Mills v. Whitehouse Trucking Co.

• Decision Date: 04 December 1974
• Docket Number: No. 73-991,73-991
• Citation: 320 N.E.2d 668,69 O.O.2d 350,40 Ohio St.2d 55
• Parties: , 69 O.O.2d 350 MILLS, Appellant, et al., v. WHITEHOUSE TRUCKING CO. et al., City of Hillsboro, Appellee.
• Court: Ohio Supreme Court

Page 55

40 Ohio St.2d 55

320 N.E.2d 668, 69 O.O.2d 350

MILLS, Appellant, et al., v. WHITEHOUSE TRUCKING CO. et al., City of Hillsboro, Appellee.

No. 73-991.

Supreme Court of Ohio.

Dec. 4, 1974.

Syllabus by the Court

Where the bar of the statute of limitations is not presented as a defense either by motion before pleading pursuant to Civ.R. 12(B), or affirmatively in a responsive pleading pursuant to Civ.R. 8(C), or by amendment made under Civ.R. 15, then the defense is waived under Civ.R. 12(H), and a motion raising the defense at trial is not timely made.

This case arose out of an automobile accident occurring in the city of Hillsboro, in which the appellant, Dorothy Mills, and her daughter were injured in a collision with a truck owned by the Whitehouse Trucking Company and driven by Gerald E. Morgan, an employee of Whitehouse. Appellant and her husband, Orba S. Mills, on September 23, 1968, filed suit against Whitehouse and Morgan for personal injuries, medical expenses and damages to the automobile, which was owned by Mr. Mills.

On April 4, 1970, appellant and her husband moved to join the city of Hillsboro as a party defendant. The motion was granted on April 16, 1970; an amended petition was subsequently filed and summons issued naming appellee, the city of Hillsboro, as a new party defendant.

The amended petition, as in the original, alleged that the accident had occurred on November 19, 1967.

On July 6, 1970, appellee filed an answer raising five defenses. The first defense urges:

'The complaint fails to state a claim against the defendant, city of Hillsboro, upon which relief can be granted.'

The case against the city of Hillsboro came up for trial on April 6, 1972, in the Court of Common Pleas of Highland County.

Prior to examination of appellant's first witness, the following dialogue occurred between Eugene A. Pyle, counsel for appellee, and the court:

'Mr. Pyle: May I approach the bench, Your Honor.

'Thereupon: Both counsel approached the bench where the following was not heard by the jury:

'Mr. Pyle: Did you make any order on the motion I made in chambers concerning the statute of limitations.

'The Court: Overuled.

'Mr. Pyle: Did you note my exceptions.

'The Court: Sure.

'Mr. Pyle: Thank you sir.'

On the next day, the jury returned separate verdicts for the appellant and her husband. The trial court granted a remittitur for $1,000, as to appellant's verdict, and a judgment entry was filed on the verdict.

On April 11, 1972, the cause was dismissed with prejudice as to the two defendants, Whitehouse Trucking Company and Gerald Morgan, presumably following settlement of the claim against them.

On May 30, 1972, appellee's motion for a new trial was overruled and, on June 28, 1972, appellee filed an appeal with the Court of Appeals.

Pursuant to the appellee's motion to consider the matter of correcting the record for the purpose of placing the question of the statute of limitations in the record under App.R. 9(E), the Court of Common Pleas placed an entry on record dated February 13, 1973, which states, in pertinent part:

'1. The question of the statute of limitations was overruled verbally immediately before the trial of the within cause, but that the same was not put on record by defense counsel.'

The appellee raised, among others, the following assignment of error in the Court of Appeals:

'1. The trial court erred in not striking the petition as beyond the statute of limitations and sustaining said defense both by answer and by motion at the commencement of the trial.'

The Court of Appeals, with Judge Stephenson dissenting, ruled that the appellee had properly raised the defense of the statute of limitations in its answer and that appellee's oral motion prior to trial merely raised again, pursuant to Civ.R. 12(B)(6), that same defense. The court concluded that, under Civ.R. 12(H), a statute of limitations defense is not waived, if made pursuant to a Civ.R. 12(B)(6) motion before trial, where the bar of the statute is clear on the face of the complaint.

The cause is now before this court pursuant to the allowance of appellant's motion to certify the record.

John O. Crouse, Hillsboro, for appellant.

Eugene A. Pyle and Mr. Jon C. Hapner, Hillsboro, for appellee.

CORRIGAN, Justice.

Appellant, in this action, asserts a single proposition of law for this court's consideration. It states:

'The defense of statute of limitations is in (an) affirmative defense which must be raised by pleading in accordance with Rule 8(C) or by motion timely filed in accordance with Rule 12(B)(6) of the Civil Rules of Procedure. Pleading the affirmative defense in an answer that 'The petition does not set forth a claim' does not raise the defense of statute of limitations under the Ohio Rules of Civil Procedure.'

Appellant contends that the defense of the statute of limitations was not raised in appellee's answer pursuant to Civ.R. 8(C), that appellee's motion filed in accordance with Civ.R. 12(B)(6) was not timely, and, therefore, the defense was waived pursuant to Civ.R. 12(H).

Civ.R. 8(C) provides, in part:

'In pleading to a preceding pleading, a party shall set forth affirmatively * * * statute of limitations * * * and any other matter constituting an avoidance or affirmative defense. * * *'

Appellee's first defense, 'the complaint fails to state a claim against the defendant, City of Hillsboro, upon which relief can be granted,' clearly fails to allege affirmatively the bar of the statute of limitations to the present action nor does it formulate in a simple, concise, and direct manner the issue to ne resolved by the trial court.

Appellee maintains that appellant's complaint clearly shows on its face that the cause of action against appellee is barred by the statute of limitations and the complaint is, therefore, subject to dismissal pursuant to Civ.R. 12(B) (6) for failure to state a claim upon which relief can be granted.

Appellee is correct insofar as it maintains that a Civ.R. 12(B)(6) motion will lie to raise the bar of the statute of limitations when the complaint shows on its face the bar of the statute.

Prior to the effective date of the Civil Rules, this court held, in Wentz v. Richardson (1956), 165 Ohio St. 558, 138 N.E.2d 675, that the bar of the statute of limitations may be effectively raised by a motion to dismiss, where it is apparent from the record before the court that the limitation period has run through failure to obtain timely service and no good reason has been advanced as to why the record should not prevail.

In a subsequent decision, Aetna Cas. & Sur. Co. v. Hensgen (1970), 22 Ohio St.2d 83, 258 N.E.2d 237, this court construed the motion to dismiss, approved in Wentz, supra, as a special demurrer based on the statute of limitations, since that motion had been made before answer day and within the time limit for filing a demurrer. In so doing, the court stated, in paragraph one of the syllabus, the Ohio law prior to the effective date of the Civil Rules, as follows:

'Where a defendant fails to raise the objection that an alleged cause of action...