Kossouth v. Bear

Citation114 N.E.2d 80,96 Ohio App. 219
Parties, 54 O.O. 278 KOSSOUTH v. BEAR. *
Decision Date01 June 1953
CourtUnited States Court of Appeals (Ohio)

Harrison, Spangenberg & Hull, Oliver W. Hasenflue, Cleveland, for plaintiff appellee.

William M. Byrnes and William A. Kane, Cleveland, for defendant appellant.

SKEEL, Judge.

This appeal comes to this Court on questions of law from a judgment entered for plaintiff in the Common Pleas Court of Cuyahoga County. The action is one in negligence.

On May 30, 1948, the plaintiff was a passenger in a west-bound automobile on Lake Road in Avon Lake, Lorain County. The driver pulled into the middle traffic lane and stopped behind the automobile driven by the defendant, both drivers intending to make a left turn into an outdoor moving picture theater located on the south side of the road. Lake Road at this point is a three-lane highway.

After some eastbound traffic had passed, the defendant started to make his left-hand turn when he was struck by an approaching east-bound automobile, which, after colliding with defendant's automobile, swerved into the automobile in which plaintiff was a passenger whereby she was injured. The plaintiff's petition alleges that defendant's negligence in turning in front of an east-bound automobile was the proximate cause of her injuries.

At the time of the accident the defendant lived on Maple Cliff Drive with his parents at Stop 55 in Avon Lake. He was then attending Fenn College under G.I. privileges and in his registration at the college he gave Avon Lake as his residence. He transferred to Dyke-Spencerian School located in the Standard Building on Ontario Avenue near Public Square, in September, 1948, and was in attendance there for two school years, that is, until June 20, 1950. He was married August 20, 1949 at Lakewood Methodist Church. After his marriage he moved from Avon Lake to a room on the third floor of a rooming house known as 1417 East 85th Street, Cleveland, Ohio, where they lived for about a month. this room was rented by defendant's wife prior to their marriage. The defendant then moved to 1851 East 82nd Street where he lived until moving to California in August or September, 1950. During some part of the time he was at Dyke-Spencerian School he worked for the typewriter Supply Company, 1745 Euclid Avenue.

From a judgment entered for the plaintiff, the defendant claims the following errors:

1. The court's charge relating to the statute of limitations was prejudicial to the rights of the defendant.

2. There is no credible evidence of the absence of defendant from the state or an attempt to conceal himself to avoid service.

3. The court erred in refusing to submit interrogatories.

4. The court erred in the rejection and admission of evidence.

An examination of the record discloses circumstances which strongly favor the plaintiff's right to recover. As above indicated, the plaintiff was a passenger in an automobile standing perfectly still in the middle lane of a three-lane highway, waiting to make a left hand turn. The defendant who was just ahead of this automobile, cut in front of on-coming traffic whereby the automobile moving in the opposite direction, struck the rear of defendant's automobile and there deflected into the automobile in which plaintiff was seated. The defendant pleaded guilty to a charge of careless driving, thus admitting negligence and the record is clear that such negligence was a proximate cause of the injuries sustained by plaintiff in the collision. The defendant, as a witness (testimony taken by deposition) was far from frank on some subjects and his general attitude in refusing to answer questions most reprehensible.

But neither the facts of the accident, or the indefensible conduct of defendant, are involved in the legal questions here presented. A court should not permit bad facts to influence it in considering disasociated legal questions. Here, the question is one dealing with a statute of limitations, Sec. 11224-1, Gen.Code, and circumstances which toll the operation of the statute Sec. 11228, G.C. Except as to the claim of the plaintiff that defendant was absent from the State on his honeymoon and on two or three short skiing trips and a vacation trip in June, 1950, and the plaintiff's further claim of his general conduct as tending to establish concealment to avoid service of summons, from the date of the accident (May 30, 1948) until he left for California in August or September, 1950, the facts are matters of record. The plaintiff filed her action in Cuyahoga County April 4, 1949. Defendant's address being given as 'Cleveland, Ohio' when there was absolutely no dispute about the fact that defendant then lived in Avon Lake on Maple Cliff Drive, Lorain County, with his father and stepmother. An alias summons was issued May 29, 1950, but no address was furnished. No further attempt to obtain service on defendant was made in this action until November 1, 1950, when an amended petition was filed alleging absence from the State and concealment as tolling the statute of limitations under Sec. 11228, G.C., and instructions given to the clerk to serve defendant through the Secretary of State under the provisions of Sec. 6308-1, G.C. The defendant was then living in California.

