author: Skeel, J. Hurd, P. J.,

text:
    Kossuth, Appellee, v. Bear, Appellant.

    (No. 22757
    Decided June 1, 1953.)

      Messrs. Harrison, Spangenburg <£ Hull and Mr. Oliver W. Hasenflue, for appellee.

      Mr. William M. Byrnes and Mr. William A. Kane, for appellant.

      Reversed on other grounds, Kossuth v. Bear, 161 Ohio St., 378.

   Skeel, J.

This appeal comes to this court on questions of law from a judgment entered for plaintiff in the Common Pleas Court of Cuyahoga County. The action is one in negligence.

On May 30, 1948, the plaintiff was a passenger in a westbound automobile on Lake Road in Avon Lake, Lorain County. The driver pulled into the middle traffic lane and stopped behind the automobile driven by the defendant, both drivers intending to make a left turn into an outdoor moving picture theater located on the south side of the road. Lake Road at this point is a three-lane highway.

After some eastbound traffic had passed, the defendant started to make his left-hand turn when he was struck by an approaching eastbound automobile, which, after colliding with defendant’s automobile, swerved into the automobile in which plaintiff was a passenger, whereby she was injured. The plaintiff’s petition alleges that defendant’s negligence in turning in front of an eastbound automobile was the proximate cause of her injuries.

At the time of the accident, the defendant lived on Maple Cliff Drive with his parents at stop 55 in Avon Lake. He was then attending Fenn College under G. I. privileges and in his registration at the college he gave Avon Lake as his residence. He transferred to Dyke-Spencerian School located in the Standard Building on Ontario Avenue near Public Square, in September 1948 and was in attendance there for two school years, that is, until June 20, 1950. He was married on August 20, 1949, at Lakewood Methodist Church. After his marriage he moved from Avon Lake to a room on the third floor of a rooming house known as 1417 East 85th Street, Cleveland, Ohio, where they lived for about a month. This room was rented by defendant’s wife prior to their marriage. The defendant then moved to 1851 East 82nd Street where he lived until moving to California in August or September 1950. During some part of the time he was at Dyke-Spencerian School he worked for the Typewriter Supply Company, 1745 Euclid Avenue.

From a judgment entered for the plaintiff, the defendant claims the following errors:

1. The court’s charge relating to the statute of limitations was prejudicial to the rights of the .defendant.

2. There is no credible evidence of the absence of defendant from the state or an attempt to conceal himself to avoid service.

3. The court erred in refusing to submit interrogatories.

4. The court erred in the rejection and admission of evidence.

An examination of the record discloses circumstances which strongly favor the plaintiff’s right to recover. As above indicated, the plaintiff was a passenger in an automobile standing perfectly still in the middle lane of a three-lane highway, waiting to make a left-hand turn. The defendant, who was just ahead of this automobile, cut in front of oncoming traffic whereby the automobile moving in the opposite direction struck the rear of defendant’s automobile and then deflected into the automobile in which plaintiff was seated. The defendant pleaded guilty to a charge of careless driving, thus admitting negligence and the record is clear that such negligence was a proximate cause of the injuries sustained by plaintiff in the collision. The defendant, as a witness (testimony taken by deposition), was far from frank on some subjects and his general attitude in refusing to answer questions was most reprehensible.

But neither the facts of the accident nor the indefensible conduct of defendant are involved in the legal questions here presented. A court should not permit bad facts to influence it in considering disassociated legal questions. Here, the question is one dealing with a statute of limitations (Section 11224-1, General Code) and circumstances which toll the operation of the statute (Section 11228, General Code). Except as to the claim of the plaintiff that defendant was absent from the state on his honeymoon and on two or three short skiing trips and a vacation trip in June 1950 and the plaintiff’s further claim of his general conduct as tending to establish concealment to avoid service of summons, from the date of the accident (May 30,1948) until he left for California in August or September 1950, the facts are matters of record. The plaintiff filed her action in Cuyahoga County on April 4, 1949. Defendant’s address was given as “Cleveland, Ohio” when there was absolutely no dispute about the fact that defendant then lived in Avon Lake on Maple Cliff Drive, Lorain County, with his father and stepmother. An alias summons was issued on May 29, 1950, but no address was furnished. No further attempt to obtain service on defendant was made in this action until November 1, 1950, when an amended petition was filed alleging absence from the state and concealment as tolling the statute of limitations under Section 11228, General Code, and instructions given to the clerk to serve defendant through the Secretary of State under the provisions of Section 6308-1, General Code. The defendant was then living in California.

Another action was filed on May 29, 1950, in Lorain County by plaintiff, setting forth the same allegations as were contained in the action filed in Cuyahoga County on April 4,1949. Service was attempted at the home of defendant’s father on Maple Cliff Drive, Avon Lake, Lorain County. At this time defendant, having been married on August 20,1949, had moved from that address and was living with his wife at 1851 East 82nd Street, Cleveland, Cuyahoga County, Ohio, so that service was returned “not found.” It should be noted that this petition was filed just within the two-year period of the statute of limitations.

In the file of the sheriff of Lorain County, after attempting the service of summons, was a notation that the defendant had moved to 1851 East 82nd Street, Cleveland, and while residence service in this action could not be had because his residence was then in Cuyahoga County, yet, under the provisions of Section 6308, General Code, the Common Pleas Court of that county was vested with jurisdiction of the cause, and under Section 11231, General Code, had 60 days in which to complete service after the filing of the action within the two-year period under the statute of limitations. Nothing was done after the sheriff made return, ‘ ‘ I did not service Richard R. Bear as he could not be found within our county,” so that the ease was dismissed by the court “no service” on September 1, 1950.

In addition to filing a new case in Lorain County on May 29, 1950, defendant could have been brought into court in a Cuyahoga County case by residence service any time within 60 days after May 30, 1950. An alias summons was issued in the Cuyahoga County case on May 29, 1950, but no address was given.

The first question to consider is whether absences of the defendant from the state after May 30, 1948, on pleasure trips while he maintained his residence in Ohio, tolled the statute of limitations under the provisions of Section 11228, General Code. The plaintiff’s contention is that there is evidence in the record tending to support her claim that defendant was absent from the state for two weeks after August 20, 1949, while on his honeymoon, two or three times before his marriage for two or three days, skiing in Pennsylvania, and a two- or three-week trip after graduating from Dyke-Spencerian College. There is conflict about defendant’s honeymoon trip. He testified that he spent his honeymoon at Vista Villa, Port Clinton, Ohio. His father testified that he thought defendant went to Pennsylvania and the New England States. The father’s testimony is without any probative value as it is hearsay, the witness giving no facts upon which to base his opinion. The siding trips likewise have no support, the testimony being of the same character; so that there is no credible evidence that defendant was out of the state until after he graduated from Dyke-Spencerian College. The plaintiff fixes this trip to Pennsylvania and the New England States as of June 1, 1950, thirty days after the statute of limitations had run. This must be an error, however, because the record is undisputed that defendant was not graduated until June 20, 1950, as shown by the school records.

But even if it should be admitted that defendant was, on a few occasions, out of the state on pleasure trips, such absence did not toll the statute of limitations under the provisions of Section 11228, General Code.

That section provides in part:

‘4 * * * After the cause of action accrues if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought.” (Emphasis added.)

Such absences as are shown by the evidence were temporary in character with no intention on the part of defendant to disturb or change his place of residence or depart from the state, so that service of process could have been made upon him at his usual place of residence as provided by Section 11286, General Code, at any time during the two-year period after May 30, 1948. We hold that such absences did not toil the statute.

