Characteristics of a Common Carrier
74 Consideration of whether there has been a mistrial concerning whether the Respondent was a common carrier requires some discussion of what is involved in being a common carrier.
75 The common carrier is one of the various occupations that are categorised as common callings. The notion of a common calling has its origins in a medieval view that society operates in a way in which people occupied certain stations in life, and had both rights and responsibilities by virtue of occupying those stations in life.
76 It is easy in the twenty-first century to read a statement of the law about common carriers, such as that of Palmer quoted at para [51] above or that of Halsbury quoted at para [70] above, still adopting the frame of reference of a modern and largely secular society in which the prevailing ideology is that relationships are formed between individuals through their individual choices. If one reads such a statement of the law with that frame of reference one will not appreciate the full implications of the words used in the statement, in particular those concerning the carrier holding himself out. That is because there is a vast difference between such modern views of how society operates and the thought world from which the notion of a common calling arose.
77 Some idea of that difference can be gathered from Abigail Firey, " 'For I was Hungry and You Fed Me': Social Justice and Economic Thought in the Latin Patristic and Medieval Christian Traditions", in ST Lowry & B Gordon (ed) Ancient and Medieval Economic Ideas and Concepts of Social Justice, (1998) Brill Academic Publishers, p 357:
"In AD 1030, Adalberon, bishop of Laon, had enunciated the now classic description of medieval society as one composed of three orders, those who pray ( oratores ), those who fight ( bellatores ), and those who toil ( laboratores ). Of these, those who pray, the monks, were clearly morally superior to the other orders, and the explication of the scheme with reference to the three sons of Noah subordinated the third order to the others, as Ham had been the servant of Shem and Japeth (Jacques Le Goff, 'Introduction Medieval Man' in Medieval Callings , ed Jaques Le Goff, trans Lydia G Cochrane (Chicago, 1990), pp 11-12). By the twelfth century, a more intricate vocabulary of conditio (condition), status , dignitas (rank), gradus (degree) and officium (occupation) pervades ecclesiastical discourse …".
78 Firey also says, at 358-9:
"In … the serious assessment of professional qualifications hovered incipient expressions of vocation, of the possibility that there might be something particular each individual was supposed to be or do. The famed Franciscan preacher Berthold of Regensburg ( ca AD 1210-1272) developed this idea quite explicitly. In his exegesis of the Gospel passage (Matt 25:14-30) concerning the talents entrusted by the master to his servants … [t]he second talent is 'service,' and this Berthold describes as socially essential and 'the vocation to which God, who has given every man his service, has predestined you.' "
79 In the later medieval world there was a shade of meaning of a "calling" that suggested that there was a moral responsibility to do that which one was "called" to do, because it was the Divine will that one follow that calling. That shade of meaning is perhaps nowadays more readily recognised in the Latinised form of "calling", namely, "vocation". Conversely, a calling could sometimes give one rights. An example of rights arising from a calling was the theory of the Divine right of kings.
80 The callings of later medieval society were varied - they included monks, priests, knights, serfs, peasants, merchants, artisans, and scholars. The different callings each had their individual responsibilities and powers, and together made up interdependent parts of a social organism. The mutual rights and responsibilities of lord and vassal or tenant in the feudal system of land tenure provide one example. A recurring theme in Shakespeare was that it was part of the natural order, not just of human society but of the entire world, that people have their place and play their allotted part in life. One example is:
"The heavens themselves, the planets and this centre
Observe degree, priority and place,
Insisture, course, proportion, season, form,
Office, and custom, in all line of order:
… O! when degree is shaked,
Which is the ladder to all high designs,
The enterprise is sick. How could communities,
Degrees in schools, and brotherhoods in cities,
Peaceful commerce from dividable shores,
The primogeniture and due of birth,
Prerogative of age, crowns, sceptres, laurels,
But by degree, stand in authentic place?
Take but degree away, untune that string,
And, hark! what discord follows; each things meets
In mere oppugnancy…" ( Troilus & Cressida, I, iii.)
81 Another is:
"Therefore doth heaven divide
The state of man in divers functions,
Setting endeavour in continual motion;
To which is fixed, as an aim or butt,
Obedience: for so work the honey-bees,
Creatures that by a rule in nature teach
The act of order to a peopled kingdom.
