Bruney v. Little

• Decision Date: 15 June 1966
• Docket Number: No. 22781,22781
• Citation: 8 Ohio Misc. 393,222 N.E.2d 446
• Parties: , 37 O.O.2d 100, 37 O.O.2d 393 Virginia BRUNEY et al., Plaintiff, v. Harold G. LITTLE, M. D., et al., Defendants.
• Court: Ohio Court of Common Pleas

Page 393

8 Ohio Misc. 393

222 N.E.2d 446, 37 O.O.2d 100, 37 O.O.2d 393

Virginia BRUNEY et al., Plaintiff, v. Harold G. LITTLE, M. D., et al., Defendants.

No. 22781.

Court of Common Pleas of Ohio, Belmont County.

June 15, 1966.

[222 N.E.2d 448] Spangenberg, Hasenflue, Shibley & Traci, Cleveland, for plaintiff Virginia Bruney.

Kinder, Kinder & Kinder, Martins Ferry, for defendant Martins Ferry Hospital and defendant Harold G. Little, M.D.

Thomas & Thomas, Bridgeport, and Frank J. O'Brien, Jr., Wheeling, W. Va., for defendant A. S. Daniel, M.D.

Thornburg & Furbee, St. Clairsville, for defendant J. H. Carson, M.D.

OPINION

MATZ, Judge.

The petition in this case alleges that on the 28th day of February, 1965, plaintiff was 'admitted as a patient at defendant Martins Ferry Hospital in the services of defendants J. H. Carson and A. S. Daniel, both duly qualified and licensed physicians for the treatment of breast conditions'; that on or about the first day of March, 1965, plaintiff underwent certain surgical procedures in the Martins Ferry Hospital and that by reason of the negligence of said named physicians and of Dr. Harold G. Little, who was a pathologist employed by the hospital, the plaintiff suffered certain personal damage and injury for which judgment is prayed for in the sum of $150,000.00.

Personal service under the regular process statute of Ohio was obtained on the defendant Martins Ferry Hospital Association and defendant J. H. Carson. The defendants Harold G. Little and A. S. Daniel were non-residents of Ohio and service was attempted to be had under the provisions of the 'long-arm' statute of Ohio. (Sec. 2307.381 to 2307.385 of the Revised Code.)

A motion was filed by the defendant Dr. A. S. Daniel to quash the service of summons on him for the following reasons:

(1) That service of summons was not made upon the defendant in accordance with the provisions of Section 2307.383 (2307.38.3), Revised Code.

(2) 'That such service and the statutes of Ohio authorizing the same insofar as attempted to be applied herein are in contravention of Art. 1, Sec. 16 and Art. II, Sec. 28 of the Constitution of Ohio and Sec. 1 of Amendment XIV of the Constitution of the United States.'

(3) That the cause of action alleged in the petition accrued prior to the effective date of Section 2307.381 (2307.38.1), et seq., Revised Code.

The defendant Dr. Harold G. Little filed a motion to quash the service of summons on him for the reason that the cause of action stated in the petition against him is 'shown by the petition to have arisen prior to the 28th day of September, 1965', the effective date of Section 2307.383 (2307.38.3), Revised Code and that said 'statute or statutes as they apply to him are contrary to the Fourteenth Amendment (of the Constitution) of the United States and Article 1, Section 16, and Article 2, Section 28, of the Constitution of the State of Ohio.'

We will consider the motion of Dr. Daniel first, considering his claim that the service of summons upon him was not made in accordance with the provisions of Section 2307.383 (2307.38.3), Revised Code of Ohio. Section 2307.381 (2307.38.1), Revised Code is the definitive Section. Section 2307.382 (2307.38.2) Revised Code, provides in part,

'(A) A court may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action arising from the person's:

(1) Transacting any business in this state;

(2) * * *

(3) Causing tortious injury by an act or omission in this state;

(4) * * *

(5) * * *

(6) * * *

(7) * * *

'(B) When jurisdiction over a person is based solely upon this section, only a cause of action arising from acts enumerated in this section may be asserted against him.'

The next section, Section 2307.383 (2307.38.3), Revised Code, provides as follows:

'When personal jurisdiction is authorized by section 2307.382 (2307.38.2) of the Revised Code service of process may be made on such person, or any agent of such person, in any county in this state where he may be found or on the secretary of state who, for this purpose, shall be deemed to be the statutory agent of such person.

