Beacon Mut. Indem. Co. v. Stalder

• Citation: 120 N.E.2d 743,95 Ohio App. 441
• Parties: , 54 O.O. 69 BEACON MUT. INDEMNITY CO. v. STALDER.
• Decision Date: 21 April 1954
• Court: Ohio Court of Appeals

Page 441

95 Ohio App. 441

120 N.E.2d 743, 54 O.O. 69

BEACON MUT. INDEMNITY CO. v. STALDER.

Court of Appeals of Ohio, Summit County.

April 21, 1954.

Syllabus by the Court.

1. Claims against the estate of a deceased person must be presented to the administrator or executor in writing within four months after the date of the executor's or administrator's appointment, Section 10509-112, General Code; Section 2117.06, Revised Code, unless the Probate Court thereafter authorizes the presentment under the provisions of Section 10509-134, General Code, or Section 2117.07, Revised Code.

2. Claims not filed by a claimant with an administrator or executor within the requirements of the statutes are forever barred, subsequent to nine months from the appointment of the administrator or executor.

3. A petition seeking judgment on a claim against the estate of a deceased person which fails to allege compliance with Section 10509-112, General Code (now Section 2117.06, Revised Code), or the presentation of a claim pursuant to authorization by the Probate Court under the provisions of Section 10509-134, General Code (now Section 2117.07, Revised Code), does not state facts sufficient to constitute a cause of action.

4. The presentation of a claim against an estate to the agent of an insurance company appointed by the administrator as his agent, does not satisfy the statute, and the claim becomes barred at the end of the time fixed by statute, unless otherwise properly presented.

5. Unliquidated claims for damages against the estate of a deceased person fall within the purview of Section 10509-112, General Code (now Section 2117.06, Revised Code), and Section 10509-134, General Code (now Section 2117.07, Revised Code).

Fred J. Livingstone, Cleveland, for appellant.

Smoyer & Smoyer, Akron, for appellee.

DOYLE, Presiding Judge.

Section 10509-112, General Code, 119 Ohio Laws, 394, provided for the presentation of the claims of creditors to the executor or administrator of the estate of a deceased person. It was 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. All claims shall be presented within four months after the date of the appointment of the executor or administrator.' (Emphasis ours.)

(With several changes the section now appears as 2117.06, Revised Code.)

Section 10509-134, General Code (now Section 2117.07 Revised Code), permitted a claimant, who had failed to present his claim within the period of time prescribed in the above Section 10509-112, General Code (now Section 2117.06, Revised Code), to petition the Probate Court for authority to present his claim to the administrator after the expiration of the four-month period. The statute set forth specific grounds upon which the court could, pursuant to hearing, 'authorize such claimant to present his claim * * *; provided, however, 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 devisees, legatees and distributees, and no payment shall be made nor any action maintained thereon, except as otherwise provided in this chapter with reference to contingent claims.'

In the appeal now under consideration, the question presented is whether the amended petition filed in the Municipal Court of Akron was sufficient to show that the requirements of the above statute were met. If the petition made such showing, the court erred in striking the challenged paragraphs from the pleading and in sustaining a demurrer, and, upon a refusal to plead further, erred in dismissing the petition. If the petition was deficient in respect to showing a compliance with the statutes, the trial court did not err, and the judgment would have to be affirmed.

The statutes in question were what were known as 'nonclaim' statutes--that is, statutes which required an act to be done as a prerequisite to the accrual of a cause of action; and the general rule as to such statutes is that all persons * * * are bound thereby unless excepted from their operation by a saving clause. Breen v. Conn, 64 Ohio App. 325, at pages 327-328, 28 N.E.2d 684, 685.

'* * * a petition * * * which does not allege that the claim has been so presented, does not state facts sufficient to constitute a cause of action.' Ibid. And see: Beach v. Mizner, 131 Ohio St. 481, 3 N.E.2d 417.

That a person having an unliquidated claim for damages arising out of tort is a 'claimant' within the meaning of the statute cannot be seriously doubted. Pierce v. Johnson, 136 Ohio St. 95, 23 N.E.2d 993, 125 A.L.R. 867.

We now proceed to examine the amended petition. It is stated in substance that The Beacon Mutual Indemnity Co., the plaintiff, had issued its policy of insurance, insuring one Denver C. Sampson against loss and damage to his automobile 'by reason of its collision with other cars * * *.' While Sampson was driving his automobile on a public highway, he came into collision with an automobile being operated by Christian H. Stalder, Sr., and it is claimed that the negligence of Stalder, Sr., proximately caused the collision and damage to his car. The petition further alleged that the plaintiff Insurance Co. paid to Sampson, under its policy of insurance, $814.28 (the amount of damage, minus a deduction of $50 under policy terms), and, consequently, 'has become subrogated to all rights, claims and causes of action which said Denver C. Sampson, its insured, has against defendant on account of the aforesaid collision and damage.' The amended petition further alleged that the accident occurred on September 6, 1952, and that Christian H. Stalder, Jr., was appointed administrator of Christian H. Stalder, Sr.'s, estate on the 7th day of October, 1952.

The following two paragraphs are claimed by the appellant to satisfy the statute hereinbefore set forth regulating the presentation of the claim to the administrator:

'Plaintiff further says that at the time of the aforesaid collision and damage, defendant's decedent was insured by the General Accident, Fire and Life Assurance Corporation; that under the policy of insurance issued by said corporation, it agree to defend defendant's decedent against suits alleging injury or destruction of property caused by accident arising out of the use of the automobile of defendant's decedent; that under said policy the corporation reserved the right to investigate and negotiate settlements of any suit or claim as it deemed expedient; that under said policy defen...