#### Luken, Appellee, *v.*Buckeye Parking Corp., Appellant.

(No. 6548

Decided November 13, 1945.)

*452*Mr. Wm. J. Riélly*and *Mr. James M. McPherson,*for appellee.

*Mr. Clarence M. Smith,*for appellant.'

Matthews, J.

The jury found in favor of the plaintiff and the court rendered judgment thereon against the defendant for the value of an automobile as found by the jury. This appeal is from that judgment.

The plaintiff alleged in her petition that-the defendant was in possession of premises at 107-117 Opera Place, Cincinnati, Ohio, and was operating thereon a parking lot, and on which as bailee for hire it received automobiles; that on June 27, 1944, she drove her automobile into such parking lot and delivered it to defendant’s custodian in charge under an agreement whereby defendant, in consideration, of the usual charge, agreed to protect it and redeliver it to her on demand; that later on the same day she returned to demand redelivery of the automobile upon payment of the parking charge which she was prepared to pay,- but no one was in attendance at the parking lot; and that as she was unable to locate her automobile on the lot, she followed the instruction on a- sign that if automobile was not on lot to call at another parking lot operated by defendant, and went to the other lot and there demanded that the custodian deliver her automobile to her, but he refused so to do.

By answer, the defendant admitted that it was in possession of the premises in question and denied all other allegations.

It was developed at the trial, without contradiction, that the plaintiff had been in the habit, for about two years, of parking her automobile on an average of about once a week on this lot, and went to the parking lot on the day in question in pursuance of that habit. On entering the parking lot, she found nothing differ*453ent from its appearance on previous occasions. The sign above the entrance proclaiming that it was a parking lot was in position as usual. The entrance was open and unobstructed. As many as two dozen automobiles were parked at different places on the lot. A young man, with what appeared to be parking tickets in his hand, came from between two of these parked automobiles and approached her. Supposing he was the attendant, she asked him if he would place her automobile and he said he would. He asked her how long she intended to park the automobile and when she told him about an hour, he said that in view of that she could leave the automobile where it could be easily taken out and that she would not need a parking ticket. He asked if the keys were in the automobile and when told they were, he said: “You can go. I will take care of the car.” She saw him get in the automobile, but left before he had moved it from the place near the entrance where she had stopped it. While talking to her about parking the automobile, he asked her for thirty cents to park the automobile and she told him that she would pay when she returned for the automobile, as she was in the habit of doing. She said she had parked there before without receiving á ticket, but as a general rule a ticket had been given to her. This was the first time she had been asked to pay in advance there, but she had paid in advance at other parking-places.

Testimony on behalf of the defendant disclosed that it had possessed this parking lot for several years, upon which it had conducted a parking lot business, that there was a sign at the entrance advertising the fact that it was a parking lot, and that in the conduct of the business it had been in the custom of issuing tickets to patrons, at the- top of which was its name in bold type, and thereunder was a “liability clause.”

*454It was testified that the defendant had been unable to employ an attendant just prior to this date and bad placed a log across the entrance to indicate that it was closed, but that this log bad been removed to tbe defendant’s knowledge.

It was also testified that tbe young man wbo bad assumed to take care of the-plaintiff’s automobile had applied for the position that morning, but the manager had declined to employ him, because he did not know how to drivé. It developed later that the young man was 17 years old and some time before that • had been adjudged feeble-minded and committed to a public institution, from which he was paroled at the time: . .

There was no evidence that anyone representing defendant knew that the young man was on the lot and assuming to represent it in conducting the business.

After the plaintiff left the parking lot, the young man took her automobile from the lot and at some place on the public street there was a collision in which the automobile was wrecked.

The defendant ?s general manager testified that he believed automobiles were parked on the lot when no attendant was there. The inference is that the defendant collected nothing for this, although there is no direct testimony to that effect.

The principal contention of the defendant is that there was no evidence to submit to the jury, and that the court should, therefore, have sustained its motions for an instructed verdict and for judgment.

As we interpret the record, there is evidence tending to prove that the owner of a business, carried on at a designated place, concluded to discontine it for a short interval, but gave no notice of such discontinuance, and allowed the place to remain open and unattended, and the business signs to remain in place dur*455ing the interval during which an impostor took advantage of the situation to enter the place and transact the business as though he were authorized. A customer who had been a patron for two years repaired to. the place and transacted the customary business with the impostor under the circumstances set forth.

Now what were the duties of the parties under these circumstances?

