboy who took possession of it and parked it in a lot adjoining the hotel building. The owner kept the keys, but the car apparently was capable of being started without the igni­tion key. The owner apparently had told the attendant how to so operate it. Later the employee took the vehicle for his own purposes and damaged it. Under these circumstances the Court held that a bail­ment for hire had been created and that upon proof of misdelivery of the vehicle the bailee was liable to the customer.

In the subsequent case of Scruggs v. Dennis, 222 Tenn. 714, 440 S.W.2d 20 (1969), upon facts practically identical to those of the instant case, the Court again held that an implied bailment contract had been created between a customer who parked and locked his vehicle in a garage. Upon entry he received a ticket dispensed by a machine, drove his automobile to the underground third level of the garage and parked. He retained his ignition key, but when he returned to retrieve the automo­bile in the afternoon it had disappeared. It was recovered more than two weeks later and returned to the owner in a damaged condition.

In that case the operator of the garage had several attendants on duty, but the attendants did not ordinarily operate the parked vehicles, as in the instant case.5

Although the Court recognized that there were some factual differences be­tween the Scruggs case and that of Dispek­er v. New Southern Hotel Co., supra, it concluded that a bailment had been created when the owner parked his vehicle for cus­tody and safe keeping in the parking ga­rage, where there was limited access and where the patron had to present a ticket to an attendant upon leaving the premises.

A bailment relationship was also found in Jackson v. Metropolitan Government of Nashville, 483 S.W.2d 92 (Tenn.1972), when faculty members of a high school conduct­ed an automobile parking operation for profit upon the high school campus. A customer who parked his vehicle there was allowed recovery for theft, even though he had parked the vehicle himself after paying a fee, had locked the vehicle and had kept the keys.

On the contrary, in the case of Rhodes v. Pioneer Parking Lot, Inc., 501 S.W.2d 569 (Tenn.1973), a bailment was found not to exist when the owner left his vehicle in an open parking lot which was wholly unat­tended and where he simply inserted coins into a meter, received a ticket, then parked the vehicle himself and locked it.

Denying recovery, the Court said:

“In the case at bar, however, we find no evidence to justify a finding that the plaintiff delivered his car into the custo­dy of the defendant, nor do we find any act or conduct upon the defendant’s part which would justify a reasonable person believing that an obligation of bailment had been assumed by the defendant.” 501 S.W.2d at 571.

In the instant case, appellee’s vehicle was not driven into an unattended or open parking area. Rather it was driven into an enclosed, indoor, attended commercial ga­rage which not only had an attendant con­trolling the exit but regular security per­sonnel to patrol the premises for safety.

Under these facts we are of the opinion that the courts below correctly concluded that a bailment for hire had been created, and that upon proof of nondelivery appellee was entitled to the statutory presumption of negligence provided in T.C.A. § 24-5-­111.

We recognize that there is always a question as to whether there has been suf­ficient delivery of possession and control to create a bailment when the owner locks a vehicle and keeps the keys. Nevertheless, the realities of the situation are that the operator of the garage is, in circumstances like those shown in this record, expected to provide attendants and protection. In prac­ticality the operator does assume control and custody of the vehicles parked, limiting access thereto and requiring the presenta­tion of a ticket upon exit. As stated previ­ously, the attendant employed by appellant did not testify, but he told appellee’s hus­band that the vehicle did not come out of the garage through the exit which he con­trolled. This testimony was not amplified, but the attendant obviously must have been in error or else must have been inat­tentive or away from his station. The record clearly shows that there was no other exit from which the vehicle could have been driven.

Appellant made no effort to rebut the presumption created by statute in this state (which is similar to presumptions indulged by courts in some other jurisdictions not having such statutes). While the plaintiff did not prove positive acts of negligence on the part of appellant, the record does show that some improper activity or tampering with vehicles had been called to the atten­tion of security personnel earlier in the day of the theft in question, and that appellee’s new vehicle had been removed from the garage by some person or persons un­known, either driving past an inattentive attendant or one who had absented himself from his post, there being simply no other way in which the vehicle could have been driven out of the garage.

Under the facts and circumstances of this case, we are not inclined to depart from prior decisions or to place the risk of loss upon the consuming public as against the operators of commercial parking estab­lishments such as that conducted by appel­lant. We recognize that park-and-lock situ­ations arise under many and varied factual circumstances. It is difficult to lay down one rule of law which will apply to all cases. The expectations of the parties and their conduct can cause differing legal rela­tionships to arise, with consequent differ­ent legal results. We do not find the facts of the present case, however, to be at vari­ance with the legal requirements of the traditional concept of a bailment for hire. In our opinion it amounted to more than a mere license or hiring of a space to park a vehicle, unaccompanied by any expectation of protection or other obligation upon the operator of the establishment.

The judgment of the courts below is af­firmed at the cost of appellant. The cause will be remanded to the trial court for any further proceedings which may be neces­sary.

1

It is not insisted that the language of the ticket is sufficient to exonerate appellant, since the customer is not shown to have read it or to have had it called to his attention. See Savoy Hotel Corp. v. Sparks, 57 Tenn.App. 537, 421 S.W.2d 98 (1967).

2

See Annot. 13 A.L.R.4A 359 (1982); 7 A.L.R.3d 927 (1966).

3

See Gauthier v. Allright New Orleans, Inc., 417 So.2d 375 (La.App.1982).

4

Other courts, declining to find a bailment, have onerated the customer with proving negli­gence. E.g., Central Parking System v. Miller, 586 S.W.2d 262 (Ky.1979).

5

Appellant's employees occasionally parked the vehicles of patrons who were handicapped and under other unusual circumstances.

DROWOTA, Justice,

dissenting.

In this case we are asked to consider the nature and extent of liability of the opera­tor of a commercial “park and lock” park­ing garage. In making this determination, we must look to the legal relationship be­tween the operator of the vehicle and the operator of the parking facility. The ma­jority opinion holds that a bailment con­tract has been created, and upon proof of non-delivery Plaintiff is entitled to the stat­utory presumption of negligence provided in T.C.A. § 24-5-111. I disagree, for I find no bailment existed and therefore the Plaintiff does not receive the benefit of the presumption. Consequently, the Plaintiff had the duty to prove affirmatively the negligence of the operator of the parking facility and this Plaintiff failed to do.

The majority opinion states that “courts have found difficulty with the traditional criteria of bailment in analyzing park and lock cases.” The majority discusses the case of McGlynn v. Parking Authority of City of Newark, 86 N.J. 551, 432 A.2d 99 (1981), which suggests that bailment is an outmoded concept for analyzing parking lot and garage cases. In Garlock v. Multiple Parking Services, Inc., 103 Misc.2d 943, 427 N.Y.S.2d 670, 677, 13 A.L.R.4th, 428 (1980), the court stated that “the ‘bailment theory’ as a basis for recovery in parking lot cases is no longer appropriate.” That court concluded that since the concept of bailment is no longer a viable theory in application to a very real modern problem that the proper standard to be followed in such cases is “reasonable care under the circumstances whereby foreseeability shall be a measure of liability.” Id. 427 N.Y.­S.2d at 678.

Even though some courts now suggest that the theory of bailment is an archaic and inappropriate theory upon which to base liability in modern park and lock cases, the majority opinion states that “Tennessee courts generally have analyzed cases such as this in terms of sufficiency of the evidence to create a bailment for hire by implication,” and concludes that this is “the most satisfactory and realistic ap­proach to the problem.” I do not disagree with the longstanding use of the bailment analysis in this type of case. I do disagree, however, with the majority’s conclusion that a bailment for hire has been created in this case.

The record shows that upon entering this parking garage a ticket, showing time of entry, is automatically dispensed by a ma­chine. The ticket states that charges are made for the use of a parking space only and that the garage assumes no responsi­bility for loss to the car or its contents. The ticket further states that cars are parked at the risk of the owner, and parkers are instructed to lock their vehicles. The majority opinion points out that it is not insisted that this language on the ticket is sufficient to exonerate the garage, since the customer is not shown to have read it or to have had it called to his attention. Savoy Hotel Corp. v. Sparks, 57 Tenn.App. 537, 421 S.W.2d 98 (1967). The ticket in no way identifies the vehicle, it is given solely for the purpose of measuring the length of time during which the vehicle is parked in order that a proper charge may be made.

In this case Mr. Allen, without any di­rection or supervision, parked his car, re­moved his keys, and locked the car and left the parking garage having retained his ig­nition key. The presentation of a ticket upon exit is for the sole purpose of allow­ing the cashier to collect the proper charge. The cashier is not required to be on duty at all times. When no cashier is present, the exit gate is opened and no payment is re­quired.1 As the majority opinion states, the ticket is “not given for the purpose of identifying particular vehicles.” The ticket functioned solely as a source of fee compu­tation, not of vehicle identification.

The majority opinion states: “[W]e do not find the facts of the present case to be at variance with the legal requirements of the concept of a bailment for hire.” I must disagree, for I feel the facts of the present case are clearly at variance with what I consider to be the legal requirements of the traditional concept of a bailment for hire.

Bailment has been defined by this Court in the following manner:

The creation of a bailment in the ab­sence of an express contract requires that possession and control over the sub­ject matter pass from the bailor to the bailee. In order to constitute a sufficient delivery of the subject matter there must be a full transfer, either actual or con­structive, of the property to the bailee so as to exclude it from the possession of the owner and all other persons and give to the bailee, for the time being, the sole custody and control thereof. See Jack­son v. Metropolitan Government of Nashville, supra, Scruggs v. Dennis, 222 Tenn. 714, 440 S.W.2d 20 (1969); Old Hickory Parking Corp. v. Alloway, 26 Tenn.App. 683, 177 S.W.2d 23 (1944). See generally, 8 Am.Jur.2d 960-61.

In parking lot and parking garage situ­ations, a bailment is created where the operator of the lot or garage has know­ingly and voluntarily assumed control, possession, or custody of the motor vehi­cle; if he has not done so, there may be a mere license to park or a lease of parking space. See, e.g., Lewis v. Ebersole, 244 Ala. 200, 12 So.2d 543 (1943); Southeast­ern Fair Association v. Ford, 64 Ga.­App. 871, 14 S.E.2d 139 (1941).

Rhodes v. Pioneer Parking Lot, Inc., 501 S.W.2d 569, 570 (Tenn.1973).

From its earliest origins, the most distin­guishing factor identifying a bailment has been delivery. Our earliest decisions also recognize acceptance as a necessary factor, requiring that possession and control of the property pass from bailor to bailee, to the exclusion of control by others. The test thus becomes whether the operator of the vehicle has made such a delivery to the operator of the parking facility as to amount to a relinquishment of his exclusive possession, control, and dominion over the vehicle so that the latter can exclude it from the possession of all others. If so, a bailment has been created.

When the automobile began replacing the horse and buggy, our courts allowed bailment law to carry over and govern the parking of vehicles. In cases such as Old Hickory Parking Corp. v. Alloway, 177 S.W.2d 23 (Tenn.App.1943), and Savoy Ho­tel v. Sparks, 421 S.W.2d 98 (Tenn.App.­1967), where the operator of the vehicle left his vehicle with an attendant and left the keys for the attendant to move the vehicle as he wished, the bailment relationship was evident for we had a clear delivery, accept­ance of possession, control, and exercise of dominion over the vehicle—all the tradition­al elements of a bailment. In Dispeker v. New Southern Hotel Company, 213 Tenn. 378, 373 S.W.2d 904 (1963), a bellboy parked plaintiff's car, plaintiff retained the keys but explained to the bellboy that the car could be operated without the key, and apparently showed him how to operate it. The bellboy went off duty, then returned and stole the car. Once again, the tradi­tional elements of delivery and control were present.