They have a king and officers of sorts;
Where some, like magistrates, correct at home,
Others, like merchants, venture trade abroad,
Others, like soldiers, armed in their stings,
Make boot upon the summer's velvet buds;
Which pillage they with merry march bring home
To the tent-royal of their emperor:
Who, busied in his majesty, surveys
The singing masons building roofs of gold,
The civil citizens kneading up the honey,
The poor mechanic porters crowding in
Their heavy burdens at his narrow gate,
The sad-ey'd justice, with his surly hum,
Delivering o'er to executors pale
The lazy yawning drone…" ( Henry V, I, ii.)
82 Something of the sense of there being an obligation arising from following a calling lingered, though with obligations of a more secular kind, when the word was used to apply to an occupation.
83 A common calling was one exercised for the benefit of people in general. The Oxford English Dictionary says of "common" as an adjective:
"… Of or belonging to the community at large, or to a community or corporation; public. … Free to be used by every one, public. … In various semi-legal or statutory designations, as common alehouse , common brewer , common carrier , etc, the original meaning appears to be 'existing for the use of the public' as opposed to 'private', recognized by the law as bound to serve the public …".
84 Holdsworth, A History of English Law, vol 3, at 385-6 explains the application of the concept of a calling in medieval English law:
"… medieval society was regarded as divided into very distinct orders of men, each to a certain extent bound by the particular rules which applied to that particular order - each holding a particular 'status' regulated by law. Persons like innkeepers or common carriers, and perhaps people like smiths or surgeons, were considered to be bound by their callings to show a certain degree of skill in their respective callings. If they did not show this degree of skill they were liable to an action of trespass on the case for negligence … The ground for allowing an action of tort in … these classes of cases was at bottom public policy. It was for the interest of the community - then as now - that persons who professed a particular calling should show an adequate amount of care, skill and honesty in following their calling. They could, therefore be sued in tort if they did not come up to the standard imposed by the law." (footnotes omitted)
85 GW Paton, Bailment in the Common Law (1952) Stevens & Sons, at 240 identified the common callings as innkeepers, victuallers, farriers, tailors, taverners, smiths, carriers, ferry-men, sheriffs, and gaolers. There is some argument amongst legal historians about the precise extent of the list of occupations that were common callings (CHS Fifoot, History and Sources of the Common Law: Tort and Contract (1949) Stevens & Sons, at 157-8). However, the strong consensus is that the carrier appears on the list.
86 Long before the particular form of action on the case known as assumpsit evolved into an action for breach of contract, the common law recognised a liability, enforceable by an action in tort, on those who fell short of the standards required of one who followed a common calling.
87 OW Holmes Jr, The Common Law (1882) Macmillan & Co explained how late medieval law was able to hold a bailee liable for loss of goods that was occasioned through his negligence in failing to act. It found his duty to act, that gave rise to an action on the case, arose from his pursuit of a common calling. Holmes said, at 184:
"If damage had been done or occasioned by the act or omission of the defendant in the pursuit of some of the more common callings, such as that of a farrier, it seems that the action could be maintained, without laying an assumpsit, on the allegation that he was a 'common' farrier. [1] The latter principle was also wholly independent of bailment. It expressed the general obligation of those exercising a public or 'common' business to practice their art on demand, and show skill in it.
[1] Paston J, in YB 19 Hen VI 49. See, also, Rogers v Head , [(1610)] Cro Jac 262 [79 ER 226]; Rich v Kneeland , [(1613)] Cro Jac 330 [79 ER 282], which will be mentioned again. An innkeeper must be a common innkeeper, YB 11 Hen IV 45. See further, 3 Bl Comm 165, where 'the transition from status to contract' will be found to have taken place."
88 Fitzherbert, Natura Brevium (originally published 1534, 9th ed (1794) J Butterworth, Fleet-Street) at 94D said, "it is the duty of every artificer to exercise his art rightly and truly as he ought".
89 The public nature of the role of a common carrier continues to be an essential characteristic. In Gregory v Commonwealth Railways Commissioner (1941) 66 CLR 50 at 63, Starke J referred to a common carrier as being "bound to serve the public at large in the matter of carriage …". However, as the notion of a common calling has survived into the modern law, the source of the obligation to act has come to be seen as arising from a different source to that from which it originally was seen to arise. Now, it is seen as arising from the social role that the follower of a common calling carries out, and what he or she holds himself out to his fellow citizens as habitually doing.
