Rudnay v. Corbett

• Decision Date: 15 September 1977
• Docket Number: No. 35749,35749
• Citation: 374 N.E.2d 171,53 Ohio App.2d 311
• Parties: , 7 O.O.3d 416 RUDNAY, Appellant, v. CORBETT et al., Appellees.
• Court: Ohio Court of Appeals

Page 311

53 Ohio App.2d 311

374 N.E.2d 171, 7 O.O.3d 416

RUDNAY, Appellant, v. CORBETT et al., Appellees.

No. 35749.

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

Sept. 15, 1977.

Syllabus by the Court

1. The Ohio legislature primarily intended R.C. 3109.09 to establish a civil cause of action, providing for compensatory damages to innocent victims of minor delinquents, against the parents having custody and control of a minor who willfully damages the property of another.

2. The objective of compensating innocent victims for property damage caused by the willful misconduct of minors is substantially furthered by imposing civil liability on the parents having custody and control of such minors.

3. The two-year statute of limitations set forth in R.C. 2305.10 applies to civil actions to recover compensatory damages for injury to property brought under R.C. 3109.09.

Michael R. Kube, Cleveland, for appellant.

Thomas Sharratt, and Thomas McIntyre, Cleveland, for appellees.

PATTON, Judge.

Plaintiff-appellant, John R. Rudnay, filed suit pursuant to R.C. 3109.09 in the Cleveland Municipal Court on August 10, 1973, to recover for the willful damage to his personal property by the minor children of Shirley Corbett and Charles Holt, respectively. The complaint alleged that in February of 1972, Charles Holt and Lawrence Corbett, both minors under the age of 18, did willfully damage a 1971 Chevrolet Impala owned by and registered to the appellant Rudnay. Appellant claimed on each count that he suffered compensatory loss in the amount of $2,375, and prayed for judgment in the amount of $2,000, plus costs.

Defendant-appellee Holt answered separately, generally denying the allegations set forth in the complaint and raising the affirmative defense that the action is barred by the statute of limitations. Defendant-appellee Corbett, answering separately, set forth a general denial but did not raise an affirmative defense. Defendants (hereinafter "appellees") orally moved for summary judgment based on the defenses of lack of jurisdiction over the subject matter and the running of the statute of limitations. Subsequent briefs in support of and in opposition to the motion were filed. On October 3, 1975, the trial court overruled appellees' motion for summary judgment. Immediately prior to trial, counsel for appellee Holt again made an oral motion to dismiss the complaint for the reason that this action was barred by the statute of limitations. The trial court reserved ruling on this motion, and the case proceeded to trial. On December 10, 1975, the court, in a written opinion, dismissed appellant's complaint.

The court held that R.C. 3109.09, providing for liability of parents for the destructive acts of their minors, is penal in nature, and thus subject to the one-year statute of limitations as set forth in R.C. 2305.11. From this ruling, appellant appeals and sets forth the following assignment of error:

"The trial court erred in holding that the one year statute of limitations set forth in Ohio Revised Code § 2305.11 applies to a cause of action filed under Ohio Revised Code § 3109.09, a statute creating civil liability against the parents of children who willfully damage the property of others."

For the following reasons, we agree with appellant, and, therefore, reverse the ruling of the trial court.

Since appellant did not assign as error the dismissal of the complaint as to appellee Corbett for the reason such party failed to set forth affirmatively the defense of the statute of limitations, pursuant to Civ.R. 8(C), we do not consider this question.

Appellant's complaint was based on R.C. 3109.09, which provides:

"Any owner of property is entitled to maintain an action to recover compensatory damages in a civil action in an amount not to exceed two thousand dollars and costs of suit in a court of competent jurisdiction from the parents having the custody and control of a minor under the age of eighteen years, who willfully damages property belonging to such owner. A finding of willful destruction of property is not dependent upon a prior finding of delinquency of such minor.

"Such action shall be commenced and heard as in other civil actions for damages." (Emphasis supplied.)

The trial court construed this statute to be penal in nature, as opposed to compensatory, and thus controlled by the one-year statute of limitations set forth in R.C. 2305.11 which reads, in pertinent part:

"(A) An action for libel, slander, assault, battery, malicious prosecution, false imprisonment, or malpractice, * * * or upon a statute for a penalty or forfeiture, shall be brought within one year after the cause thereof accrued * * *." (Emphasis supplied.)