These cases involving parking attendants and personalized service have caused us no problems. The problem arises in this mod­ern era of automated parking, when courts have attempted to expand the limits of existing areas of the law to encompass technological and commercial advances. Such is the case of Scruggs v. Dennis, 440 S.W.2d 20 (Tenn.1969), relied upon in the majority opinion. In Scruggs, as in this case, the entire operation is automated, with the exception of payment upon depar­ture. The operation bears little, if any, resemblance to the circumstances found in Old Hickory Parking Corp., Savoy Hotel, and Dispeker. Yet the Court in Scruggs, in quoting extensively from the Dispeker opinion, states that “There are some min­ute differences of fact ...” Id., 440 S.W.2d at 22. As pointed out above, the differences of fact in Dispeker are not minute or so similar as the Scruggs court would suggest. Delivery, custody and con­trol are clearly present in Dispeker. I fail to find such delivery, custody and control in Scruggs or in the case at bar. In Dispeker, the vehicle was actually taken from the owner by an attendant. I believe the Scruggs court and the majority opinion to­day attempt to apply bailment law in situa­tions where there is not a true bailment relationship.

The Scruggs opinion was recently cited in a dissenting opinion in Kentucky where the plaintiff entered a six-story, self-park­ing garage in downtown Louisville. The only employee on duty was the attendant who collected the money from the driver upon exiting. The garage was patrolled three times daily by garage personnel. The Kentucky Supreme Court chose not to follow the Scruggs rationale and held “when a person parks his automobile in a garage by receiving a ticket from an auto­mated machine, choosing his own space and taking his keys with him, the garage is not a bailee and is not liable in the absence of negligence on its part.” Central Parking System v. Miller, 586 S.W.2d 262, 263 (Ky.­1979).

The difficulty in these types of cases seems to arise when the traditional ele­ments of bailment are missing and courts must determine whether there is an implied bailment created by implication from the surrounding circumstances and the conduct of the parties. In Jackson v. Metropolitan Government of Nashville, 483 S.W.2d 92 (Tenn.1972), the Court based its opinion on the finding that the Defendants, by their conduct, “impliedly promised to use ordi­nary and reasonable care to preserve the property during the term of the bailment and to return the bail property to complain­ant on demand or to his order.” Id., at 95.

The majority opinion “recognize[s] that there is always a question as to whether there has been sufficient delivery of pos­session and control to create a bailment when the owner locks a vehicle and keeps the keys.” The majority finds that “in practicality the operator does assume con­trol and custody of the vehicles parked, limiting access thereto and requiring the presentation of a ticket upon exit.” The majority opinion, as did the Scruggs court, finds custody and control implied because of the limited access and because “the pre­sentation of a ticket upon exit” is required. I cannot agree with this analysis as creat­ing a bailment situation. I do not believe that based upon the fact that a ticket was required to be presented upon leaving, that this factor created a proper basis upon which to find a bailment relationship. The ticket did not identify the vehicle or the operator of the vehicle, as do most bail­ment receipts. The cashier was not per­forming the traditional bailee role or identi­fying and returning a particular article, but instead was merely computing the amount owed and accepting payment due for use of a parking space. I do not believe the De­fendant exercised such possession and con­trol over Plaintiff’s automobile as is neces­sary in an implied bailment.

As recently stated in Merritt v. Nation­wide Warehouse Co., Ltd., 605 S.W.2d 250, 253 (Tenn.App.1980), “Such full delivery must be made as will entitle the bailee to exclude the possession of all other persons and put him in sole custody and control.” The full transfer of possession and control, necessary to constitute delivery, should not be found to exist simply by the presenta­tion of a ticket upon exit. In the case at bar, I find no such delivery and relinquish­ment of exclusive possession and control as to create a bailment. Plaintiff parked his car, locked it and retained the key. Cer­tainly Defendant cannot be said to have sole custody of Plaintiff’s vehicle, for De­fendant could not move it, did not know to whom it belonged, and did not know when it would be reclaimed or by whom. Any­one who manually obtained a ticket from the dispenser could drive out with any vehi­cle he was capable of operating. Also, a cashier was not always on duty. When on duty, so long as the parking fee was paid—by what means could the Defendant rea­sonably exercise control? The necessary delivery and relinquishment of control by the Plaintiff, the very basis upon which the bailment theory was developed, is missing.

We should realize that the circumstances upon which the principles of bailment law were established and developed are not al­ways applicable to the operation of the modern day automated parking facility. The element of delivery, of sole custody and control are lacking in this case.

I am authorized to state that BROCK, J., joins with me in this dissent.

1

Between one or two in the morning and six or seven a.m., the garage is entirely open without a cashier to collect parking fees. During the day if the cashier leaves his or her post on a break, the exit gate is opened and the vehicle owner may exit without payment.

United States Court of Appeals, Eighth Circuit.

Nos. 81-1391, 81-1431.

Cathy A. WILLIAMS, Appellant, v. FORD MOTOR CREDIT COMPANY, Appellee. S & S Recovery, Inc. FORD MOTOR CREDIT COMPANY, Appellant, Cathy A. Williams v. S & S RECOVERY, INC., Appellee.

Decided March 31, 1982.

Submitted Nov. 11, 1981.

Rex M. Terry, Bradley D. Jesson, Hardin, Jesson & Dawson, Fort Smith, Ark., for S & S Recovery, Inc.

Fines F. Batchelor, Jr., Van Buren, Ark., for Cathy A. Williams.