90 The notion that someone who exercises a common calling has a public responsibility to carry out the tasks involved in that calling, and carry them out properly, has the effect that a common carrier can be liable in an action for tort if he refuses to accept goods which are offered to him for carriage, provided that they are the type of goods that he holds himself out as carrying, on a route over which he holds himself out as carrying, and provided he has room to take the goods: Boson v Sandford (1690) 1 Show KB 101 at 104; 89 ER 477 at 479 per Holt CJ; Jackson v Rogers (1683) 2 Show KB 327; 89 ER 968; Crouch v London and North Western Railway Co (1854) 14 CB 255; 139 ER 105; Gregory v Commonwealth Railways Commissioner at 62 per Starke J. Another ground on which a common carrier could lawfully refuse to accept goods is if the full amount of the freight is not paid to him: Wyld v Pickford (1841) 8 M & W 443; 151 ER 1113; Batson v Donovan (1820) 4 B & Ald 21; 106 ER 849; Jackson v Rogers, supra).
91 When legal writers say that a common carrier "is bound to carry" (eg Bailhache J in Belfast Ropework Co Ltd v Bushell [1918] 1 KB 210 at 214, quoted at para [64] above) or "bound to serve" (eg Starke J in Gregory, quoted at para [89] above), the obligation by which they are "bound" is, at least when the common law is the only relevant source of law to be applied, this liability to an action in tort. The form of the pleading, in the pre-Judicature system, for the action in tort against a common carrier for refusal to carry can be found in Bullen & Leake, Precedents of Pleadings, 3rd ed (1868) Stevens and Sons, at 277 and 282-3.
92 There are a couple of judicial statements that a common carrier could also be liable to be tried on indictment for refusing to carry goods of the type he professed to carry (Pozzi v Shipton (1838) 1 Per & Dav 4 at 12 per Patteson J (arguendo, although the passage does not appear in the report at 8 Ad & E 1106; 112 ER 1106); Belfast Ropework Co v Bushell at 212 per Bailhache J). While there appears to be no reported case of a person actually being indicted for such a crime, and neither the 11th ed (1849) nor the 15th ed (1862) of Archbold's Pleading and Evidence in Criminal Cases makes mention of such a crime, it is at least consistent with the public nature of the responsibilities of someone exercising a common calling that there could once have been such a crime.
93 Another aspect of the public nature of the role of a common carrier is to be found in the limitations that the law imposed on the ability of a common carrier to charge for his services. While the common carrier was not obliged to charge all his customers at the same rate (Branley v South Eastern Railway Co (1862) 12 CB NS 63; 142 ER 1066; Great Western Railway Co v Sutton (1869) LR 4 HL 226), he was not entitled to charge any customer more than a reasonable charge (Harris v Packwood (1810) 3 Taunt 264; 128 ER 105; Crouch v Great Northern Railway Co (1856) 11 Exch 742; 156 ER 1031). If the owner of goods offered a carrier a reasonable sum for carriage of them, and the carrier insisted on a higher price, which the owner of the goods paid under protest, the owner of the goods could recover the excess in an action for money had and received (Baxendale v London and South Western Railway Co (1866) LR 1 Ex 137; Great Western Railway Co v Sutton, supra).
94 The public obligation of a common carrier to accept and carry goods of the type that he professes to carry is the foundation of the particular lien of a common carrier over goods he has carried for the reasonable cost of carrying those goods. In Naylor v Mangles (1794) 1 Esp 109; 170 ER 295 at 296, Lord Kenyon said:
"Liens by common law were given where a party was obliged by law to receive goods, &c, in which case, as the law imposed the burthen, it also gave him the power of retaining for his indemnity."
