stating that "[a court] in the interpretation of related and co-existing statutes must harmonize and give full application to all such statutes unless they are irreconcilable and in hopeless conflict"Summary of this case from Downey v. 610 Morrison Road, L.L.C.
Decided January 11, 1950.
Limitation of actions — Suit against nonresident motor-vehicle operator or owner — Two-year limitation inapplicable — Section 11224-1, General Code — Action may be instituted any time before defendant returns to state — Section 11228, General Code — Service of summons through Secretary of State — Section 6308-1, General Code.
A person injured in an automobile collision occurring in this state is not obliged to institute his action for his injury against a nonresident defendant and secure service through Section 6308-1, General Code, within the time limitation provided by Section 11224-1, General Code, but under favor of the provisions of Section 11228, General Code, he may proceed to institute his action through Section 6308-1, General Code, at any time before the defendant returns to the state.
APPEAL from the Court of Appeals for Trumbull county.
On December 23, 1945, plaintiff was injured in an automobile collision near Masury, Trumbull county, Ohio, when, allegedly, her automobile in which she was riding was struck by an automobile operated by the defendant, Franzeska W. Rose.
On December 10, 1947, within the two-year statutory period, plaintiff filed a petition against the defendant in the Common Pleas Court of Trumbull County and summons was issued to the sheriff of Mahoning county on the supposition that the defendant resided in Youngstown.
On December 17, 1947, the summons was returned, endorsed, "unable to find * * * [defendant] within said [Mahoning] county," with a notation, "lives in New York."
On February 10, 1948, plaintiff filed an alias praecipe for service of summons through the Secretary of State under favor of Section 6308-1 et seq., General Code. On February 21, 1948, service was secured on the defendant through the Secretary of State and on March 22, 1948, the summons was returned showing such service.
On April 9, 1948, the defendant filed a motion to dismiss the petition, on the ground that the action was barred by the statute of limitations, service not having been secured within 60 days of the commencement of the action, although such was done within 60 days after the expiration of the two-year period after the accident occurred.
On April 27, 1948, the court overruled defendant's motion, holding that the action was saved under favor of Section 11228, General Code. Upon rehearing on August 19, 1948, the court reversed its ruling and sustained defendant's motion, on authority of Canaday v. Hayden, 80 Ohio App. 1, 74 N.E.2d 635.
Plaintiff appealed to the Court of Appeals, which affirmed the judgment of the trial court, one judge dissenting.
The case is now in this court for review, a motion to certify having been allowed.
Messrs. Luchette Hoffman, for appellant.
Messrs. Pfau Pfau, Jr., for appellee.
The answer to the question made in this case depends upon the construction and application to be given Sections 11224-1, 11228 and 6308-1 et seq., General Code. Specifically, the question is whether a person injured in an automobile collision occurring in this state is obliged to institute an action for his injury against a nonresident defendant and secure service through Section 6308-1 et seq., General Code, within the time limitation provided by Section 11224-1, General Code, or may he, under favor of the provisions of Section 11228, General Code, so proceed to institute his action through Section 6308-1, General Code, at any time before the defendant returns to the state.
Section 11224-1, General Code, effective since August 4, 1927, provides as follows:
"An action for bodily injury or injuring personal property shall be brought within two years after the cause thereof arose."
Section 11228, General Code, effective since July 1, 1853, provides:
"When a cause of action accrues against a person, if he is out of the state, or has absconded, or conceals himself, 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 or while he is so absconded or concealed. After the cause of action accrues if he departs from the state, or absconds or conceals himself, the time of his absence or concealment shall not be computed as any part of a period within which the action must be brought."