W. R. Nixon, Jr., Little Rock, Ark., for Ford Motor Credit Co.

Before HEANEY and McMILLIAN, Cir­cuit Judges, and BENSON *, Chief District Judge.

*

Paul Benson, Chief District Judge, District of North Dakota sitting by designation.

BENSON, Chief Judge.

In this diversity action brought by Cathy A. Williams to recover damages for conver­sion arising out of an alleged wrongful re­possession of an automobile, Williams ap­peals from a judgment notwithstanding the verdict1 entered on motion of defendant Ford Motor Credit Company (FMCC). In the same case, FMCC appeals a directed verdict in favor of third party defendant S & S Recovery, Inc. (S & S) on FMCC’s third party claim for indemnification. We affirm the judgment n. o. v. FMCC’s appeal is thereby rendered moot.

In July, 1975, David Williams, husband of plaintiff Cathy Williams, purchased a Ford Mustang from an Oklahoma Ford dealer. Although David Williams executed the sales contract, security agreement, and loan pa­pers, title to the car was in the name of both David and Cathy Williams. The car was financed through the Ford dealer, who in turn assigned the paper to FMCC. Ca­thy and David Williams were divorced in 1977. The divorce court granted Cathy title to the automobile and required David to continue to make payments to FMCC for eighteen months. David defaulted on the payments and signed a voluntary reposses­sion authorization for FMCC. Cathy Wil­liams was informed of the delinquency and responded that she was trying to get her former husband David to make the pay­ments. There is no evidence of any agree­ment between her and FMCC. Pursuant to an agreement with FMCC, S & S was di­rected to repossess the automobile.

On December 1, 1977, at approximately 4:30 a. m., Cathy Williams was awakened by a noise outside her house trailer in Van Buren, Arkansas.2 She saw that a wrecker truck with two men in it had hooked up to the Ford Mustang and started to tow it away. She went outside and hollered at them. The truck stopped. She then told them that the car was hers and asked them what they were doing. One of the men, later identified as Don Sappington, presi­dent of S & S Recovery, Inc., informed her that he was repossessing the vehicle on behalf of FMCC. Williams explained that she had been attempting to bring the past due payments up to date and informed Sap­pington that the car contained personal items which did not even belong to her. Sappington got out of the truck, retrieved the items from the car, and handed them to her. Without further complaint from Wil­liams, Sappington returned to the truck and drove off, car in tow. At trial, Williams testified that Sappington was polite throughout their encounter and did not make any threats toward her or do any­thing which caused her to fear any physical harm. The automobile had been parked in an unenclosed driveway which plaintiff shared with a neighbor. The neighbor was awakened by the wrecker backing into the driveway, but did not come out. After the wrecker drove off, Williams returned to her house trailer and called the police, reporting her car as stolen. Later, Williams com­menced this action.

The case was tried to a jury which awarded her $5,000.00 in damages. FMCC moved for judgment notwithstanding the verdict, but the district court, on Williams’ motion, ordered a nonsuit without prejudice to refile in state court. On FMCC’s appeal, this court reversed and remanded with di­rections to the district court to rule on the motion for judgment notwithstanding the verdict.3 The district court entered judg­ment notwithstanding the verdict for FMCC, and this appeal followed.

Article 9 of the Uniform Commercial Code (UCC), which Arkansas has adopted and codified as Ark.Stat.Ann. § 85-9-503 (Supp.1981), provides in pertinent part:

Unless otherwise agreed, a secured party has on default the right to take posses­sion of the collateral. In taking posses­sion, a secured party may proceed with­out judicial process if this can be done without breach of the peace....4

In Ford Motor Credit Co. v. Herring, 27 U.C.C.Rep. 1448, 267 Ark. 201, 589 S.W.2d 584, 586 (1979), which involved an alleged conversion arising out of a repossession, the Supreme Court of Arkansas cited Section 85-9-503 and referred to its previous hold­ings as follows:

In pre-code cases, we have sustained a finding of conversion only where force, or threats of force, or risk of invoking vio­lence, accompanied the repossession. Manhattan Credit Co., Inc. v. Brewer, 232 Ark. 976, 341 S.W.2d 765 (1961); Ken­singer Acceptance Corp. v. Davis, 223 Ark. 942, 269 S.W.2d 792 (1954).

The thrust of Williams’ argument on ap­peal is that the repossession was accom­plished by the risk of invoking violence. The district judge who presided at the trial commented on her theory in his memoran­dum opinion:

Mrs. Williams herself admitted that the men who repossessed her automobile were very polite and complied with her requests. The evidence does not reveal that they performed any act which was oppressive, threatening or tended to cause physical violence. Unlike the situa­tion presented in Manhattan Credit Co. v. Brewer, supra, it was not shown that Mrs. Williams would have been forced to resort to physical violence to stop the men from leaving with her automobile.

In the pre-Code case Manhattan Credit Co. v. Brewer, 232 Ark. 976, 341 S.W.2d 765 (1961), the court held that a breach of peace occurred when the debtor and her husband confronted the creditor’s agent during the act of repossession and clearly objected to the repossession, 341 S.W.2d at 767-68. In Manhattan, the court examined holdings of earlier cases in which repossessions were deemed to have been accomplished without any breach of the peace, id. In particular, the Supreme Court of Arkansas discussed the case of Rutledge v. Universal C.I.T. Credit Corp., 218 Ark. 510, 237 S.W.2d 469 (1951). In Rutledge, the court found no breach of the peace when the repossessor acquired keys to the automobile, confronted the debtor and his wife, informed them he was going to take the car, and immediately proceeded to do so. As the Rutledge court explained and the Manhattan court reiter­ated, a breach of the peace did not occur when the “Appellant [debtor-possessor] did not give his permission but he did not ob­ject.” Manhattan, supra, 341 S.W.2d at 767-68; Rutledge, supra, 237 S.W.2d at 470.

