Summary
In Wrinkle v. Trabert (1963), 174 Ohio St. 233, this court, overruling Hoiles v. Riddle, held that the statute of limitations begins to run upon a claim for personal injuries at the time the injuries are sustained, even though the person against whom the action would be brought is killed in the accident in which the injuries occurred.
Summary of this case from Peterson v. TeodosioOpinion
Nos. 37494 and 37495
Decided February 27, 1963.
Limitation of actions — Tort claim for personal injuries — Statute begins to run, when — Claim against estate — Duty to procure appointment of administrator — Pleading — Substitution of amended petition abandonment of earlier one — Administrator — Acts of, not valid before issuance of letters — Doctrine of "relation back" applicable, when — Letters issued after limitation has run — Administrator without authority to validate act prior to issuance of letters.
1. The statute of limitations for an action for personal injuries begins to run at the time the injuries are sustained even though the person against whom such action would be brougt is killed in the accident in which such injuries occurred. ( Hoiles v. Riddle, Admr., 74 Ohio St. 173, overruled.)
2. Where one has a claim against an estate, it is incumbent upon him, if no administrator has been appointed, to procure the appointment of an administrator against whom he can proceed. (Section 2113.06, Revised Code.)
3. The substitution of an amended petition for an earlier one ordinarily constitutes an abandonment of the earlier pleading and a reliance upon the amended one. (Paragraph one of the syllabus in Grimm v. Modest, 135 Ohio St. 275, approved and followed.)
4. Ordinarily, no act or transaction by a fiduciary shall be valid prior to the issuance of letters of appointment to him. (Section 2109.02, Revised Code.)
5. The doctrine of "relation back" validates acts or transactions previous to the appointment of an administrator of an estate only in those instances where the doctrine results in a benefit to the estate.
6. Where the letters of appointment of an administrator are not issued until after the statute of limitations has run as to a tort action against the estate, the administrator has no authority to validate an attempted defense of such action by him undertaken before the issuance of his letters of appointment.
APPEALS from the Court of Appeals for Hamilton County.
There are two causes involved in these appeals, one being an action for personal injuries and the other being for personal property damage. The causes arose out of the same accident, were tried together in the courts below, and will be disposed of together as one cause.
James Wrinkle (plaintiff in case No. 37494) was injured in an automobile collision in the city of Cincinnati on January 15, 1956. At the time of the accident, Wrinkle was driving for Highland Motor Company (plaintiff in case No. 37495), and Wrinkle and Highland Motor Company are the appellants herein and herein will be referred to as plaintiff. The accident occurred when plaintiff's automobile collided with an automobile operated by Elwood Hughes who was killed in the collision.
Within five days of Hughes' death, an application to relieve his estate from administration was filed in the Probate Court of Hamilton County, and consequently no administrator was appointed.
In view of the absence of an administrator amenable to suit, plaintiff's attorney, in May of 1957, filed an application in the Probate Court of Hamilton County for the appointment of J. Marc Trabert as administrator of the estate of the decedent. Trabert is the defendant, appellee herein, and herein sometimes will be referred to as the administrator.
Plaintiff presented his claim to Trabert who rejected the claim on December 3, 1957. Thereafter on December 24, 1957, plaintiff instituted an action against Trabert and Jake Sweeney, Inc., a new and used car dealer, alleging in the petition that, at the time of the collision, Jake Sweeney, Inc., and Hughes were engaged in a joint venture.
On July 1, 1958, an answer was filed by Sweeney, and on May 15, 1959, the answer of Trabert was filed by leave of court.
On June 21, 1960, a second amended petition was filed by plaintiff, which petition was directed solely to Trabert and in which the allegations as to joint venture were omitted. On June 29, 1960, Trabert filed an answer to the second amended petition.
At the commencement of the trial on December 2, 1960, a question was raised as to the letters of appointment of the administrator, and it was discovered that for some reason the letters, although applied for, had never been issued. Thereupon, the letters were issued under date of December 5, 1960, and the administrator, Trabert, again rejected plaintiff's claim. Plaintiff then filed a supplement to the second amended petition alleging such rejection. To this second amended petition with supplement, the administrator demurred upon the ground that the statutory time for the commencement of the action had elapsed. This demurrer was sustained by the trial court.
The judgment of the Court of Common Pleas was affirmed by the Court of Appeals.
The cause is before this court pursuant to the allowance of a motion to certify the record.
Messrs. Hooever, Beall Eichel, for appellants.
Messrs. Lindhorst Dreidame, for appellee.
The issue in this cause is whether an action is properly commenced so as to bar the defense of the statute of limitations, where such action is instituted within the statutory period of limitation against one acting as administrator whose letters of administration, although applied for within the period of limitation, were not issued until such period had elapsed.
The general rule is, of course, that an administrator has no power or authority to act as a representative of the estate until he is properly vested with authority by issuance of letters of appointment to him by the Probate Court. This rule has been incorporated in the statutes of Ohio.
Section 2109.02, Revised Code, states in part:
"No act or transaction by a fiduciary shall be valid prior to the issuance of letters of appointment to him."
In spite of this statutory mandate, plaintiff contends that the appointment of the administrator when completed relates back to the time of the application for his letters of appointment.
