Holmes v. Peterson

7 Ohio App. Unrep. 286

• Court: Ohio Court of Appeals
• Decided: October 4, 1990
• Docket: Case No. 57465
• Status: Published

Opinions

VICTOR, J.

Appellee, Jennifer Holmes, brought suit against appellant, Pete Peterson, d.b.a. Pete's Auto Body Repair and Paint Refinishing, for the value of her automobile which was left with appellant to be serviced but disappeared. After a hearing the referee recommended a judgment for appellee. The trial judge entered judgment for appellee for $825.00. Appellant filed objections which were overruled. On appeal appellant assigns two errors for review.

I

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BECAUSE JENNIFER HOLMES IS NOT A REAL PARTY IN INTEREST.

Appellant cites Civ. R. 17 which states that every action shall be prosecuted in the name of the real party in interest and, in the case of a contract action, by the party with whom or in whose name a contract has been made. Appellant contends that the contract was between Roger Burnett and appellant, rather than appellee and appellant.

As noted in the discussion of assignment of error No. II the appellee's testimony was that her brother acted as her agent in dropping off her car for service The contract was between appellee and appellant and appellee was a real party in interest. Assignment of error No. I is overruled.

II

THE TRIAL COURT COMMITTED PREJUDICIAL ERROR BECAUSE THERE IS NO BAILMENT RELATIONSHIP BETWEEN PLAINTIFF/APPELLEE AND DEFENDANT/APPELLANT.

Appellant contended that Burnett claimed to be the owner, authorized the work, paid for it and retrieved the automobile.

The appellee testified that on July 26, 1988 her brother delivered her 1977 Chrysler Cordoba to appellant for brake work. On September 28, 1988 her friend paid for the work but appellant told her friend that the Cleveland Police Department had towed it. Upon investigation appellee discovered that the vehicle had not been towed but had been given a parking ticket during the period that it was at the appellant's shop.

Appellant testified that he repaired the vehicle on July 26, 1988 and appellee's brother picked up the vehicle on July 30, 1988. However, he admitted that on September 26, 1988 he told appellee's friend that the police had towed it. He explained that he lied about the tow because he had promised the brother that he would not tell appellee her brother had retrieved the vehicle.

Appellant's wife contradicted appellant by testifying that the vehicle came July 26, 1988 and remained for two months before it disappeared.

The referee did not identify the brother or the friend. There is no mention of anyone named "Roger Burnett."

The referee concluded that the appellant, "as bailee, was responsible for the care of the [appellee's] vehicle while in his possession and shall be responsible for its disappearance." After deducting from $1,000 (the appraisal amount) $300 (for rust and high mileage) and adding $125 (the cost of the brake work) the referee recommended a judgment for appellee for $825.00.

There is competent, credible evidence of a bailment. There was evidence of a contract of bailment, delivery and failure to re-deliver undamaged property. David v. Lose (1966), 7 Ohio St.2d 97 (paragraph one of syllabus). Appellant failed to present convincing evidence to explain the failure Id. (paragraph two of syllabus). Appellee presented an appraisal from a Chrysler dealership. Appellant failed to object. Assignment of error No. II is overruled.

The judgment of the trial court is affirmed.

NAHRA, J., concurs. KRUPANSKY, P.J., dissents Sitting by Assignment, Judge William H. Victor, Retired, of the Ninth District Court of Appeals.