#### Johnson, Appellee, *v.*Steinhauer et al., Appellants.

(No. 1895

Decided December 12, 1946.)

*Mr. Paul J. Gaiser,*for appellee.

*Messrs. Scharrer, Scliarrer & Hanaghan,*for appellants.

*203Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery county, affirming the judgment of the Municipal Court of Dayton in favor of the plaintiff.

The case was tried to the court without the intervention of a jury. The court rendered separate findings of fact and conclusions of law which, together with the transcript of the docket and journal entries, constitute the record in this case.

Briefly stated, the facts are as follows: The plaintiff delivered his automobile to the defendant Steinhauer to finish a repair job which the defendant had begun but had not completed; the defendant, because of other employment and illness, was not able to make the repairs; the defendant upon driving along Home avenue in Dayton, Ohio, had trouble with his own automobile and seeing a place of business where there were automobiles, entered the place of .business and inquired whether there was a mechanic there; upon finding a mechanic at the place of business he engaged him to fix his own automobile, which was promptly done; thereupon, without the knowledge or consent of the plaintiff, the defendant engaged the mechanic at this place of business to repair plaintiff’s automobile; the defendant drove the plaintiff’s automobile to such place of business, left instructions as to the repair work and the return of. plaintiff’s automobile to the defendant’s residence; the day after the plaintiff’s automobile was supposed to be delivered to the defendant, the defendant learned that the plaintiff’s automobile had been stolen by the mechanic at such place of business, driven to Xenia, Ohio, and wrecked; such place of business was not an automobile repair shop but was an automobile wrecking lot and a place where used parts of automobiles were offered for sale.

*204The trial court found that the defendant Steinhauer was a bailee for hire and had not exercised ordinary care in taking plaintiff’s automobile to the automobile wrecking lot to have it repaired.

As a part of the conclusions of law, the trial court found:

“Therefore, as a conclusion of the facts, the court finds that the defendant, Otto P. Steinhauer, did not under the circumstances exercise that degree of care an ordinary prudent man would use when he left, as bailee, the bailor’s automobile at a place of business that was not an automobile repair shop, and did not hold themselves out as such and as a matter of fact was'an auto wrecking lot and used parts sales lot. ’ ’

The Common Pleas Court, on review, in commenting on that finding of the trial court, said:

“We agree with counsel for defendant that there is reason to question the soundness of the proposition that the delivery of an automobile to an automobile wrecking lot for repair purposes is negligence, but we find no difficulty in agreeing with the finding and judgment of the lower court for a different reason.” The fact that the trial court may have assigned a reason for its conclusion which the Court of Common Pleas and this court cannot approve, does not require reversal. If the judgment is correct, a reviewing court will not reverse merely because erroneous reasons were assigned. In *Agricultural Ins. Co.*v. *Constantine,*144 Ohio St., 275, at page 284, 58 N. E. (2d), 658, the court says:

“If the defendant was entitled to judgment at the conclusion of the plaintiff’s case, the fact that the trial court based its conclusion upon an erroneous reason is unimportant. By repeated decisions of this court it is the definitely established law of this *205state that'where the judgment is correct, a reviewing court is not authorized to reverse such judgment merely because erroneous reasons were assigned as the basis thereof. ’ ’

The Common Pleas Court found that the defendant Steinhauer in delivering plaintiff’s automobile to the automobile wrecking lot for repair work which he, the defendant, was engaged to perform, breached and violated a contract of bailment, and for any loss which resulted, the defendant should, respond in damages.

The plaintiff’s action was grounded on contract. It is the duty of the bailee under a contract of bailment for hire to exercise due care to prevent loss of or damage to the bailor’s property; if the bailee fails to exercise due care he is liable for any damage resulting by reason of such failure. Where the bailee fails to redeliver the property to the bailor upon demand made therefor, a right of' action accrues in favor of the bailor. While it is true some authorities hold that where the action is founded on contract, the bailor has sustained his burden of proof when he proves the bailee’s failure to return the property, and, thereupon, the burden rests iipon the bailee to establish as an affirmative defense that he exercised due care, nevertheless, the law appears to be fairly well established in Ohio that, whether the action is based on contract or negligence, proof of failure to return the property makes out a *prima facie*case of liability and the burden to proceed with the evidence shifts to the bailee to explain his failure to redeliver. *In North River Ins. Co.*v. *Ohmer,*63 Ohio App., 346, 26 N. E. (2d), 767, the Court of Appeals for the Second Appellate District had before it a case where an automobile had been stolen from a parking garage. In a well-considered opinion by Judge Hornbeck, this court held:

*206“ Where the owner of an automobile places it in a garage in which space is rented for the storage of automobiles, the relationship of bailee for hire arises, and if, upon demand by the owner for his automobile, the bailee cannot produce it, a presumption of negligence, on thb part "of the bailee arises and the owner will be entitled to recover for any damage shown unless the bailee produces evidence of sufficient weight to counterbalance the presumption against him.

“In such case, mere proof of theft of the automobile from the premises of the bailee will not, in and of itself, meet such presumption against the bailee. ’ ’

In *Agricultural Ins. Co.*v. *Constantine, supra,*an automobile had been stolen from a parking lot. Judge Bell, in a most able opinion, discussed in a rather comprehensive manner the law with reference to bailments, citing authorities in support thereof. We may well rest this case on the two cases just referred to. In the latter case, the second, fourth and sixth paragraphs of the syllabus are as follows:

*1 ‘*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.”

“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.”

“6. In an action by a bailor for damage by reason of the bailee’s failure to redeliver the bailed property, *207the 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.”

See, also, 5 Ohio Jurisprudence, 124,125, Section 30.

In the case at bar the evidence presented by the defendant Steinhauer in explanation of his failure to redeliver the automobile to the plaintiff is not strong enough to warrant an inference that the defendant had exercised due care; rather, the evidence supports the finding of the Common Pleas Court that the defendant by his own affirmative act breached and violated the contract of bailment by delegating the performance of his undertaking to another; for any such breach resulting in damage, the defendant should respond in damages. See 6 American Jurisprudence, 312, Section 227. The defendant under such a state of facts is liable even though he used due care in the selection of a person to whom he delegated the performance of his undertaking. In 6 American Jurisprudence, 312, Section 228, the text is as follows :■

“The weight of authority supports the rule that if the bailor, without authority, deviates from the contract as to the place of storage or keeping of the property, and a loss occurs which would not have occurred had the property been stored or kept in the place agreed upon, the bailee is liable, even though he is not negligent. This rule regards the bailee as assuming, by his breach of contract, the risk of any *208injury which would not have resulted had he not committed such breach, even though the place to which he moves the goods is equally safe and proper for the purpose. Where his contract is to keep the property in a particular place, the bailee’s liability is the same notwithstanding he was compelled by force of circumstances to place it elsewhere and in so doing was not guilty of any negligence. In such a case it appears that it is the bailee’s duty to notify the bailor and to obtain his consent to the change if he is to avoid liability. ’ ’

For a group of eases in support of that proposition of law, see 12 A. L. R., 1322.

All the assignments of error urged by counsel for the defendants, appellants herein, hinge on the one legal proposition herein discussed.

The Common Pleas Court found that the defendant Steinhauer had breached his contract of bailment by delegating the performance of his undertaking to another, and we likewise so find.

Finding no prejudicial error in the record, the judgment is affirmed.

*Judgment affirmed.*

Hornbeck, P. J., and Miller, J., concur.