I concur in the conclusions of my associates that the judgment of the trial court should be reversed, but an examination of the pleadings and evidence, in my opinion, requires that judgment in this court be rendered for the defendant.
The ultimate facts stated in the petition are: (1) That the defendant is an Ohio corporation engaged in the business of operating parking lots; (2) that on June 27, 1944, it operated a particular location as a parking lot on the south side of Opera Place, between Race and Elm streets, Cincinnati; (3) that on said 27th *Page 460 day of June, 1944, plaintiff drove her automobile, being a five-passenger Hudson 1936 model Terraplane, motor No. 222393, serial No. 6149692, into the parking lot, and delivered it to defendant's custodian in charge of the parking lot under an agreement whereby defendant, in consideration of the usual charge to be paid therefor by plaintiff, agreed with plaintiff to protect and keep the automobile for redelivery to her on demand; (4) that plaintiff later, on the same day, returned to such parking lot for redelivery of her automobile but "said automobile had been removed from said lot;" (5) "that the custodian of defendant to whom she had previously delivered" such automobile was absent therefrom; (6) that the lot was allowed by defendant to be unattended; (7) that defendant placed a sign on the lot directing patrons if their automobiles were not on the lot to call at another address, where defendant operated another parking lot; and (8) that plaintiff called at such address and her demand for the return of her automobile was refused by defendant's agent and custodian in charge of such lot.
In the answer of defendant it is admitted: (1) That the defendant is a corporation as alleged; and (2) that it is in possession of the premises on Opera Place. Otherwise, the answer is a general denial.
Now, the plaintiff introduced evidence sustaining entirely different ultimate facts. The introduction of such evidence was permitted, over the continued objection and protest of the defendant, who at the close of all the evidence moved for an instructed verdict on the ground that plaintiff had failed to prove the necessary allegations of the petition. There was no amendment to the petition, nor was any requested.
The evidence submitted by the plaintiff did present a primafacie case that the defendant had so negligently used the premises on Opera Place that the plaintiff *Page 461 was caused to lose her property as the direct and proximate result of such negligence. Now, such negligence is to be distinguished from that involved after the relationship of bailor and bailee is established. The evidence wholly fails to show any such relationship between plaintiff and defendant, but, on the contrary, conclusively established that no such relationship existed.
No contract between plaintiff and defendant to use care was ever proved. Such contract is alleged in the petition, the plaintiff alleging in terms a specific contract of bailment, with "defendant's custodian in charge of said parking lot under anagreement whereby defendant in consideration of the usual charge to be paid therefor by plaintiff agreed with plaintiff to protect and keep said automobile for redelivery on her demand." (Emphasis added.)
Such "custodian" was a feeble minded trespasser with whom the defendant had not the slightest contractual relationship. It is true that plaintiff could have alleged the cause of action in tort or estoppel, if you wish, concerning which she introduced evidence. The patent factor is, however, she did not, and the result is, if the conclusion of the majority of the court is correct, that she is permitted to allege specifically a cause of action in contract and sustain the same by evidence which supports only a primary tort liability entirely disassociated with any suggestion of contractual relationship between plaintiff and defendant.
I realize that this state, both by statute and decisions, has gone to the furtherest extreme in permitting loose pleading and proof. Section 11363, General Code, (amendment) and Section 11556, General Code (variance) are examples of provisions for such pleading and proof. However, the Legislature has placed some limit *Page 462 upon the extent to which amendment may be carried.
Section 11363, General Code, provides that the court may permit amendment only "when the amendment does not substantially change the claim or defense." And, again, although a variance between allegations and proof may not be deemed material unless a party has been misled, still in Section 11558, General Code, it is provided:
"When the allegation of the claim or defense to which the proof is directed, is unproved, not in some particular or particulars only, but in its general scope and meaning, it shall not be deemed a case of variance within the next two preceding sections, but a failure of proof."
It seems to me that the last quoted section has direct application to the instant case. I am also aware of the recent decisions of the Supreme Court in which "a liberal construction of a petition is required." Gugle v. Loeser, 143 Ohio St. 362,55 N.E.2d 580; Parletto v. Industrial Commission, 140 Ohio St. 12, 42 N.E.2d 153; Humphries v. Wheeling Steel Corp.,132 Ohio St. 263, 7 N.E.2d 230; Guardian Life Ins. Co. v.Veser, 128 Ohio St. 200, 190 N.E. 405. Nor am I forgetful of the decision of the Supreme Court in Globe Indemnity Co. v.Wassman, 120 Ohio St. 72, 165 N.E. 579, where in the third paragraph of the syllabus it is stated:
"Where a plaintiff is uncertain as to which of the two grounds stated in his petition he may be able to prove in order to recover against a defendant and it is uncertain as to which of the two he can safely plead, he cannot be required to elect upon which of the two grounds he will stand."
To the same effect is Sicard v. Kremer, 133 Ohio St. 291, 296,13 N.E.2d 250.
In the instant case the plaintiff could have taken *Page 463 advantage of that ruling. She did not. She chose to predicate her claim for relief upon allegation of facts which could only sustain a cause of action in contract. However, it was determined in Nordin v. Coulton, 142 Ohio St. 277, 51 N.E.2d 717, that: "The nature of a case is determined from the pleadings and the issues presented." And in Mahoning National Bank v. City ofYoungstown, 143 Ohio St. 523, 532, 56 N.E.2d 218, it is held that issues to be determined in an action are those made by the pleadings at time of trial. In Gerend v. City of Akron, 137 Ohio St. 527, at page 531, 30 N.E.2d 987, it is stated:
"The function of the pleadings in the trial of a cause is to apprise the court and the parties of the respective grounds of the controversy, furnish the question to be tried, and determine the nature and scope of the trial."
See, also, Kelley v. Armstrong, 102 Ohio St. 478,132 N.E. 15.
It is true that a plaintiff, having stated facts in a petition entitling him to relief of some sort, may not be denied same, because he may have mistaken the nature of such relief. Triff v.National Bronze Aluminum Foundry Co., 135 Ohio St. 191,20 N.E.2d 232, 121 A.L.R., 1131; Schaefer v. First National Bankof Findlay, 134 Ohio St. 511, 520, 18 N.E.2d 263.
The real difference between the members of this court is as to the effect of the allegations of the petition. It is the conclusion of the majority that the facts stated in the petition will sustain proof of liability based primarily upon the negligent occupation of the premises in question or an implied contract based upon an estoppel. It is my conclusion that the facts alleged cannot be extended to allege anything but a specific contract.
It seems too well settled in Ohio that in spite of all *Page 464 the liberality of pleading extant, a cause of action in contract may not be changed to one in tort over the objection of the defendant. 31 Ohio Jurisprudence, 943, Section 337. In this case, no amendment was made or required. It does not seem unjust that a plaintiff should be required to state in a petition the ultimate facts upon which reliance is put for recovery. To permit a plaintiff to state a set of facts which call for a conclusion that a specific contract was violated and on trial prove facts which show only a tort liability is a practice, in my opinion, not conducive to securing substantial justice to all parties in the action.
For these reasons, I feel that judgment should be here entered for the defendant. The motion for an instructed verdict made by the defendant at the close of all the evidence should have been granted. However, I join with my associates in agreement the judgment of the trial court must be reversed for the reasons given.
I do not concur in the syllabus.