The doctrine of "relation back" was applied in the cases of Archdeacon, Admr., v. Cincinnati Gas Electric Co., 76 Ohio St. 97, and Douglas, Admx., v. Daniel Bros. Coal Co., 135 Ohio St. 641. An examination of those cases reveals that in each instance the application of the doctrine was in accordance with the general view that such doctrine would be applied in those instances where the result would be to benefit the estate.
Plaintiff contends that a benefit to the estate is not necessary to the doctrine of "relation back," but an investigation of the underlying reasons for the rule reveals that plaintiff's contention is not sound.
Customarily, there is a delay between death and the appointment of an administrator, and during this period rights ofttimes accrue which might well be lost to the estate if someone, even one without authority, could not act to protect such rights and have such acts subsequently validated by the proper appointment of an administrator. Thus, "relation back" is necessary to protect estates and aid administrators in the fulfillment of their duties of administration.
On the other hand, one who has a claim against an estate which has been relieved from administration has it within his power to preserve such claim by instigating the appointment of an administrator to whom he can present such claim. See Section 2113.06, Revised Code. If such a party fails through lack of diligence to procure such appointment within time to properly urge his claim, or, as in the present cause, he starts such procedure but fails to see that it is consummated, the law should not come to his aid.
Since the doctrine of "relation back" in the appointment of an administrator applies only in those instances where the application of the doctrine results in a benefit to the estate, there can be no such application in this cause.
Plaintiff's next contention is that, since decedent was killed in the accident, the statute of limitations has not run because there was no one to whom he could present his claim until the administrator was properly appointed.
Since decedent was killed in the accident and plaintiff was injured at the same time, plaintiff's cause of action accrued either at the time of decedent's death or before decedent died. If it accrued prior to decedent's death, then clearly the statute of limitations commenced running at that time and was not tolled by decedent's subsequent death. Granger's Admr. v. Granger, 6 Ohio, 35; Bartlow v. Kinnard, 38 Ohio St. 373; annotation, 174 A.L.R., 1423. If the cause of action arose at the same time as decedent's death, then we are confronted with a more difficult proposition. Ordinarily, a cause of action accrues at the time the injury is sustained, but plaintiff contends that in a case such as this the statute of limitations can not run because there is no one in existence to proceed against until an administrator is appointed.
In support of this proposition plaintiff cites the case of Hoiles v. Riddle, Admr., 74 Ohio St. 173. That case holds that, where the defendant dies at the time of the accrual of the cause of action, the statute of limitations does not begin to run until an administrator is appointed, upon the theory that until such appointment there is no one in existence to whom a claim can be presented. The difficulty with such a rule is that it makes it possible for a claimant in a case where no administrator is appointed to withhold his claim indefinitely without proceeding with the diligence generally required by the law.
The reasoning of the Hoiles case is repugnant to the normal procedure in probate matters, where the early settlement of estates is favored. We think that the holding in the Hoiles case leads to an indefensible prolongation of matters which should be expeditiously concluded. Therefore, the Hoiles case is overruled.
There is no sound reason why a distinction should be made between cases where the defendant survives the accident from which the injuries occurred and those in which the defendant is killed. Thus, the statute of limitations for an action for personal injuries begins to run at the time of the injuries even though the person against whom such action would be brought is killed in the accident.
If this seems to be a harsh result to the plaintiff in this instance, it need not have been. Plaintiff had immediate knowledge of the death of the decedent and a course of action to pursue. Under Section 2113.06, Revised Code, plaintiff had the power to secure the appointment of an administrator within the statutory period of limitation. In fact, plaintiff was aware of this but failed, through his own lack of diligence, to perfect the appointment. Plaintiff's failure should not lead to the relaxation of what we think should be the sounder rule in such instances, that is, where one has a claim against an estate, it is incumbent upon him, if no administrator has been appointed, to procure the appointment of an administrator against whom he can proceed.
Plaintiff's final contention is that the original petition was filed against codefendants, alleging joint venture, and that service on the other defendant, Jake Sweeney, Inc., commenced the action as to the administrator, under Section 2305.17, Revised Code.
Section 2305.17, Revised Code, as in effect in 1956, read in part:
"An action is commenced * * * as to each defendant, at the date of the summons which is served on him or on a codefendant who is a joint contractor, or otherwise united in interest with him. * * *"
Inasmuch as Sweeney was not dismissed by entry in the trial court, plaintiff asserts that the service on Sweeney commenced the action as to the administrator.
Plaintiff makes this contention, even though plaintiff's second amended petition was not directed to Sweeney as a defendant and the allegations pertaining to Sweeney were entirely omitted therein. Trial was commenced on the second amended petition and supplement thereto, and prior pleadings were no longer part of the cause. As was stated by this court in paragraph one of the syllabus in Grimm v. Modest, 135 Ohio St. 275, "the substitution of an amended petition for an earlier one ordinarily constitutes an abandonment of the earlier pleading and a reliance upon the amended one." See, also, Raymond v. T., St. L. K.C.R.R. Co., 57 Ohio St. 271, and State, ex rel. Talaba, v. Moreland, Judge, 132 Ohio St. 71, 75.
The effect of plaintiff's filing of his second amended petition and supplement, omitting therein Sweeney as a defendant, was to abandon the action as to Sweeney. Since Sweeney was eliminated as a defendant, plaintiff can not now utilize the service upon Sweeney to claim commencement of the action as to the administrator.
Since plaintiff's contentions are without merit, the judgment of the Court of Appeals is affirmed.
Judgments affirmed.
TAFT, C.J., ZIMMERMAN, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.