Wrinkle v. Trabert

• Decision Date: 27 February 1963
• Docket Number: Nos. 37494,37495,s. 37494
• Citation: 174 Ohio St. 233,188 N.E.2d 587
• Parties: , 22 O.O.2d 248 WRINKLE, Appellant, v. TRABERT, Adm'r, Appellee. HIGHLAND MOTOR CO., Appellant, v. TRABERT, Adm'r, Appellee.
• Court: Ohio Supreme Court

Page 233

174 Ohio St. 233

188 N.E.2d 587, 22 O.O.2d 248

WRINKLE, Appellant, v. TRABERT, Adm'r, Appellee.

HIGHLAND MOTOR CO., Appellant, v. TRABERT, Adm'r, Appellee.

Nos. 37494, 37495.

Supreme Court of Ohio.

Feb. 27, 1963.

Syllabus by the Court

1. The statute of limitations for an action for personal injuries begins to run at the time the injuries are sustained even though the person against whom such action would be brought is killed in the accident in which such injuries occurred. (Hoiles v. Riddle, Adm'r, 74 Ohio St. 173, 78 N.E. 219, overruled.)

2. Where one has a claim against an estate, it is incumbent upon him, if no administrator has been appointed, to procure the appointment of an administrator against whom he can proceed. (Section 2113.06, Revised Code.)

3. The substitution of an amended petition for an earlier one ordinarily constitutes an abandonment of the earlier pleading and a reliance upon the amended one. (Paragraph one of the syllabus in Grimm v. Modest, 135 Ohio St. 275, 20 N.E.2d 527, approved and followed.)

4. Ordinarily, no act or transaction by a fiduciary shall be valid prior to the issuance of letters of appointment to him. (Section 2109.02, Revised Code.)

5. The doctrine of 'relation back' validates acts or transactions previous to the appointment of an administrator of an estate only in those instances where the doctrine results in a benefit to the estate.

6. Where the letters of appointment of an administrator are not issued until after the statute of limitations has run as to a tort action against the estate, the administrator has no authority to validate an attempted defense of such action by him undertaken before ths issuance of his letters of appointment.

There are two causes involved in these appeals, one being an action for personal injuries and the other being for personal property damage. The causes arose out of the same accident, were tried together in the courts below, and will be disposed of together as one cause.

James Wrinkle (plaintiff in case No. 37494) was injured in an automobile collision in the city of Cincinnati on January 15, 1956. At the time of the accident, Wrinkle was driving for Highland Motor Company (plaintiff in case No. 37495), and Wrinkle and Highland Motor Company are the appellant herein and herein will be referred to as plaintiff. The accident occurred when plaintiff's automobile collided with an automobile operated by Elwood Hughes who was killed in the collision.

Within five days of Hughes' death, an application to relieve his estate from administration was filed in the Probate Court of Hamilton County, and consequently no administrator was appointed.

In view of the absence of an administrator amenable to suit, plaintiff's attorney, in May of 1957, filed an application in the Probate Court of Hamilton County for the appointment of J. Marc Trabert as administrator of the estate of the decedent. Trabert is the defendant, appellee herein, and herein sometimes will be referred to as the administrator.

Plaintiff presented his claim to Trabert who rejected the claim on December 3, 1957. Thereafter on December 24, 1957, plaintiff instituted an action against Trabert and Jake Sweeney, Inc., a new and used car dealer, alleging in the petition that, at the time of the collision, Jake Sweeney, Inc., and Hughes were engaged in a joint venture.

On July 1, 1958, an answer was filed by Sweeney, and on May 15, 1959, the answer of Trabert was filed by leave of court.

On June 21, 1960, a second amended petition was filed by plaintiff, which petition was directed solely to Trabert and in which the allegations as to joint venture were omitted. On June 29, 1960, Trabert filed an answer to the second amended petition.

At the commencement of the trial on December 2, 1960, a question was raised as to the letters of appointment of the administrator, and it was discovered that for some reason the letters, although applied for, had never been issued. Thereupon, the letters were issued under date of December 5, 1960, and the administrator, Trabert, again rejected plaintiff's claim. Plaintiff then filed a supplement to the second amended petition alleging such rejection. To this second amended petition with supplement, the administrator demurred upon the ground that the statutory time for the commencement of the action had elapsed. This demurrer was sustained by the trial court.

The judgment of the Court of Common Pleas was affirmed by the Court of Appeals.

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

Hoover, Beall & Eichel, Cincinnati, for appellants.

Lindhorst & Dreidame, Cincinnati, for appellee.

MATTHIAS, Judge.

The issue in this cause is whether an action is properly commenced so as to bar the defense of the statute of limitations, where such action is instituted within the statutory period of limitation against one acting as administrator whose letters of administration, although applied for within the period of limitation, were not issued until such period had elapsed.

The general rule is, of course, that an administrator has no power or authority to act as a representative of the estate until he is properly vested with authority by issuance of letters of appointment to him by the Probate Court. This rule has been incorporated in the statutes of Ohio.

Section 2109.02, Revised Code, states in part:

'No act or transaction by a fiduciary shall shall be valid prior to the issuance of letters of appointment to him.'

In spite of this statutory mandate, plaintiff contends that the appointment of the administrator when completed relates back to the time of the application for his letters of appointment.

The doctrine of 'relation back' was applied in the cases of Archdeacon, Adm'r v. Cincinnati Gas & Electric Co., 76 Ohio St. 97, 81 N.E. 152 and Douglas, Adm'x v. Daniels Bros. Coal Co., 135 Ohio St. 641, 22 N.E.2d 195, 123 A.L.R. 761. An examination of those cases reveals that in each instance the application of the doctrine was in accordance with the general view that such doctrine would be applied in those instances where the result would be to benefit the estate.

Plaintiff contends that a benefit to the estate is not necessary to the doctrine of 'relation back,' but an investigation of the underlying reasons for the rule reveals that plaintiff's contention is not sound.

Customarily, there is a delay between death and the appointment of an administrator, and during this period rights ofttimes accrue which might well be lost to the estate if someone, even one without authority, could not act to protect such rights and have such acts subsequently validated by the proper appointment of an administrator. Thus, 'relation back' is necessary to protect estates and aid administrators in the fulfillment of their duties of administration.

On the other hand, one who has a claim against an estate which has been relieved from administration has it within his power to preserve such claim by instigating the appointment of an administrator to whom he can present such claim. See Section 2113.06, Revised Code. If such a party fails through lack of diligence to procure such appointment within time to properly urge his claim, or, as in the present cause, he starts such...