We have read the transcript of the trial. There is no material dispute in the evidence, and the district court has correctly summa­rized it. Cathy Williams did not raise an objection to the taking, and the repossession was accomplished without any incident which might tend to provoke violence. See also Teeter Motor Co., Inc. v. First Nat’l Bank, 20 U.C.C.Rep. 1119, 260 Ark. 764, 543 S.W.2d 938 (1976).

Appellees deserve something less than commendation for the taking during the night time sleeping hours, but it is clear that viewing the facts in the light most favorable to Williams, the taking was a legal repossession under the laws of the State of Arkansas. The evidence does not support the verdict of the jury. FMCC is entitled to judgment notwithstanding the verdict.

The judgment notwithstanding the ver­dict is affirmed.

1

The Honorable Paul X Williams, Chief Judge, United States District Court for the Western District of Arkansas.

2

Cathy Williams testified that the noise sound­ed like there was a car stuck in her yard.

3

Opinion at 627 F.2d 158 (8th Cir. 1980).

4

It is generally considered that the objectives of this section are (1) to benefit creditors in permitting them to realize collateral without having to resort to judicial process; (2) to ben­efit debtors in general by making credit availa­ble at lower costs, see Griffith v. Valley of the Sun Recovery and Adjustment Bureau, Inc., 29 U.C.C.Rep. 711, 126 Ariz. 227, 613 P.2d 128­3 (Ct.App.1980); and (3) to support a public poli­cy discouraging extrajudicial acts by citizens when those acts are fraught with the likelihood of resulting violence, see Morris v. First Nat’l. Bank & Trust Co., 7 U.C.C.Rep. 131, 21 Ohio St.2d 25, 254 N.E.2d 683 (1970).

HEANEY, Circuit Judge,

dissenting.

The only issue is whether the repossession of appellant’s automobile constituted a breach of the peace by creating a “risk of invoking violence.” See Ford Motor Credit Co. v. Herring, 267 Ark. 201, 589 S.W.2d 584, 586 (1979). The trial jury found that it did and awarded $5,000 for conversion. Be­cause that determination was in my view a reasonable one, I dissent from the Court’s decision to overturn it.

Cathy Williams was a single parent living with her two small children in a trailer home in Van Buren, Arkansas. On Decem­ber 1, 1977, at approximately 4:30 a.m., she was awakened by noises in her driveway. She went into the night to investigate and discovered a wrecker and its crew in the process of towing away her car. According to the trial court, “she ran outside to stop them * * * but she made no strenuous pro­tests to their actions.” (Emphasis added.) In fact, the wrecker crew stepped between her and the car when she sought to retrieve personal items from inside it, although the men retrieved some of the items for her. The commotion created by the incident awakened neighbors in the vicinity.

Facing the wrecker crew in the dead of night, Cathy Williams did everything she could to stop them, short of introducing physical force to meet the presence of the crew. The confrontation did not result in violence only because Ms. Williams did not take such steps and was otherwise power­less to stop the crew.

The controlling law is the UCC, which authorizes self-help repossession only when such is done “without breach of the peace * * *.” Ark.Stat.Ann. § 85-9-503 (Supp. 1981). The majority recognizes that one important policy consideration underlying this restriction is to discourage “extrajudi­cial acts by citizens when those acts are fraught with the likelihood of resulting vio­lence.” Supra, at 719. Despite this, the majority holds that no reasonable jury could find that the confrontation in Cathy Williams’ driveway at 4:30 a.m. created a risk of violence. I cannot agree. At a minimum, the largely undisputed facts cre­ated a jury question. The jury found a breach of the peace and this Court has no sound, much less compelling, reason to over­turn that determination.

Indeed, I would think that sound applica­tion of the self-help limitation might re­quire a directed verdict in favor of Ms. Williams, but certainly not against her. If a “night raid” is conducted without detec­tion and confrontation, then, of course, there could be no breach of the peace. But where the invasion is detected and a con­frontation ensues, the repossessor should be under a duty to retreat and turn to judicial process. The alternative which the majori­ty embraces is to allow a repossessor to proceed following confrontation unless and until violence results in fact. Such a rule invites tragic consequences which the law should seek to prevent, not to encourage. I would reverse the trial court and reinstate the jury’s verdict.

Court of Appeals

No. 92-0692.

(Also reported in 493 N.W.2d 387.)

M & I Western State Bank, Plaintiff-Respondent, v. Marilyn A. Wilson, Defendant, Darin Trevelen, d/b/a Third Party Defendant-­Appellant.

Decided November 11, 1992.

Submitted on briefs September 14, 1992.

Before Nettesheim, P.J., Anderson and Snyder, JJ.

On behalf of the third party defendant-appellant the cause was submitted on the briefs of Patrick G. Seubert of Patrict G. Seubert & Associates of Neenah.

On behalf of the plaintiff-respondent the cause was submitted on the brief of Douglas K. Marone of Steinhilber, Swanson, Mares, Curtis, Marone & Wolk of Oshkosh.

ANDERSON, J.

Darin Treleven appeals from a judgment of the trial court which awarded possession of a truck owned by Marilyn A. Wilson to the M&I West­ern State Bank (bank). Because the earlier release of the truck was a conditional release and the bank had notice of Treleven's lien through his possession of the truck, we reverse.

The bank holds a security interest in a 1978 Peterbilt truck owned by Wilson. Treleven repaired the truck seven times, each time releasing the vehicle to Wilson so she could earn the money to pay Treleven for the repairs. The repairs were invoiced between Novem­ber 20, 1990 and April 23, 1991.

After Wilson defaulted on her payments to the bank, the bank commenced a replevin action. The par­ties made a repayment agreement; however, Wilson again defaulted and the bank obtained a judgment of replevin on April 9, 1990. The sheriff attempted to enforce the judgment but was unable to locate the truck. On May 12, 1991, employees of the bank saw the vehicle and followed it to Treleven's place of business, D.T. Truck Repair, Inc. The sheriff again tried to serve the writ of execution, but Treleven refused to release the vehicle, asserting that he held a mechanic's lien for ser­vices rendered.

