dissenting
I respectfully dissent from the majority opinion for the reason that Cleveland Municipal Court, Small Claims Division, erred when finding for the plaintiff since plaintiff must necessarily prove she had a right, title, claim, or interest to the bailed vehicle to claim damages for its loss.
R.C. 4505.04 provides in relevant part as follows:
"(B) Subject to division (C) of this section, no court shall recognize the right, title, claim, or interest of any person in or to any motor vehicle sold or disposed of, or mortgaged or encumbered, unless evidenced:
"(1) By a certificate of title, a manufacturer's or importer's certificate or a certified receipt of title cancellation to an exported motor vehicle issued in accordance with sections4505.01 to 4505.19 of the Revised Code;
"(2) By admission in the pleadings or stipulation of the parties;" (Emphasis added.)
The statute states unequivocally that in the absence of an admission, stipulation or production of such a certificate of title, a court may not recognize a party's interest in a vehicle. See Phillips v. Cincinnati Ins. Co. (1979), 60 Ohio St. 2d 180; Kleem v. Nationwide Insurance Co. (Oct. 6, 1983), Cuyahoga App. No. 46027, unreported.
In the case sub judice the referee's findings of fact and conclusions of law contain no probative evidence pursuant to R.C. 4505.04 that plaintiff was entitled to the vehicle in question. There was no admission in the pleadings; neither was there a stipulation. There is no showing that the trier of fact based his conclusion that plaintiff had the right to possession of the vehicle, or the damages thereto, based on the certificate of title presented at trial.
The facts indicate plaintiffs brother took the vehicle to be repaired by defendant and months later a friend paid for the repair work. The first inkling establishing any possible interest plaintiff may have had in the vehicle is plaintiffs self serving statement that the vehicle belonged to her when she appeared at the defendant's place of business attempting to retrieve the vehicle. A statement by the referee merely calling the vehicle plaintiff's does not make it so and such statement without supportive probative evidence fails to meet any of the clear criteria set forth in R.C. 4505.04.
There is evidence supporting Plaintiffs contention she paid or had paid on her behalf $125 for brake work on the vehicle for which she is entitled to reimbursement from defendant. The part of the referee's decision granting plaintiff $700 as compensation for the vehicle's loss should be reversed since not one iota of proper probative proof exits in the record to support plaintiffs right, title, claim, or interest in the vehicle for which she demands recompense.
I would affirm in part and enter judgment for plaintiff in the amount of only $125 and reverse in part the judgment for $700 the value of the vehicle. In addition, I would make the judgment final.