The legal effect of temporary absence from the state of a resident, for purposes of business or pleasure, with respect to whether such absence will toll statutes of limitations under the provisions of Section 11228, General Code, has never been directly determined or referred to in the decided cases of this state, except for a sentence in the opinion of the court in the case of Title Guaranty & Surety Co. v. McAllister, 130 Ohio St., 537, 546, 200 N. E., 831, hereinafter referred to. The cases thus far decided deal with the question of whether the saving provision of Section 11228, General Code, is or is not applicable as to a cause of action against a nonresident where other means of acquiring jurisdiction sufficient to authorize the rendition of a personal judgment are available.

The first case dealing with this question is Stanley v. Stanley, Admr., 47 Ohio St., 225, 24 N. E., 493, 21 Am. St. Rep., 806, 8 L. R. A., 333. This was an action on a claim against decedent’s estate which had been disallowed by the administrator. At the time when several of the causes of action accrued defendant resided in West Virginia, but on many occasions he had come into this state on visits of which plaintiff had knowledge and thus made himself available for personal service. The court held:

“1. Where a person, who is a nonresident of this state and absent from it when a cause of action accrues against him in favor of another in this state, after-wards, and during the period of the limitation, occasionally comes into this state, such presence in the state will not set the statute of limitations to running in his favor, although the plaintiff might, at such times, by the exercise of ordinary diligence, have commenced an action against him.

“2. Under the provisions of Section 4989, Revised Statutes, presence of the defendant in the state, for the full period of the time limited for bringing an action, either continuously or in the aggregate, is necessary to constitute a bar of the action. ’ ’

It must be noticed, however, that Chief Justice Min-shall said on page 229:

“But if, after he comes into the state, he again depart from it, the running of the statute is suspended during his absence. It is not necessary that ive should determine in this case, whether absence upon business —the defendant continuing a resident of the state — is sufficient, or whether it must be limited to absence as a nonresident of the state, for it is admitted that the decedent was a resident of the state of West Virginia, and his absence, therefor, referable to that fact. ’ ’ (Emphasis added.)

In the first part of the quotation, the court used the words, ‘ ‘ he again depart from it, ’ ’ as meaning to leave intending to take up residence elsewhere. In all events, the Supreme Court eliminated from this case the very question now presented for determination.

The next Supreme Court case is Commonwealth Loan Co., Inc., v. Firestine, 148 Ohio St., 133, 73 N. E. (2d), 501, 172 A. L. R., 993. There, the defendant “departed this state” after the cause of action on a promissory note accrued. The obligation was evidenced by a cognovit note. The defendant departed this state by moving to Chicago, Illinois, becoming an elector of that city and state. It was argued that because plaintiff could take judgment by confession that the time of his residence in Chicago would not toll the statute of limitations as provided by Section 11228, General Code.

The court held:

“The Ohio promisee and holder of a cognovit note executed in Ohio, suing thereon, may invoke the saving-provision of Section 11228, General Code, against the promisor who had left the state of Ohio and had become a resident of another state for a period of years, notwithstanding such absent promisor had executed a warrant of attorney to confess judgment on the note whereby personal judgment could have been rendered against him in Ohio without service of summons, in an action commenced within the 15-year limitation prescribed by Section 11221, General Code.”

It is clear that this case deals with the nonresidence of the defendant and not temporary absence.

The nest case is Couts v. Rose, 152 Ohio St., 458, 90 N. E. (2d), 139. There, the defendant was involved in an automobile collision with the plaintiff in Trumbull County. Action was brought within the two-year period of the statute of limitations (Section 11224-1, General Code), attempting service on the defendant in Mahoning County under the provisions of Section 6308, General Code. In the meantime, the defendant •had moved to New York and summons was returned “not found” with the notation, “Lives in New York.” Service was then had on the Secretary of State under the provisions of Section 6308-1, General Code, which service was after the two-year period of limitations provided by Section 11224-1, General Code.

The court held:

“A person injured in an automobile collision occurring in this state is not obliged to institute his action for his injury against a nonresident defendant and secure service through Section 6308-1, General Code, within the time limitation provided by Section 11224-1, General Code, but under favor of the provisions of Section 11228, General Code, he may proceed to institute his action through Section 6308-1, General Code, at any time before the defendant returns to the state.”

The only question decided there is whether the passage of Section 6308-1, General Code, whereby service upon a nonresident defendant upon which a personal judgment could be had, had the effect of eliminating from the plaintiff’s rights the benefits of Section 11228, General Code. The court held that even though a personal judgment could be had by service of summons through the Secretary of State, such right did not deprive plaintiff of his right to wait until defendant returned to. this jurisdiction as was true before the passage of Section 6308-1, General Code. This case, as is true of the others, deals with defendants who are or have become nonresidents of the state.

The latest case on this subject is Meekison, Admr., v. Groschner, 153 Ohio St., 301, 91 N. E. (2d), 680, 17 A. L. R. (2d), 495. There, again the defendant was a nonresident. He owed a debt on a promissory note made due and payable at Napoleon, Ohio. The defendant at all times lived in Michigan.

The court held, as shown in the second paragraph of the syllabus:

“Where the obligor of a promissory note, payable to a resident of Ohio at his place of residence, is and has been continuously absent from the state of Ohio, Section 11228, General Code, applies and the period of limitation for the commencement of an action against the obligor after default of his obligation does not begin to run until he comes into the state, whether his absence resulted from his leaving the state after he executed the promissory note or from his nonresidency of the state at the time of such execution. ’ ’

' Prom the foregoing authorities, it must be found that the question of whether the temporary absence of a resident of this state has the effect of tolling the statute of limitations during such absence where, during the time of his absence, service could be had upon him and upon which a personal judgment could be had in a proper case has not been decided.

In viewing these authorities they must be considered in the light of the facts upon which they are founded. In the very recent case of State v. Nickles, 159 Ohio St., 353, at page 359, 112 N. E. (2d), 531, the court said, in dealing with a question of statutory interpretation as found in the syllabus of State v. Edwards, 157 Ohio St., 175, 105 N.E. (2d), 259:

“That paragraph of the syllabus would seem to justify the Court of Appeals in the action it took in the present ease. However, this court has decided many times that although the syllabus of a case states the law of that case, it must be read with reference to the facts thereof. Baltimore & Ohio Rd. Co. v. Baillie, 112 Ohio St., 567, 148 N. E., 233; Williamson Heater Co. v. Radich, 128 Ohio St., 124, 190 N. E., 403. See, also, cases cited in 11 Ohio Jurisprudence, 798, Section 145.”

It must be noted that in the case of Title Guaranty & Surety Co. v. McAllister, supra, the Supreme Court said on page 546, in considering Section 11228, General Code:

“As a fair proposition the test of the running of the statute should be the liability of the party invoking its bar to the service of process during the whole of the period prescribed. If such process can be served during that time, and a personal judgment obtained, such party is not ‘ out of the state ’ or ‘ concealed ’ within the meaning of Section 11228, General Code.”

Statutes of limitation are a very necessary part of the law of our times. Their universal adoption in every state of the Union bespeaks their importance. As was said by this court in Commonwealth Loan Co. v. Firestine, 72 N. E. (2d), 912 (affirmed 148 Ohio St., 133, 73 N. E. (2d), 501, supra):

“ ‘Statutes of limitation are statutes of repose and are designed to secure the peace of society.’ 25 Ohio Jurisprudence, 422.

“Their object is to require vigilance in litigating claimed rights and to provide against fraudulent claims being asserted after the passing of time would make such claim difficult to defend.”