After the attempted levy, the bank filed a second replevin action to determine who was entitled to posses­sion of the truck and named Treleven as a third-party defendant. At the date of the hearing, Treleven still was owed $3497.26 for the repairs plus $1273.10 for interest and storage as of the date of the hearing, January 30, 1992. The bank's balance as of January 2, 1992 was $3032.16. The bank's estimate of the value of the truck is approximately $3000. If this estimate is correct, only the lien with first priority would be paid from the proceeds of the sale of the truck.

The trial court held that Treleven's release of the vehicle to Wilson constituted a waiver of Treleven's lien as to the bank and that the bank's lien had priority. The trial court ordered the bank to take possession and con­duct a sale of the truck. On appeal, Treleven argues that the conditional release of the truck to the owner does not amount to a waiver of the lien and, alternatively, that he should be able to recover from the bank on the theory of unjust enrichment. Because we agree that the condi­tional release and regained possession do not waive Treleven's mechanic's lien or affect its priority over the prior secured interest, we do not have to address Treleven's unjust enrichment claim.

It is not disputed that before Treleven released pos­session of the truck, he had a mechanic's lien on Wil­son's truck. Section 779.41(1), Stats., governs mechanic's liens and states in part:

Every mechanic and every keeper of a garage or shop, and every employer of a mechanic who transports, makes, alters, repairs or does any work on personal property at the request of the owner or legal posses­sor of the personal property, has a lien on the per­sonal property for the just and reasonable charges therefor, including any parts, accessories, materials or supplies furnished in connection therewith and may retain possession of the personal property until the charges are paid. [Emphasis added.]

It also is not disputed that before Treleven released the truck to Wilson, Treleven's mechanic's lien had pri­ority over the bank's security interest. Section 409.310, Stats., states:

When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statu­tory and the statute expressly provides otherwise. [Emphasis added.]

Section 409.310 gave Treleven's mechanic's lien pri­ority over the security interest because Treleven was in possession of the truck, Treleven's lien was created by sec. 779.41(1), Stats., and sec. 779.41(1) does not expressly address the priority given to the lien created.

The issue in this case is whether the mechanic, by allowing the owner to use her vehicle on a temporary basis before paying the repair bill, lost the lien or its priority on that vehicle. The interpretation of statutes is a question of law which we review de novo. Central Nat'l Bank v. Dustin, 107 Wis. 2d 614, 617, 321 N.W.2d 321, 322 (Ct. App. 1982). We first must examine the language of sec. 779.41(1), Stats., see Dustin, 107 Wis. 2d at 617, 321 N.W.2d at 322, to see if the relinquishment and resumption of possession have any affect on the exis­tence of Treleven's mechanic's lien. Section 779.41(1) provides that a mechanic may retain possession of the personal property until the charges are paid. This provi­sion allows the mechanic to keep a customer's property until the mechanic has been paid, without a court order. However, once the mechanic has relinquished possession of the vehicle, this statute does not provide the mechanic with a remedy even if the bill has not been paid. The statute also does not tell us whether the mechanic must retain possession of the vehicle to retain the lien it states only that the mechanic "may retain possession."

But the mechanic's lien statute may not be inter­preted in a vacuum. "[M]echanic's lien laws provide new and additional remedies to those of the common law and are to be liberally construed to accomplish their equita­ble purpose of aiding materialmen and laborers to obtain compensation for material used and services bestowed upon property of another and thereby enhancing its value." Wiedenbeck-Dobelin Co. v. Mahoney, 160 Wis. 641, 646, 162 N.W. 479, 481 (1915) (emphasis added). Accordingly, in addition to the statutory language of sec. 779.41(1), Stats., we may look to the common law of mechanic's liens and those Wisconsin decisions incorpo­rating common law principles into the statutory mechanic's lien law to determine whether Treleven's lien survives.

Treleven argues that according to Sensenbrenner v. Mathews, 48 Wis. 250, 253-54, 3 N.W. 599, 600 (1879), the delivery of the vehicle to the owner must be both voluntary and unconditional in order to constitute a waiver of the lien. Treleven maintains that because he returned the vehicle to the owner so she could pay for the repairs and the allowed use was only on a temporary basis, the delivery of the vehicle was conditional and his lien survives. The bank also relies on Sensenbrenner for its argument that Treleven waived his lien by releasing the vehicle to Wilson. Alternatively, the bank asserts that even if the lien was not destroyed between Treleven and Wilson when the vehicle was conditionally released to Wilson, the lien was destroyed as to third persons.

Because Sensenbrenner is distinguishable on its facts from the present case, neither party's reliance on that case is warranted. The court in Sensenbrenner found that the delivery of a buggy by the mechanic to the owner was unconditional and held that this uncondi­tional delivery operated as a waiver of the lien. See id. at 253, 3 N.W. at 600. In contrast, Treleven's release of the vehicle was conditional—Sensenbrenner says nothing of the effect of a conditional release to the owner. Sensen­brenner also does not explicitly hold that the only way to waive a lien is through the voluntary and unconditional release of the property; Sensenbrenner merely states that this is one way to waive a lien. For these reasons, Sensenbrenner is not controlling precedent based on the facts of this case.

No Wisconsin court has decided whether the lien is lost once the mechanic conditionally releases the vehicle to the owner. The general and modern rule can be found in Restatement of Security § 80 (1941).1 This rule states that when the bailor (owner) is under an obliga­tion to return the vehicle to the lienor (mechanic), the lien is revived upon the recovery of the vehicle, subject only to the interests of bona fide purchasers for value and attaching or levying creditors who do not have notice of the lienor's interest.