Section 103 of Restatement of Raw of Agency is:

*‘‘A*person who untruthfully manifests'to a third person that an act purported to be done on his account was authorized or ratified in a manner sufficient for authorization or ratification, or that an act done by' another who impersonates him was done by him, knowing or having reason to know that the third person is likely to act in reliance upon such manifestation, is subject to liability as if such act were authorized or ratified or had been done by him, if the third person so changes his position in reasonable reliance upon such manifestation that it would be inequitable not to impose such liability.”

In 1 Ohio Jurisprudence, 632, Section 10, it is said:

“* * * where one by word or conduct purposely causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his previous position, the former is precluded from averring against the latter a different state of things as in fact existing at -the same time. The estoppel is allowed on the ground of negligence or fraud on the part of the principal, upon the theory that when one of two innocent persons must suffer loss, the loss should fall upon him whose conduct brought about the situation. ’ ’

And at page 633, Section 10:

“Under the principle that one may be estopped to deny the authority of another to act as agent, a hotel *456proprietor who leaves another in the hotel office, either designedly or negligently, clothed with apparent authority to do what hotel clerks usually do, may be held liable to a guest, who, finding such person apparently in charge of the hotel, deposits money with him for safe-keeping during the night, with which this person later absconds, although the proprietor denies that the person was his agent.”

See, also, 2 American Jurisprudence, 86 *el seq.,*Section 104.

The syllabus to *Miltenberger*v. *Hulett,*188 Mo. App., 273, 175 S. W., 111, states the essence of the decision as follows:

“If the proprietor of a baggage transfer office, by negligence, permits one who is not his agent to be in apparent charge of his office and who assumes to transact the proprietor’s business by accepting a check from a stranger for the latter’s trunk to be taken to his boarding house, and the appearances are such as would lead a man of ordinary care to believe the imposter was really the proprietor’s agent, the latter will not be permitted to take advantage of the imposter’s lack of authority, when sued for the loss of the trunk.”

In *Quint*v. *O’Connell,*89 Conn., 353, 357, 94 A., 288, the Supreme Court of Errors of Connecticut said:

“Apparent and ostensible authority is such authority as a principal intentionally, or by want of ordinary care, causes or allows a third person to believe that the agent possesses. This authority to act as agent may be conferred if the principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to act on an apparent agency. It is essential to the application of the above general rule that two important facts be clearly established: (1) That the principal held the agent out to the public as possessing sufficient authority to embrace the partic*457ular act in question, or knowingly permitted Mm to act as having such authority; and (2) that the person • dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority. ‘The apparent power of an agent is to be determined by the acts of the principal and not by the acts of the agent; a principal is responsible for the .acts of an agent within his apparent authority only where the principal himself by his acts or conduct has clothed the agent with the appearance of authority, and not where the agent’s own conduct has created the apparent authority. The'liability of the principal is determined in any particular case, however, not merely by what was the apparent authority of the agent, but by what authority the third person, exercising reasonable care and prudence, was justified in believing that the principal had by his acts under the circumstances conferred upon his agent.”

See, also, *Herschenhart*v. *Mehlman,*125 Misc., 887, 213 New York Supp., 48; *Dennis*v. *Coleman’s Parking & Greasing Stations, Inc.,*211 Minn., 597, 2 N. W. (2d), 33; and *Kanelles*v. *Locke,*12 Ohio App., 210.

Under those authorities, we are of the opinion that there is substantial evidence of acts and omissions of defendant creating an apparent authority and upon which to base an estoppel of the defendant to deny that the impostor was its duly authorized agent in favor of a customer who was justified in relying, and in fact did rely on the appearance of authority. But the customer could only be justified if he believed in good faith, after exercising reasonable care and prudence, that the person who was assuming'to act as an agent was in truth an agent and was acting within his authority.

While in this case there are- acts and omissions on the part of the defendant that might’ cause a reason*458ably prudent person to conclude that tbe parking lot was being operated that day as usual and cause her to enter and entrust her automobile to tbe - attendant whom she bad reason to anticipate would be there to serve ber, tbe conduct of tbe impostor who attended ber was unusual in some respects and might have aroused tbe suspicion of a reasonably prudent person and caused inquiry and disclosure of tbe imposition. This situation raised issues for submission to tbe jury. _ _ .

_ _ We are, therefore, of tbe opinion that tbe court did not err in overruling motions for an instructed verdict and for judgment. We come then to a consideration of whether there was error in tbe manner of submission to tbe jury.

As already noted, tbe liability of tbe defendant depended upon tbe decision of two issues:

(1st) Was tbe defendant negligent in allowing tbe ■ parking lot to remain open and unattended?

