Howard v. Allen

• Decision Date: 17 May 1972
• Parties: , 59 O.O.2d 148 HOWARD, Appellant, v. ALLEN, Appellee.
• Court: Ohio Supreme Court

Page 130

30 Ohio St.2d 130

283 N.E.2d 167, 59 O.O.2d 148

HOWARD, Appellant, v. ALLEN, Appellee.

Supreme Court of Ohio.

May 17, 1972.

Syllabus by the Court

R.C. § 2305.19, the Ohio saving clause, applies only to actions 'commenced or attempted to be commenced' in Ohio within the appropriate statute of limitations.

This case involves a personal injury action for a money judgment.

Plaintiff, Carolyn G. Howard, suffered personal injuries on or about February 24, 1967, at an airport located in Greenville, South Carolina, when she was allegedly negligently struck by the propeller of an airplane being operated by defendant, Donald L. Allen.

On November 18, 1968, less than two years after receiving her injuries, plaintiff instituted an action against defendant for said injuries in the Court of Common Pleas, County of Spartanburg, state of South Carolina. In that action, plaintiff attempted to obtain jurisdiction over the defendant by causing the 'attachment' of the limits of liability and duty to defend incident to defendant's policy of liability insurance. Defendant entered a special appearance in that action by a motion to quash service of summons and to vacate the warrant of attachment, which motion was sustained and plaintiff's complaint dismissed.

The plaintiff took an appeal from such dismissal to the appropriate Court of Appeals, and finally to the Supreme Court of South Carolina. The sole question decided on those appeals was whether the duty to defend and the limit of liability contained in a policy of liability insurance constituted a 'debt' subject to attachment under South Carolina law. The Supreme Court of South Carolina decided that issue in the negative and affirmed the action of the trial court. The Supreme Court of South Carolina also stated that its determination was 'otherwise than upon the merits' of the complaint. Howard v. Allen (1970), 254 S.C. 455, 176 S.E.2d 127.

The initial decision of the Supreme Court of South Carolina was rendered on July 9, 1970, and its decision denying plaintiff's petition for rehearing was rendered on July 28, 1970.

On September 18, 1970, within a year after the final decision by the Supreme Court of South Carolina, plaintiff filed her complaint against defendant in the Common Pleas Court of Franklin County, Ohio. That complaint was superseded by plaintiff's amended complaint, filed on October 27, 1970. The amended complaint alleges a claim against defendant for personal injuries suffered by plaintiff on February 24, 1967; alleges that a prior action was brought in South Carolina; and alleges that such prior action failed 'other than on the merits' in July of 1970.

Defendant filed his answer to the amended complaint on November 12, 1970, asserting, among other defenses not relevant to this appeal, that plaintiff's action is barred by Ohio's two-year statute of limitation and that the Ohio savings statute, R.C. § 2305.19, is not available to plaintiff.

On November 20, 1970, defendant filed a motion for summary judgment, supported by affidavit which, in pertinent part, simply states that the South Carolina courts did not have jurisdiction over his person. On December 16, 1970, plaintiff filed her memorandum contra said motion, with copies of the decisions of the Supreme Court of South Carolina attached.

The Common Pleas Court sustained defendant's motion for summary judgment on the grounds that plaintiff's action was not commenced in Ohio within the two-year statute of limitation and that the Ohio savings statute is not applicable in this case.

Upon appeal to the Court of Appeals, 280 Ohio App.2d 275, 277 N.E.2d 239, the jugment of the trial court was affirmed.

This cause is now before this court pursuant to the allowance of a motion to certify the record and as an appeal as of right.

Caren, Lane, Alton & Horst, David L. Day, Columbus, and Carlisle, Bean & Hines, Spartanburg, S. C., for appellant.

Crabbe, Brown, Jones, Potts & Schmidt and Robert F. Howarth, Jr., Columbus, for appellee.

BROWN, Justice.

The prime issue before this court is: Does R.C. § 2305.19, the Ohio saving clause, apply only to actions 'commenced or attempted to be commenced' in the state of Ohio? We hold that it does and that it is not applicable to actions commenced or attempted to be commenced in foreign states.

R.C. § 2305.19, provides, in pertinent part:

'In an action commenced, or attempted to be commenced * * * if the plaintiff fails otherwise than upon the merits, and the time limited for the commencement of such action at the date of * * * failure has expired, the plaintiff * * * may commence a new action within one year after such date.'