The bank would like a rule that upon a conditional release, the lien is lost as to all third parties. The Restatement reflects a more balanced view, recognizing that not all interests of third parties are affected by the conditional release. While the mechanic retains posses­sion, third parties at least would have constructive notice of the mechanic's lien because they would be expected to examine the property in the mechanic's pos­session and be expected to know of the mechanic's lien statute. After a conditional release, those parties purchasing the vehicle, extending new credit, or levying on the vehicle would be vulnerable because even after examinations of the motor vehicle filings and the vehi­cle, there would be no way for them to know of the mechanic's prior interest. A creditor whose interest arose before the mechanic's lien would not have this concern. At the time the creditor extends credit, it is presumed to know the mechanic's lien statutes which could subordinate its interest to that of a mechanic mak­ing a later repair. This is a known risk to the creditor. A creditor also has the opportunity to protect itself by writing into the security agreement that all subsequent repairs must be approved by the creditor.

Once the mechanic's lien arises, in most circum­stances, the later conditional release does no further damage to the prior creditor and actually can be advan­tageous to the creditor. For example, in a case such as this where the vehicle is necessary to the owner's busi­ness, the conditional release allows the owner to generate cash to pay off the mechanic's lien and make payments on the creditor's prior loan. If the mechanic were forced to keep possession of the vehicle, the owner would be unable to raise the cash to pay off either the mechanic or the creditor.

The circumstance where a prior creditor could be damaged by the conditional release also is covered by the Restatement. If a prior creditor does not have notice of the mechanic's lien and goes through the expense of levying upon the vehicle while it is in the owner's posses­sion, then the levying creditor is accorded the same pro­tection as the bona fide purchaser for value or the new attaching creditor. This rule gives the prior creditor a "window of opportunity" to levy, but the mechanic can protect the lien by notifying prior creditors of the condi­tional release arrangement.

For the reasons stated above, we reject the bank's argument that a conditional release of the vehicle destroys the lien as to all third parties. Instead, we adopt the Restatement's rule that upon a conditional release, the lien is enforceable against all parties except a bona fide purchaser for value or a subsequent attaching or levying creditor who has no notice of the mechanic's interest. Upon the resumption of possession, the lien is revived and retains its priority as before the release, except it is subordinate to the bona fide purchaser or attaching or levying creditor. Applying this rule to the facts of the case, it is apparent that the mechanic's lien is superior to the bank's security interest. The fact that the truck was found at the mechanic's place of business well after the repairs were made supports Treleven's claim that the release of the vehicle was conditional. Furthermore, the bank is not afforded the protection given to the levying creditor because the sheriff levied upon the vehicle while it was in Treleven's possession, and thus had notice of Treleven's interest.

Because Treleven's lien was not waived by the con­ditional release under sec. 779.41(1), Stats., we next must examine whether the conditional release destroyed the lien's priority under sec. 409.310, Stats. Neither party addressed this issue, but commentary and cases interpreting Uniform Commercial Code § 9-310, the model upon which sec. 409.310 is based, make clear that the possession requirement of this statute is separate from any possession requirement of the underlying mechanic's lien.

U.C.C. § 9-310 gives priority only to the mechanic in possession of the vehicle. See U.C.C. § 9-310 com­ment 2; 2 G. Gilmore, Security Interests in Personal Property § 33.3, at 887-88 (1965); B. Clark, The Law of Secured Transactions Under the Uniform Com­mercial Code § 3.07[3][b], at 3-70 (2d ed. 1988); 9 W. Hawkland, Uniform Commercial Code Series Article 9: Secured Transactions § 9-310.02, at 173 (1991); 9 R. Anderson, Anderson on the Uniform Commercial Code § 9-310:9, at 228 (3d ed. 1985). It is uniformly held that if the mechanic voluntarily gives up possession of the vehicle, § 9-310 cannot be relied upon by the mechanic to give his lien priority over the prior secured interest. See United States v. Crittenden, 563 F.2d 678, 691 (5th Cir. 1977), vacated and remanded, 440 U.S. 715 (1979); In re Glenn, 20 B.R. 98, 99 (Bankr. E.D. Tenn. 1982); Forrest Cate Ford, Inc. v. Fryar, 465 S.W.2d 882, 884 (Tenn. App. 1970).

The question then becomes whether the resumption of possession will allow sec. 409.310, Stats., to be applied to give the mechanic's lien priority. The statute's lan­guage does not tell us whether continuous possession is required. When a statute is ambiguous we must look to other sources to determine legislative intent. Hainz v. Shopko Stores, 121 Wis. 2d 168, 172, 359 N.W.2d 397, 400 (Ct. App. 1984). Among the few courts that have decided this issue, the jurisdictions do not agree as to the effect of resuming possession under 9-310. The three cases discussing this issue the most thoroughly are Glenn, Crittenden and Thorp Commercial Corp. v. Mis­sissippi Road Supply Co., 348 So. 2d 1016 (Miss. 1977).

The opinion of the Mississippi Supreme Court in Thorp held that the mechanic retained priority under the Mississippi equivalent to § 9-310 when he resumed possession of equipment. Thorp, 348 So. 2d at 1018. The court reasoned that the status or rights of the parties did not change between the date the mechanic lost posses­sion of the equipment and the date it was restored to the possession of the mechanic. Id. Furthermore, the court recognized that the secured party was not and could not be prejudiced by the restoration. Id. Finally, the court concluded that because the Mississippi equivalent of § 9-­310 did not clearly express an intention to reverse long-­established principles of law, 9-310 had to be read together with the older mechanic's lien statute and prior case law which established that mechanic's liens take priority over prior security interests. Thorp, 348 So. 2d at 1018. These justifications supported the court's opin­ion that priority status of the mechanic's lien was retained under § 9-310 when the mechanic regained possession.

