The jury found in favor of the plaintiff and the court rendered judgment thereon against the defendant for the value of an automobile as found by the jury. This appeal is from that judgment.
The plaintiff alleged in her petition that the defendant was in possession of premises at 107-117 Opera Place, Cincinnati, Ohio, and was operating thereon a parking lot, and on which as bailee for hire it received automobiles; that on June 27, 1944, she drove her automobile into such parking lot and delivered it to defendant's custodian in charge under an agreement whereby defendant, in consideration of the usual charge, agreed to protect it and redeliver it to her on demand; that later on the same day she returned to demand redelivery of the automobile upon payment of the parking charge which she was prepared to pay, but no one was in attendance at the parking lot; and that as she was unable to locate her automobile on the lot, she followed the instruction on a sign that if automobile was not on lot to call at another parking lot operated by defendant, and went to the other lot and there demanded that the custodian deliver her automobile to her, but he refused so to do.
By answer, the defendant admitted that it was in possession of the premises in question and denied all other allegations.
It was developed at the trial, without contradiction, that the plaintiff had been in the habit, for about two years, of parking her automobile on an average of about once a week on this lot, and went to the parking lot on the day in question in pursuance of that habit. On entering the parking lot, she found nothing *Page 453 different from its appearance on previous occasions. The sign above the entrance proclaiming that it was a parking lot was in position as usual. The entrance was open and unobstructed. As many as two dozen automobiles were parked at different places on the lot. A young man, with what appeared to be parking tickets in his hand, came from between two of these parked automobiles and approached her. Supposing he was the attendant, she asked him if he would place her automobile and he said he would. He asked her how long she intended to park the automobile and when she told him about an hour, he said that in view of that she could leave the automobile where it could be easily taken out and that she would not need a parking ticket. He asked if the keys were in the automobile and when told they were, he said: "You can go. I will take care of the car." She saw him get in the automobile, but left before he had moved it from the place near the entrance where she had stopped it. While talking to her about parking the automobile, he asked her for thirty cents to park the automobile and she told him that she would pay when she returned for the automobile, as she was in the habit of doing. She said she had parked there before without receiving a ticket, but as a general rule a ticket had been given to her. This was the first time she had been asked to pay in advance there, but she had paid in advance at other parking places.
Testimony on behalf of the defendant disclosed that it had possessed this parking lot for several years, upon which it had conducted a parking lot business, that there was a sign at the entrance advertising the fact that it was a parking lot, and that in the conduct of the business it had been in the custom of issuing tickets to patrons, at the top of which was its name in bold type, and thereunder was a "liability clause." *Page 454
It was testified that the defendant had been unable to employ an attendant just prior to this date and had placed a log across the entrance to indicate that it was closed, but that this log had been removed to the defendant's knowledge.
It was also testified that the young man who had assumed to take care of the plaintiff's automobile had applied for the position that morning, but the manager had declined to employ him, because he did not know how to drive. It developed later that the young man was 17 years old and some time before that had been adjudged feeble-minded and committed to a public institution, from which he was paroled at the time.
There was no evidence that anyone representing defendant knew that the young man was on the lot and assuming to represent it in conducting the business.
After the plaintiff left the parking lot, the young man took her automobile from the lot and at some place on the public street there was a collision in which the automobile was wrecked.
The defendant's general manager testified that he believed automobiles were parked on the lot when no attendant was there. The inference is that the defendant collected nothing for this, although there is no direct testimony to that effect.
The principal contention of the defendant is that there was no evidence to submit to the jury, and that the court should, therefore, have sustained its motions for an instructed verdict and for judgment.
As we interpret the record, there is evidence tending to prove that the owner of a business, carried on at a designated place, concluded to discontine it for a short interval, but gave no notice of such discontinuance, and allowed the place to remain open and unattended, and the business signs to remain in place *Page 455 during the interval during which an impostor took advantage of the situation to enter the place and transact the business as though he were authorized. A customer who had been a patron for two years repaired to the place and transacted the customary business with the impostor under the circumstances set forth.
Now what were the duties of the parties under these circumstances?
Section 103 of Restatement of Law of Agency is:
"A person who untruthfully manifests to a third person that an act purported to be done on his account was authorized or ratified in a manner sufficient for authorization or ratification, or that an act done by another who impersonates him was done by him, knowing or having reason to know that the third person is likely to act in reliance upon such manifestation, is subject to liability as if such act were authorized or ratified or had been done by him, if the third person so changes his position in reasonable reliance upon such manifestation that it would be inequitable not to impose such liability."
In 1 Ohio Jurisprudence, 632, Section 10, it is said:
"* * * where one by word or conduct purposely causes another to believe in the existence of a certain state of things, and induces him to act on that belief so as to alter his previous position, the former is precluded from averring against the latter a different state of things as in fact existing at the same time. The estoppel is allowed on the ground of negligence or fraud on the part of the principal, upon the theory that when one of two innocent persons must suffer loss, the loss should fall upon him whose conduct brought about the situation."