(2nd) Was tbe plaintiff, exercising reasonable care and prudence, misled by tbe conduct of tbe defendant into believing that tbe parking lot was in operation and caused to leave ber automobile on tbe lot in charge of the impostor in tbe belief as a reasonably careful person that he was tbe defendant’s duly authorized agent.

An examination of tbe charge discloses that tbe court read tbe pleadings to tbe jury, but did not state tbe issues in any other way, and submitted tbe case on tbe theory that liability depended upon establishing a *prima facie*case of actual authority of tbe attendant, and proof of failure to use due care for the protection of tbe automobile. We think it is sufficient to quote this portion of tbe charge:

“If you find that tbe contention of tbe defendant is correct, that on June 27, 1944, this parking lot was *459closed to the public; that the individual who purported to be a representative of the company was not in fact an employee of the company, had no authority to act for and on behalf of the company, under such circumstances, you will return a verdict in favor of the defendant.

“But if you find by a preponderance of the evidence in this case that there was a contract of bailment, that the individual who purported to be the agent of the defendant corporation on the parking lot at the time in question was, in fact, the employee of that corporation, then you will consider whether the explanation of the defendant as to the manner in which the car was taken from the lot, * * *.”

We are of the opinion that the court erred in so defining the issues to the jury and in so charging as to the basis of liability.

For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law.

*Judgment reversed.*

Hildebrant, P. J., and Matthews, J., concur in the syllabus, opinion and judgment.

Ross, J.,

concurring. I concur in the conclusions of. my associates that the judgment of the trial court should be reversed, but an examination of the pleadings and evidence, in my opinion, requires that judgment in this court be rendered for the defendant.

The ultimate facts stated in the petition are: (1) That the defendant is an Ohio corporation engaged in the business of operating parking lots; (2) that on June 27, 1944, it operated a particular location as a parking lot on the south side of Opera Place, between Race and Elm streets, Cincinnati; (3) that on said 27th *460day of June, 1944, plaintiff drove her automobile, being a five-passenger Hudson 1936 model Terraplane, motor No. 222393, serial No. 6149692, into the parking lot, and delivered it to defendant’s custodian in charge of the parking lot under an agreement whereby defendant, in consideration of the usual charge to be paid therefor by plaintiff, agreed with plaintiff to protect and keep the automobile for redelivery .to her on demand; (4) that plaintiff later, on the same day, returned to such parking lot for redelivery of her automobile but “said automobile had been removed from said lot;” (5) “that the custodian of defendant to whom she had previously delivered” such automobile was absent therefrom; (6) that the lot was allowed by defendant to be unattended; (7) that defendant placed a sign on the lot directing patrons if their automobiles were not on the lot to call at another address, where defendant operated another parking lot; and-(8) that plaintiff called at such address and her demand for the return of her automobile was refused by defendant’s agent and custodian in charge of such lot.

In the answer of defendant it is admitted: (1) That the defendant is a corporation as alleged; and (2) that it is in possession of the premises on Opera Place. Otherwise, the answer is a general denial.

Now1', the plaintiff introduced evidence sustaining entirely different ultimate facts. The introduction of such evidence was permitted, over the continued objection and protest of the defendant, who at the close of all the evidence moved for an instructed verdict on the ground that plaintiff had failed to prove the necessary allegations of the petition. There was no amendment to the petition, nor was any requested.

The evidence submitted by the plaintiff did present a *prima facie*case that the defendant had so negligently used the premises on Opera Place that the plain*461tiff was caused to lose her property as the direct and proximate result of such negligence. Now, such negligence is to be distinguished from that involved *after*the relationship of bailor and bailee is established. The evidence wholly fails to show any such relationship between plaintiff and defendant, but, on the contrary, conclusively established that no such relationship existed.

No contract between plaintiff and defendant to use care was ever proved. Such contract is alleged in the petition, the plaintiff alleging in terms a *specific*contract of bailment, with “defendant’s custodian in charge of said parking lot under an *agreement*whereby defendant in consideration of the usual charge to be paid therefor by plaintiff *agreed with plaintiff*to protect and keep said automobile for redelivery on her demand.” (Emphasis added.)

