Couts v. Rose
| Decision Date | 11 January 1950 |
| Docket Number | 31816. |
| Citation | 152 Ohio St. 458,90 N.E.2d 139 |
| Parties | COUTS v. ROSE. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
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.
Appeal from the Court of Appeals, Trumbull County.
On December 23 1945, plaintiff was injured in an automobile collision near Masury, Trumbull county, Ohio, when allegedly, her automobile in which she was riding was struck by an automobile operated by the defendant, Franzeska W. Rose.
On December 10 1947, within the two-year statutory period, plaintiff filed a petition against the defendant in the Common Pleas Court of Trumbull County and summons were issued to the sheriff of Mahoning county on the supposition that the defendant resided in Youngstown.
On December 17 1947, the summons was returned, endorsed, 'unable to find * * * [defendant] within said [Mahoning] county,' with a notation, 'lives in New York.'
On February 10, 1948, plaintiff filed an alias praecipe for service of summons through the Secretary of State under favor of Section 6308-1 et seq., General Code. On February 21, 1948, service was secured on the defendant through the Secretary of State and on March 22, 1948, the summons was returned showing such service.
On April 9, 1948, the defendant filed a motion to dismiss the petition, on the ground that the action was barred by the statute of limitations, service not having been secured within 60 days of the commencement of the action, although such was done within 60 days after the expiration of the two-year period after the accident occurred.
On April 27, 1948, the court overruled defendant's motion, holding that the action was saved under favor of Section 11228, General Code. Upon rehearing on August 19, 1948, the court reversed its ruling and sustained defendant's motion, on authority of Canaday v. Hayden, 80 Ohio App. 1, 74 N.E.2d 635.
Plaintiff appealed to the Court of Appeals, which affirmed the judgment of the trial court, one judge dissenting.
The case is now in this court for review, a motion to certify having been allowed.
Luchette & Hoffman, Masury, for appellant.
Pfau & Pfau, Youngstown, for appellee.
The answer to the question made in this case depends upon the construction and application to be given Sections 11224-1, 11228 and 6308-1 et seq., General Code. Specifically, the question is whether a person injured in an automobile collision occurring in this state is obliged to institute an action for his injury against a nonresident defendant and secure service through Section 6308-1 et seq., General Code, within the time limitation provided by Section 11224-1, General Code, or may he, under favor of the provisions of Section 11228, General Code, so proceed to institute his action through Section 6308-1, General Code, at any time before the defendant returns to the state.
Section 11224-1 General Code, effective since August 4, 1927, provides as follows: 'An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose.'
Section 11228, General Code, effective since July 1, 1853, provides:
Section 6308-1, General Code, effective since June 2, 1933, provides: 'Any nonresident of this state, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle, or of having the same operated, within the state of Ohio, or any resident of this state, being the licensed operator or owner of any motor vehicle under the laws of this state, who shall subsequently become a nonresident or shall conceal his whereabouts, shall, by such acceptance or licensure, as the case may be, and by the operation of such motor vehicle within the state of Ohio, make and constitute the secretary of state of the state of Ohio his, her, or their agent for the service of process in any civil suit or proceeding instituted in the courts of the state of Ohio against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within the state in which such motor vehicle is involved.' Unquestionably, Before Section 6308-1, General Code, was adopted, a person injured in an automobile accident by another person who had thereafter remained out of the state could refrain from bringing his action against such other person without incurring the operation of the bar provided by Section 11224-1, General Code, so long as such other person remained out of the state.
The question then arises did the later adoption of Section 6308-1, General Code...
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