Moriarty v. Westgate Center, Inc.

• Decision Date: 12 July 1961
• Docket Number: No. 36674,36674
• Citation: 176 N.E.2d 410,172 Ohio St. 402
• Parties: , 16 O.O.2d 252 MORIARTY, Appellant, v. WESTGATE CENTER, INC., Appellee, et al.
• Court: Ohio Supreme Court

Page 402

172 Ohio St. 402

176 N.E.2d 410, 16 O.O.2d 252

MORIARTY, Appellant, v. WESTGATE CENTER, INC., Appellee, et al.

No. 36674.

Supreme Court of Ohio.

July 12, 1961.

Syllabus by the Court.

1. A motion to quash service of summons should be overruled if there was a valid service of summons on the defendant, even though service was not made in the manner stated in the return of the sheriff.

2. During normal business hours when there are only subordinate employees in an office occupied and used by a corporation, the superior of those employees is, within the meaning of Section 2703.10, Revised Code, 'the person having charge thereof' whether or not such person is an employee or an officer of that corporation.

3. Even if the sheriff has made no reasonable effort to find the chief officer, cashier, treasurer, secretary, clerk or managing agent of a corporation before leaving a copy of a summons against such corporation at the office of the corporation with the person having charge thereof, if it is admitted or if there can be no reasonable conclusion from the evidence but that such person did bring that summons promptly to the attention of the chief officer of such corporation prior to the return day of that summons, a motion to quash such summons should be overruled.

Plaintiff instituted this action on July 7, 1959, against various corporations including the appellee defendant, a corporation authorized to do business in Ohio and herein referred to as defendant, to recover admages for personal injuries claimed to have been proximately caused on July 11, 1957, by defendant's negligence. Admittedly this alleged cause of action would have been barred by the two-year statute of limitations on July 11, 1959.

On July 16, 1959, the sheriff made a return of summons stating that on July 9, 1959, he had served defendant 'by handing to Wm. Griffiths, real estate manager, a true and certified copy thereof with all the endorsements thereon. The president or other chief officer of said company not found in my county.'

On October 5, 1959, defendant filed a motion to quash the service of summons on defendant. This motion was granted on January 29, 1960. Plaintiff appealed to the Court of Appeals 'from the order * * * granting the motion * * * to quash service of summons' and the Court of Appeals found 'there was no error in the granting of said motion prejudicial to plaintiff' and affirmed the 'judgment.'

The cause is now before this court on appeal from that judgment of the Court of Appeals and pursuant to allowance of plaintiff's motion to certify the record.

Spangenberg, Hasenflue & Shibley, Cleveland, and John G. Lancione, Bellaire, for appellant.

Arter, Hadden, Wykoff & Van Duzer and Joseph A. Rotolo, Cleveland, for appellee.

TAFT, Judge.

Neither party nor the Court of Appeals raised any question as to the finality and appealability of the order granting the motion to quash. But see 2 Ohio Jurisprudence (2d), 610, Section 43. Hence, in view of the importance of the questions of law argued by the parties and apparently passed upon by the Court of Appeals, a majority of this court may as it did in Rogers v. Toni Home Permanent Co., 1958, 167 Ohio St. 244, 250, 251, 147 N.E.2d 612, 75 A.L.R.2d 103, acquiesce in the apparent desire of both parties to this litigation and ignore any procedural questions as to the jurisdection of the Court of Appeals to review the order of the Common Pleas Court that it affirmed and decide this case on the questions of law argued by the parties and apparently passed upon by the Court of Appeals in its judgment of affirmance. See also Mantho v. Board of Liquor Control, 1954, 162 Ohio St. 37, 120 N.E.2d 730. But see Cohen v. Karavasales, 1960, 171 Ohio St. 46, 167 N.E.2d 768.

The order of the Common Pleas Court does not indicate what, if any, evidence was considered by that court when it ruled on the motion to quash. However, in their briefs and arguments before this court both parties concede that five affidavits and the deposition of Griffiths represent all the evidence that was before the Common Pleas Court. Therefore, in deciding this appeal, we will assume that there was no other evidence considered by that court in passing upon the motion to quash. See State ex rel. Crow v. Weygandt, C. J., 1959, 170 Ohio St. 81, 162 N.E.2d 845. Cf. Knowlson v. Bellman, 1953, 160 Ohio St. 359, 368, 116 N.E.2d 430.

Section 2703.10, Revised Code, which plaintiff contends authorized the service made by the sheriff in the instant case, provides:

'A summons against a corporation may be served upon the president, mayor, chairman, or president of the board of directors or trustees, or other chief officer; or if its chief officer is not found in the county, upon its cashier, treasurer, secretary, clerk, or managing agent; or, if none of such officers can be found, by a copy left at the office or [the] usual place of business of the corporation with the person having charge thereof. * * *' (Number in brackets and emphasis added.)

As indicated by the bracketed numbers inserted in the above quotation, this statute specifies three alternative methods of serving a corporation with summons. Also, the statutory words apparently express an intention to condition the right to use either the second or the third method.

The return of the sheriff in the instant case was apparently intended to describe service under the second method specified in the statute. Since the petition indicates that defendant corporation was engaged in operating a shopping center, it is reasonable to infer that the 'real estate manager' of such a corporation would be its 'managing agent.' Hence, on its face, the return of the sheriff can reasonably be interpreted as describing good service on the defendant.

However, the record establishes without dispute that, although the sheriff did hand to Griffiths the copy of the summons, Griffiths was not the 'cashier, treasurer, secretary, clerk, or managing agent' of defendant; and therefore the service made by the sheriff did not represent compliance which the second method of service specified in the statute. Nevertheless, a motion to quash summons should be overruled if it appears that there was a valid service of summons on the defendant, even though it appears that there was no service in the manner stated in the return of the sheriff. Paulin v. Sparrow, 1915, 91 Ohio St. 279, paragraph two of the syllabus, 110 N.E. 582. Therefore, if the evidence establishes that, in making service of summons, the sheriff did comply which the third method specified in Section 2703.10, Revised Code, and the service pursuant to that method represented a due and legal service of summons on defendant, then the jurisdiction of the court over the person of the defendant would not be affected by the failure of the sheriff's return to indicate that defendant had been duly and legally served with summons in accordance with that particular method.

This raises the question whether, in making service, and sheriff did comply with the third method of service on a corporation specified in Section 2703.10, Revised Code.

Admittedly, the record discloses the following facts as of July 9, 1959:

1. Defendant had listed in the telephone directory an office at 739 National City Bank Building, Cleveland.

2. B. L. Boykin & Son Company, a partnership, also had its office in the same suite of offices. Its name appeared on the door of that suite followed by defendant's name and another name.

3. That partnership was under contract with defendant to manage Westgate Shopping Center for defendant.

4. B. L. Boykin and W. J. Boykin, the partners in that partnership, together with Griffiths and two female employees, were the only ones who were in business or employed in that suite of offices.

5. B. L. Boykin was secretary and treasurer and W. J. Boykin was assistant secretary of defendant.

6. Anthony Visconi was president and Thomas Visconi was vice president of defendant but neither occupied or used the foregoing office suite for their business purposes.

7. On July 9, 1959, apparently during normal business hours, the sheriff personally served Griffiths with a summons against defendant and a copy of the petition in the instant case.

8. At that time, the only persons in that office suite were Griffiths and the two female employees.

9. As between those subordinate employees, Griffiths was the superior.

10. Griffiths held the summons for one of the Boykins to see, and on the day he received it or the next day advised one or both of them about it, and within 48 hours made and sent a photostat copy of the petition to Thomas Visconi.

11. Up to the time of service, neither of the Boykins had been in the office that day and there is no evidence that they came into the office later on that day.

In each of the five affidavits filed by defendant in support of the motion to quash (those of Griffiths and the two Visconis and the two Boykins) it is stated that Griffiths was not 'in charge of' any office of defendant. Whether he was at the time he was served with summons against defendant in the instant case is an ultimate question of fact to be determined from the evidence as to what he and others in the office at that time were employed to do, what they were doing at that time and what responsibilities had been imposed upon them. The only evidence about this is found in Griffiths' deposition. It is susceptible of no reasonable conclusion other than that Griffiths was in charge of the office when served with the summons against defendant in the instant case.

At a time during normal business hours when there are only subordinate employees in the office of a corporation, the superior of those employees is, within the meaning of Section 2703.10, Revised Code, 'the person having charge thereof' whether or not such person is an employee or an officer of that corporation. Nothing in the statute requires that such person be eighr...