Summary
In Collins v. Yanity (1968), 14 Ohio St.2d 202, 207, 43 O.O.2d 301, 304, 237 N.E.2d 611, 614, we stated that "an action for wrongful death is brought pursuant to * * * Sections 2125.01 and 2125.
Summary of this case from Collins v. SotkaOpinion
Nos. 41181, 41182, 41183, 41184 and 41185
Decided May 15, 1968.
Executors and administrators — Claim against estate for bodily injury — Rejection by administrator — Failure to file suit within two months — Action not barred, when — Amended Section 2117.07, Revised Code, applicable, when — Recovery not sought from assets of estate — Presentation of wrongful death claim within statutory period — Prerequisite to action against administrator.
1. The failure to file suit within two months of the rejection by the administrator of the estate of a claim against the estate for bodily injury does not bar an action for that bodily injury against that administrator where no part of the recovery sought is to come from "assets of the estate" as that term is defined in Section 2117.07, Revised Code.
2. The 1963 amendment to Section 2117.07, Revised Code, applies only to actions for bodily injury and injuring personal property.
3. The 1963 amendment to Section 2117.07, Revised Code, does not apply to a wrongful death action against an executor or administrator which is commenced within two years after the cause of such action arose, even where no portion of any recovery is sought from assets of the estate.
4. An action for wrongful death caused proximately by the negligence of a decedent cannot be brought against the executor or administrator of that decedent unless a claim therefor is presented within the four-month time specified in Section 2117.06, Revised Code, or as provided in and within the nine-month time specified in Section 2117.07, Revised Code.
APPEALS from the Court of Appeals for Athens County.
CERTIFIED by the Court of Appeals for Athens County.
On October 12, 1963, an automobile accident occurred between automobiles driven by Earl Edwards and another party. Edwards and two members of the Scarberry family were killed and three other members of the Scarberry family were injured in the accident.
On January 13, 1964, an administrator was appointed for Edwards' estate.
On May 26, 1964, over four months after that appointment, two claims for damages for wrongful death and three claims for damages for personal injuries were presented on behalf of the Scarberrys. They were rejected on the same day.
On October 6, 1964, two petitions for wrongful death and three for personal injuries were filed against the administrator of Edwards on behalf of the Scarberrys.
Subsequently, plaintiff filed a second amended petition in each case alleging that she "has not timely presented this claim to the said administrator for allowance, but that no portion of any recovery in this action shall come from the assets of the said [Edwards] estate."
Demurrers were filed in each case on the ground that the suits were not filed within two months after the rejection of the claims as required by Section 2117.12, Revised Code.
In the two wrongful death actions, there was specified as an additional ground that the claims were not presented to the administrator within four months.
So far as pertinent, Section 2117.12, Revised Code, reads:
"When a claim against an estate has been rejected * * * the claimant must commence an action on the claim * * * within two months after such rejection * * * or be forever barred from maintaining an action thereon. * * *"
The pertinent portions of Sections 2117.06, 2117.07 and 2305.10, Revised Code, are quoted in the statement of the case of Meinberg v. Glaser, ante, 193.
The trial court sustained each demurrer on the ground that the petition was not filed within two months after the claim had been rejected as required by Section 2117.12, Revised Code.
The plaintiffs not desiring to plead further, judgment was rendered for the administrator of the Edwards' estate in each action.
On appeal to the Court of Appeals, the judgment in each of the two wrongful death actions was affirmed and those causes (Cases Nos. 41181 and 41182) are now before this court pursuant to the allowance of motions to certify the records. In each of the three personal injury actions the judgment was reversed and the Court of Appeals finding their judgments to be in conflict with the judgment of the Court of Appeals of the First Appellate District in the case of Meinberg v. Glaser, certified the record to this court pursuant to Section 6 of Article IV of the Ohio Constitution.
Messrs. Walker Mollica, Mr. William Parker Walker, Messrs. Crabbe, Newlon, Bilger, Brown Jones and Mr. James L. Graham, for J.B. Yanity, Jr., Administrator.
Messrs. Combs Combs, Messrs. Power, Griffith, Jones Bell and Mr. James F. Bell and Mr. William R. White, for Dollie Collins, Administratrix.
Our decision in Meinberg v. Glaser, ante, 193, is dispositive of all the questions raised in the three personal injury actions except one. That question is whether in each of those actions the failure to file suit within two months of the rejection by the administrator of the estate of a claim against the estate for bodily injury bars an action for that bodily injury against that administrator where no part of the recovery sought is to come from "assets of the estate," within the meaning of those words as used in Section 2117.07, Revised Code.