Such “custodian” was a feeble minded trespasser with whom the defendant had not the slightest contractual relationship. It is true that plaintiff could have alleged the cause of action in tort or estoppel, if you wish, concerning which she introduced evidence. The patent factor is, however, she did not, and the result is, if the conclusion of the majority of the court is correct, that she is permitted to allege specifically a cause of action in contract and sustain the same .by evidence which supports only a primary tort liability entirely disassociated with'any suggestion of contractual relationship between plaintiff and defendant. '

I realize that this state, both by statute and decisions, has gone to the furtherest extreme in permitting loose pleading and proof. Section 11363, General Code, (amendment) and Section 11556, General Code (variance) are examples of provisions for such pleading and proof. However, the Legislature has placed some limit *462upon the extent to which amendment may be carried. '

Section 11363, General Code, provides that the court may permit amendment only “when the amendment, does not substantially change the claim or defense.” And, again, although a variance between allegations and proof may not be deemed material unless a party has been misled, still in Section 11558, General Code, it is provided:

“When the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it shall not be deemed a case of variance within the next two preceding sections, but a failure of proof. ”

It seems to me that the last quoted section has direct application to the instant case. I am also aware of the recent decisions of the Supreme Court in which ‘•‘a liberal construction of a petition is required.” *Gugle*v. *Loeser,*143 Ohio St., 362, 55 N. E. (2d), 580; *Parletto*v. *Industrial Commission,*140 Ohio St., 12, 42 N. E. (2d), 153; *Humphries*v. *Wheeling Steel Corp.,*132 Ohio St., 263, 7 N. E. (2d), 230; *Guardian Life Ins. Co.*v. *Veser,*128 Ohio St., 200, 190 N. E., 405. Nor ám I forgetful of the decision of the Supreme Court in *Globe Indemnity Co.*v. *Wassman,*120 Ohio St., 72, 165 N. E., 579, where in the third paragraph of the syllabus it is stated:

' “Where a plaintiff is uncertain as to which of the two grounds stated in his petition he may be able to prove in order to recover against a defendant and it is uncertain as to which of the two he can safely plead, he cannot be required to elect upon which of the two grounds he will stand.”

To the same effect is *Sicard*v. *Kremer,*133 Ohio St., 291, 296, 13 N. E. (2d), 250.

Iu the instant case the plaintiff could have taken *463advantage of that ruling. She did not. She chose to predicate her claim for relief upon allegation of facts which could only sustain a cause of action in contract. However, it was determined in *Nordin*v. *Coulton,*142 Ohio St., 277, 51 N. E. (2d), 717, that: “The naturé of a case is determined from the pleadings and the issues presented.” And in *Mahoning National Bank*v. *City of Youngstown,*143 Ohio St., 523, 532, 56 N. E. (2d), 218, it is held that issues to be determined in an action are those made by the pleadings at time of trial. In *Gerend*v. *City of Akron,*137 Ohio St., 527, at page 531, 30 N. E. (2d), 987, it is stated:

“The function of the pleadings in the trial of a cause is to apprise the court and the parties of the respective grounds of the controversy, furnish the question to be tried, and determine the nature and scope of the trial. ’ ’

See, also, *Kelley*v. *Armstrong,*102 Ohio St., 478, 132 N. E., 15_

_ It is true that a plaintiff, having stated facts in a petition entitling him to relief of some sort, may not be denied same, because he may have mistaken the nature of such relief. *Triff*v. *National Bronze & Aluminum Foundry Co.,*135 Ohio St., 191, 20 N. E. (2d), 232, 121 A. L. R., 1131; *Schaefer*v. *First National Bank of Findlay,*134 Ohio St., 511, 520, 18 N. E. (2d), 263.

The real difference between the members of this court is as to the effect of the allegations of the petition. It is the conclusion of the majority that the facts stated in the petition will sustain proof of liability based pri-. marily upon the negligent occupation of the premises in question or an implied contract based upon an estoppel. It is my conclusion that the facts alleged cannot be extended to allege anything but a specific contract.

It seems too well settled in Ohio that in spite of all *464the liberality of pleading extant, a cause of action in contract may not be changed to one in-tort over the objection of the defendant. 31 Ohio Jurisprudence, 943, Section 337. In this case, no amendment was made or required. It does not seem unjust that a plaintiff should be required to state in a petition the ultimate facts upon which reliance is put for recovery. To permit a plaintiff to state a set of facts which call for a conclusion that a specific contract was violated and on trial prove facts which show only a tort liability is a practice, in my opinion, not conducive to securing substantial justice to all parties in the action.

For these reasons, I feel that judgment should be here entered for the defendant. The motion for an instructed verdict made by the defendant at the close of all the evidence should have been granted. However, I join with my associates in agreement the judgment of the trial court must be reversed for the reasons given.

I do not concur in the syllabus.