To the contrary, appellant argues, the two-year statute of limitations set forth in R.C. 2305.10 applies to actions brought under R.C. 3109.09. The limiting statute reads in full:

"An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose."

The precise question presented here is one of first impression in Ohio.

An action in tort for damage to personal property is governed by the provisions of R.C. 2305.10, which applies to all actions for injury to personal property. U. S. Fidelity & Guaranty Co. v. Truck & Concrete Equip. Co. (1970), 21 Ohio St.2d 244, 257 N.E.2d 380. See also Andrianos v. Community Traction Co. (1951), 155 Ohio St. 47, 97 N.E.2d 549; Levin v Bourne (1962), 117 Ohio App. 269, 192 N.E.2d 114. The phrase "an action," as set forth in R.C. 2305.10, refers to the cause of action, and thus has reference to the wrong committed rather than the remedy to redress such wrong. Andrianos v. Community Traction Co., supra; Levin v. Bourne, supra.

The cause of action, in the instant case, upon which an action may be brought is the willful damage of the property of another by a minor under the age of 18 and in the custody and control of his or her parents. R.C. 3109.09 does not establish the cause of action, but rather extends liability to the parent or parents for the tortious conduct of the minor child. Since the parents' liability is statutorily limited rather than providing actual compensatory damages, regardless of amount, the inquiry does not end here.

We must secondly determine whether the legislature intended R.C. 3109.09 to be compensatory in nature, or punitive in nature. This can best be determined by reviewing the language and legislative history of R.C. 3109.09. ¹ The original act became effective October 6, 1965, and limited the liability of the parents to $250. The act was amended, effective October 24, 1967, to increase the maximum liability to $800. See Lewis v. Martin (1968), 16 Ohio Misc. 18, 240 N.E.2d 913. The third and most recent amendment, effective September 15, 1969, increased the parents' liability to the present maximum allowance of $2,000. Additionally, the act was amended to delete the words "actual damages" and substitute in their place the words "compensatory damages." The section now reads in part: "Any owner of property is entitled to maintain an action to recover compensatory damages in civil action." (Emphasis supplied.) We must presume that the legislature intended to mean exactly what it enacted. That is, this section provides for compensatory damages, limited to damage actually suffered, in an amount not to exceed $2,000.

The fact that the legislature twice amended the section to provide increased maximum limits suggests that they intended this section to provide an updated, realistic ceiling on recovery. We conclude that the Ohio legislature primarily intended R.C. 3109.09 to establish a civil cause of action, providing for compensatory damages to innocent victims of minor delinquents, against the parents having custody and control of such minor who willfully damages the property of another. ²

Although this court concludes that the primary purpose of this section is to compensate the innocent victims of property damage, we do not think it inconsistent that the legislature may have intended an additional result by enactment of R.C. 3109.09. That is, that the legislation might tend to curb juvenile delinquency by rendering parents jointly and severally liable for the willful misconduct of their minor children. Parental control of minor children must necessarily remain society's first line of defense against destructive-minded delinquents.

Appellees contend that should this court construe R.C. 3109.09 as "compensatory" rather than "penal" in nature, the statute would, therefore, be unconstitutional. This court cannot agree.

In support of this position, appellees cite Corley v. Lewless (1971), 227 Ga. 745, 182 S.E.2d 766, wherein it was held that Georgia's parental responsibility statute which provided for unlimited liability without fault was violative of the due process clauses of the state and federal constitutions. The statute construed in Corley is easily distinguishable from the one at issue, since it provided for unlimited liability while R.C. 3109.09 imposes a statutory ceiling. Other courts which have addressed the constitutionality of parental responsibility statutes have, for various and often imprecise reasons, upheld the validity of those statutes. In re Sorrell (1974), 20 Md.App. 179, 315 A.2d 110; Mahaney v. Hunter Enterprises, Inc. (Wyo.1967), 426 P.2d 442; General Ins. Co. of America v. Faulkner (1963), 259 N.C. 317, 130 S.E.2d 645; Kelly v. Williams (Tex.Civ.App.1961), 346 S.W.2d 434.

Governmental regulation for the public welfare must comport with constitutional due process requirements. In Nebbia v. New York (1934), 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940, the court, reaffirmed that:

"(T)he guaranty of due process * * * demands only that the law shall not be unreasonable, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained." Id., at 525. ³

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