The saving clause of the limitation statutes (Section 11228, General Code) was passed to prevent a person from shielding himself from the ordinary processes of the law. If one seeks to avoid service or places one self beyond its jurisdiction, certainly the creditor or cJ aim-ant should be protected. The Legislature intended to go no further than was necessary to prevent necessary rules from being improperly used. In the part of the section here being considered, they, used the words, “depart this state,” intending to mean a far greater degree of permanence in going away than is to be understood by the word, “absence,” as is to be found by the definition of these words in Webster’s Dictionary. A pilot working for a commercial air line, whose job requires him to “absent” himself from the state most of his working day, but who is a resident of Cleveland, maintaining his home and family here, sending his children to our schools, paying taxes here, and exercising his rights of citizenship here, as do the rest of us, would be surprised to learn that as to bim the statute of limitations meant four years or more in a personal injury action, or 30 years or more as to an obligation evidenced by writing, while his neighbor is relieved of defending state claims in a much shorter period of time. Many other such persons such as railroad employees, truck drivers, salesmen, and people who live along the borders of the state and work in an adjoining state but who at all times are subject to civil process in Ohio, are in the same position as the commercial pilot.

The cases in other jurisdictions which hold to the contrary are for the most part to be distinguished by the wording of the statutes being considered. In Parker v. Kelly, 61 Wis., 552, 21 N. W., 539, where a master of a vessel was out of the state engaged in his work for two years, although he maintained his residence in the state at all times and where the court held that his absence tolled the statute of limitations, the words of the saving provisions there considered were, “while he shall be ont of the state.” The ease of Schneider v. Schneider, 82 Cal. App., (2d), 860, 187 P. (2d), 459, under a statute very similar to ours, held that business absence tolled the time within which action could be brought. But it must be noticed that on page 862 of the report the court said:

“The reasons for the absence of the debtor from the state are immaterial. The important thing is that the debtor is absent from the state and cannot be served with a complaint and summons for the purpose of conferring upon the court jurisdiction to enter a personal judgment against him.” (Emphasis added.)

The court then proceeded to say that as an appellate court it was bound by the decisions of its Supreme Court.

Hence, cases from other states which state a contrary rule relied on by the plaintiff are of no value in deciding the question presented to us. Such cases cited by the plaintiff are: Sage v. Hawley, 16 Conn., 106, 41 Am. Dec., 128; Dorus v. Lyon, Exrx., 92 Conn., 55, 101 A., 490; Blodgett v. Utley, 4 Neb., 25; Webster v. Citizens’ Bank of Omaha, 2 Neb. (Unof.), 353, 96 N. W., 118; Aronow v. Bishop, 112 Mont., 611, 120 P. (2d), 423; Barney v. Oelrichs, 138 U. S., 529, 11 S. Ct., 414, 34 L. Ed., 1037.

In 94 A. L. R., 485 (in an annotation following the case of Bode v. Flynn, 213 Wis., 509, 252 N. W., 284, in which ease the court held the statute of limitations was tolled against a nonresident in an automobile negligence action regardless of the ability of plaintiff to get service on him through the Secretary of State, a case similar to and holding the same as our Supreme Court in Couts v. Rose, supra), at page 486, the author says:

“On the theory that the purpose of these provisions is to prevent the defendant from defeating the plaintiff’s claim by merely absenting himself from the state or establishing a residence elsewhere for the period of limitation, many courts, giving a liberal construction to the statute, have, where its. terms would not be plainly violated by such construction, adhered to the view that where, notwithstanding such absence or nonresidence, process could have been served in the state to enable the plaintiff to institute an action upon his claim, the period of the defendant’s absence from the state shall not be excluded from the period of limitation, and the statute continues to run during such absence. ”

The rule as thus stated is supported by the majority of the courts of last resort of the several states. Certainly saving clauses to statutes of limitation should not be extended by judicial construction beyond what is clearly intended by the Legislature and necessary to preserve the rights of the parties.

We must conclude, therefore, that what little evidence there is tending to establish the defendant’s absence from the state did not tend to show an intention on his part to “depart this state.” From the face of the record, the defendant was within the jurisdiction of the courts of either Lorain County or Cuyahoga County for the full period of the statute of limitations, which, as a matter or law, was not tolled because of such temporary absence as may have been shown and, therefore, the court’s charge that the absence claimed, if established, would toll the statute of limitations was in error.

It is next claimed that the defendant concealed himself so that service of summons could not be made upon him. This is a question of fact which was properly submitted to the jury. As has been stated, the accident happened on May 30, 1948. This action was filed April 4, 1949. Between those dates no claim of concealment is made nor could there be, because no action had been filed. In considering the evidence on the subject of concealment, some of which is hereafter briefly detailed, it must be kept in mind that there is not the slightest suggestion that the defendant was advised that an action had been'filed against him until after May 29, 1950. The first claim of an attempt to conceal himself to avoid service has to do with moving into his wife’s apartment, which was rented in her name before the defendant and his wife were married. It is further claimed that the failure of the defendant to have his name on the outer door of the rooming house constitutes some evidence of concealment. Evidence was also introduced tending to show that he was not listed in the Cleveland directory or telephone book, and that when he moved to 1851 East 82nd Street his employer noted his change of address from Avon Lake, which was correctly noted, to 1581 East 82nd Street which was, of course, incorrect. This was the mistake of the employer and it should be noted in passing that the plaintiff made the identical mistake in her brief on page 19. Other evidence on this subject had to do with defendant’s automobile being registered in his father’s name, and that it was not transferred to the defendant’s name until just before he left for California. Other testimony relied upon was that the defendant, when his deposition was being taken in California, refused to answer certain questions which were thought to have some importance on the subject of absence or concealment. His conduct in this regard was most reprehensible but adds little weight to the question of either concealment or absence. It is also claimed that he left no forwarding address when he moved to California. On this point, there is no evidence that he knew where he would be. In this connection it should also be noted that when service was had upon him through the Secretary of State, the sheriff mailed a registered letter to his last known address, 1851 E. 82nd Street, Cleveland, Ohio. Service was made on the Secretary of State on November 4. The return made November 12 shows that a signed receipt for the registered letter was made a part of the return and the defendant thus having notice of the suit filed a motion to quash on December 15, so that the registered letter must have reached him without delay.

Concealment sufficient to toll the statute of limitations under the provisions of Section 11228, General Code, must consist of conduct purposely conceived of and acted upon to prevent service of summons, such conduct being reasonably capable of accomplishing such purpose. When all of the plaintiff’s evidence is considered in the light of the undisputed facts, that 'the defendant continued to live with his father and step-mother just as he had done before May 30, 1948, until his marriage on August 20, 1949, that he then lived and worked in Cleveland under no different circumstances than do thousands of others and during all of the time in question attended college under G. I. rights, missing only 17 days during the two-year period, the records of the schools attended containing full, complete and accurate information about him, including various addresses, any finding that concealment has been established is manifestly against the weight of the evidence.

The error claimed by the defendant that evidence of the defendant’s plea of guilty to careless driving in the Municipal Court of Lorain on a charge filed against him as a result of the accident here being considered is not well taken. Such judicial confession was admissible and the defendant having testified that he entered such plea of guilty to the charge makes unimportant the manner in which the plaintiff attempted to bring such fact into the record.

We hold also that the court correctly refused to submit interrogatories presented by the defendant on the authority of Ford Motor Co. v. Dillon, 51 Ohio App., 278, 200 N. E., 525. We hold further that no prejudicial error was committed in the admission or rejection of evidence.

One further question is clearly presented upon the record in this case. Section 11233, General Code, in part provides:

“In an action commenced, or attempted to be commenced, * * * if the plaintiff fails otherwise than upon the merits, and time limited for the commencement of such action at the date of reversal or failure has expired, the plaintiff * * * may commence a new action within one year after such date * * *.” (Emphasis added.)

Sections 11231 and 11233, General Code, being a part of the same chapter and relating to the same subject are in para materia.

Under Section 11233, General Code, in an action commenced, or “attempted to be commenced” the one year provision applies. By Section 11231, General Code, “an attempt to commence” an action shall be deemed equivalent to its commencement, where the party diligently endeavors to procure service, if such “attempt” be followed by service within 60 days. It will be seen that both of these sections make a distinction between attempting to commence an action and the commencement thereof.

The terms, ‘ ‘ attempt to commence, ’ ’ an action, and, “diligent endeavor to procure a service,” are construed in Baltimore & Ohio Rd. Co. v. Ambach, 55 Ohio St., 553, 45 N. E., 719, and McLarren v. Myers, Admr., 87 Ohio St., 88, 100 N. E., 121, and it is held that the issuance of a summons answers both requirements. Thus in the case of McLarren v. Myers, Admr., the court in considering the case of Ross, Sheriff, v. Willet, 54 Ohio St., 150, 42 N. E., 697, said at page 95:

“The court held that the party had shown a compliance with the statute, because he ‘attempted to commence his proceeding, by filing his petition and causing a summons to be issued in proper time’ although the service proved ineffectual. It must be noted, that the saving provision in Section 11231 relates only to the diligent endeavor to procure service. The language of the statute is, ‘when a party diligently endeavors to procure service.’

“If a party had caused a summons to be issued, there can be a diligent effort to procure its service, but, of course, there can be no such endeavor where no summons has issued.”

On May 29, 1950, which was within two years of the date of the injuries sustained by the plaintiff (Section 11224-1, General Code), the plaintiff filed her action in Lorain County as she had a right to do under the provisions of Section 6308, General Code. This action was dismissed by the court for want of service on September 1, 1950, which was after the statute of limitations had run. While the words, “dismissed without prejudice,” are contained in the entry, yet it is clear from the face of the record that the dismissal was the act of the court and was not made at the request of the plaintiff, so that the cases which hold that if the plaintiff voluntarily dismisses his action without prejudice the foregoing statute does not apply (Siegfried v. New York, Lake Erie & Western Rd. Co., 50 Ohio St., 294, 34 N. E., 331), are not applicable here.

Thereafter, in the action filed in Cuyahoga County on April 4, 1949, to which county the defendant moved and began his residence on August 20, 1949, and in which action a praecipe for service was issued on May 29, 1950, so that here there was also an attempt to bring an action, and in a county in which residence service could be made after August 20, 1949, and, under the provisions of Section 11277, General Code, Cuyahoga County was then a proper county within which to bring such action. Service having failed, however, after the statute of limitations had run, and the defendant had left the state, it was proper for plaintiff to commence an action within one year from September 1, 1950. The fact that such action was commenced by filing an amended petition in an action previously filed wherein service had failed and had not been perfected within 60 days after the running of the statute is of no consequence (Sections 11230 and 11231, General Code).

In the case of Templeman v. Hester, 65 Ohio App., 62, 29 N. E. (2d), 216, the court held in effect that the spirit of Section 11233, General Code, is that where an action would fail otherwise than on its merits, the plaintiff shall have one year in which to reassert it, and if the original action is still pending and there is no reason for not asserting in that action it may be so asserted just as effectively as it could in a new action.

This action which was commenced in a proper county was reasserted within one year after the plaintiff’s claim had failed otherwise than on the merits, and such act of reasserting the action was therefore not barred by the statute of limitations.

Upon a consideration of the whole record (the court being vested with jurisdiction of the defendant by virtue of Sections 11233 and 6308-1, General Code), it is the conclusion of this court that substantial justice has been afforded both parties and, therefore, the judgment is affirmed.

Judgment affirmed.

Hurd, P. J., and Kovachy, J., concur.

Hurd, P. J.,

concurring. I concur in the affirmance of the judgment for the further reason that an examination of the record discloses evidence sufficient to justify the action of the trial court in submitting to the jury for determination as a matter of fact the issue of whether the defendant was absent from the state and concealed with respect to his whereabouts for a period of time sufficient to permit the prosecution of the case under the provisions of Section 11228, General Code. The issue having been properly submitted, and the evidence on the subject of absence and concealment being in dispute, the finding of the jury in favor of the plaintiff must be sustained by this court on review.


source: Caselaw Access Project

author: Hornbeck, J.

license: Public Domain

text:
    Robinson, Appellant, v. Engle, Admx., Appellee.
    (No. 539
    Decided November 21, 1953.)

      Messrs. Shafts, Singer & Brown and Messrs. Smith S Smith, for appellant.

      Messrs. Landis, Ferguson, Bieser é Greer and Messrs. Miller é Finney, for appellee.
   Hornbeck, J.

This is an appeal on questions of law from an order of the Common Pleas Court refusing to permit plaintiff to withdraw his oral motion to dismiss his case without prejudice.

Pour errors are assigned.

1. Error in the overruling of plaintiff’s motion for leave to withdraw his oral motion for leave to dismiss without prejudice and order said case to be set for trial.

2. In refusing to hold the defendant had waived the defense of failure to present the claim to the administratrix under Sections 10509-112 and 10509-134, General Code.

3. In granting plaintiff’s previous oral motion and in dismissing his action without prejudice, in spite of his application to withdraw it and have his case reset for trial.

4. Sections 10509-112 and 10509-134, General Code, are in violation of the constitutional right to jury trial.

The action was for damages for personal injuries claimed to have been suffered by plaintiff in an automobile accident because of the negligence of defendant’s decedent. Issues were joined on a petition and answer. The petition did not aver that the plaintiff’s claim had been presented to the defendant-administratrix. The answer was, in the main, a general denial. The cause came on to be tried to a judge and jury. The plaintiff presented his case in chief and rested, whereupon, the defendant moved for a directed verdict for the reason that the evidence of the plaintiff did not show that any claim was presented to the administratrix of the estate for allowance or rejection within four months after her appointment. When the motion was presented at trial, the judge inquired of counsel if any claim had been presented to the estate, to which counsel for plaintiff answered, “No.” The record discloses that counsel argued the question and that time was accorded to counsel for plaintiff to examine the law after which counsel returned to the courtroom in the presence of the jury. Plaintiff then requested the court to dismiss the case without prejudice, which motion, according to the bill of exceptions, was sustained and the jury was dismissed, the court explaining to the jury that it was dismissed because of the failure of the plaintiff to comply with Section 10509-112, General Code.

The court, in passing on the motion, said:

“An entry may be drawn dismissing the case at the request of plaintiff without prejudice to another action. ’ ’

It has been held that notwithstanding the provisions of Section 11586, General Code, authorizing voluntary dismissals by plaintiffs in actions which have not been finally submitted, the trial court in its discretion may deny the motion for voluntary dismissal. Conner v. Drake, 1 Ohio St., 166. Obviously, as the court has discretion as to dismissal by a plaintiff before submission, it is more reason why it should have discretion in passing upon a motion such as was filed here to withdraw a former motion which had been passed upon adversely to the plaintiff and the jury discharged by reason thereof. It is said that a court speaks only through its journal. This, of course, is true, but the court having ordered that an entry be prepared, it may be done even at this late date.

Let us assume that we hold the court to have erred in its holding that the plaintiff’s right to proceed was barred because he had not presented his claim to the administratrix for allowance or rejection. We could not reverse the order because there is still involved the discretionary right of the court to deny the second motion.

This action having been dismissed on plaintiff’s own motion without prejudice, it can not be said that the refusal of the court upon its interpretation of Section 10509-112, General Code, to reinstate the case would preclude the instituting of a new action by him. Neither would an opinion of this court refusing to accept plaintiff’s view of the law in its application to his cause preclude further proceedings on his part to recover damages against the defendant.

We doubt if we can properly consider the errors assigned. There is no claim that the trial judge abused his discretion in overruling the motion of the plaintiff to withdraw his oral motion and to reinstate the case. However, as counsel have briefed the questions which they concede are involved on this appeal, we will consider and determine them.

Four specific questions are raised.

1. Is the plaintiff a claimant within the meaning of Section 10509-112, General Code, and required to file his claim with the administratrix as provided in that section.

