LaBarbera v. Batsch

• Decision Date: 17 February 1966
• Citation: 5 Ohio App.2d 151,214 N.E.2d 443
• Parties: , 34 O.O.2d 295 LaBARBERA, Appellant, v. BATSCH, Appellee.
• Court: Ohio Court of Appeals

Page 151

5 Ohio App.2d 151

214 N.E.2d 443, 34 O.O.2d 295

LaBARBERA, Appellant, v. BATSCH, Appellee.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Feb. 17, 1966.

Rini & Hecht, Cleveland, for appellant.

Herman & Rhoa, Cleveland, for appellee.

ARTL, Judge.

This is an appeal on questions of law from a final order rendered January 5, 1964, in the Court of Common Pleas of Cuyahoga County.

The assignment of error is that the Court of Common Pleas erred in granting defendant's motion for summary judgment and entering judgment is favor of defendant.

The pertinent facts are as follows:

Plaintiff, appellant herein, was injured in an automobile accident on August 7, 1959, allegedly as a result of defendant's negligence. His petition and precipe for issuance of summons were filed in the Court of Common Pleas on August 7, 1961, the last day of the period of limitations. Summons was issued that same day but was not physically delivered to the sheriff until the next morning. Service was obtained on the defendant a few days later.

The court, subsequently, on March 5, 1962, granted defendant's motion to dismiss. This case was No. 755,959 on the docket of the Court of Common Pleas.

From the decision of dismissal an appeal was prosecuted to this court in case number 26035. This court, on December 13, 1962, affirmed the decision of the Common Pleas Court.

Both the Common Pleas Court's decision and the affirmance by the Court of Appeals were in keeping with the pronouncements of the Ohio Supreme Court in Baltimore & Ohio Rd. Co. v. Ambach (1896), 55 Ohio St. 553, 45 N.E. 719; McLarren v. Myers, Admr. (1912), 87 Ohio St. 88, 100 N.E. 121, and Zakrzewski v. Lenczycki (1935), 129 Ohio st. 462, 195 N.E. 867. Without quoting the syllabi of these cases, they required an attorney to see that the sheriff received the summons before the statute of limitations had run in order for the attorney's attempt to commence the action to be considered diligent.

On May 8, 1963, the Ohio Supreme Court in its decision in Robinson v. Commercial Motor Freight, Inc. (1963), 174 Ohio St. 498, 190 N.E.2d 441, overruled its former holdings in Baltimore & Ohio Rd. Co. v. Ambach (1896), 55 Ohio St. 553, 45 N.E. 719; McLarren v. Myers, Admr. (1912), 87 Ohio St. 88, 100 N.E. 121, and Zakrzewski v. Lenczycki (1935), 129 Ohio St. 462, 195 N.E. 867, the three cases relied upon by the trial court and the Court of Appeals in the original action.

About three weeks after that decision was announced, plaintiff filed in this court an application for reconsideration of its decision announced in December 1962. That application was denied in June 1963 by this court, without stating its reasons for such denial.

On November 22, 1963, plaintiff filed in the Court of Common Pleas a new action, number 791.020, as he claims, by virtue of Section 2305.19, Revised Code, the 'savings-clause' statute. This action, filed as it was on November 22, 1963, was within one year of the affirmance by the Court of Appeals in December 1962, and about six months after the decision by the Supreme Court in Robinson, supra.

After issue was joined in the instant case, the defendant filed a motion for summary judgment. No affidavits were filed by either side, nor was any evidence introduced. The Court of Common Pleas entered judgment for the defendant on December 30, 1964, and it is from this judgment that the appeal is taken.

The trial court's journal provides as follows:

'December 30, 1964.

'To Court: On motion for summary judgment of defendant, William C. Batsch, upon consideration of the pleadings and exhibits, the court finds that there is no genuine issue as to any material fact relating to the question of the statute of limitations; that the action of the trial court in dismissing the previous case, although the petition and precipe were filed therein within the period of the statute of limitations, was not erroneous; that the dismissal in that case does not fall within the purview of Ohio Revised Code Section 2305.19 and that therefore the defendant is entitled to judgment as a matter of law. * * * Judgment entered for defendant.' (Emphasis added.)

Plaintiff urges that the questions presented for decision by this court are as follows:

1. Whether an action is properly commenced for purposes of the statute of limitations by the filing of a petition and praecipe within the period of limitations, although summons was not delivered to the sheriff until one day after the statutory period.

