ROSS, J. In a jury trial in the Municipal Court of Cincinnati, at the conclusion of the evidence for the plaintiffs, judgment was entered for the defendant. An appeal to the Court of Common Pleas of Hamilton County resulted in affirmance of the judgment. *Page 31
William A. Cramer, one of the plaintiffs is the assured of his coplaintiff, Service Fire Insurance Company. In their bill of particulars, it is alleged that the defendant Fischer Bakery Company, through the sole negligence of one of its employees in the operation of a truck, damaged the automobile of Cramer to the extent of $481.89, and that such vehicle depreciated in value to the extent of $490. It is further stated that Cramer's automobile was being driven by one Arlie Hager. Service Fire Insurance Company alleges that there has been assigned to it for a valuable consideration a portion of Cramer's claim in the sum of $431.89. The plaintiffs prayed judgment for $481.89 against the defendant.
The defendant in its answer admitted the collision of the vehicles and denied any fault on its part. Defendant further admitted that both vehicles were damaged as a result of the collision, and for want of knowledge denied the assignment to the insurance company.
For a second defense, defendant charged that the plaintiff Cramer was not the real party in interest, and is not the complete owner of the vehicle involved.
For a third defense, the defendant charged contributory negligence against Hager, the driver of plaintiff's car.
From the evidence it appears that Hager was a minor and wished to purchase the automobile in question; that Cramer agreed to sign the necessary papers to enable Hager to get legal possession of the automobile. Hager paid all expenses incident to acquiring possession of the automobile and Cramer's sole connection with the automobile was to take title in his name and sign and execute certain papers incident to financing the transaction. Hager was driving the automobile which was to all intents and purposes his vehicle.
The policy of insurance issued by Service Fire Insurance *Page 32 Company to Cramer had a $50 deductible collision clause. The cost for repairing the automobile was $481.89. Hager paid $50 of this amount and Service Fire Insurance Company paid the balance, $431.89, and took an assignment for this amount from Cramer, the certificate of title holder.
Evidence was introduced pro and con as to the respective negligence of Hager, the operator of the automobile, and the driver of the truck, the employee of defendant.
The trial court sustained a motion for judgment at the conclusion of the plaintiffs' evidence on the theory that Cramer had a mere bare title to the automobile, had suffered no loss by reason of the injury thereto, and in fact had so stated on the witness stand.
In the consideration of this appeal, this court is confined to the record, to the pleadings as they existed at the time of the trial, to the evidence, and particularly to the statements and admissions of Cramer when giving his testimony at the trial. We are not permitted to reframe the case, substitute pleadings or present an action which was not before, or considered by, the trial court. The issues created by the pleadings included the question of loss to the plaintiff Cramer and the effect of the assignment to the plaintiff insurance company if Cramer suffered no loss. Other issues could not be reached when it became certain that Cramer had suffered no loss.
The plaintiffs rely upon such cases as Mielke v.Leeberson, 150 Ohio St. 528, 83 N.E.2d 209, 7 A. L. R. (2d), 1342, and Kelley Kar Co. v. Finkler, 155 Ohio St. 541,99 N.E.2d 665.
The effect of these cases is best expressed in the conclusion of the opinion in the Mielke case, supra, where it is stated:
"In our view of the case, since there was evidence of plaintiff's ownership, although such evidence can *Page 33 never be sufficient without the production of a certificate oftitle, the proper procedure is a reversal and a remanding for a new trial." (Emphasis added.)
Neither the provisions of Section 6290-4, General Code, nor the cases just mentioned have any bearing upon the principle, as old as the common law itself, that proof of loss is an essential element of the plaintiffs' case, where the cause of action is based thereon.
It is not a proper function of this court to suggest other proper courses of action which might be open to the parties.
It is the opinion of the writer that the judgment of the Court of Common Pleas should be affirmed.