2. If so required, has the administratrix waived the right to invoke the benefit of this section by answering and going to trial without asserting the failure of the plaintiff to conform to the statute.

3. Does the case of Pepper v. Sidwell, Admx., 36 Ohio St., 454, have controlling effect upon this appeal.

4. Is Section 10509-112, General Code, unconstitutional.

The second question is answered in the second paragraph of the syllabus in Prudential Ins. Co. of America v. Joyce Building Realty Co., 143 Ohio St., 564, 56 N. E. (2d), 168:

“The requirements of Section 10509-112, General Code, that ‘ creditors shall present their claims, whether due or not due, to the executor or administrator within four months after the date of his appointment’ are mandatory and may not be waived by him.”

The syllabus in Pepper v. Sidwell, Admx., 36 Ohio St., 454:

“In an action against an administrator, the objection that the claim sued on was not presented for allowance before the action was brought, is waived, where the administrator joins issue and goes to trial on the validity of the claim without objection.”

That syllabus, and the language of the opinion supporting the conclusion, are in direct conflict with the second paragraph of the syllabus of the Prudential Insurance Company case. The trial judge and counsel have undertaken to differentiate the Prudential Insurance Company case from Pepper v. Sidwell, supra, upon the claim that there is a marked difference in the statutes effective when Pepper v. Sidwell was announced and when the latter opinion was released. Manifestly, the Supreme Court must have had knowledge of Pepper v. Sidwell when it decided the Prudential Insurance Company case and must have felt that there was enough difference in the controlling sections of the Code as to justify the pronouncement as made in the latter case. It is not for us to use an earlier case as determinative of a legal question when a latter case of the same court to the contrary is available. Inasmuch as the Supreme Court did not see fit to mention Pepper v. Sidwell in the opinion or the syllabus of the Prudential Insurance Company case, we may assume that the court had no purpose to disturb it as it related to the section of the statutes applicable at the time of the decision.

Judge Barnes in the Court of Appeals opinion in Prudential Ins. Co. v. Joyce Realty Co., 44 Ohio Law Abs., 481, 487, 65 N. E. (2d), 516, quotes as follows from 21 American Jurisprudence, 617:

“ ‘The great weight of authority is to the effect that an executor or administrator can not waive, the * * * “nonclaim” * * * statute of limitations under which claims must be presented * * V ” He cites authorities from several states in support of his conclusion.

In Beach, Recr., v. Mizner, Exr., 131 Ohio St., 481, 3 N. E. (2d), 417, the court held, as disclosed by the first two paragraphs of the syllabus:

“1. Sections 10509-112 and 10509-134, General Code, * * * must be construed together.

“2. These sections are statutes of limitation (or nonclaim statutes) which bar creditors’ claims unless presented to an executor or administrator within four months aftei the date of appointment.”

This pronouncement was followed in the Prudential Insurance Company case.

In Pierce v. Johnson, Exr., 136 Ohio St., 95, 23 N. E. (2d), 993, 125 A. L. R., 867, the first paragraph of the syllabus holds:

“A person having an unliquidated claim for damages arising out of tort is a creditor within the meaning of Section 10509-112, General Code, requiring presentation of claims by creditors to the executor or administrator within a specified time.”

The Pierce case was decided in 1939 prior to the enactment of the present Section 10509-112, General Code, but it is contended by appellant that creditor and claimant are not synonymous terms and that it may not be held that the plaintiff here is a claimant, as contemplated by the statute. It is our opinion that the word, “claimants,” is more inclusive than the word, ‘ ‘ creditors, ’ ’ and, manifestly, it does include the plaintiff. The language of the statute as it now reads is, in part:

“All claimants shall present their claims to the executor or administrator in writing, including claims arising out of contract, out of tort, on cognovit notes or on judgments, whether due or not due, secured or unsecured, liquidated or unliquidated. ’ ’

The right of action of plaintiff is predicated upon a tort. Therefore, claimant’s claim arises out of tort. The section in a latter part provides, “any person whose claim has been presented and allowed (and not thereafter rejected) shall be deemed a creditor as said term is used in this chapter.”

This language recognizes a differentiation between creditor and claimant. The language employed in this section is about as inclusive as it would be possible to make it and there is no interpretation which would not include the plaintiff as a claimant by reason of his cause of action set up in the instant case.

The claim that the controlling section of the Code denies plaintiff the right to a jury trial and is, therefore, unconstitutional is not well made. The question is one of law for the determination of the judge and “due process” is accorded. A jury decides factual issues only.

We have not considered and discussed many of the cases cited by counsel in their complete and helpful briefs. We are satisfied that the cases which we have cited are determinative of all the questions raised, and that the trial judge was not in error in his construction of the law controlling.

The judgment is affirmed.

Judgment affirmed.

Wiseman, P. J., and Miller, J., concur.


author: Doyle, P. J.

text:
    Cox, Appellee, v. Cartwright, Appellant.
    (No. 4409
    Decided December 30, 1953.)

      Messrs. Wise, Roetzel, Maxon, Kelly & Andress, for appellee.

      Messrs. Myers, Myers & Myers, for appellant.
   Doyle, P. J.

This is an appeal from a judgment entered in the Municipal Court of Akron, which sustained a demurrer to a cross-petition filed therein (and subsequent dismissal of the pleading, through a refusal to plead further) on the ground that the statute of limitations barred the action.

The cross-petitioner alleged that she consulted her adversary, a dentist, “about extracting two front teeth and making her a partial plate for the extracted front teeth * * #; that plaintiff agreed to do the work and supply the partial plate * * The pleading further stated in substance that,' after the teeth were ex-traeted, the plate, which was furnished and “inserted” into her mouth, did not fit; that “she was unable to eat her food with the partial plate, and that when she could keep the plate in her mouth, the pain from the wedging of the plate between her teeth was unbearable ; that she lost four days of work, because she was unable to speak clearly; * * * that the partial plate made by the plaintiff for the defendant was inferior, was not fit for the specific purpose for which it was made; was of no value whatever and was worthless; that as a result of plaintiff’s failure to comply with his agreement, defendant was forced to have another dentist make a partial plate that she could wear, and that defendant did return the partial plate plaintiff had made, after he refused to do anything further; all to her damage in the sum of * * * $534.40.”

The cross-petitioning patient of the dentist, in her appeal, presents the following two questions:

“1. Is the liability of a dentist based only on malpractice ?

“2. Is a dentist liable on a warranty of suitability and fitness for the bridges and teeth he sells?” •

The quaere is, of course, aimed at the application of two statutes of limitations. The first is the one governing actions for malpractice. It was:

“An action for libel, slander, assault, battery, malicious prosecution, false imprisonment or malpractice, * * * shall be brought within one year after the cause thereof accrued # (Italics ours.) Section 11225, General Code (now Section 2305.11, Revised Code).

The second is the one governing contracts not in writing. It was:

“An action upon a contract not in writing, express or implied, * * * shall be brought within six years after the cause thereof accrued.” Section 11222, General Code (now Section 2305.07, Revised Code).

If the malpractice statute applied to the pleading, the action of the trial court must be affirmed; and, on the contrary, if the contract statute applied, the judgment must be reversed.

Of interest is the claim of the appellant that “the obligation of a dentist is twofold: that he should use ordinary care; and, in cases where he contracts to do a specific thing, he should be held liable for failure to fulfill his contract. * * * There is no claim in the present case of lack of ordinary care in extracting teeth or treatment afterwards. The claim is that the * * * denture or plate was made to' fit some other mouth and was not suitable or fit for the purpose for which it was purchased. ’ ’

Section 1329, General Code (Section 4715.01, Revised Code), stated in terms who should be regarded as engaged in the practice of dentistry. It was therein stated that one who, for a fee, performs dental operations, or one who “takes impressions of the human teeth or jaws, or who shall construct, supply, reproduce or repair any prosthetic denture, bridge, artificial restoration, appliance or other structure to be used or worn as a substitute for natural teeth,” shall be regarded as practicing dentistry.

