Seeley v. Expert, Inc., 69-837

Citation55 O.O.2d 120,26 Ohio St.2d 61,269 N.E.2d 121
Decision Date21 April 1971
Docket NumberNo. 69-837,69-837
Parties, 55 O.O.2d 120 SEELEY et al., Appellees, v. EXPERT, INC., et al., Appellants.
CourtUnited States State Supreme Court of Ohio

Syllabus by the Court

1. Where a nonresident of Ohio sues another nonresident in an Ohio court for damages for injuries arising from an automobile accident which occurred in this state, the case is governed by both the substantive and procedural laws of Ohio. (Ellis v. Garwood, 168 Ohio St. 241, 152 N.E.2d 100, followed.)

2. The provisions of R.C. § 2305.15, tolling the running of the Ohio statutes of limitation during the time a defendant is absent from the state of Ohio, are not limited in their application to persons who were residents of Ohio at the time the event giving rise to a cause of action took place, but also include persons who have never been residents of Ohio. (Paragraph two of Meekison v. Groschner, 153 Ohio St. 301, 97 N.E.2d 680, followed.)

3. The provisions of R.C. § 2305.15, tolling the running of the Ohio statutes of limitation during the time a defendant is absent from the state of Ohio, are applicable despite the fact that suit could have been brought in Ohio at any time after an automobile collision by virtue of R.C. § 2703.20, which permits service of process on a nonresident motorist or owner of a motor vehicle by service on the Ohio Secretary of State, with copy mailed to the defendant's last known address. (Couts v. Rose, 152 Ohio St. 458, 90 N.E.2d 139, followed.)

One vehicle was owned and operated by Louis J. Seeley. His wife, Betty, was a passenger therein. The other vehicle was driven by Max A. Sievers and was owned by Expert, Inc. At the time of the accident it was being driven on business for Expert, Inc.

None of the parties involved were or are residents of Ohio. The Seeleys reside in Ada, Michigan. Sievers resides in Detroit, Michigan. Expert, Inc., is a Michigan corporation, with its place of business in Detroit.

Suit was filed by the Seeleys against Sievers and Expert, Inc., in the Common Pleas Court of Lucas County on May 9, 1968, some four years and eight months after the accident, the wife seeking damages for personal injuries and the husband seeking damages for loss of services and expenses of treatment of his wife.

The Common Pleas Court granted summary judgment in favor of the defendants upon the basis that the action was barred by the statute of limitations. 1

The Court of Appeals reversed, holding that the action was not barred by the statute of limitations because of the 'savings clause' of R.C. § 2305.15.

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

Boxell, Bebout, Torbet & Baker and Earl F. Boxell, Toledo, for appellees.

Bowman, Abel, Raitz & Cox and C. David Cox, Jr., Toledo, for appellants.

LEACH, Justice.

The single question presented herein is whether the causes of action of the plaintiffs, suit having been filed some four years and eight months after the automobile accident, are barred by statutes of limitation.

The solution of this question necessarily involves consideration of three subsidiary questions: (1) Whether the case is governed by the Ohio law as to limitations of actions (2) whether the 'savings clause,' R.C. § 2305.15, applies to defendants who have never been residents of Ohio, and (3) whether applicable Ohio statutes of limitation are tolled by the continued absence from Ohio of a nonresident defendant who is the operator or owner of a motor vehicle involved in an accident or collision occurring in Ohio.

One of the claims made by defendants in the trial court was that since all the parties were residents of Michigan the action should be barred by the three-year statute of limitations of Michigan. Although the same claim was not specifically advanced in this court, it would appear to be implicitly involved in the apparent assertion of defendants that a different rule of law should apply where the plaintiff, as well as the defendant, is a nonresident of Ohio.

In Ellis v. Garwood (1958), 168 Ohio St. 241, 152 N.E.2d 100, this court held that 'both the substantive and procedural laws of Ohio' are applicable to a suit in this state arising from automobile accidents in this state where the drivers of both cars were nonresidents of Ohio.

Accordingly, we conclude that where a nonresident of Ohio sues another nonresident in an Ohio court for damages arising from an automobile accident which occurred in this state, the case is governed by both the substantive and procedural laws of Ohio.