95 The close connection between the public duty of a common carrier and the lien was also recognised by Stephen J in Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 at 54:
"There are two general categories of persons who have long been recognized by the common law as entitled to a particular lien not in any way dependent upon usage or custom; those whose quasi-public calling casts upon them a common law duty towards the public at large, such as innkeepers and carriers, and who in return are entitled to this special remedy for their charges …"
96 Dixon J stated with his customary lucidity the identifying characteristics of a common carrier in James v Commonwealth (1939) 62 CLR 339 at 367-9. One of the contentions of Mr James was that the Commonwealth had committed a tort of the Lumley v Gye (1853) 2 E & B 216; 118 ER 749 variety by inducing carriers, who Mr James alleged were common carriers, to refuse to accept Mr James' fruit for carriage. Dixon J said, at 367-9:
"The common law imposed upon those professing certain occupations an obligation to give their services to whosoever might demand them. The innkeeper and the common carrier are conspicuous examples surviving into modern times of occupations governed by this doctrine. In Lane v Cotton (1702) 12 Mod 472, at p 484 [88 ER 1458, at pp 1464, 1465] Holt CJ said:-
'Wherever any subject takes upon himself a public trust for the benefit of the rest of his fellow-subjects, he is eo ipso bound to serve the subject in all the things that are within the reach and comprehension of such an office, under pain of an action against him. ... If an innkeeper refuse to entertain a guest where his house is not full, an action will lie against him, and so against a carrier, if his horses be not loaded, and he refuses to take a packet proper to be sent by a carrier; and I have known such actions maintained, though the cases are not reported.'
The foundation of the obligation is the carrier's public profession of the business which he exercises. He is not bound to assume the character of a common carrier, but, if he does, he must not refuse the functions which belong to that occupation. It is left to him to define, by his own public profession or assumption of function, the extent of his business, that is, upon what journeys and by what means he undertakes the carriage of goods and what class or classes of goods he is prepared to carry.
'A person may profess to carry a particular description of goods only, for instance, cattle or dry goods, in which case he could not be compelled to carry any other kind of goods; or he may limit his obligation to carrying from one place to another, as from Manchester to London, and then he would not be bound to carry to or from the intermediate places. Still, until he retracts, every individual (provided he tenders the money at the time, and there is room in the conveyance), has a right to call upon him to receive and carry goods according to his public profession' (per Parke B, Johnson v Midland Railway Co (1849) 4 Exch 367, at p 373 [154 ER 1254, at p 1257]).
The holding out or profession of the character of common carrier may be expressed, or it may be, and usually is, implied by a course of business or other conduct. It is in every case a question of fact whether the character of a common carrier has been assumed. In considering that question an important matter is whether the carrier holds himself out as ready without discrimination to carry the goods of all persons who may choose to employ him or send him goods to be carried. If, instead of inviting all persons without discrimination to use his ships or vehicles, he reserves the right of choosing among them, independently of the suitability of their goods for his means of transportation and without regard to the room or space he has available, then he is not a common carrier. In Belfast Ropework Co v Bushell [1918] 1 KB 210, at p 215, Bailhache J said:
'For the purposes of my present decision I fall back upon this question, Did the defendant, while inviting all and sundry to employ him, reserve to himself the right of accepting or rejecting their offers of goods for carriage whether his lorries were full or empty, being guided in his decision by the attractiveness or otherwise of the particular offer and not by his ability or inability to carry having regard to his other engagements?'"
97 One basis on which Dixon J rejected the argument was that it had not been proved that any of the carriers involved were common carriers. He said, at 369:
"Judicial notice may be taken of many matters of notorious fact in relation to the course of inter-State commerce, but it cannot be assumed that any particular shipowner or, indeed, shipowners generally, have not, by reserving the right to discriminate sought to avoid the assumption of the character of common carriers."
98 In other words, the onus of proving that there has been no reservation of a right to discriminate is on the person who alleges that some particular carrier is a common carrier.
99 From this statement of law it can be seen that the mere fact that someone carries on business as a carrier is not in itself enough to make that person a common carrier. As well, there must be a taking on by that person of the status or role of being a common carrier, often proved by a holding out to the public that the carrier is willing to deal without discrimination with all people who might offer him goods of the kind he holds himself out as carrying. Whether there is that type of taking on of a status or role, or that type of holding out, concerning the business of any particular carrier, is a question of fact that can only be answered by reference to the manner in which the business as a whole of that carrier is carried out.
100 That one has the status or role of being a common carrier is something that endures over time (though of course it is a status or role that can be taken on, and can be retired from). But it is not possible to be a common carrier on only those particular isolated occasions one chooses to be. It is possible for a carrier to contract that, for a particular voyage, his liability will be the same as that of a common carrier, but that is not the same as being a common carrier.
