Baker v. Farish

• Decision Date: 02 July 1964
• Docket Number: No. 58645,58645
• Citation: 202 N.E.2d 331,1 Ohio Misc. 1
• Parties: , 30 O.O.2d 606 Edgar R. BAKER, Plaintiff, v. Nellie Amlin FARISH, Administratrix of the Estate of Buddy True Farish, deceased, and Wade-Walsh Chevrolet, Inc., Defendants.
• Court: Ohio Court of Common Pleas

Page 1

1 Ohio Misc. 1

202 N.E.2d 331, 30 O.O.2d 606

Edgar R. BAKER, Plaintiff, v. Nellie Amlin FARISH, Administratrix of the Estate of Buddy True Farish, deceased, and Wade-Walsh Chevrolet, Inc., Defendants.

No. 58645.

Court of Common Pleas of Ohio, Clark County.

July 2, 1964.

Frayne, Balzer, Warren & Andreoff, Springfield, for plaintiff.

Thomas J. Veskauf and James M. Gorman, Springfield, for defendants.

GOLDMAN, Judge.

This matter is before the Court on motion for summary judgment filed by the defendant administratrix, one of two defendants in this action. This motion was filed pursuant to stipulations arrived at during pretrial conference and was submitted to the Court upon the affidavits, depositions and briefs filed by the parties involved.

The undisputed facts are as follows:

On July 20, 1962, an accident occurred which is the subject matter of this action. The accident involved plaintiff, driver of one vehicle, and defendant's decedent, the driver of the other vehicle. Decedent died as a result of that accident.

On August 7, 1962, the defendant was appointed administratrix of decedent's estate. No claim for damages on behalf of plaintiff was ever presented or filed with the defendant administratrix.

On September 21, 1963, more than 13 months after the appointment of the defendant as administratrix, the plaintiff filed his petition in this Court, joining as co-defendants the administratrix and the company alleged to have been decedent's employer at the time of the accident.

As late as August 8, 1963, section 2117.06 R.C. required the filing of claims such as the instant one within four months after the appointment of the administrator. After the expiration of such four-month period, upon proper application, the Probate Court could authorize such presentment by claimant under certain conditions. Section 2117.07, R.C. authorized a claimant to present his claim to an executor or administrator, following the expiration of four months, if the Probate Court, among other things, found '(b) [t]hat the claimant's failure to present his claim was * * * due to any wrongful act or statement on the part of the executor or administrator or his attorney.' (All emphasis in this Opinion by the Court.)

Moreover, this section also provided that '[a] claim which is not presented within nine months from the appointment of the executor or administrator shall be forever barred as to all parties, including * * * [etc.], except * * * with reference to contingent claims.'

Thus, as of August 8, 1963, exactly one year had elapsed following the appointment of the defendant as administratrix without plaintiff either presenting his claim to the defendant or asking for leave to do so, and without filing suit.

However, on August 9, 1963, section 2117.07, R.C., as amended, became effective. The quotations from the previous statute above cited were continued into the amended section, but one pertinent change was made in the following added paragraph:

'Nothing in this section or in section 2117.06 of the Revised Code shall reduce the time mentioned in section 2305.10 of the Revised Code, provided that no question of any recovery on a claim brought pursuant to such section shall come from the assets of an estate unless such claim has been presented against the estate in accordance with Chapter 2117. of the Revised Code.'

This added paragraph obviously provided that when recovery from a tortfeasor was to be satisfied from insurance, and would not consume any of the assets of a decedent's estate, that in such event the two-year statute of limitation for bringing and action for injury to person or property as provided for by section 2305.10, R.C. would apply, and would not bar an action, notwithstanding the requirement of presentment of claim to the administrator within at least nine months from the date of a ppointment of the administrator, as above set forth.

This amended section became effective August 9, 1963, over one year following the date of the appointment of the defendant as administratrix.

Thereafter, on September 21, 1963, the present action was instituted.

It seems clear that, had the petition been filed in this Court on August 8, 1963, prior to the effective date of 2117.07, R.C. as amended, the action would have failed, because it would have been 'forever barred' for failure to have filed anything within nine months, either with the administrator, the Probate Court, or by suit in this Court.

The principal issue thus presented by this motion for summary judgment is whether or not the amended section, effective more than one year following appointment of defendant as administratix, revived plaintiff's cause of action previously 'barred forever' so that plaintiff may now proceed with this action on condition only that he satisfy any recovery from the decedent's insurer and not from the assets of his estate.

Defendant administratrix in her answer pled the bar as appearing in 2117.07, R.C. both before and after amended. Plaintiff in his reply seeks to avoid the effect of said bar by asserting the fact of alleged insurance and by his further claim that, in any event, he was deceived and lulled into inactivity by reason of representations fraudulently made by a representative of the alleged insuror to the effect that plaintiff's claim would be taken care of. Plaintiff contends that these fraudulent representations estop defendant administratrix from taking advantage of the statute of limitation.

Most of the argument in briefs filed by the parties is directed to the effect of the savings clause added in section 2117.07, R.C. as amended, upon plaintiff's cause of action against the defendant administratrix.

The Court has examined the citations referred to in the briefs of counsel, as well as the affidavits, depositions and exhibits offered by both parties in support of their respective positions.

The initial issue to be considered, therefore, is, what effect, if any, did amended section 2117.07, R.C. have on plaintiff's cause of action against defendant administratrix?

As previously pointed out, section 2117.07, R.C., both before and after amendment, expressly provides that a claim not presented within nine months from the appointment of the administratrix 'shall be forever barred as to all parties,' and further provides that 'no payment shall be made nor any action maintained thereon.' It is difficult to conceive language any clearer or more sweeping in its intended effect.

Was plaintiff's action which was 'forever barred' as of August 8, 1963, and for which no suit could have been maintained at least as of that date, revived by the savings clause in the amended section, so that plaintiff may now pursue his action against defendant administratrix notwithstanding it was 'forever barred,' on condition only that he satisfy any recovery against decedent's alleged insurer?

Plaintiff would answer this question in the affirmative, and would seem to contend that, while 2117.07, R.C. before amended clearly stated that any claim after nine months not presented should be forever barred, nevertheless the Court should judicially interpret and amend that section by adding thereto the following proviso: 'unless this section is any time hereafter amended or repealed before the two-year statute of limitation expires.'

Sections 2117.06 and 2117.07, R.C. have been held to be statutes of limitation or nonclaim statutes which bar creditors' claims unless presented to an executor or administrator within four months after the date of appointment, or unless on proper showing are permitted to be presented by the Probate Court after four months but no later than nine months after the appointment of the administrator. The requirements of these statutes have always been considered to be mandatory, to the extent that they could not be waived even by the administrator himself. See Beach v. Mizner, 131 Ohio St. 481, 3 N.E.2d 417, and Prudential of America Insurance Company v. Joyce Building Realty Company, 143 Ohio St. 564, 56 N.E.2d 168.

It should be noted that section 2117.07, R.C. as now amended lengthens and stretches the nine-months statute of limitation expressly provided by it, to the full two-year statute of limitation provided for by section 2305.10, R.C. for actions involving injury to person or property, provided only that any recovery in that event not be satisfied from the...