'Such process shall be served, by the officer to whom the same is directed, or by the sheriff of Franklin county, who may be deputized for such purposes by the officer to whom the service is directed, upon the secretary of state by leaving at the office of the secretary of state, at least fifteen days before the return day of such process, a true and attested copy thereof, and by sending to the defendant, by registered mail, postage prepaid, a like true and attested copy, with an indorsement thereon of the service upon said secretary of state, addressed to such defendant at his last known address. The registered mail return receipt of such defendant shall be attached to and made a part of the return of service of such process.'

Section 2307.384 (2307.38.4), Revised Code, reads as follows:

'When the exercise of personal jurisdiction is authorized by sections 2307.381 (2307.38.1) to 2307.385 (2307.38.5), inclusive, of the Revised Code, any action or suit may be brought in the county wherein the plaintiff resides or where the cause of action or any part thereof arose.'

The last section of the 'long-arm statute', Section 2307.385 (2307.38.5), Revised Code, provides:

'A court of this state may exercise jurisdiction on any other basis authorized in the Revised Code notwithstanding sections 2307.381 (2307.38.1) to 2307.385 (2307.38.5), inclusive, of the Revised Code.'

The summons was issued to the Sheriff of Belmont County who deputized the Sheriff of Franklin County 'for the purpose of serving the within writ upon the secretary of state of the State of Ohio, agent for the service of process on the within named defendants.' Attached to the summons is the return of the Sheriff of Franklin County in which he recites his authorization by the Sheriff of Belmont County, service of same upon the secretary of state, and further recites.

'I also on the 2 day of March, 1966, served the within named defendant, Harold G. Little, M.D., 5 Stramm Lane, Wheeling, West Virginia; and A. S. Daniel, M.D., 80 Mt. Lebanon Drive, Bethlehem, West Virginia, by sending each of them at their last known address * * * a true and attested copy thereof with an endorsement thereon of the service on the Secretary of State of the State of Ohio,'

and further recites,

'The registered mail return receipt of said defendant, Harold G. Little, is attached hereto and made a part hereof. The registered letter sent to said A. S. Daniel, M.D., returned no such Post Office or city in State, is attached hereto, and made a part hereof.'

And attached thereto is the envelope containing summons as to defendant Daniel which has stamped thereon a notation, 'No such Post Office in State'.

The original summons has endorsed thereon a return by the Sheriff of Belmont County which reads in part as follows:

'Received this writ February 23, 1966, at 3:00 o'clock P.M., and on February 25th, 1966, I served the within named Harold G. Little, M.D. and A. S. Daniel M.D., by sending to each of them at their last known address by registered mail * * * with an endorsement thereon of the service upon the secretary of state of the State of Ohio.'

By the affidavit of the Post Master of Wheeling, West Virginia, it is definitely established that there is no post office at Bethlehem, West Virginia.

The copy of the summons mailed by the Sheriff of Belmont County was, in fact, delivered to defendant Daniel in due time. A copy of the summons which the defendant received is attached to the Affidavit of Frank A. O'Brien, Jr., one of counsel representing defendant Daniel which was certified by the Sheriff of Belmont County as a true copy. It does not, however, contain an endorsement that a copy of the original summons was served on the Secretary of State. In fact, the Belmont County Sheriff's return shows that a copy of the summons was sent by mail on February 24, 1966, which is corroborated by the Post Master's stamp on the envelope, at which time, according to the return of the Sheriff of Franklin County, summons had not yet been served on the Secretary of State. It would therefore appear that the service of summons on the defendant Dr. Daniel was not in accordance with the provisions of Section 2307.383 (2307.38.3), Revised Code. It will be observed that the statute first requires a service of summons upon the Secretary of State who is deemed the statutory agent which, in fact, means nothing insofar as notice to the defendant is concerned because the Secretary of State is not required to do anything with the summons.

To complete the service of summons and, in the opinion of the Court, the important and indispensable step, the person making service upon the Secretary of State must mail a copy thereof with the service upon the Secretary of State, endorsed thereon, to the defendant at his last known address. Mailing of a summons directed to a non-existent post office would not comply with the statute. A copy of the summons sent by the Sheriff of Belmont County is likewise ineffective because of the absence of a specific requirement of the statute of an endorsement of service upon the Secretary of State. For this reason alone, the motion of the defendant Dr. A. S. Daniel should be sustained.

Both non-resident defendants claim the Ohio 'long-arm' statute is contrary to the Fourteenth Amendment of the United States Constitution and Article 1, Sec. 16, and Article II, Sec. 28 of the Constitution of the State of Ohio.

In 1877, the Supreme Court of the United States decided the case of Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. The second branch of the syllabus reads as follows:

'A personal judgment rendered in a State Court, in an action upon a money demand against a non-resident of the State, without personal service of process upon him within the State or his appearance in the action upon service by...