'2. Whether the erroneous dismissal of an action on the basis of the statute of limitations is a dismissal otherwise than upon the merits, so that a new action may be brought within one year thereafter, pursuant to Revised Code, Section 2305.19.

'3. Whether the one-year savings period began to run as of the final action in the Court of Appeals, rather than as of the dismissal in the trial court.'

To answer the first question presented as above set forth, in his brief plaintiff argues:

'I. PLAINTIFF COMMENCED HIS ORIGINAL ACTION WITHIN THE TIME PROVIDED BY THE STATUTE OF LIMITATIONS.'

In so doing he relies upon the decision of the Supreme Court in Robinson, supra. In its decision the Supreme Court recognized the harshness of the rule laid down in the Ambach and McLarren cases and changed the rule. It overruled its former holdings in the Ambach and McLarren cases as well as its holding in the Zakrzewski case.

Plaintiff argues that despite the clear language of this binding authority, the trial court held, in granting the motion for summary judgment:

'* * * that the action of the trial court in dismissing the previous case, although the petition and precipe were filed therein within the period of the statute of limitations, was not erroneous; * * *'

Plaintiff argues further that the trial court could have arrived at this conclusion only by believing that the Robinson decision had no retroactive effect. He argues that the law is to the contrary and cites the applicable rule stated in Peerless Electric Co. v. Bowers, Tax Commr. (1955), 164 Ohio St. 209, at page 210, 129 N.E.2d 467, at page 468, wherein in a per curiam opinion the court states:

'* * * The general rule is that a decision of a court of supreme jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former was bad law, but that it never was the law. * * *'

The defendant in opposition contends that the plaintiff is conducting thereby a collateral attack on the adjudications in the original case; that those decisions are res judicata; and that the plaintiff is forever foreclosed for those reasons to bring this action, particularly since the Court of Appeals had denied a reconsideration of the original case after the pronouncement of the decision in Robinson, supra.

We certainly cannot find fault with the decisions in the original action by the trial court or the Court of Appeals. They followed the law as it was understood at the time. It was their duty to do so. Were it not for our statute, Section 2305.19, Revised Code, with its 'savings-clause' provisions, the decision in Robinson, supra, could not and would not have affected the disposition of the original action, regardless of whether its provisions were considered retrospective or retroative. The original action would have reached its finale with the ruling of the Court of Appeals, and a subsequent action would be res judicata.

By the existence of Section 2305.19, Revised Code, with its 'savings-clause' provision, there is breathed new life into what may have appeared to be a lost cause. If the plaintiff properly brings himself within its provisions, his status must be determined in the light of the Robinson decision as it presently exists. It is not a question whether the robinson case acts retrospectively or retroactively. How does it affect the present rights of the plaintiff is the question before this court.

It is our view that because of the existence of Section 2305.19, Revised Code, the decision of the Supreme Court in the Robinson case applies to this litigation, and that the Supreme Court has swung open the gate that leads to the lane toward justice, so that the plaintiff may have his case determined upon its merits rather than be declared out by a rule that the Supreme Court described and recognized as harsh. Clearly, it is not for this court to continue in effect such rule, if the plaintiff properly brings himself within the provisions of the 'savings-clause' statute.

In the case of United States v. The Schooner Peggy (1801), 5 U.S. (1 Cranch) 103, 2 L.Ed. 49, Mr. Chief Justice Marshall made clear that:

'* * * if, subsequent to the judgment [in the trial court], and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, * * * the court must decide according to existing laws, and if it be necessary to set aside a judgment * * * which cannot be affirmed, but in violating of law, the judgment must be set aside.'

See Linkletter v. Walker, Warden, 361 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, Note 8, 608.

It is clear that had the Robinson case been decided during the interim between the dismissal in Common Pleas Court of the original action and its affirmance by the Court of Appeals, it would have been the duty of the appellate court to apply the above rule and reverse the judgment in the original case. The Robinson case came after the affirmance of the appellate court. But under favor of the 'savings clause' in Section 2305.19, Revised Code, plaintiff has brought his new action, thus having exercised a right given him by statute. The law having been changed by the decision in the Robinson case, it is our view that the rule stated by Mr. Chief Justice Marshall must by analogy be applied to the instant case. To permit the judgment to stand would be in violation of the law as pronounced in the Robinson case.

The instant action was...