So, with the case at hand, when the dentist contracted with his patient to extract her teeth and to provide her with a denture, and then undertook to perform the necessary acts to fulfill his contract, he was at all times engaged in the practice of dentistry; and if, when performing such services in fulfillment of his engagement, he failed to exercise the average degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality, in the light of the present state of the science of dentistry, he, was guilty of the tort of malpractice. Gillette v. Tucker, 67 Ohio St., 106, 65 N. E., 865, 93 Am. St. Rep., 639; Hier v. Stites, 91 Ohio St., 127, 110 N. E., 252; Ault v. Hall, 119 Ohio St., 422, 164 N. E., 518, 60 A. L. R., 128.

See also: Craig v. Chambers, 17 Ohio St., 253.

The eases above cited all treat of the conduct of physicians and surgeons. It must be observed, however, that the practice of dentistry in this state is regulated by statute, and high standards of qualification govern the licensing of the practitioner. The licensed dentist is a professional man who practices in a special department of medical science. He must be a therapeutist in his limited field — -skilled in the field which relates to the discovery, selection and application of remedies for ailments, defects and deficiencies in that part of the human body falling within the purview of the statute which authorizes his license.

It has long been recognized that “malpractice” applies to physicians and surgeons (and indeed lawyers) who commit negligent acts in treating a patient, or who unskillfully treat patients not within the standards of quality set forth in Gillette v. Tucker, supra. It likewise is obvious, when considering the controlling reasons for the law of torts arising out of the relationship of doctor and patient, that a dentist may be guilty of malpractice if he falls short of professional standards in providing and fitting dentures; and this court, in this case, so pronounces the law to be.

We experience no judicial difficulty in determining that the word “malpractice,” as used in the statute, applies to a dentist in performing his work with a patient, where he negligently or unskillfully fits dentures in his patient’s mouth, which services result in physical injury over and beyond the injury and damage which may naturally ensue from the normal and proper fitting and installation of artificial teeth.

We now go to the statute of limitations governing actions in malpractice.

The Supreme Court of this state, in a recent case, stated the following rules :

“1. A special statutory provision which relates to the specific subject matter involved in litigation is controlling over a general statutory provision which might otherwise be applicable.

“2. Section 11224-1, -General Code, providing that an action for bodily injury shall be brought within two years after the cause thereof arose, governs all actions the real purpose of which is to recover damages for injury to the person and losses incident thereto and it makes no difference whether such action is for a breach of contract or strictly in tort. The limitation is imposed bn the cause of action and the forra in which the action is brought is immaterial. ’ ’ Andrianos v. Community Traction Co., 155 Ohio St., 47, 97 N. E. (2d), 549.

The distinguished author of the opinion discusses Section 11238, General Code, which states in substance that, in this state, we recognize but one form of action, known as a civil action, and he argues that cases from other states which turn upon a distinction in the forms of action brought, are not pertinent.

We need go no further, we think, in our search for authorities to govern the case here for decision. The reasons adopted by the Supreme Court for its conclusion in Andrianos v. Community Traction Co., supra, make necessary by analogy the following pronouncement for the case now before us — viz.: When the Legislature used the word “malpractice” in Section 11225, General Code, the word was intended to refer to the nature of the subject matter thereof, and not to its form as a matter of remedial procedure; and, whether the action is strictly in tort or for breach of contract, it is nonetheless an action to recover damages for malpractice, and is governed by the one-year statute of limitations; the special statutory provision relating to a specific subject matter — i. e., malpractice —is controlling over the general statutory provision relating to contracts not in writing. See: 34 American Jurisprudence, Limitation of Actions, Section 103; 53 Corpus Juris Secundum, Limitations of Actions, Section 74; 74 A. L. R., 1256, annotation, and cases therein cited; 157 A. L. R., 763, annotation, and cases therein cited.

We do not overlook the claim of the appellant that the dentist is liable on “a warranty of suitability and fitness for the bridges and teeth he sells. ’ ’

There is no claim that the material used in the manufacture of the teeth was of inferior quality and not equal to the standard of implied warranty. Indeed, it may be fairly stated that only a strained view of the professional relationship between the dentist and his patient could class the dentist in the category of a salesman of false teeth. The furnishing and the fitting for use of the dentures were all a part of the professional services, and the way in which these services were rendered, as compared to similar services performed by dentists who exercised the average degree of skill, care and diligence of members of the same profession practicing in the same or similar locality, marks the right or lack of right to a recovery for the tort of malpractice. The standards set for professional services govern the right and the duty in actions in tort, in contrast to actions for mere breach of contract.

The judgment will be affirmed.

Judgment affirmed.

Stevens and Hunsicker, JJ., concur.


author: Hunsicker, J.

text:
    Nelson, d. b. a. Nelson Plumbing & Heating, Appellant, v. Malik et al., Appellees.
    (No. 1279
    Decided July 1, 1953.)

      Messrs. Snoble <& Snoble, for appellant.

      Messrs. Myers, Horan é Ashenbach, for appellees.
   Hunsicker, J.

This appeal on questions of law has been submitted to the court on the briefs of counsel.

The facts show: Mike Grott, a building contractor, had a contract with Anne and Charles Malik, the appellees herein (defendants below), to build for them a home on a certain lot on Gulf Road, Elyria, Ohio; Chris Nelson, the appellant herein (plaintiff below), doing business as “Nelson Plumbing and Heating,” delivered, at the request of Mike Grott, certain plumbing supplies and fixtures to, and stored them in, a garage located at 154 Woodford Avenue, Elyria, Ohio; this material was charged to Mike Grott only; Anne and Charles Malik knew and consented to the storage of the material in the garage, which was owned by a Joseph Malik; none of the material was used in the construction of a home on Gulf Road, for no home was ever built on this lot by Anne and Charles Malik.

There is a conflict in the evidence as to whether any work was done on the Gulf Road lot by Mike Grott toward the building of any structure thereon. The only evidence on this point is that Nelson says that Grott staked out the house and put some footers in. The Maliks say that no work of any kind was done by Grott on the lot.

Grott did not pay Nelson for the material, and, within due time, Nelson filed and recorded an affidavit to obtain a mechanic’s lien on the Gulf Road lot owned by Anne Malik. A copy of this affidavit and a notice to the owner of the filing of the lien were mailed to and received by Anne Malik. She denies that any other affidavit was included in the envelope, although counsel for Nelson, in his testimony given at the trial, says that a contractor’s affidavit was also sent to Mrs. Malik.

The case was tried to the court, and a judgment entered for the defendants, Anne and Charles Malik. Counsel did not ask the court to separately state its conclusions of law and conclusions of fact, and there is no indication in the judgment to show upon what theory the case was decided.'

Counsel for Nelson state the questions raised in the trial court as:

“ (1) Did plaintiff furnish defendant Anne J. Malik, statement of contractor as provided in G. C. 8312?

“(2) Can the plaintiff have a lien upon premises when the material was not delivered to the premises or incorporated in the construction on the premises?”

Was Nelson a subcontractor or a materialman? Section 8323-9, General Code, defines the words ‘ ‘ subcontractor” and “materialman.” The statutes providing for mechanics ’ liens make a distinction between materialmen and subcontractors. The law gives a right to a lien to both classes of lien claimants, but upon conditions essentially different. If Nelson was a subcontractor, then it was necessary for bim to file the affidavit called for by Section 8312, General Code. Van Dorn Iron Works Co. v. Erie-Huron Realty Co., 108 Ohio St., 314, 140 N. E., 325; Matzinger v. Harvard Lumber Co., 115 Ohio St., 555, 155 N. E., 131.