Another action was filed on May 29, 1950, in Lorain County by plaintiff, setting forth the same allegations as were contained in the action filed in Cuyahoga County on April 4, 1949. Service was attempted at the home of defendant's father on Maple Cliff Drive, Avon Lake, Lorain County. At this time defendant, having been married on Aug. 20, 1949, had moved from that address and was living with his wife at 1851 East 82nd St., Cleveland, Cuyahoga County, Ohio, so that service was returned 'not found.' It should be noted that this petition was filed just within the two-year period of the statute of limitations.

In the file of the Sheriff of Lorain County, after attempting the service of summons, was a notation that the defendant had moved to 1851 East 82nd St., Cleveland, and while residence service in this action could not be had because his residence was then in Cuyahoga County, yet, under the provisions of Sec. 6308, G.C. the Common Pleas Court of that county was vested with jurisdiction of the cause and under Sec. 11231 had sixty days in which to complete service after the filing of the action within the two-year period under the statute of limitations. Nothing was done after the sheriff made return, 'I did not service Richard R. Bear as he could not be found within our county' so that the case was dismissed by the court 'no service' on September 1, 1950.

In addition to filing a new case in Lorain County on May 29, 1950, defendant could have been brought into court in Cuyahoga County case by residence service any time within sixty days after May 30, 1950. An alias summons was issued in the Cuyahoga County case on May 29, 1950, but no address was given.

The first question to consider is whether or not absences of the defendant from the state after May 30, 1948, on pleasure trips while he maintained his residence in Ohio, tolled the statute of limitations under the provisions of Sec. 11228, G.C. The plaintiff's contention is that there is evidence in the record tending to support her claim that defendant was absent from the State for two weeks after Aug. 20, 1949, while on his honeymoon, two or three times before his marriage for two or three days, skiing in Pennsylvania, and a two or three week trip after graduating from Dyke-Spencerian College. There is conflict about defendant's honeymoon trip. He testified that he spent his honeymoon at Vista Villa, Port Clinton, Ohio. His father testified that he thought defendant went to Pennsylvania and the New England States. The father's evidence is without any probative value as it is hearsay, the witness giving no facts upon which to base his opinion. The skiing trips likewise have no support, the testimony being of the same character. So that there is no credible evidence that defendant was out of the State until after he graduated from Dyke-Spencerian College. The plaintiff fixes this trip to Pennsylvania and the New England States as of June 1, 1950, thirty days after the statute of limitations had run. This must be an error, however, because the record is undisputed that defendant was not graduated until June 20, 1950, as shown by the school records.

But even if it should be admitted that defendant was, on a few occasions, out of the State on pleasure trips, such absence did not toll the statute of limitations under the provisions of Sec. 11228 G.C.

This section provides in part:

'* * * After the cause of action accrues if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought.' (Emphasis added.)

Such absences as are shown by the evidence were temporary in character with no intention on the part of defendant to disturb or change his place of residence or depart from the State so that service of process could have been made upon him at his usual place of residence as provided by Sec. 11286, G.C., at any time during the two year period after May 30, 1948. We hold that such absences did not toll the statute.

The legal effect of temporary absence from the State of a resident, for purposes of business or pleasure with respect to whether or not such absence will toll statutes of limitations under the provisions of Sec. 11228, G.C., has never been directly determined or referred to in the decided cases of this State, except for a sentence in the opinion of the court in the case of Title Guaranty & Sur. Co. v. Mc-Allister, 130 Ohio St. 537, 546, 200 N.E. 831, hereafter referred to. The cases thus far decided deal with the question of whether the saving provision of Sec. 11228, G.C. are or are not applicable as to a cause of action against a...

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3 cases
  • Wetzel v. Weyant, 74-579
    • United States
    • Ohio Supreme Court
    • February 19, 1975
    ...determination, as its decision was in conflict with a determination of the Court of Appeals for Cuyahoga County in Kossuth v. Bear (1953), 96 Ohio App. 219, 114 N.E.2d 80. (The decision in the Court of Appeals was also contrary to the determination of the Court of Appeals for Henry County i......
  • Bobo v. Bell
    • United States
    • Ohio Court of Appeals
    • October 16, 1959
    ...those cases are no longer the law in Ohio. This is best illustrated by reading the opinion of the Court of Appeals in Kossuth v. Bear, 96 Ohio App., 219, 114 N.E.2d 80, and then the opinion of the Supreme Court in Kossuth v. Bear, 161 Ohio St. 378, 119 N.E.2d 285; and the opinion of the Cou......
  • Terence Clark v. Leon Shaffold
    • United States
    • Ohio Court of Appeals
    • August 20, 1992
    ...his burden of demonstrating the two year personal injury statute of limitations was tolled pursuant to R.C. 2305.15. See Kossuth v. Bear, 96 Ohio App. 219, 234, rev'd on other grounds, 161 Ohio St. 378; also, Walter v. Johnson (1983), 10 Ohio App. 3d 201, 203. The trial court specifically c......

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