Section 6308-1, General Code, effective since June 2, 1933, provides:
"Any nonresident of this state, being the operator or owner of any motor vehicle, who shall accept the privilege extended by the laws of this state to nonresident operators and owners, of operating a motor vehicle, or of having the same operated, within the state of Ohio, or any resident of this state, being the licensed operator or owner of any motor vehicle under the laws of this state, who shall subsequently become a nonresident or shall conceal his whereabouts, shall, by such acceptance or licensure, as the case may be, and by the operation of such motor vehicle within the state of Ohio, make and constitute the Secretary of State of the state of Ohio his, her, or their agent for the service of process in any civil suit or proceeding instituted in the courts of the state of Ohio against such operator or owner of such motor vehicle, arising out of, or by reason of, any accident or collision occurring within the state in which such motor vehicle is involved."
Unquestionably, before Section 6308-1, General Code, was adopted, a person injured in an automobile accident by another person who had thereafter remained out of the state could refrain from bringing his action against such other person without incurring the operation of the bar provided by Section 11224-1, General Code, so long as such other person remained out of the state.
The question then arises did the later adoption of Section 6308-1, General Code, make it necessary to utilize the provisions of that section so as to secure service within the two-year limitation fixed by Section 11224-1, General Code, and thus render inoperative the provisions of Section 11228, General Code, so far as it applies to actions arising out of motor vehicle accidents.
This court in the interpretation of related and co-existing statutes deems it to be its duty to harmonize and to give full application to all such statutes unless they are irreconcilable and in hopeless conflict. Therefore, to hold that a person injured in a motor-vehicle collision in Ohio must within the two-year period after the accident pursue his remedy through Section 6308-1, General Code, or be barred as to a nonresident allegedly responsible for the accident is to hold that such section repeals pro tanto Section 11228 by implication. We do not believe the passage of Section 6308-1 had that effect. In the later adoption of that section, the General Assembly failed, by way of amendment, to engraft any exceptions or limitations on the provisions of Section 11228, as it should have done if Section 6308-1, General Code, was to provide the exclusive mode of acquiring jurisdiction over out-of-state defendants in automobile accident cases. There was no indication in the adoption of Section 6308-1 itself that any limitation on or repeal pro tanto of Section 11228 was intended.
In the opinion of this court, Section 6308-1, General Code, gives a person suffering injury in a motor vehicle accident in this state an option to proceed at once against the allegedly culpable person remaining out of the state, or to defer such procedure until he returns to the state, when the statute will again begin to run by virtue of the provisions of Section 11228, General Code. Bode v. Flynn, 213 Wis. 509, 252 N.W. 284, 94 A.L.R., 480; Anthes, Exr., v. Anthes, Admr., 21 Idaho 305, 121 P. 553; Keith-O'Brien Co. v. Snyder, 51 Utah 227, 169 P. 954.
It is true that it is the purpose of our statutes of limitation to encourage or require the prompt assertion of legal claims, but a person who remains out of the jurisdiction of the locus of an injury which he has caused is not in a favorable position to complain of such possible delay, as against a policy which is clearly sanctioned by the provisions of Section 11228, General Code.
In the recent case of Commonwealth Loan Co., Inc., v. Firestine, 148 Ohio St. 133, 73 N.E.2d 501, 172 A.L.R., 993, this court held that the operation of Section 11228, General Code, continued as against a nonresident defendant even though the plaintiff, a resident of this state, could have taken personal judgment against the defendant without service of summons, by reason of a warrant of attorney to confess judgment which had been attached to a promissory note and signed by the defendant.
Judge Zimmerman, speaking for this court in that case, appropriately said:
"Section 11228, General Code, provides in unequivocal terms, without qualification or exception, that if a person, after the accrual of a cause of action against him, departs from the state, the time of his absence shall not be computed as any part of a period within which the action must be brought.
"Had the General Assembly intended to remove from the operation of the statute those causes of action against persons absent from the state but against whom judgment might be taken by confession, it could have done so by the use of appropriate language. If this court were to exempt these defendants from the terms of the statute, it would be doing that which the General Assembly has not seen fit to do and would be indulging in judicial legislation."
The trial court erred in sustaining defendant's motion of dismissal.
The judgment of the Court of Appeals is reversed and the cause is remanded to the Common Pleas Court for further proceedings according to law.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.