Spence v. Commercial Motor Freight

• Decision Date: 06 April 1954
• Citation: 53 A.L.R.2d 1445,99 Ohio App. 143,127 N.E.2d 427
• Parties: , 53 A.L.R.2d 1445, 70 Ohio Law Abs. 90, 58 O.O. 260 Dorothy A. SPENCE, Adm'x of the Estate of Clifton C. Spence, Deceased, Plaintiff-Appellee, v. COMMERCIAL MOTOR FREIGHT, Inc., of Indiana, Defendant-Appellant.
• Court: Ohio Court of Appeals

Page 143

99 Ohio App. 143

127 N.E.2d 427, 53 A.L.R.2d 1445, 70 Ohio Law Abs. 90,

58 O.O. 260

Dorothy A. SPENCE, Adm'x of the Estate of Clifton C. Spence, Deceased, Plaintiff-Appellee, v. COMMERCIAL MOTOR FREIGHT, Inc., of Indiana, Defendant-Appellant.

Court of Appeals of Ohio, Preble County.

April 6, 1954.

Walter H. Earley, Eaton, and Horace W. Baggott, Dayton, for plaintiff-appellee.

Waldo E. Young, Eaton, for defendant-appellant.

HORNBECK, Justice.

This is an appeal on questions of law from a judgment for the plaintiff against the defendant in the sum of $42,000 entered on a verdict of a jury.

The action was for damages for the wrongful death of plaintiff's decedent because of the negligence alleged in plaintiff's amended petition. Plaintiff's decedent died by reason of a collision between a milk truck, which he was driving, and a truck driven by the agent of defendant, Commercial Motor Freight, Inc., of Indiana. Both trucks were moving westwardly on U. S. Route 35, and the collision occurred about 3 1/2 miles west of Eaton, at a point about 219 feet west of the intersection of U. S. Route 35 and Eaton and New Hope Road.

After the impact, the milk truck came to rest in a corn field on the north side of U. S. Route 35, the driver having been thrown from the truck. The defendant's truck moved a distance of about 165 feet after the collision, and came to rest on the berm on the north side of the road. Plaintiff's decedent, prior to the collision, had made delivery of milk to the home of Mrs. Norma Matheny, who lived on the south side of U. S. Route 35. She was in her kitchen, from a window of which she had a limited view of Route 35 to the west. She observed plaintiff's decedent moving from her home toward the north side of the road and when last she saw him his vehicle was astride the center thereof. She then looked away and in a very short period of time heard a noise which may have been a collision between the trucks. She was the principal witness and, indeed, as to certain material physical facts, the only disinterested witness. Other conclusions are largely circumstantial, to be drawn from photographs of the effects of the collision as appearing upon the trucks, the location of skid marks on the highway, the movement of the trucks before and immediately following the collision, and their position when they came to rest.

Plaintiff, in her petition and reply, set up four specifications of negligence. By the pleadings, the issues were drawn as to the negligence of the defendant in any one of the four particulars alleged, and the contributory negligence of plaintiff's decedent.

The action was instituted against Commercial Freight Lines, Inc., Indianapolis, Indiana. Summons was served upon the Secretary of State of Ohio and by sending to the defendant named, by registered mail, return receipt requested, a copy of the summons and of the service upon the Secretary of State. The receipt attached was returned, signed 'Com. Motor by O. K. Riggle'.

Thereafter, Commercial Motor Freight, Inc., of Indiana, moved to quash service of summons upon three grounds:

1. That the defendant named is an Ohio corporation.

2. That the service could have been made upon the defendant as provided by law in the State of Ohio and not upon the Secretary of State.

3. That any attempted service upon the named defendant herein under Section 6308-2, G.C., is unlawful and void.

Succeeding this motion, plaintiff moved for leave to amend her petition, praecipe for summons, summons and return of summons, by correcting and changing the name of defendant in each instance to read 'Commercial Motor Freight, Inc., of Indiana'.

The grounds of the motion were that the correct corporate name of the defendant sought to be sued is 'Commercial Motor Freight, Inc., of Indiana', and a misnomer of the defendant in the petition.

The court sustained plaintiff's motion and overruled the defendant's motion to quash. This action is the first error assigned.

