Chamberlain v. Lowe

• Decision Date: 28 February 1958
• Docket Number: No. 13325.,13325.
• Citation: 252 F.2d 563
• Parties: Helen CHAMBERLAIN, Appellant, v. Mrs. Roy E. LOWE, formerly Miss Eleanor Joy McHolland, Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

252 F.2d 563 (1958)

Helen CHAMBERLAIN, Appellant, v. Mrs. Roy E. LOWE, formerly Miss Eleanor Joy McHolland, Appellee.

No. 13325.

United States Court of Appeals Sixth Circuit.

February 28, 1958.

Wilbur C. Jacobs (of Marshall, Melhorn, Bloch & Belt), Toledo, Ohio, for appellant.

Ernest C. Schatz (of Doyle, Lewis & Warner), Toledo, Ohio, for appellee.

Before MILLER and STEWART, Circuit Judges, and MATHES, District Judge.

STEWART, Circuit Judge.

On July 3, 1952, the appellant was injured when an automobile in which she was a passenger collided with a vehicle being operated by the appellee. The appellant was a resident of Ohio, where she has continued to live ever since. The appellee's home was in Detroit, Michigan, and she has remained a resident of that city. The collision occurred in Ohio.

Almost four years later the appellant brought this action against the appellee in the District Court for the Northern District of Ohio, asking damages for her injuries. Service of summons was made upon the appellee through the Secretary of State of Ohio in accordance with the provisions of Ohio Revised Code, § 2703.20.¹ On appellee's motion, the district court dismissed the action because it had not been brought within two years after the cause thereof arose. This appeal followed.

Ohio imposes a two-year limitation period upon actions for personal injuries. Ohio Rev.Code, § 2305.10. However, like most states, Ohio has enacted a "saving clause" which operates to toll any statute of limitations while a potential defendant remains outside the state.²

It appears that the appellee was a resident of Michigan continually during the time that elapsed between the collision and the filing of the present action. The question here is whether under the Ohio "saving clause" her absence from the state operated to toll the running of the two-year limitation period, despite the fact that the appellant could have brought the action at any time after the collision by virtue of the Ohio statute permitting service upon a nonresident motorist through the Ohio Secretary of State.

Although the district court entered but a bare order of dismissal, it is evident that the court was of the view that the Ohio "saving clause" did not apply to the present case because of the statute permitting substituted service upon the Secretary of State. That view is not without logical justification. It is, moreover, squarely supported by a decision of an Ohio Court of Appeals. Canaday v. Hayden, 1947, 80 Ohio App. 1, 74 N.E.2d 635. It is also consistent with the result reached under similar statutes in other jurisdictions. Coombs v. Darling, 1933, 116 Conn. 643, 166 A. 70; Nelson v. Richardson, 1938, 295 Ill.App. 504, 15 N.E.2d 17; Arrowood v. McMinn Cty., 1938, 173 Tenn. 562, 121 S.W.2d 566, 119 A.L.R. 855.

Nonetheless, we are convinced that the present law of Ohio is otherwise, and it is to the law of that state that our search must be confined. Guaranty Trust Co. of New York v. York, 1945, 326 U.S. 99, 110, 65 S.Ct. 1464, 89 L.Ed. 2079; Ragan v. Merchants Transfer Co., 1949, 337 U.S. 530, 69 S. Ct. 1233, 93 L.Ed. 1520. The Ohio Supreme Court's decision in Couts v. Rose, 1952, 152 Ohio St. 458, 90 N.E.2d 139 is the controlling precedent. The syllabus in that case is unequivocal:

"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."³

While recognizing the rule that the syllabus of an Ohio Supreme Court decision states the law, the appellee correctly points to the qualification that the syllabus must be read with reference to the facts upon which it was predicated. State of Ohio v. Nickles, 1953, 159 Ohio St. 353, 358-359, 112 N.E.2d 531; Williamson Heater Co. v. Radich, 1934, 128 Ohio St. 124, 190 N.E. 403, Syllabus 1; Baltimore & Ohio Rd. Co. v. Baillie, 1925, 112 Ohio St. 567, 148 N.E. 233, Syllabus 2; see this court's discussion of the Ohio syllabus rule in New York Central R. Co. v. Delich, 6 Cir., 1958, 252 F.2d 522; Baltimore & Ohio R. v. Henery, 6 Cir., 1956, 235 F.2d 770, at page 773; Ford Motor Co. v. Tomlinson, 6 Cir., 1956, 229 F.2d 873, at page 879 (Footnote 3). Despite the syllabus in Couts v. Rose, it is suggested by appellee that there, unlike the present case, the defendant resided in Ohio at the time of the automobile collision which gave rise to the accident, and only later moved to another state. The appellee insists that the Ohio Supreme Court has thus not decided the precise question presented here, and that since the Ohio Court of Appeals for Lucas County did decide this precise question in the earlier case of Canaday v. Hayden, 80 Ohio App. 1, 74 N.E.2d 635, supra, that decision should control disposition of the present case.

Although ingeniously presented, the argument is not persuasive. In the first place, the Ohio Supreme Court's opinion in Couts v. Rose leaves it far from clear whether the defendant there was a nonresident at the time of the automobile collision in Ohio. There is, moreover, no suggestion whatever in the opinion of any distinction arising from the defendant's place...