There was one item for labor in handling the material in the account submitted by Nelson, but this was explained as being the work necessary in delivering the plumbing supplies and placing them in storage.

There was no indication in the testimony submitted to the trial court as to what arrangement Nelson had with Mike G-rott. The trial court could have drawn the logical inference that Nelson was to install the plumbing fixtures and material in the home to be later built on Gulf Road, and that therefore Nelson came within the definition of a subcontractor. The trial court likewise could have found that some work had been done, but that the required affidavit of a subcontractor had not been served.

From the state of the record before us, we cannot say the court committed error prejudicial to the substantial rights of Nelson on this claim in the case.

In consideration of the second question, posed by the appellant, Nelson, we think there should be added another phrase, to make the question read:

Can the plaintiff have a lien upon premises when the material was not delivered to the premises or incorporated in the construction on the premises, and no construction was ever begun on the premises ? (Italicized portion added.)

At the onset, in discussing this phase of the case, it will be observed that there is no claim that the material in controversy was altered, changed or fabricated for any special use.

There was a conflict in the testimony as to whether any construction work was performed on the Gulf Road lot by Mike Grott. Counsel agree that no completed house or other structure was placed thereon, and, if any work was done (which Malik denies), it was of no great consequence. The trial court could, from the evidence, have determined that no work was ever performed on the lot in question.

In the case of Robert V. Clapp Co. v. Fox, 124 Ohio St., 331, 178 N. E., 586, the court said:

“1. Mechanics’ lien statutes create rights in derogation of the common law and should therefore be strictly construed as to question whether a lien attaches, but their procedural and remedial provisions should be liberally construed, after the lien has been created. ’ ’

In the early case of Jerecke Mfg. Co. v. Struther, Wells & Co., 14 C. C., 400, 8 C. D., 5, the court said that the provisions of the mechanics’ lien law, as it then existed, were “not available * * * where the property sold was not intended, and does not in fact, become part of such well or structure.” This case is cited with approval in Sklar v. Oil Incomes, Inc., 133 F. (2d), 512 (U. S. Circuit Court of Appeals), wherein the court said at p. 514:

“* * * the general and prevailing rule of construction of such statutes, not only in Louisiana, but elsewhere, is that they are for the benefit of persons who furnish material which is consumed in connection with, or becomes worked, or incorporated, into the property of another.”

See also: Am. & Eng. Annotated Cases, 1912B, p. 19. In the case of Beckel v. Petticrew, 6 Ohio St., 247, the Supreme Court of Ohio announced that:

“The lien authorized by the ‘act to create a lien in favor of mechanics and others in certain cases,’ will extend to all the materials, in good- faith furnished for the purpose of erecting or repairing a house in pursuance of an agreement with the owner, notwithstanding a portion of such materials may subsequently be otherwise appropriated without the consent of the party furnishing them. ’ ’

And in the case of Robert V. Clapp Co. v. Fox, supra, the court said, at p. 337:

“* * * work and labor must be rendered upon the premises, while material need only be suitable to the purpose, requirement and character of the building and necessary to it. Ordinarily, the materials must enter into the structure to permit a lien, but it may well happen that expensive fabrication of materials may be made without the materials being called for, by reason of change of plans and specifications or the failure to complete a building, and the lien would attach though never entering into the structure. This will serve to illustrate the evident purpose of the Legislature in employing the word ‘for’ concerning materials, and the word ‘upon’ as applying to work and labor. ’ ’

For a general discussion on the subject of the right to a lien for material furnished but not used in the construction of a building, see De Witt’s Ohio Mechanics’ Liens (1950 Supp.), Section 83.-

We are not dealing in the instant case with material that has been diverted from the construction project, nor with the subject of materials that were especially fabricated for the building to be erected. There is no building, and the court could reasonably have found that there was no construction. The contractor, Mike Grott, never performed the services he agreed to do, and thus, we do not have incorporated into a building the material of a supplier, whereby such material has lost its identity and become a part of the building. It is upon the theory of lost identity that a lien is given, for when once material is incorporated in whole or in part into a building, the materialman cannot, to satisfy his claim, pursue the merchandise by means of a levy on the particular items delivered to the contractor.

We therefore determine that the language of the mechanics’ lien law (Section 8310 et seq., General Code) contemplates that construction work of some nature must take place upon the premises of an owner before a valid mechanic’s lien can be established; and since the court could have properly found that no work was performed by the contractor, Mike Grott, the materialman, Nelson, is not entitled to a lien on the lands of the owner, Anne Malik, for this reason.

" Judgment affirmed.

Doyle, P. J., and Stevens, J., concur.


author: Miller, J.

text:
    First Discount Corp., Appellee, v. Sutton, d. b. a. King Kar Co., Appellant.
    (No. 5007
    Decided February 26, 1954.)

      Mr. Clarence L. Corkwell, for appellee.

      Mr. John J. Chester and Mr. Clayton M. Rose, Jr., for appellant.
   Miller, J.

This is an appeal on questions of law from a judgment of the Municipal Court of Columbus in favor of the plaintiff, appellee herein, for the balance due on a promissory note, plus interest. The facts are agreed upon and were submitted to the trial court by stipulation. As far as pertinent to the issue raised herein, they reveal that the defendant, appellant herein, King W. Sutton, as part payment for the purchase price of an automobile, accepted the promissory note of one Thomas J. Rogers in the sum of $492.60 which was discounted before maturity to the plaintiff, the First Discount Corporation, for the sum of $400 and that the note was endorsed “without recourse” by the defendant. The maker of the note defaulted and suit was instituted against him, but the action was dismissed for the reason that he was found to be an incompetent person. This action was then instituted against Sutton to recover the full amount due on the note and for which the judgment was rendered. Sutton admits his liability on the restricted endorsement but urges that the amount of recovery should have been limited to the plaintiff’s actual damages because of the breach instead of the balance due on the note. Section 8170, G-eneral Code, provides that a qualified endorser of a promissory note warrants “that all prior parties had capacity to contract”; hence, there can be no question as to the breach of warranty. What is the measure of damages for such breach? The-defendant urges that it is the value of the consideration given by the plaintiff plus interest, less any payments it may have received on the same. We think the authorities support the defendant’s theory of the case.

In the case of Voelker v. Arras, 23 N. P. (N. S.), 69, 65 W. L. B., 239, the same question arose. Although the breach there related to an “illegal consideration” instead of lack of capacity of a prior party, we think the damages must be measured by the same “yardstick.” In the reported case, the court’s charge to the jury appears on page 75 as follows:

“So, gentlemen of the jury, if by a preponderance of the evidence and under the rules of law which I have given you, you find that plaintiff is the owner and holder of the note in question; that he became such owner and holder for a valuable consideration from J. A. Jacobs; that at and before the time he became such owner and holder he had no notice or knowledge of the invalidity of its consideration; that the principal and interest called for in said note is unpaid; that because of such invalidity plaintiff is unable to collect the same from the makers of such note, and that J. A. Jacobs, plaintiff’s immediate endorser, is legally uncollectible; then plaintiff is entitled to a verdict at your hands against defendant for the damages sustained by plaintiff by reason of defendant’s prior ownership, sale and endorsement of said note; and the measure of such damage would be the value of the consideration given or paid by plaintiff to said Jacobs for such note, together with interest on such amount from the date of plaintiff’s purchase of such note to the first day of this term of court, which is April 7, 1919.”

This charge was approved by the Court of Appeals without report on September 5, 1919.