101 In the present case, there was no evidence called by the Respondent that went to the manner in which its business as a whole was carried out. The only witness called by the Respondent who had knowledge of the manner of operation of the business was the tow truck driver. He gave evidence only about the circumstances in which the particular tow that is the subject of this litigation came to be carried out. One could conclude that, by its employee turning up in a tow truck at the accident scene, the Respondent was holding out to the drivers of the vehicles involved in the accident that it was willing to tow those vehicles. However, a holding out on a single occasion does not justify any conclusion about the social role the Respondent performs, or the manner in which the business as a whole is conducted, and in particular does not justify a conclusion that there has been any holding out to the public.
102 Even if one could conclude that the Respondent's tow truck from time to time arrived at the scene of motor accidents and the driver held himself out as willing to tow the vehicles involved, there is no evidence of the manner in which the Respondent chose those accidents that it would attend. Being a common carrier has as an intrinsic part of it that the carrier can come, by his publicly holding himself out, to be under an obligation to carry a particular consignment of goods, even if the carrier has not chosen to do so. Even if the Respondent had a practice of turning up at the scene of certain accidents, that is consistent with it turning up at the scene of only those accidents concerning which it had chosen that it was prepared to offer its services.
103 There is no evidence in the present case of anything happening that is analogous to the way in which goods are usually made available for a common carrier to carry, namely by the owner of those goods either bringing them to the common carrier, or contacting the common carrier and requesting that the common carrier come to collect the goods. So far as the evidence goes, the only manner in which the Respondent is shown to be engaged is by the Respondent's tow truck arriving, unbidden, at the scene of an accident, and a driver signing a towing authority.
104 Because a question about whether a particular carrier is a common carrier is a question of fact, proper litigation of that question would ordinarily require that any issues of fact that are relevant to it either be identified through pleading or a process analogous to pleading, or else identified in a statement of issues prior to commencement of the trial. In the present case that did not happen. The case proceeded on the basis that the lien claimed by the Respondent was an artificer's lien or alternatively a lien by custom or usage. As the transcript quoted at para [43] above makes clear, on the first morning of the trial the judge was of the view that the only evidentiary issue related to whether there was a lien arising by custom or usage.
105 Even when Mr Tannous produced written submissions in the course of his final address, the only circumstance in which those written submissions contended that a tow truck driver was entitled to a common carrier's lien was in the circumstance where a tow truck operator was directed by a police officer or other authorised officer to carry out towing work. That was a situation that had not occurred, concerning the tow that was the subject of the litigation. Mr Whittle submitted, correctly, that the judge would be acting wrongly to decide what the rights of a car owner and tow truck operator would be, in a situation that had not arisen on the facts of the instant case.
106 After lunch on the second day, Mr Whittle also went on the deal "on the run" with the submission that Mr Tannous had made concerning common carriers. However, his doing so was concerned only with the limited circumstance in which Mr Tannous' written submission had postulated that a tow truck driver may be entitled to a lien by virtue of being a common carrier. It was only concerning that situation, which was not a situation that arose on the facts of the present case, that Mr Whittle made his tentative concession that such a lien might arise. As well, even that tentative concession was subject to his overall submission that the judge should not deal with hypothetical situations.
107 It will be recalled that the Appellant was the plaintiff in the court below, and was seeking a negative declaration, of absence of a lien. Because the Appellant was contending for a negative proposition, it bore the onus of proving that negative proposition: Sanpine v Koompahtoo Aboriginal Land Council [2005] NSWSC 365 at [170]-[186] and cases there cited; Blanch v British American Tobacco Australia Services Ltd [2005] NSWSC 241; (2005) 62 NSWLR 653 at 655-6 [6]-[7].
108 In the present case, the Appellant proved that the manner in which the tow arose in the particular case was not through Mr Stapley accepting a standing offer made to the public as a whole to carry goods of a particular kind, but rather by accepting a particular offer, made by the Respondent's driver, to tow his particular vehicle. When it was the Respondent that had the knowledge about how it operated its business, the Appellant gave enough evidence to cast an evidentiary onus onto the Respondent to show, if it wished to contend that it was a common carrier, that it held itself out to the public. Further, by its cross-claim, seeking a declaration of an entitlement to a lien, the Respondent put itself under an onus of proving whatever facts were needed to make out its entitlement to whatever type of lien it claimed. In these circumstances there was enough of an evidentiary foundation before the judge to have justified him in making a declaration that the Respondent was not entitled to a lien.
109 It follows that, on the facts that had been proved and the arguments that had been presented up to the time judgment was reserved, the judge could not have found that there was a common carrier's lien in the present case.
