Agricultural Ins. Co. v. Constantine
| Decision Date | 20 December 1944 |
| Docket Number | 29908. |
| Citation | 58 N.E.2d 658,144 Ohio St. 275 |
| Parties | AGRICULTURAL INS. CO. v. CONSTANTINE. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. Whether the relationship between a driver who offers and a parking lot operator who accepts a motor vehicle for the purpose of parking, is that of bailor and bailee or of lessor and lessee, depends upon whether the parking lot operator assumes control over and custody of such vehicle, or simply grants permission to park the vehicle at a designated place upon the parking lot. The relationship of bailor and bailee is created where a vehicle is delivered to a parking lot operator and the ignition switch and car are left unlocked at the special instance and request of such operator so that the vehicle might be moved for his convenience.
2. Where a bailor delivers property to a bailee and such bailee fails to redeliver the bailed property upon legal demand therefor, a cause of action, either ex contractu or ex delicto, accrues in favor of the bailor.
3. Where, at the time of bailment and ostensibly for later identification of the bailed property, a bailee delivers to a bailor a token or receipt upon which conditions are printed purportedly limiting the bailee's liability, such printed conditions become no part of the contract of bailment and the parties remain subject to the usual obligations imposed by law, in the absence of anything to indicate that the bailor either expressly or impliedly assented to such printed conditions, prior to or contemporaneously with delivery of the property to the bailee.
4. In an action by a bailor against a bailee based upon a breach of the contract of bailment, where the bailor proves delivery of the bailed property and the failure of the bailee to redeliver upon legal demand therefor, a prima facie case of want of due care is thereby established and the burden of going forward with the evidence shifts to the bailee to explain his failure to redeliver.
5. Where the bailee proves loss of the property by theft, but attempts no explanation of the circumstances and offers no proof of facts from which an inference of due care may be drawn, he does not thereby rebut the presumption of negligence or want of due care arising from his failure to redeliver.
6. In an action by a bailor for damage by reason of the bailee's failure to redeliver the bailed property, the burden of proof is upon the bailor to prove that the bailee was guilty of negligence or want of due care. In determining that question, the presumption of negligence or want of due care arising from bailee's failure to redeliver, his explanation of the circumstances surrounding such failure and any evidence offered to rebut such explanation, all should be considered and weighed by the trier of the facts. To entitle the bailor to prevail the preponderance of all the evidence must support the conclusion that the bailee was guilty of negligence or want of due care.
Certified by Court of Appeals, Cuyahoga County.
The Agricultural Insurance Company brought this action in the Municipal Court of Cleveland against Thomas Constantine doing business as 'Allerton Parking,' for $154.69 and costs.
Plaintiff alleges in its amended petition, in substance, that it is a corporation qualified to do business in this state; that defendant is operating a parking lot business under the name and style of 'Allerton Parking'; that on May 7, 1942 at about 11:45 a. m., a Buick sedan, the property of Joseph Bova, Jr., was given into the custody of defendant at his parking lot on Ontario street in the city of Cleveland for the purpose of parking for which he was paid a compensation; that at about 3 p. m. on the same day demand was made for the return of the automobile by the bailor, Mrs. Joseph Bova, Jr., and the defendant failed and refused to return the automobile; that on May 10, 1942, the automobile was delivered to the owner in a damaged condition and by reason of such damage the value of the automobile was depreciated in the sum of $200; that plaintiff was under contract with the owner, of comprehensive coverage insurance covering the automobile; and that subsequently it paid him the sum of $154.69 under the terms of the policy and secured from him an agreement by the terms of which it became subrogated to any and all the rights of Joseph Bova, Jr., against defendant to the extent of the amount paid.
The answer, after denying all of the material allegations of the amended petition with the exception that the car was given into his custody, alleges:
'Further answering, defendant says that prior to the request by Mrs. Joseph Bova, Jr., for the return of said automobile, the same was removed from said parking lot by a person or persons unknown to defendant and without the knowledge or consent of defendant or his employees in charge of said parking lot. * * *
'Defendant alleges that at the time said automobile was delivered to defendant's parking lot, one of his employees delivered to the person delivering such automobile a ticket on the face of which was printed in clear, legible type the following:
'That the person delivering said automobile to defendant's parking lot was aware of the contents of said ticket and consented to the same.'
The reply admits that when Mrs. Bova parked her car she received a ticket but denies that she read the same or ever agreed to the terms printed thereon.
The cause was tried to the court without the intervention of a jury. The plaintiff offered evidence to the effect that Joseph Bova, Jr., was the owner of a 'Buick four-door sedan 1941 special' automobile which was insured against fire and theft under a policy of insurance issued by plaintiff; that on May 7, 1942, at about 11:45 a. m., Mrs. Bova, wife of Joseph Bova, Jr., drove the automobile into a parking lot operated by defendant and left it with an attendant employed in such lot; that she had parked her car in defendant's lot on an average of once or twice a week for five or six years previous to the day in question and on all occasions she left her keys in the ignition lock as she was told to do by the attendant so that he could move the car around for his convenience; that when she left the car she was given a ticket upon which was printed matter which she never read; that it was her custom to pay the parking charge when she returned for her car; that she returned about 2 p. m. on the same date and it then developed that the car was gone from the lot; that the car was later found by the police in a damaged condition; and that the plaintiff paid $154.69 for the repair of the car and by agreement with the owner was subrogated to his rights.
At the conclusion of the plaintiff's evidence the court granted a motion of the defendant 'to arrest the further taking of testimony herein and render a finding and decision in favor of the defendant.'
In granting the motion the court used this language:
Judgment was entered in favor of defendant after the overruling of the motion for a new trial.
The plaintiff perfected an appeal to the Court of Appeals upon questions of law, and that court reversed the judgment of the Municipal Court 'for error in law in rendering judgment for defendant at conclusion of plaintiff's case.' 56 N.E.2d 687.
The Court of Appeals thereafter concluded that the judgment upon which it had agreed was in conflict with the judgment pronounced in Blackburn v. Norris, 46 Ohio App. 469, 189 N.E. 262, upon the same question by the Court of Appeals of the Fourth Appellate District and thereupon certified the cause to this court for review and final determination.
Fackler, Dye & Hopkins, of Cleveland, for appellant.
Alto W. Brown, of Cleveland, for appellee.
The ultimate question for determination is: Did the Court of Appeals err in reversing the judgment of the Municipal Court of Cleveland?
The answer to that question depends upon the answer to several subordinate questions.
(1) What was the relationship of the parties to each other?
The relationship between the operator of a parking lot and the operator of a motor vehicle who parks the vehicle in such parking lot, depends upon whether the parking lot operator assumes control over and custody of such vehicle or simply grants permission to park such vehicle at a designated place upon the parking lot. If the parking lot operator assumes control over and custody of the vehicle the relationship thereby created is that of bailor and bailee. Sandler v. Commonwealth Station Co., 307 Mass. 470, 30 N.E.2d 389, 131 A.L.R. 1170. On the other hand if a designated place on a parking lot is assigned to the owner without any assumption of control over or custody of the vehicle by the operator of the lot the relationship would be that of lessor and lessee. Lewis v. Ebersole, 244 Ala. 200, 12 So.2d 543.
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Holman v. Wiser
...to reverse such judgment merely because erroneous reasons were assigned as the basis thereof." Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 284, 58 N.E.2d 658 (1944). Rather, "[i]t is the duty of the reviewing court to affirm the judgment if it can be supported on any theory, alt......