Under the procedural law of Ohio, relating to statutes of limitation, no distinction is made as to whether the party-plaintiff is or is not a resident of Ohio. Thus we must conclude that the law of this case is not affected by the fact that plaintiffs were residents of Michigan instead of Ohio.

We turn now to the question of whether the provisions of the 'savings clause,' R.C. § 2305.15, are only applicably to situations where a resident defendant absents himself from the state after the event giving rise to a cause of action or whether they apply to persons who are continuously absent from the state by virtue of having been nonresidents of Ohio at such time.

There are cases in other states holding the 'savings clauses' of such states, tolling the running of the statutes of limitation, to be applicable only to persons who were residents of the state at the time the cause of action arose. See annotations in 94 A.L.R. 485; 119 A.L.R. 859; 17 A.L.R.2d 502. Such an interpretation was adopted, at one time, by the Court of Appeals for Lucas County, it holding in Canaday v. Hayden (1947), 80 Ohio App. 1, 74 N.E.2d 635, that:

'The provisions of Section 11228, General Code, known as the 'savings clause,' imply that residence of the defendant within this state is the central fact, and if an action be brought against a nonresident pursuant to the provisions of Section 6308-1 et seq., General Code, the provisions of Section 11228, General Code, have no application, and the general statute of limitation of actions is not tolled by reason of the absence of a nonresident from the state.'

This holding of Canaday, however, was expressly rejected by this court in Meekison v. Groschner (1950), 153 Ohio St. 301, 91 N.E.2d 680. That case was certified to this court by the Court of Appeals for Henry County as being in conflict with the judgment in Canaday. While a promissory note, and not an automobile accident, was the basis of the claim in Meekison, the question of whether the 'savings clause' (then G.C. 11228) applied to persons who had always been nonresidents of Ohio would be the same in either event.

Paragraph two of the syllabus of Meekison holds that:

'Where the obligor of a promissory note, payable to a resident of Ohio at his place of residence, is and has been continuously absent from the state of Ohio, Section 11228, General Code, applies and the period of limitation for the commencement of an action against the obligor after default of his obligation does not begin to run until he comes into the state, whether his absence resulted from his leaving the state after he executed the promissory note or from his nonresidency of the state at the time of such execution.'

While acknowledging that 'courts have sharply divided upon this propoition,' Judge Stewart stated in Meekison, at pages 308, 309, 91 N.E.2d at page 683:

'We can see no difference in principle where a debtor is absent from Ohio because of residence in another state, whether that residence began before the execution of the contract upon which a cause of action subsequently arose or whether the nonresidency of Ohio began after the execution of the contract but before a cause of action arose upon it.

'Section 11228, General Code, provides:

"When a cause of action accrues against a person, if he is out of the state, * * * the period of limitation for the commencement of the action as provided in this chapter, shall not begin to run until he comes into the state * * *.'

'Whether the debtor is out of the state because he has left it and gone elsewhere or because he resides elsewhere, he is still, in the words of the statute, 'out of the state.' Under the statute, the period of limitation does not run against his creditor until the debtor comes within the state.'

By applying Meekison, the United States Court of Appeals for the Sixth Circuit held that the Ohio 'savings clause,' tolling any statute of limitations while a potential defendant remains out of Ohio, operated to toll the running of the two-year Ohio statute of limitations for personal injuries, despite the fact that the defendant resided continuouly in Michigan, and the plaintiff could have brought action in Ohio at any time after the collision under the provisions of R.C. § 2703.20. Chamberlain v. Lowe (1958), 252 F.2d 563.

We conclude that the provisions of R.C. § 2305.15, tolling the running of the Ohio statutes of limitation during the time a defendant is absent from the state of Ohio, are not limited in their application to persons who were residents of Ohio at the time the event giving rise to a cause of action took place, but also include persons who have never been residents of Ohio.

The most troublesome question presented by this case is whether such a 'savings clause' is or ever should be applicable to toll a statute of limitations in cases where there is no need for such tolling; in cases where suit may be commenced at any time and a judgment in personam obtained despite the absence of the defendant from the state of Ohio.

Service on the defendants herein was obtained pursuant to the provisions of R.C. § 2703.20 2 through service on the Secretary of State.

Since defendants were continuously nonresidents of Ohio, they were subject to service under the provisions of R.C. § 2703.20, at any time. Defendants, therefore, urge this court to hold, as a proposition of law, that the provisions of R.C....

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