And at page 633, Section 10:
"Under the principle that one may be estopped to deny the authority of another to act as agent, a hotel *Page 456 proprietor who leaves another in the hotel office, either designedly or negligently, clothed with apparent authority to do what hotel clerks usually do, may be held liable to a guest, who, finding such person apparently in charge of the hotel, deposits money with him for safe-keeping during the night, with which this person later absconds, although the proprietor denies that the person was his agent."
See, also, 2 American Jurisprudence, 86 et seq., Section 104.
The syllabus to Miltenberger v. Hulett, 188 Mo. App., 273,175 S.W. 111, states the essence of the decision as follows:
"If the proprietor of a baggage transfer office, by negligence, permits one who is not his agent to be in apparent charge of his office and who assumes to transact the proprietor's business by accepting a check from a stranger for the latter's trunk to be taken to his boarding house, and the appearances are such as would lead a man of ordinary care to believe the imposter was really the proprietor's agent, the latter will not be permitted to take advantage of the imposter's lack of authority, when sued for the loss of the trunk."
In Quint v. O'Connell, 89 Conn. 353, 357, 94 A. 288, the Supreme Court of Errors of Connecticut said:
"Apparent and ostensible authority is such authority as a principal intentionally, or by want of ordinary care, causes or allows a third person to believe that the agent possesses. This authority to act as agent may be conferred if the principal affirmatively or intentionally, or by lack of ordinary care, causes or allows third persons to act on an apparent agency. It is essential to the application of the above general rule that two important facts be clearly established: (1) That the principal held the agent out to the public as possessing sufficient authority to embrace the particular *Page 457 act in question, or knowingly permitted him to act as having such authority; and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority. `The apparent power of an agent is to be determined by the acts of the principal and not by the acts of the agent; a principal is responsible for the acts of an agent within his apparent authority only where the principal himself by his acts or conduct has clothed the agent with the appearance of authority, and not where the agent's own conduct has created the apparent authority. The liability of the principal is determined in any particular case, however, not merely by what was the apparent authority of the agent, but by what authority the third person, exercising reasonable care and prudence, was justified in believing that the principal had by his acts under the circumstances conferred upon his agent."
See, also, Herschenhart v. Mehlman, 125 Misc. 887, 213 New York Supp., 48; Dennis v. Coleman's Parking Greasing Stations,Inc., 211 Minn. 597, 2 N.W.2d 33; and Kanelles v. Locke,12 Ohio App. 210.
Under those authorities, we are of the opinion that there is substantial evidence of acts and omissions of defendant creating an apparent authority and upon which to base an estoppel of the defendant to deny that the impostor was its duly authorized agent in favor of a customer who was justified in relying, and in fact did rely on the appearance of authority. But the customer could only be justified if he believed in good faith, after exercising reasonable care and prudence, that the person who was assuming to act as an agent was in truth an agent and was acting within his authority.
While in this case there are acts and omissions on the part of the defendant that might cause a reasonably *Page 458 prudent person to conclude that the parking lot was being operated that day as usual and cause her to enter and entrust her automobile to the attendant whom she had reason to anticipate would be there to serve her, the conduct of the impostor who attended her was unusual in some respects and might have aroused the suspicion of a reasonably prudent person and caused inquiry and disclosure of the imposition. This situation raised issues for submission to the jury.
We are, therefore, of the opinion that the court did not err in overruling motions for an instructed verdict and for judgment. We come then to a consideration of whether there was error in the manner of submission to the jury.
As already noted, the liability of the defendant depended upon the decision of two issues:
(1st) Was the defendant negligent in allowing the parking lot to remain open and unattended?
(2nd) Was the plaintiff, exercising reasonable care and prudence, misled by the conduct of the defendant into believing that the parking lot was in operation and caused to leave her automobile on the lot in charge of the impostor in the belief as a reasonably careful person that he was the defendant's duly authorized agent.
An examination of the charge discloses that the court read the pleadings to the jury, but did not state the issues in any other way, and submitted the case on the theory that liability depended upon establishing a prima facie case of actual authority of the attendant, and proof of failure to use due care for the protection of the automobile. We think it is sufficient to quote this portion of the charge:
"If you find that the contention of the defendant is correct, that on June 27, 1944, this parking lot was *Page 459 closed to the public; that the individual who purported to be a representative of the company was not in fact an employee of the company, had no authority to act for and on behalf of the company, under such circumstances, you will return a verdict in favor of the defendant.
"But if you find by a preponderance of the evidence in this case that there was a contract of bailment, that the individual who purported to be the agent of the defendant corporation on the parking lot at the time in question was, in fact, the employee of that corporation, then you will consider whether the explanation of the defendant as to the manner in which the car was taken from the lot, * * *."
We are of the opinion that the court erred in so defining the issues to the jury and in so charging as to the basis of liability.
For these reasons, the judgment is reversed and the cause remanded for further proceedings according to law.
Judgment reversed.
HILDEBRANT, P.J., and MATTHEWS, J., concur in the syllabus, opinion and judgment.