In our opinion, Section 2117.12, Revised Code, deals only with claims which must be presented to the administrator or executor. If the claimant is to have a right to payment of a claim for bodily injury out of assets of the estate, the claimant must file the claim as and within the four-month time specified in Section 2117.06, or as provided in and within the nine-month time specified in Section 2117.07, Revised Code. Then, if such claim is rejected, the claimant must file suit within two months after such rejection or be barred from establishing a claim enforceable against "assets of the estate," as those words are used in Section 2117.07, Revised Code.
On the other hand, as we held in Meinberg v. Glaser, where all recovery on a claim for bodily injury is to come from other than such assets of an estate, an action for such bodily injury can be brought against the administrator within two years after the cause thereof arose.
Since such an action can be brought in such instance if no claim is presented to the executor or administrator, we are of the opinion that it can be brought even if a claim is presented to the executor or administrator and even if no suit is filed within two months after his rejection of such a claim.
It follows that the judgments in the three personal injury actions must be affirmed.
In view of our conclusions with regard to the three personal injury actions, we agree with the statement by plaintiffs that "the entire controversy in these two wrongful death cases centers around the 1963 amendment to Section 2117.07, and whether it is applicable to a wrongful death action."
In our opinion, the answer to the question so posed depends upon the following words used by the General Assembly in that amendment and upon which plaintiffs must rely:
"Nothing in this section or in * * * 2117.06 * * * shall reduce the time mentioned in Section 2305.10 * * * provided that no portion of any recovery on a claim brought pursuant to such section * * *."
These words clearly indicate that we must look to Section 2305.10, Revised Code, not only to see what time is mentioned therein, but also to see what kind of a claim is provided for therein. The language of the 1963 amendment of Section 2117.07, Revised Code, unmistakably specifies that the amendment is to give relief from Sections 2117.06 and 2117.07, Revised Code, only with regard to a "claim brought pursuant to" Section 2305.10, Revised Code. That section reads:
"An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose."
Section 2305.10, Revised Code, is a statute of limitations. Of course, a claim is not brought pursuant to such a statute. However, it is quite apparent why the General Assembly used the words "brought pursuant to" in its amendment of Section 2117.07, Revised Code. It simply took the word, "brought," from Section 2305.10, Revised Code, and, in doing so, thereby expressed clearly an intention in its amendment of Section 2117.07 to deal only with claims such as are covered by Section 2305.10, Revised Code.
Section 2305.10, Revised Code, dealt only with "an action for bodily injury or injuring personal property." An action or claim for wrongful death is not such an action.
Actually, an action for wrongful death is brought pursuant to other statutes, i e., Sections 2125.01 and 2125.02, Revised Code, which create the right of action, define it and specify the time within which such action must be brought. Without those statutes, there would be no cause of action for wrongful death in Ohio. Pittsburgh, Cincinnati St. Louis Ry. Co. v. Hine (1874), 25 Ohio St. 629, 634; Mahoning Valley Ry. Co. v. Van Alstyne (1908), 77 Ohio St. 395, 400, 83 N.E. 601; May Coal Co. v. Robinette (1929), 120 Ohio St. 110, 165 N.E. 576.
Quite clearly, a cause of action for wrongful death must be "brought" pursuant to and its existence and the time within which it must be "brought" are dependent upon statutes other than Section 2305.10, Revised Code. The words, "an action for bodily injury or injuring personal property," in the latter statute do not include an action for wrongful death.
If we adopted plaintiffs argument that the General Assembly intended, by what it said in the 1963 amendment of Section 2117.07, Revised Code, to permit an action against an administrator or executor at any time "within two years after the cause thereof arose" on any claim where "no portion of any recovery * * * shall come from the assets of an estate," we would necessarily have to impute to the General Assembly the strange intention of having that amendment operate in some instances so as to extend from one to two years the general statute of limitations (Section 2305.11, Revised Code), relating to actions "for libel, slander, assault, battery, malicious prosecution, false imprisonment, or malpractice."
For the foregoing reasons, the judgment of the Court of Appeals in each of the two death actions is affirmed.
Judgments affirmed.
MATTHIAS, O'NEILL, HERBERT and SCHNEIDER, JJ., concur.
ZIMMERMAN, J., concurs in paragraph four of the syllabus and in the judgments affirming the judgments of the Court of Appeals in the two wrongful death actions; otherwise he dissents.
BROWN, J., concurs in paragraph one of the syllabus, and in the judgments in the personal injury actions, but dissents from the judgments in the wrongful death actions.