455 N.E.2d 3 | Ohio Ct. App. | 1982
Plaintiff-appellant Michael M. Loewenstine (Loewenstine) appeals from the final judgment dismissing his action in bailment against defendant-appellee Delta Air Lines, Inc. (Delta), claiming in his single assignment of error that the court erred in holding that his evidence failed to present a prima facie case. The assignment of error has merit.
The uncontroverted evidence was that Delta required Loewenstine to check a large camera case on a flight from Miami, Florida, to Cincinnati, that the case contained cameras and equipment of considerable value, that he retrieved the camera case at the Greater Cincinnati terminal, and that upon arrival at his home, he discovered the case was empty. Delta offered no explanation of the loss and no evidence that it had used due care. In its Findings of Facts and Conclusions of Law, the trial court stated:
"The Court concludes that it is reasonable to infer from the evidence that the camera and assorted items could have been inside the case at the time of redelivery by the defendant. Therefore, no presumption of negligence exists shifting the burden of proof to the defendant to show a reason of any loss at the time of redelivery. After the defendant bailee is out of possession of the bailed articles it would be unreasonable, without evidence, to permit an extension of liability.
"* * *
"Where airlines [sic] in fact does redeliver the bailed items in apparently good condition and bailor fails to properly inspect at the time of re-delivery and later claims a loss of bailed items out of possession of airlines [sic], there is no presumption of negligence attributable to the defendant."1
The trial court erred. It failed to apply the established law, stated as follows in the first paragraph of the syllabus ofDavid v. Lose (1966),
"In order to establish a prima facie case against a bailee in an action sounding *186 in contract, a bailor need prove only (1) the contract of bailment, (2) delivery of the bailed property to the bailee and (3) failure of the bailee to redeliver the bailed property undamaged at the termination of the bailment." (Emphasis added.)
The judgment below must be reversed.
Delta, as appellee, sets forth an assignment of error in its brief, claiming that even though it did not file a notice of cross-appeal (implicitly allowed under App. R. 4[A]), R.C.
"Assignments of error may be filed on behalf of an appellee which shall be passed upon by a reviewing court before a judgment or order is reversed in whole or in part. The time within which assignments of error on behalf of an appellee may be filed shall be fixed by rule of court."2
Delta desires to have this court reverse the trial court's conclusion that Delta's ticket agent waived the tariff limitation of liability to $640 for loss of baggage, by failing to respond to Loewenstine's oral declaration that the contents of the camera case were worth $9,000. A cross-appeal by Delta could not raise its claim that the court's finding in this respect was erroneous, because the judgment appealed from was totally in Delta's favor. It was not prejudiced. But Delta wishes to forestall the possibility that upon reversal and remand, Loewenstine will claim that this issue cannot be relitigated under the doctrines of res judicata and collateral estoppel.3
We conclude that R.C.
"* * * In other words, it may be said that an assignment of error by an appellee, where such appellee has not filed any notice of appeal from the judgment of *187 the lower court, may be used by the appellee as a shield to protect the judgment of the lower court but may not be used by the appellee as a sword to destroy or modify that judgment."
See, also, Whiteside, Ohio Appellate Practice (1974) 13, Section
Loewenstine's single assignment of error has merit. The judgment below is reversed and this cause is remanded for further proceedings.
Judgment reversed and cause remanded.
SHANNON, P.J., BLACK and DOAN, JJ., concur.