Scheer v. Air-Shields, Inc.

Decision Date31 January 1979
Docket NumberAIR-SHIELD,INC
Citation61 Ohio App.2d 205,401 N.E.2d 478
Parties, 15 O.O.3d 321 SCHEER, Appellant, v., Appellee. *
CourtOhio Court of Appeals

Syllabus by the Court

1. The amendment to R.C. 3109.01 changing the age of majority from 21 years to 18 years is constitutional and applies to an injured person who reached 18 years of age after the effective date of the amendment.

2. Under R.C. 2305.15, the statute of limitations is tolled against a foreign corporation by its absence from the state, despite its amenability to long-arm service under Civ.R. 4.3.

3. A motion to dismiss a complaint under Civ.R. 12(B) which is based on the contention that the statute of limitations has run is erroneously granted where such contention is not conclusively supported by allegations in the complaint.

Lewis Froikin, Dayton, for appellant.

Estabrook, Finn & McKee, Robert P. Bartlett, Jr. and Thomas L. Czechowski, Dayton, for appellee.

BLACK, Judge.

This appeal raises several questions about the statute of limitations for personal injury (R.C. 2305.10), the "saving clause" applicable when a person is out-of-state (R.C. 2305.15), and the suspension of the statute of limitations during the disability of an "infant" (R.C. 2305.16) whose age of majority is reduced by legislative action (R.C 3109.01). Similar questions were raised and disposed of in Durham v. Anka Research Limited, unreported, No. C-77454, First Appellate District, decided October 25, 1978.

Appellant brought suit against appellee Air-Shields, Inc., manufacturer of an incubator in which appellant was placed as an infant and from the use of which he claims to have been permanently damaged. Appellee's motion to dismiss was granted on the express grounds that appellant's action was barred by the statute of limitations. We disagree.

The facts are similar but not identical to those of Durham v. Anka Research Limited, supra. Appellant herein was born on August 8, 1956, and was thereupon placed in the incubator where he was administered a supply of oxygen in what he claims were excessive amounts that allegedly rendered him blind. On January 1, 1974, the amendment of R.C. 3109.01 reducing the age of majority from 21 years of age to 18 years became effective. Appellant was then 17 years and 4 months of age; he reached his 18th birthday on August 8, 1974. He filed his Complaint herein on August 3, 1977.

The Complaint alleges that Air-Shields was a foreign corporation with its principal place of business at Hatboro, Pennsylvania. It is also alleged that Air-Shields was doing business in Ohio, but the Complaint fails to state how long Air-Shields had been authorized to do business in Ohio.

Consistent with the decision reached in Durham, we reach the following conclusions. The applicable statute of limitations is R.C. 2305.10, giving appellant two years to file his Complaint after his disability was removed, and the reduction of the age of majority from 21 years to 18 years by the amendment to R.C. 3109.01 was applicable to appellant, thus setting a deadline of August 8, 1976, for the filing of his Complaint, pursuant to R.C. 2305.16. However, the statute of limitations was tolled as to appellee for that period of time during which it was "out-of-state," because as we decided in Durham, under the plain and unequivocal wording of the "saving clause" (R.C. 2305.15), tolling is caused by the absence of the defendant from the state, not by its nonamenability to long-arm service. 1

The instant Complaint is ambiguous about the duration of Air-Shields' presence in the state. While the Complaint states that Air-Shields was doing business in Ohio at the time the Complaint was filed, it is silent on the duration of this status, a silence rendered more significant by the allegations in appellant's second assignment of error and by a letter attached to appellant's memorandum in the trial court, both indicating that the date of Air-Shields' license to do business in Ohio was February 22, 1977, approximately six months before the Complaint was filed. We do not rely on the allegations in appellant's brief or the presence of that letter in the memorandum but rather on the fact that the Complaint on its face left open the possibility that the bar of the statute was tolled. 2 A motion to dismiss may be granted only when the Complaint allows no other possible conclusion. Conley v. Gibson (1957), 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; Wentz v. Richardson (1956), 165 Ohio St. 558, 138 N.E.2d 675; Annotation, 61 A.L.R.2d 300, 321. Compare the pre-rule cases of Baughman v. Hower (1937), 56 Ohio App. 162, 10 N.E.2d 176, and Baumann v. Mangold (1929), 32 Ohio App. 419, 168 N.E. 217, in both of which it was held error to sustain a demurrer on grounds of the bar of the statute of limitations when the bar was not conclusively disclosed by the face of the petitions.