Although this is a case of first impression in this state, this precise question has been considered by the courts of a number of states. By far, the majority rule is that for an action to come within the provision of a forum state's saving clause the original action must have been initially brought in that forum state within its period of limitation. As stated in 55 A.L.R.2d 1038, and 51 American Jurisprudence 2d 810, Limitation of Actions, Section 306: 'Where the action is regarded as controlled by the statute of limitations of the forum, it has usually been held that a plaintiff invoking the saving statute of the forum may not rely upon a nonsuit in an earlier action brought in another state.'

Defendant correctly claims that there can be no question that plaintiff's action is controlled by the two-year Ohio statute of limitation (R.C. § 2305.10)-the period of limitation of the forum. As established in the early case of Pinney v. Cummings (1875), 26 Ohio St. 46:

'Actions upon causes of action accruing outside of this state, and not limited by the law of the place where they accrued, or limited thereby to longer periods than those specified in our statute, are governed as to limitation by the Ohio statute in like manner as causes of action accruing within the state.'

Based upon Pinney v. Cummings, which is still the law of this state, Ohio follows the majority rule stated above. The equally long-established rule in Ohio is that limitation provisions are remedial in nature, and are therefore controlled by the law of the forum. In Kerper v. Wood (1891), 48 Ohio St. 613, at page 622, 29 N.E. 501, at page 502, this court stated: '* * * Statutes of limitations relate to the remedy, and are, and must be, governed by the law of the forum * * * a court which has power to say when its doors shall be opened has also power to say when they shall be closed.'

The following will illustrate the logic of the majority rule: Given: 1. The Ohio saving clause cannot save an action from the running of the statute of limitation unless the original action was commenced or attempted to be commenced within the applicable period of limitation (R.C. § 2305.19). 2. The commencement of an action in one state does not toll the running of limitations against an action for the same cause of action and between the same parties in another state. 54 C.J.S. Limitations of Actions § 299, p. 367. Conclusion: Although plaintiff's original action was filed in the foreign jurisdiction within two years after it accrued, the action was not commenced within the Ohio period of limitation, and pliantiff cannot for that reason avail herself of R.C. § 2305.19.

The applicable statute of limitation is that of Ohio. If the action is barred by the Ohio statute of limitation, no action can be maintained in this state, even though the action is not barred elsewhere. Suit must be brought in Ohio before the Ohio statute has run. A suit in another state can no more toll the Ohio statute, applicable to suits in Ohio, than an unexpired claim under the statute of another state can operate to lift the statute of limitation and thereby make the saving clause available.

See Andrew v. Bendix Corp. (C.A. 6), 452 F.2d 961 decided December 20, 1971 (applying Ohio law to substantially the same issue and facts as are involved in the instant case); Scurlock Oil Co. v. Three States Contracting Co. (5 Cir., 1959), 272 F.2d 169; Riley v. Union Pac. R. Co. (10 Cir., 1950), 182 F.2d 765; Overfield v. Pennroad Corp. (3 Cir., 1944), 146 F.2d 889; C. & L. Rural Electric Coop. v. Kincade (D.C., 1959), 175 F.Supp. 223; Sorensen v. Overland Corp. (D.C., 1956), 142 F.Supp. 354; Sigler v. Youngblood Truck Lines, (D.C., 1957), 149 F.Supp. 61.

The general rule has also been applied in cases where plaintiff originally filed suit in a foreign jurisdiction within the forum state's statute of limitation. In High v. Broadnax (1967), 271 N.C. 313, 156 S.E.2d 282, plaintiff unsuccessfully attempted to take advantage of a North Carolina savings provision which is similar to Ohio's arguing that since he had instituted suit in Virginia within North Carolina's statute of limitation, the North Carolina statute of limitation stopped running at the time of the foreign state commencement. Holding that plaintiff's second suit was barred by the North Carolina statute of limitation, the Supreme Court of North Carolina stated, at page 316, 156 S.E.2d at page 284: 'We adhere to the general rule that a statute of the forum which permits a suit to be reinstituted within a specified time after dismissal of the original action otherwise than upon its merits has no application when the original suit was brought in another jurisdiction.'

Since the saving provision is not...