The trial judge, passing on the motions, filed a written opinion in which he found that the amendments sought to be made were authorized by Section 6308-2, G.C.; that the law contemplated two methods of service, and that the plaintiff had the right to avail herself of either. He found that the corporate body, Commercial Motor Freight, Inc., of Indiana, had been apprised of the action filed and would lose no rights by being subjected to the jurisdiction of the court. With this conclusion we are in accord. We doubt if it is necessary to go beyond the letter of the statute to determine the question. Section 2309.58, R.C., Section 11363, G.C., insofar as applicable, provides:

'Before * * * judgment, in furtherance of justice and on such terms as it deems proper, the court may amend any pleading, process, * * * by correcting a mistake in the name of a party or a mistake in any other respect, * * * when the amendment does not substantially change the claim or defense, * * *.'

There can be no doubt as to the right to amend by changing the name of the defendant in the petition. The only question of substance is whether or not the court was authorized to overrule the motion to quash in view of the form of the service. There is similarity between the names 'Commercial Freight Lines, Inc.' and 'Commercial Motor Freight, Inc.' The former is an Ohio corporation, the latter is an Indiana corporation. Carried as a part of the title in the petition was 'an Indiana corporation' and the petition averred that the defendant was an Indiana corporation. It is manifest that the entity sought to be reached in the petition, praecipe and by the service, was the Indiana corporation. It was actually apprised of the action by the registered letter which it accepted. The intent of the plaintiff as to the corporation sought to be subjected to the jurisdiction of the court is clear, from all the facts developed. The entity sought to be reached was notified in regular manner, subject only to the disparity in name. The intent of the service of process was accomplished.

It is held in United Fuel Gas Co. v. City of Ironton, 107 Ohio St. 173, 140 N.E. 884, 29 A.L.R. 342, that the discretion vested in the court by Section 11363, G.C., should be exercised in the furtherance of and not for the purpose of defeating justice and that under authority of Section 10214, G.C., the provisions of Section 11363, G.C., are to be liberally construed; Douglas v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 123 A.L.R. 761. In State ex rel. Heck v. Sucher, 77 Ohio App. 257, 65 N.E.2d 268, the court held that in furtherance of justice the court may order a defective summons amended, without requiring amended summons to be served, if it be shown that the party served will not be prejudiced thereby. The court in its opinion called attention to the fact that Section 11363, G.C., had special application to process and that it authorized correction of a mistake in any other respect. The court, 77 Ohio App. at page 259, 65 N.E.2d at page 269, said:

"It [G.C. 11363] further authorizes an amendment of a mistake in any respect. Broader and more efficient language could hardly have been used to vest this power. The only limit seems to be to cases where an amendment would not be in furtherance of justice."

Burton v. Buckeye Insurance Co., 26 Ohio St. 467, is cited, where the summons was permitted to be amended although it contained the name of the insurance company but the defendant was actually served. Many cases are cited and commented upon by the plaintiff, but it would be a work of supererogation to cite and comment upon them. Suffice it to say that they support, as a matter of law, the action of the trial judge here.

Defendant cites and relies upon Uihlein v. Gladieux, 74 Ohio St. 232, 78 N.E. 363. There are several distinguishing differences between this case and the instant cause. The action under review in the cited case required consideration of a suit originally instituted in a justice of the peace court wherein the jurisdiction must clearly appear upon the record. The enabling provisions of Section 2309.58, R.C., Section 11363, G.C., have no application, which section defines procedure in the common pleas court. The case was adjudicated upon error proceedings. There was no attempt in the original action to name the individual in the title, against whom judgment was rendered. There was no observance of the statutory requirements as to what the summons shall contain when the name of a party is unknown. There is no showing that the party against whom the judgment was entered was served personally. And, finally, the judgment was entered against the defendant with the finding that the name of that defendant was unknown. The court held that the facts upon which the judgment of the justice of the peace court were predicated must be shown affirmatively and that they did not appear.

Hendershot v. Ferkel, 144 Ohio St. 112, 56 N.E.2d 205. The court in this case supported the contention of appellee that service on the defendant had been accomplished under Section 6308-2, G.C., Section 2703.20, R.C. The statement of Judge Matthias in 144 Ohio St. on page 120, 56 N.E.2d on page 209 of the opinion is to the effect that service of process by registered mail, as provided in Section 6308-2, G.C. defining the essentials of service of process upon non-residents, should be strictly followed in order to invest the court with jurisdiction. Judge Hart in the dissenting opinion stresses the determinative question which was before the court, namely the essential steps to be taken by the officer to whom the writ is directed. This case is not authority upon the question under consideration here.

The final case cited is Ksenich v. Lorain Street Railway Co., Ohio App., 31 N.E.2d 266, 267. There the action was instituted against...