Glenn and the dissenting opinion in Thorp stated that the priority of the mechanic's lien is lost under statutes based on § 9-310 when there is a lapse in the mechanic's possession. Glenn, 20 B.R. at 101; Thorp, 348 So. 2d at 1018 (Patterson, C.J., dissenting). Glenn rea­soned that a rule which allowed the reinstatement of priority would create an ever-present dangerous uncer­tainty for parties, including prior secured parties, who deal with the debtor with respect to goods in his posses­sion because the prior secured party would have no notice of the mechanic's lien. Glenn, 20 B.R. at 99. Glenn also based its conclusion on the same concerns of the dissent in Thorp—a rule reinstating priority under the statute would permit the priority of the creditors to be determined by the debtor.

If he chooses to return property once relinquished by a repairman, the repairman prevails, but if he chooses not to relinquish possession of the property the secured creditor prevails.... [A rule reinstating priority under the statute] invites competition for possession between a secured party and a repairman who has previously relinquished possession of the property.

Id. at 100-01 (quoting Thorp, 348 So. 2d at 1017 (Pat­terson, C.J., dissenting)).

The Fifth Circuit Court of Appeals held that a mechanic retained his priority over a prior security interest only to the extent that the mechanic continu­ously possessed the collateral. Crittenden, 563 F.2d at 691. The court analogized § 9-310 to 26 U.S.C. § 6323(b)(5), a provision of the Federal Tax Lien Act, which gives priority to the mechanic's lien only if the mechanic "is, and has been, continuously in possession of such property from the time such lien arose." 26 U.S.C. § 6323(b)(5). The court justified the continuous possession requirement by reasoning that while consid­erations of equity and fairness created the mechanic's lien exception to the normal priority rules, at some point when the mechanic gives up possession and the repairs were made in the more distant past the mechanic's inter­est becomes indistinguishable from the ordinary credi­tor. Crittenden, 563 F.2d at 691-92 n.23.

In light of the longstanding Wisconsin policy of pro­tecting materialmen and laborers, see Wiedenbeck-­Dobelin Co., 160 Wis. at 646, 152 N.W. at 481, we find the Mississippi court's opinion in Thorp to be the most persuasive. The bank has not presented any facts which would show how its rights were affected or its interest was prejudiced by the release of the property to Wilson and Treleven's subsequent repossession. If anything, the facts show that the bank was better off through the conditional release because it afforded Wilson the resources to pay off both debts.

Like Mississippi's law in Thorp, Wisconsin case law decided prior to the enactment of sec. 409.310, Stats., gave priority to a mechanic's lien over a prior security interest. See Jesse A. Smith Auto Co. v. Kaestner, 164 Wis. 205, 159 N.W. 738 (1916). Wisconsin's enactment of sec. 409.310 did not expressly state that its effect was to displace prior law in this area. Commentary to the Uniform Commercial Code reveals the drafter's view that § 9-310 was to reverse prior case law which subordi­nated the mechanic's lien to prior security interests, but it does not state how the rule was to affect prior deci­sions holding the mechanic's lien superior. See U.C.C. § 9-310 comment 2. Because Wisconsin's prior case law and sec. 409.310 can be read in a consistent manner, we decline to interpret the statute otherwise.

Finally, but not least importantly, the plain lan­guage of sec. 409.310, Stats., gives priority to the mechanic "in possession." It does not require "continu­ous possession" or "retained possession." We must con­strue laws relating to mechanic's liens in a way to accomplish their equitable purpose of aiding mechanics in obtaining compensation. See Wiedenbeck-Dobelin Co., 160 Wis. at 646, 152 N.W. at 481.

The fifth circuit's opinion in Crittenden which read the continuous possession requirement into § 9-310 is not persuasive. In Crittenden, the fifth circuit was inter­ested in formulating a federal standard to determine pri­orities under the Uniform Commercial Code. Thus, it looked to the Federal Tax Lien Act for guidance in its interpretation of the possession requirement of § 9-310. Crittenden, 563 F.2d at 691. On appeal the Supreme Court reversed, stating that the court should not be look­ing to federal standards to determine priorities, but should apply Georgia's statutes. United States v. Kirn­bell Foods, 440 U.S. 715, 740 (1979). On remand, the fifth circuit held that Georgia's priority statute was basi­cally the same as model 9-310 and, without discussion, applied the same interpretation of the statute to the facts in the case. United States v. Crittenden, 600 F.2d 478, 479-80 (5th Cir. 1979). Unlike the fifth circuit's first Crittenden opinion, we are not concerned with formulat­ing a national standard and do not need to look at other federal laws interpreting "possession;" under Wisconsin law, we must interpret sec. 409.310, Stats., in a way that aids the mechanic in obtaining compensation. It is not in a mechanic's best interest to interpret "possession" in sec. 409.310 as "continuous possession," and we decline to do so. Therefore, because Treleven was in possession of the vehicle at the time the bank's lien was enforced, Treleven's mechanic's lien had priority over the bank's interest under sec. 409.310.

By the Court.—Judgment reversed and cause remanded.

1

Restatement of Security § 80 (1941), provides in relevant part:

Surrender of Possession by Possessory Lienor to the Bailor.

(1) Subject to the rules stated in Subsection[ ]... (3), where a possessory lienor surrenders possession of a chattel to a bailor, the lien is terminated.

(3) Where a lienor surrenders possession of a chattel to the bailor under circumstances which impose upon the bailor an obliga­tion to return it, the lienor can recover the chattel from the bailor and others except a bona fide purchaser for value and an officer of the law who has levied on or attached the chattel at the instance of one who has become a creditor without notice of the lienor's interest.

(4) In the circumstances described in Subsection (3) where the chattel is recovered by or returned to the lienor, the lien is revived, subject to superior interests of those third persons referred to in that Subsection.