After the appellee was involved in an automobile accident in the City of College Park, a local wrecker service under contract with the city was summoned to tow away his vehicle. During the towing process, the vehicle sustained damage in excess of $500. The appellee subsequently brought this action against the City of College Park pursuant to 42 USCA § 1983, alleging a deprivation of his civil and constitutional rights. The trial court granted the city’s motion for summary judgment but denied its subsequent motion for attorney fees. The city appeals the latter ruling. Held:
In an action under 42 USCA § 1983, the court in its discretion may award the prevailing party, other than the United States, reasonable attorney fees as part of the costs. See 42 USCA § 1988; Logan v. Johnson, 162 Ga. App. 777 (293 SE2d 47) (1982). However, when, as in the present case, the prevailing party is the defendant, attorney fees are recoverable only upon a showing that the plaintiff’s action in filing the suit was unreasonable, frivolous, meritless, or vexatious. Carrion v. Yeshiva Univ., 535 F2d 722, 727 (2d Cir. 1976).
It is well established that the decision to award attorney fees is within the discretion of the trial court and will not be upset unless abused. Id. at 727. See also Logan v. Johnson, supra. However, we hold that under the undisputed facts of this case, the city was entitled to attorney fees as a matter of law. Municipalities and other local governing bodies can be held liable under § 1983 only where the al*815leged injury results from the execution of an official governmental policy or custom. Monell v. N. Y. City Dept. of Social Svc., 436 U. S. 658, 694 (98 SC 2018, 56 LE2d 611) (1978). Obviously, it was not the city’s official policy or custom to cause towing damage to automobiles which had been involved in collisions. Furthermore, the appellant had a full and complete remedy against the towing company under simple tort principles. Indeed, the appellee was duly informed prior to filing this suit that the towing company was an independent contractor and that it was fully insured. Under no construction could the appellee have prevailed against the city in the § 1983 action, and we consequently hold that the trial court abused its discretion in denying the motion for imposition of attorney fees.
Decided July 12, 1984 Rehearing denied July 31, 1984 Kirby A. Glaze, Steven M. Fincher, for appellant. Ernest W. Wallhausen, for appellee.Judgment reversed.
Quillian, P. J., Birdsong, Carley, Sognier, and Pope, JJ., concur. Deen, P. J., and Benham, J., dissent. McMurray, C. J., concurs in the judgment of the dissent only.