The same rule has been given application in an action for breach of warranty involving the title to real estate in the case of Wetzell v. Richcreek, 53 Ohio St., 62, 40 N. E., 1004. At page 73, the court said:

“The liability of the defendants on their covenants being established, the measure of the damages was not less than that authorized by the rule given in the charge to the jury. In McAlpin v. Woodruff, 11 Ohio St., 120, it is said that, ‘where a grantee of an estate in fee simple, with warranty, is evicted by paramount title, of his entire estate, the rule of damages is settled in Ohio to be the amount of the original purchase money, with interest, not, however, to exceed the time limited by statute for the recovery of mesne profits from the time of eviction. So, if he be evicted of a definite portion of the premises, the damages are a proportional amount of the purchase money with like interest. King v. Kerr’s Adm’r., 5 Ohio, 154; Foote v. Burnet, 10 Ohio, 317; Adm’rs. of Backus v. McCoy, 3 Ohio, 211; Clarke v. Parr, 14 Ohio, 118. ’ ’

In Pine-Brownell Co. v. Coleman, 63 Ohio App., 259, 26 N. E. (2d), 216, the action was brought under Section 8416, General Code, for a breach of warranty in the sale of a certificate of deposit which was transferred by delivery. Section 8416, General Code, provides that when such transfers are made, certain warranties accompany the transfer, which are very similar to those in Section 8170, General Code. The court there held that the measure of damages was the amount of money paid for the certificate. The plaintiff relies on the case of First Discount Corp. v. Hatcher Auto Sales, Inc., 90 Ohio App., 553, 104 N. E. (2d), 587, affirmed in 156 Ohio St., 191, 102 N. E. (2d), 4, but an examination of that case discloses that the measure of determining the damages was not an issue. • The court there merely found that a qualified endorser of a promissory note is liable for a breach of any of the warranties found in Section 8170, General Code. The other issues in the case are foreign to those in the case at bar.

It is our conclusion that one who endorses a note “without recourse” does not guarantee the payment of the same but warrants the four items enumerated in Section 8170, General Code. No action lies on the endorsement for by his written contract he expressly declines to assume such responsibility. The endorsement effects a transfer of the title to the instrument without imposing the liability for the payment of the same. The endorser is a mere assignor of the title to the instrument. Section 8143, General Code (Section 1301.40, Revised Code). He is, therefore, liable as a vendor. Dumont v. Williamson, 18 Ohio St., 515, 98 Am. Dec., 186; Drennan v. Bunn, 124 Ill., 175, 16 N. E., 100, 7 Am. St. Rep., 354; Watson v. Chesire, 18 Iowa, 202, 87 Am. Dec., 382; Challiss v. McCrum, 22 Kan., 157, 31 Am. Rep., 181; Carroll v. Nodine, 41 Ore., 412, 69 P., 51. The measure of damages for a breach of warranty under the sales act is defined by subdivision (6) of Section 8449, General Code, as the loss directly and naturally resulting in the ordinary course of events from the breach of warranty.

The judgment is reversed, and the cause is remanded with instructions that judgment be rendered in accordance with the legal principles herein announced.

Judgment reversed.

Wiseman, P. J., and Hornbeck, J., concur.


author: Guernsey, J.

text:
    Waxler et al., v. Smith, Justice of the Peace, et al.
    (No. 422
    Decided February 14, 1953.)

      Mr. Boy Warren Boof, for plaintiffs.

      Messrs. Kaylor & Baylor, for defendants.
   Guernsey, J.

This is an action in prohibition instituted in this court by the plaintiffs, Vachel N. Waxier and Esther Waxier, against the defendants, Worley Smith, Justice of the Peace of Pleasant Township, Hardin County, Ohio, and Clay Guider, constable of the Justice of the Peace Court of Pleasant Township, Hardin County, Ohio, seeking to restrain the enforcement of a judgment recovered by one Charles W. Fox against the plaintiffs herein in an action in forcible entry and detainer in the court of said justice wherein it was adjudged that Charles W. Fox have restitution of the premises described in his complaint in the forcible entry and detainer action.

The prayer of the petition in prohibition in this court is as follows:

“Wherefore, plaintiffs pray the court for their allowance of an alternative or temporary writ of pro-, hibition, restraining the defendant, the Justice of the Peace Court, of Pleasant Township, Hardin County, Ohio, and defendant Worley Smith, Justice of the Peace of said Justice of the Peace Court of Pleasant Township, Hardin County, Ohio, from further proceeding in said action and from enforcing his said judgment by default in said action by attempting to enforce a writ of restitution and dispossessing plaintiffs from their home; and that the court also allow an immediate temporary writ of prohibition herein, restraining the defendant, Clay Guider, constable, from executing said writ of restitution issued to him by the defendant, Worley Smith, justice of the peace, and that notice of the filing of this action be served upon the defendants herein, as aforesaid, in such manner as this court may direct, and requiring said defendants to show cause, upon a day named therein, why a writ of this court should not prohibit them from proceeding with enforcing said judgment in said court, aforesaid, and the granting and decreeing of any further orders on the judgment therein as this court should issue, and for such other and further relief as the nature of this case may require, together with the costs of the action.”

Each of the defendants named in the amended petition filed their separate general demurrers thereto, and Charles W. Pox, who procured the judgment of restitution in the action in the justice court, upon his motion, was made a party defendant to the prohibition action by this court and filed his separate general demurrer to the amended petition. The demurrers were heard together and will be considered in the same manner.

Plaintiffs predicate their right to the relief prayed for in their petition to allegations therein purporting to show and relied upon by them as showing that the justice court did not have jurisdiction to render the judgment of restitution.

From the above quoted prayer of the petition, it appears that all the relief sought by the plaintiffs is against the enforcement of the judgment of restitution rendered prior to the commencement of this action in prohibition.

It will be noted also that the plaintiffs herein seek a writ of prohibition restraining the defendant' constable from executing the writ of restitution issued to said constable by said justice of the peace.

It was held by the Supreme Court of Ohio in the case of State, ex rel. Marysville Bridge Co., v. Quinlan, Judge, 124 Ohio St., 658, 181 N. E., 880, that a writ of prohibition may be awarded only to prevent the unlawful usurpation of jurisdiction, and does not lie to prevent the enforcement of a claimed erroneous judgment previously rendered; that it may be invoked only to prevent proceeding in a matter in which there is abuse of jurisdiction and not to review the regularity of an act already performed.

In a case subsequently heard by the Supreme Court, being the case of State, ex rel. Frasch, v. Miller, Judge, 126 Ohio St., 287, 185 N. E., 193, it was held:

“A writ of prohibition will not issue upon application made subsequent to the rendition of final judgment by the court whose action is sought to be prohibited. ’ ’

This latter case was one in which the petitioner sought a writ of prohibition to restrain enforcement of a judgment of restitution in an action in forcible entry and detainer upon the ground that the court rendering the judgment of restitution did not have jurisdiction of said action of forcible entry and detainer.

The case at bar clearly comes within the purview of and is governed by the above-mentioned holdings insofar as the right of the plaintiffs to have relief by way of a writ of prohibition is concerned. Under these holdings, the plaintiffs are not entitled to the writ of prohibition sought by them and plaintiffs’ petition for this reason does not state facts sufficient to constitute a cause of action.

The act of the defendant constable, sought to be prohibited, is a ministerial act. The extraordinary remedy of prohibition is not available to prevent the performance of a purely ministerial act. State, ex rel. Meurer, v. Eyrich, Jr., 154 Ohio St., 471, 96 N. E. (2d), 412.

For the reason first above mentioned, the separate demurrers of the defendants to the amended petition are sustained, and the demurrer of the defendant constable is also sustained for the additional reason last above mentioned.

The plaintiffs are granted leave for the period of 10 days from the time the minutes of the decision herein are entered upon the trial docket of this court, in which to further plead if they so desire, but in the event that plaintiffs do not further plead within said 10-day period, judgment will be rendered herein in favor of defendants vacating the alternative writ of prohibition issued herein and dismissing plaintiffs’ amended petition at their costs.

Judgment accordingly.

Younger, P. J., and Middleton, J., concur.