110 The question that the judge's Associate asked the parties to address, after judgment had been reserved, is one that did not arise on the facts of the case. There was no evidence that the Respondent "held itself out to the public by advertisement as available for towing work".
111 Further, even if a towing operator had held itself out to the public by advertisement as available for towing work, that would be insufficient to show that the towing operator a common carrier. As well, that holding out to the public would have to be on terms that the towing operator was prepared to carry for all who might employ him without reserving to himself the right of accepting or rejecting any particular offers that might be made to him. Mr Whittle was right when he listed, in para 10(a)-(d) of his supplementary submissions (set out at para [64] above) some of the topics it could be helpful to consider in deciding whether any particular tow truck operator was a common carrier. The matters he listed in paras 10(e) and (f) are conclusions of mixed fact and law that are consequences of being a common carrier, rather than part of the means of proving that someone is a common carrier. But even the matters Mr Whittle listed do not state the nub of what is involved in being a common carrier, which is to do with the public taking on and carrying out of a particular social role, in a relatively permanent way. In addition, it would have been necessary to consider whether there was anything in the TTI Act and Regulations that was inconsistent with the tow truck operator being a common carrier.
112 The factual questions that were relevant to whether the Respondent was a common carrier had not been addressed in evidence. It had not been the case of the Respondent, prior to addresses, that a tow truck operator was a common carrier. Even in the course of addresses, the Respondent's submission was that a tow truck operator was a common carrier only in a very narrow circumstance, that did not apply on the facts of the instant case.
113 When the judge's Associate asked for submissions on the topic of common carrier, after judgment had been reserved, the judge was thus seeking submissions on a topic that had not been litigated. When the judge had specifically asked for submissions on that topic, it was hardly open to the parties to tell him that they would not provide them. However, because the post-hearing written submissions were made in response to a specific question of the judge, it could not be said that, by providing those submissions, the parties had consensually expanded the issues in the case to include whether the Respondent was a common carrier. When the judge decided that the Respondent was a common carrier, he was making a decision about an issue that had not been litigated. This caused the trial to miscarry in a fundamental way.
114 Notwithstanding the small amount of money involved in the case, the judgment below stands as a decision of a superior court that, at least in the circumstances to which the judge referred in para [39] of his judgment, a tow truck operator is entitled to a lien as a common carrier. That decision, if allowed to stand, is likely to be followed in numerous other practical situations. I bear in mind the 65,000 instances of tows from accident sites in New South Wales each year. When the decision has been reached by a flawed process, it cannot be allowed to stand.
115 For these reasons, I would grant leave to appeal on the first ground of appeal, and set aside the decision in the court below.
116 When there has been a mistrial, a common result is that the case is sent back for retrial. In my view that would not be an appropriate course to adopt in the present case. On the issues that were litigated, the judge reached the conclusion that there was no lien. It was only in going on to consider, and decide the case on the basis of, a common carrier's lien, that there was a mistrial. The present is one of the unusual cases where it is possible for this Court to undo the effect of the mistrial, because it is quite clear what conclusion the judge would have reached had he not gone on to consider the question of whether the Respondent was entitled to a common carrier's lien.
117 In the circumstances, the proper orders for this Court to make, on those issues that had been litigated, are the orders the judge would have made if he had not found the common carrier's lien. That would have been to give effect to the parties' agreement about the quantum of the towing fee, grant the negative declaration that the Applicant sought, to dismiss the cross-claim, and make consequential costs orders.
118 In my view, leave to appeal should also be granted concerning the second question, but only for a limited purpose. That purpose is to restore the order that the judge would have made on the basis of the issues litigated before him. It should be clearly stated that the granting of leave on the second question does not involve this court in reaching its own independent conclusion on whether the Respondent had a common carrier's lien. Indeed, it would be inappropriate for this Court to embark on its own consideration of that question, when the issue was not litigated in the court below. I should also state that I express no view about the correctness of Mr Tannous' argument that a tow truck driver could become a common carrier if he towed a vehicle pursuant to a statutory direction, nor about how the TTI Act and Regulations affect the question of whether a tow truck driver is a common carrier. Even though I propose to declare that there was no lien over the Appellant's vehicle, if in future someone wishes to litigate the question of whether a tow truck driver is entitled to a lien by virtue of being a common carrier, it will be open to submit that the trial judge is free to distinguish the present case, because this is a case in which the question of common carrier was not litigated.