Kibbey v. Mercer (11 Ohio App. 2d 51, 1967)

Rutheefoed, J.

This appeal is on questions of law from a judgment refusing revivor and dismissing the action, with prejudice.

On October 29, 1963, the plaintiff, Walter C. Kibbey, filed a petition seeking damages for personal injuries alleged to have been proximately caused by defendant’s negligent operation of a motor vehicle upon a highway in Scioto County, Ohio.

Service was made upon the defendant, a resident of Kentucky, through the Secretary of the State of Ohio, in accordance with the provisions of Section 2703.20, Revised Code, on December 16, 1963. During his lifetime, the defendant filed an answer.

On January 12, 1966, defendant’s attorney filed notice pursuant to Section 2311.31, Revised Code (as amended effective November 5, 1965, 131 Ohio Laws 650), stating that the defendant, C. Dewey Mercer, had died on February 3, 1965.

On February 15, 1965, a domiciliary administrator, hereinafter referred to as the Kentucky administrator, was issued letters of administration in the state of Kentucky. Such Kentucky administrator has never filed an authenticated copy of letters of appointment in any Probate Court in Ohio under the provisions of Section 2129.02, Revised Code, there has never been any appointment of an ancillary administrator in Ohio, and the record contains no evidence of administration of any estate of decedent in Ohio.

On January 24, 1966, plaintiff filed a supplemental petition, upon which service was obtained through the Secretary of State, and on March 28, 1966, filed a motion requesting a conditional order of revivor, which the court granted, and notice was published, following which the Kentucky administrator entered an appearance by motion for the purpose of asserting the defense that the statutory period of limitation for revivor as fixed by Section 2311.31, Revised Code, had expired, and to secure final judgment of dismissal.

The Common Pleas Court of Scioto County sustained the motion of the Kentucky administrator and dismissed the plaintiff’s petition, with prejudice. In a written opinion, the court stated the reasons to be:

“* * * the administrator was appointed on February 15, 1965, and no petition for revivor filed until January 24, 1966.

“Section 2311.31, Revised Code of Ohio, being a statute of limitations, the notice of the application or proceedings for re-vivor was not given within the time limitation so the revivor fails. For this reason and also for the reason that revivor may not be had against a foreign administrator, defendant’s motion will be sustained and plaintiff’s petition dismissed.”

We believe the trial court was in error. Both of the reasons given and the judgment are contrary to law.

Section 2305.10, Revised Code, provides:

“An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.”

This action was brought within such two-year period, and the defendant answered but subsequently died while the action was still pending.

It is undisputed that this action is of the type which does not abate but survives the death of the defendant.

The personal injury action which survives having been commenced in the Common Pleas Court of Scioto County, Ohio, it is in that court that it must be revived, and the jurisdiction of the action, including proceedings to revive, being in Ohio, the right of revivor must be determined under the law of Ohio.

Normally an action which has been commenced before expiration of the statutory period of limitation for commencement of the action, and which survives, may be revived any time before judgment. See Section 2311.25, Revised Code, which provides:

“If before judgment, one of the parties to an action dies, * * * but the right of action survives in favor of or against his representatives or successors, the action may be revived and the action proceed in the name of such representatives or successors.” (Emphasis added.)

In the case of an automobile collision which occurs in Ohio, when the defendant, a nonresident of this state, is amenable to the provisions of Section 2703.20, Revised Code, by the provisions of such section, the Secretary of the State of Ohio is made his agent for the service of process in any civil suit or proceeding instituted in the courts of Ohio, arising out of, or by reason of, the accident or collision occurring within this state. Section 2703.20, Revised Code, as amended, effective October 4, 1955 (126 Ohio Laws 49), further provides:

“* * * Such appointment shall be irrevocable and binding upon the executor or administrator of such nonresident operator or owner.

it # # #

“* * * Where an action has been commenced under the provisions of this section by service on a defendant who dies thereafter, the court must allow the action to be continued against his executor or administrator upon motion with such notice as the court deems proper.”

Prior to the foregoing amendment, effective October 4, 1955, no provision was made for service on the foreign executor or administrator of the nonresident in event of the nonresident’s death before or during suit. It was uniformly held that jurisdiction could not be obtained in these situations because the agency created by the statute terminated upon the principal’s death. Further justification was based on the necessity of strict construction of the statutes in derogation of the common law.

Thus, in accidents serious enough to result in the death of a nonresident defendant, the immunity of the foreign executor or administrator to suit in Ohio completely frustrated the objective of the statute. It was to remedy this situation that Section 2703.20, Revised Code, was amended. Under tlie power of the state to protect itself and its inhabitants, this statute is a reasonable exercise of the police power and is not unconstitutional. By consent of the defendant to the provisions contained in the statute, which arises from his operation of his automobile in Ohio, jurisdiction has been conferred upon the Ohio courts to proceed against him or his personal representative. See Parrott v. Whisler (C. C. A., 1963), 313 F. 2d 245; Plopa v. Du Pre, 327 Mich. 660, 42 N. W. 2d 777; and Toczko v. Armentano, 341 Mass. 474, 170 N. E. 2d 703.

Such statute provides that the agency is irrevocable and binding upon the executor or administrator of such nonresident operator or owner and that where an action has been commenced by service on a defendant who dies thereafter the court must allow the action to be continued against his executor or administrator upon motion with such notice as the court deems proper. But the nonresident decedent’s administrator further contends that there can be no revivor because the notice of application or proceedings for revivor was not given within the time fixed by Section 2311.31, Revised Code, being a statute of limitations.

Section 2311.31, Revised Code (131 Ohio Laws 650), provides :

“Upon the death of a defendant in an action wherein the right, or any part of it, survives against his personal representative, the revivor shall be against him. * * * An action for the recovery of money pending at the death of the defendant shall not be revived against the executor or administrator as provided in Sections 2311.21 to 2311.37, inclusive, of the Revised Code, unless written notice of the application or proceedings for such revivor is given to the executor or administrator within the time provided for the presentation of claims by creditors in Section 2117.06 of the Revised Code. * * *”

Section 2117.06, Revised Code, provides:

“All creditors having claims against an estate shall present their claims to the executor or administrator in writing # * *_ All claims shall be presented within four months after the date of appointment of the executor or administrator. * * *”

Section 2317.07, Revised Code (130 Ohio Laws 617), provides for the court to extend the time for presentation of a claim to nine months and further provides: