Kilbreath v. Rudy

• Decision Date: 11 December 1968
• Docket Number: No. 68-77,68-77
• Citation: 242 N.E.2d 658,16 Ohio St.2d 70,45 O.O.2d 370
• Parties: , 45 O.O.2d 370 KILBREATH, Appellee, v. RUDY, d. b. a. Fair Park Pharmacy et al.; Dermik Pharmacal Co., Inc., Appellant.
• Court: Ohio Supreme Court

Page 70

16 Ohio St.2d 70

242 N.E.2d 658, 45 O.O.2d 370

KILBREATH, Appellee, v. RUDY, d. b. a. Fair Park Pharmacy et al.; Dermik Pharmacal Co., Inc., Appellant.

No. 68-77.

Supreme Court of Ohio.

Dec. 11, 1968.

Syllabus by the Court

1. Section 28, Article II of the Ohio Constitution prohibiting the passage of retroactive laws, has application to laws affecting substantive rights, and has no reference to laws of a remedial nature providing rules of practice, courses of procedure or methods of review. (Paragraph three of the syllabus of State ex rel. Slaughter v. Indus. Comm., 132 Ohio St. 537, 9 N.E.2d 505, approved and followed.)

2. Laws of a remedial nature providing rules of practice, courses of procedure, or methods of review are applicable to any proceedings conducted after the adoption of such laws (Paragraph one of the syllabus of State ex rel. Holdridge v. Indus. Comm., 11 Ohio St.2d 175, 228 N.E.2d 621, approved and followed. Cincinnati, Hamilton & Dayton Rd. Co. v. Hedges, 63 Ohio St. 339, 58 N.E. 804, criticized.)

3. Sections 2307.382 and 2307.383, Revised Code, which expand the personal jurisdiction of local courts, are laws of a remedial nature, and as such are applicable to causes of action accrued, but not filed, before their effective date, September 28, 1965.

On January 23, 1967, the appellee, Carole Kilbreath, filed a petition in the Court of Common Pleas of Franklin County, alleging that she had suffered injuries from using a medical prescription cream which had been incorrectly refilled on or about March 3, 1965. One of the three defendants in this action was the appellant, Dermik Pharmacal Company, Inc. Dermik is a foreign corporation, and service of summons upon it was undertaken pursuant to the 'long-arm' statutes, Sections 2307.382 and 2307.383, Revised Code, which became effective on September 28, 1965.

Dermik appeared specially and moved to quash the service of summons on the grounds that the cause of action arose before the 'long-arm' statutes were enacted, and that these statutes were inapplicable because of the general policy against retroactivity.

The Court of Common Pleas sustained this motion and dismissed the petition as to Dermik. The Court of Appeals reversed that judgment, holding that the statutes were applicable to causes of action accrued but not filed before their effective date, and the Court of Appeals certified the record of the case to this court for review and final determination on the ground that it was in conflict with the judgments of the Court of Appeals for Cuyahoga County in the cases of Lantsberry v. Tilley Lamp Co. Ltd., and Wise v. Tilley Lamp Co. Ltd. (both unreported).

Forrester & Kovanda and Ralph D. Kovanda, Cleveland, for appellee.

Caren, Lane, Huggard, Alton & Horst and William L. Millard, Columbus, for appellant.

PAUL W. BROWN, Judge.

Sections 2307.382 and 2307.383, Revised Code, provide for service of process and personal jurisdiction over persons who have or have had specified minimum Ohio contacts. The question in this case is whether these statutes are applicable to causes of action existing, but not filed, before their enactment. We hold that they are applicable.

It is urged that such retroactive applicability is barred by Section 28, Article II of the Ohio Constitution, which reads in part as follows:

'The general assembly shall have no power to pass retroactive laws, or laws impairing the obligation of contracts * * *.'

It is apparent from the cases, however, that this language refers to laws affecting substantive rights, and has no reference to laws of a remedial nature providing rules of practice, courses of procedure, or methods of review. State ex rel. Slaughter v. Indus. Comm., 132 Ohio St. 537, 9 N.E.2d 505. Laws of a remedial nature are applicable to any proceedings conducted after the adoption of such laws. Smith v. New York Central Rd. Co.,122 Ohio St. 45, 170 N.E. 637; State ex rel. Holdridge v. Indus. Comm.,11 Ohio St.2d 175, 228 N.E.2d 621; Elder v. Shoffstall, 90 Ohio St. 265, 107 N.E. 539.

The question then becomes whether Sections 2307.382 and 2307.383, Revised Code, are remedial and procedural or substantive. Substantive law is that which creates duties, rights and obligations, while procedural or remedial law prescribes the methods of enforcement of rights or obtaining redress. State ex rel. Holdridge v. Indus. Comm., supra, 11 Ohio 2d 178, 228 N.E.2d 621. We think that the statutes under consideration clearly fall within the definition of remedial. See McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223.

The appellant argues that the statutes are substantive because they impose new obligations and duties. These statutes do not create new wrongs, they merely let local courts reach farther for personal jurisdiction over those who have committed established wrongs. If appellant's actions gave rise to a cause of action, they did so at the time they were done, and the only immunity that appellant could possibly have relied upon was that he was outside the jurisdiction of local courts. This kind of reliance does not seem worthy of judicial protection.

Appellant has also argued that retroactive application is prohibited by Section 1.20, Revised Code, which states:

'When a statute is repealed or amended, such repeal or amendment does not affect pending actions, prosecutions, or proceedings, civil or criminal. When the repeal or amendment relates to the remedy, it does not affect pending actions, prosecutions, or proceedings, unless so expressed, nor does any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.'

By its own terms and by case law this statute applies only to amendments and repeals. Gulf Refining Co. v. Evatt, 148 Ohio St. 228, 74 N.E.2d 351; Wheeling & Lake Erie Rd. Co. v. Toledo Ry. & Terminal Co., 72 Ohio St. 368, 74 N.E. 209. But see Cincinnati, Hamilton & Dayton Rd. Co. v. Hedges, 63 Ohio St. 339, 58 N.E. 804.

We are here concerned with new statutes. But even if Section 1.20, Revised Code, were applicable to the construction of the new statutes under consideration they should still be retroactive, since the later cases have read Section 1.20, Revised Code, as permitting remedial statutes to be retroactive even though they contain no express provision to that effect. Beckman v. State, 122 Ohio St....