We conclude that appellant's second assignment of error has merit, but the others do not. 3 The second assignment claims that the court erred in failing to find that the statute of limitations was tolled for the period before Air-Shields "came into the state."

More exactly, the court erred in dismissing appellant's Complaint because the Complaint fails to establish conclusively on its face that appellant's cause of action was barred. We reverse the judgment below and remand this cause for further proceedings.

Judgment reversed and cause remanded.

PALMER, P. J., and BETTMAN, J., concur.

* A motion to certify the record was overruled by the Supreme Court of Ohio, May 18, 1979.

1 The reasoning was stated in the following language in Durham v. Anka Research Limited, supra, after first citing Seeley v. Expert, Inc. (1971), 26 Ohio St.2d 61, 269 N.E.2d 121:

"* * * In that case, the Supreme Court ruled, in the third paragraph of the syllabus, that R.C. 2305.15 tolls the statute of limitations during the time an individual defendant is absent from the state despite the fact that substituted service could have been obtained on that defendant as a nonresident operator of a motor vehicle under R.C. 2703.20. The court reviewed the history of judicial interpretation of R.C. 2305.15 and concluded that it must abide by the plain language used by the General Assembly and never amended. That language states, briefly, that when a cause of action accrues against a person, if he is out of the state, the period of limitation does not begin to run until he comes into the state.

"The fact that he is amenable to service because the court can acquire jurisdiction by substituted...

To continue reading

Request your trial
34 cases
  • Phung v. Waste Management, Inc.
    • United States
    • Ohio Supreme Court
    • 16 Abril 1986
    ... ... An appellate court may not assume as true or even consider facts alleged in a party's brief or attachments thereto. Scheer v. Air-Shields, Inc. (1979), 61 Ohio App.2d 205, 401 N.E.2d 478. [15 O.O.3d 321] ...         The allegations herein failed to state a ... ...
  • Krohn v. Ostafi
    • United States
    • Ohio Court of Appeals
    • 17 Abril 2020
    ...barred. Velotta v. Leo Petronzio Landscaping, Inc., 69 Ohio St. 2d 376, 379, 433 N.E.2d 147 (1982), citing Scheer v. Air-Shields, Inc., 61 Ohio App.2d 205, 401 N.E.2d 478 (1979) and Durham v. Anka Research Limited, 60 Ohio App.2d 239, 396 N.E.2d 799 (1978) (emphasis added). Since Velotta al......
  • Cox v. Ohio Dept. of Transp.
    • United States
    • Ohio Supreme Court
    • 12 Agosto 1981
    ...on the face of the complaint. Mills v. Whitehouse Trucking Co. (1974), 40 Ohio St.2d 55, 320 N.E.2d 668; Scheer v. Air Shields, Inc. (1979), 61 Ohio App.2d 205, 401 N.E.2d 478; Wirth v. Ohio Department of Transportation (March 11, 1980, Franklin Co. Ct.App.), No. 79AP-735, unreported.5 The ......
  • Bruck v. Eli Lilly & Co.
    • United States
    • U.S. District Court — Southern District of Ohio
    • 2 Octubre 1981
    ...may be made on the defendant by means of Ohio's long-arm statutes. Id. 26 Ohio St.2d at 69, 269 N.E.2d 121; Scheer v. Air Shield, Incorporated, 61 Ohio App.2d 205, 401 N.E.2d 478, 15 Ohio Ops.3d 321 (1979). A defendant who is "out of state" is not protected by Ohio statutes of limitation, a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT