Collins v. Yanity, 41181-41185
| Decision Date | 15 May 1968 |
| Docket Number | No. 41181-41185,41181-41185 |
| Citation | 14 Ohio St.2d 202,237 N.E.2d 611,43 O.O.2D 301 |
| Parties | , 43 O.O.2d 301 COLLINS, Admx., Appellant, v. YANITY, Admr., Appellee, et al. (Two cases.) COLLINS, Gdn., Appellee, v. YANITY, Admr., Appellant, et al. (Three cases.) |
| Court | Ohio Supreme Court |
Syllabus by the Court
1. The failure to file suit within two months of the rejection by the administrator of the estate of a claim
against the estate for bodily injury does not bar an action for that bodily injury against that administrator where no part of the recovery sought is to come from 'assets of the estate' as that term is defined in Section 2117.07, Revised Code.
2. The 1963 amendment to Section 2117.07, Revised Code, applies only to actions for bodily injury and injuring personal property.
3. The 1963 amendment to Section 2117.07, Revised Code, does not apply to a wrongful death action against an executor or administrator which is commenced within two years after the cause of such action arose, even where no portion of any recovery is sought from assets of the estate.
4. An action for wrongful death caused proximately by the negligence of a decedent cannot be brought against the executor or administrator of that decedent unless a claim therefor is presented within the four-month time specified in Section 2117.06, Revised Code, or as provided in and within the nine-month time specified in Section 2117.07, Revised Code.
On October 12, 1963, an automobile accident occurred between automobiles driven by Earl Edwards and another party. Edwards and two members of the Scarberry family were killed and three other members of the Scarberry family were injured in the accident.
On January 13, 1964, an administrator was appointed for Edwards' estate.
On May 26, 1964, over four months after that appointment, two claims for damages for wrongful death and three claims for damages for personal injuries were presented on behalf of the Scarberrys. They were rejected on the same day.
On October 6, 1964, two petitions for wrongful death and three for personal injuries were filed against the administrator of Edwards on behalf of the Scarberrys.
Subsequently, plaintiff filed a second amended petition in each case alleging that she 'has not timely presented this claim to the said administrator for allowance, but that no portion of any recovery in this action shall come from the assets of the said (Edwards) estate.'
Demurrers were fined in each case on the ground that the suits were not filed within two months after the rejection of the claims as required by Section 2117.12, Revised Code.
In the two wrongful death actions, there was specified as an additional ground that the claims were not presented to the administrator within four months.
So far as pertinent, Section 2117.12, Revised Code, reads:
'When a claim against an estate has been rejected * * * the claimant must commence an action on the claim * * * within two months after such rejection * * * or be forever barred from maintaining an action thereon. * * *'
The pertinent portions of Sections 2117.06, 2117.07 and 2305.10, Revised Code, are quoted in the statement of the case of Meinberg v. Glaser, 14 Ohio St.2d 193. 237 N.E.2d 605.
The trial court sustained each demurrer on the ground that the petition was not filed within two months after the claim had been rejected as required by Section 2117.12, Revised Code.
The plaintiffs not desiring to plead further, judgment was rendered for the administrator of the Edwards' estate in each action.
On appeal to the Court of Appeals, the judgment in each of the two wrongful death actions was affirmed and those causes (Cases Nos. 41181 and 41182) are now before this court pursuant to the allowance of to certify the records. In each of the three personal injury actions the judgment was reversed and the Court of Appeals finding their judgments to be in conflict with the judgment of the Court of Appeals of the First Appellate District in the case of Meinberg v. Glaser, certified the record to this court pursuant to Section 6 of Article IV of the Ohio Constitution.
Walker & Mollica, William Parker Walker, Athens, Crabbe, Newlon, Bilger, Brown & Jones and James L. Graham, Columbus, for J. B. Yanity, Jr., Admr.
Combs & Combs, Prestonburg, Ky., Power, Griffith, Jones & Bell and James F. Bell, Columbus, and William R. White, Wilmington, Paul C. Combs, Prestonburg, Ky., of counsel, for Dollie Collins, Admx.
Our decision in Meinberg v. Glaser, 14 Ohio St.2d 193, 237 N.E.2d 605, is dispositive of all the questions raised in the three personal injury actions except one. That question is whether in each of those actions the failure to file suit within two months of the rejection by the administrator of the estate of a claim against the estate for bodily injury bars an action for that bodily injury against that administrator where no part of the recovery sought is to come from 'assets of the estate,' within the meaning of those words as used in Section 2117.07, Revised Code.
In our opinion, Section 2117.12, Revised Code, deals only with claims which must be presented to the administrator or executor. If the claimant is to have a right to payment of a claim for bodily injury out of assets of the estate, the claimant must file the claim as and within the four-month time specified in Section 2117.06, or as provided in and within the nine-month time specified in Section 2117.07, Revised Code. Then, if such claim is rejected, the claimant must file suit within two months after such rejection or be barred from establishing a claim enforceable against 'assets of the estate,' as those words are used in Section 2117.07, Revised Code.
On the other hand, as we held in Meinberg v. Glaser, where all recovery on a claim for bodily injury is to come from other than such assets of an estate, an action for such bodily injury can be brought against the administrator within two years after the cause thereof arose.
Since such an action can be brought in such instance if no claim is presented to the executor or administrator, we are of the opinion that it can be brought even if a claim is presented to the executor or administrator and even if no suit is filed within two months after his rejection of such a claim.
It follows that the judgments in the three personal injury actions must be affirmed.
In view of our conclusions with regard to the three personal injury actions, we agree with the statement by plaintiffs that 'the entire controversy in these two wrongful death cases centers around the 1963 amendment to Section...
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