503 N.E.2d 199 | Ohio Ct. App. | 1985
This case is before us upon the appeal of plaintiff-appellant, Harriet Mills, from a judgment of the Franklin County Court of Common Pleas in favor of defendant-appellee, Liberty Moving
Storage, Inc. ("Liberty Moving"), dismissing Mills' complaint as barred by the statute of limitations, R.C.
The sole issue on appeal is whether the two-year statute of limitations of R.C.
Mills alleged that she stored various items of personal property with Liberty Moving July 13 and July 22, 1976. After having some items sent to auction, Mills requested in April 1977 that all remaining items be delivered to her new home in California. Mills received from Liberty Moving most, but not all, of the remaining items, some of which were allegedly damaged by mildew. Mills filed suit May 6, 1982 to recover for damages to the delivered property and for loss of her undelivered personal property.
The trial court granted Liberty Moving's motion to dismiss Mills' complaint as barred by the statute of limitations provided in R.C.
Mills appeals only the part of the judgment denying recovery for the loss of goods which remain undelivered with one assignment of error, which states:
"The judgment is contrary to law."
The test for dismissal of a complaint for failure to state a claim is set forth in O'Brien v. University Community TenantsUnion (1975),
"In order for a court to dismiss a complaint for failure to state a claim upon which relief can be granted (Civ. R. 12[B][6]), it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." (Citation omitted.)
Mills argues, in essence, that she has elected to press her cause upon a contract theory, grounded upon a written contract of bailment, and not upon a tort theory, and is thus entitled to the longer statute of limitations period for contract actions found in R.C.
R.C.
"* * * [A]n action upon a specialty or an agreement, contract, or promise in writing shall be brought within fifteen years after the cause thereof accrued."
Liberty Moving argues that the two-year statute of limitations of R.C.
R.C.
"An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose."
It is the inherent nature of the suit, not the characterization of the suit, which determines the applicable statute of limitations. Andrianos v. Community Traction Co. (1951),
As a result, where the essence of a complaint has been injury
to persons or property, R.C.
However, not every case in which personal property is damaged requires application of the statute of limitations of R.C.
It is necessary, therefore, to clearly define the bailment relationship and the precise nature of the cause of action sued upon by Mills.
The bailment relationship alleged between Mills and Liberty Moving is a mutual benefit bailment. A mutual benefit bailment is defined as a bailment arising by operation of law or express contract, which exists where personal property is delivered by the owner to another person. Both parties benefit in the exchange.
Where goods are stored for a fee, the bailor pays consideration in exchange for the bailee's promises to care for and redeliver the bailed goods in the condition in which they were left. Thus, the bailee is under a duty to exercise ordinary care in protecting and keeping safe the bailed goods, Aetna Cas. SuretyCo. v. Woody Sander Ford (1969),
The common-law duty of care has been codified in R.C.
"A warehouseman is liable for damages for loss of or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances but unless otherwise agreed he is not liable for damages which could not have been avoided by the exercise of such care."
The common-law duty to redeliver bailed property, and excuses for failure to do so, are codified in R.C.
"(A) The bailee must deliver the goods * * * unless and to the extent that the bailee establishes any of the following:
"* * *
"(2) damage to or delay, loss, or destruction of the goods for which the bailee is not liable * * *."
"Warehousemen" is defined in R.C.
R.C. Chapter 1307, however, is silent as to remedies and also includes no statute of limitations. General statutes of limitations are therefore applicable to any common-law remedy sought. Codification of the warehouseman's common-law duties does not bring the right of action within the scope of the statute of limitations of R.C.
By its plain meaning, R.C.
The law of bailment has made a distinction which separates tort from contract. A bailee's liability for positive acts of negligence causing direct injury to bailed property is to be distinguished from merely a contractual failure to act. FarbachChemical Co. v. Commercial Chemical Co. (1956),
By analogy, a bailee's liability for conversion is predicated upon a positive act of dominion wrongly exercised over the personal property of another in denial of or inconsistent with the owner's rights. Aetna Cas. Surety Co. v. Higbee Co. (1947),
Thus, the basis for recovery for damages for injury to property or for conversion is in essence the tortious conduct of the bailee, not the bailment contract. Neither recovery is sought by Mills.
Reasons for the failure to deliver Mills' property are not in the complaint. Such facts are within the control of Liberty Moving. Without those facts, Mills is not able to allege any positive act of conversion or negligence in care of her goods. Thus, Mills has chosen the only avenue available to her, a theory of breach of contract. She has not sought to couch a tort cause of action in contract terms, and the principle of Andrianos v.Community Traction Co., supra, cannot be applied to foreclose her suit at this juncture.
Mills' cause of action is upon a contract of bailment. As a matter of law, such contracts impose two duties upon the bailee in consideration for the bailor's payment of a storage fee. The essential nature of Mills' claim is a breach of promise to redeliver her property, i.e., a contractual failure to perform. The bailee's duty of care, although expressed in traditionally tort terms, arises from contract. On its face, Mills' complaint states a cause of action. Mills has alleged a set of facts which, if true, would entitle her to recovery in contract.
Mills' complaint has alleged a prima facie case against Liberty Moving in an action sounding in contract by pleading (1) the existence of a contract of bailment, (2) delivery of the bailed property to the bailee, and (3) failure of the bailee to redeliver bailed property at the termination of the bailment. If these three elements are satisfied, a prima facie case of want of due care is established, i.e., an inference of negligence, and the burden of going forward with the evidence is shifted to the bailee to explain his failure to redeliver. David v. Lose,supra, at paragraphs one and two of the syllabus; Riggs v.Taylor (1958),
If, on remand, Mills presents a prima facie case of breach of contract, inferring a want of due care, and the facts indicate merely that Mills' goods were lost, the issue is not whether plaintiff has established negligence, but whether Liberty Moving has satisfied its burden of going forward with the evidence or has established a legal excuse (exercise of reasonable care) for its breach of duty of redelivery. David v. Lose, supra, at 100. In such circumstances, the action is one solely in contract governed by the contract statutes of limitations, here, R.C.
We distinguish the recent case of Ohio Assn. of Public SchoolEmployees v. Liberty Moving Storage, Inc. (Dec. 20, 1984), Franklin App. No. 84AP-605, unreported, in which we held that it was unnecessary for the court to decide which statute of limitations, R.C.
Liberty Moving also argues that Mills' complaint does not clearly state the relief sought, mixing damages sought for injury to property with damages sought for failure to return property.
The point is not well-taken. Paragraph three of the complaint indicates that Mills seeks damages for nondelivery of certain items in the amount of $3,900.
Because the plaintiff has pleaded a case sounding in contract, it was error for the trial court to dismiss the cause of action as barred by the two-year statute of limitations of R.C.
Accordingly, Mills' assignment of error is sustained and the cause is remanded to the trial court for further proceedings consistent with this opinion.
Judgment reversed and cause remanded.
NORRIS and GREY, JJ., concur.
GREY, J., of the Fourth Appellate District, sitting by assignment in the Tenth Appellate District.