Opinion
Nos. 35447, 35448, 35449 and 35450
Decided November 19, 1958.
Bailments — Airplanes stored in hangar, destroyed by fire — Proof of bailee's failure to redeliver — Prima facie case established — Burden of going forward with evidence shifts — Conflicting evidence — Jury question presented — Verdict warranted by evidence.
APPEALS from the Court of Appeals for Hamilton County.
Three of the plaintiffs in these four cases each had an airplane and the other had a set of wings and tail assembly, herein called airplane, stored in a hangar provided by defendants for storage purposes, for which storage each plaintiff paid a fee. The hangar and the four airplanes stored therein were destroyed by fire. Each plaintiff brought an action to recover damages sustained by reason of defendants' failure to redeliver his airplane upon demand being made therefor. The four cases were consolidated for trial.
At the beginning of the trial, the value of each airplane was stipulated for the purpose of fixing the amount of loss of each plaintiff, but such stipulation was not an admission of liability on the part of defendants. It was stipulated further that demands were made by plaintiffs on defendants for the return of plaintiffs' airplanes, and that defendants did not return them.
These four cases will be referred to herein as one case, since the pleadings, evidence, and questions of law therein are identical, except as to value. The petition alleges that defendants are engaged in the business of operating and maintaining a private airport, including the storage of airplanes in a hangar provided therefor; that plaintiff delivered an airplane to defendants for the purpose of storage in the hangar, for which storage plaintiff paid a valuable consideration; that subsequently demand was made upon defendants for the return of the airplane; and that defendants failed and refused to return it. The prayer is for a money judgment for the value of the airplane.
The answer alleges that the airplane was stored in the hangar in the care and custody of defendants, for which they received a valuable consideration; that the airplane was damaged by fire which was accidental and unavoidable and continued until quenched, through no negligence or carelessness of defendants; that the hangar was constructed with a concrete floor and wooden superstructure covered with aluminum sheeting and was not equipped with light, heat or power; that nothing other than airplanes was stored therein; and that the hangar was solely for the protection of airplanes against hazards resulting only from the elements, i. e., rain, wind, etc. All allegations of the petition not expressly admitted are denied, and defendants pray that the petition be dismissed.
The reply denies the allegations of the answer not consistent with the allegations of the petition.
With the allegations and admissions in the pleadings and the stipulations by the parties, plaintiff rested his case in chief, based upon breach of contract of bailment by defendants, contending that he had made a prima facie case of liability, and that defendants had the burden of going forward with the evidence and establishing the affirmative defense set up in the answer.
Defendants then went forward with evidence to prove want of negligence or carelessness on their part. Plaintiff offered evidence in rebuttal, attempting to prove negligence on the part of defendants. Defendants then again went forward with surrebuttal evidence to establish due care on their part.
Consecutive motions for directed verdict by plaintiff and defendants were overruled, and the case was submitted to the jury which rendered a verdict for defendants. Plaintiff filed motions for judgment notwithstanding the verdict and for a new trial. These motions were overruled, and judgment was entered on the verdict for defendants.
The Court of Appeals affirmed the judgment.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Rendigs, Fry Kiely and Mr. William H. Hutcherson, Jr., for appellants.
Mr. William F. Boelter, for appellees.
By the admissions in the pleadings and the stipulations, plaintiff made a prima facie case. It then became the duty of defendants to go forward with the evidence to rebut such case. Since on all the evidence reasonable minds could differ on the question of whether defendants were negligent, it was not the province of the court to arrest the case from the jury and direct a verdict for plaintiff.
The following principle laid down in paragraph six of the syllabus in the case of Agricultural Ins. Co. v. Constantine, 144 Ohio St. 275, 58 N.E.2d 658, is applicable here:
"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."
The judgment of the Court of Appeals is affirmed.
Judgments affirmed.
WEYGANDT, C.J., ZIMMERMAN, STEWART, TAFT, MATTHIAS, BELL and HERBERT, JJ., concur.