
    SITUS OF ACTION AGAINST AN ADMINISTRATOR IN A NEGLIGENCE CASE.
    Common Pleas Court of Montgomery County.
    William Taxis v. The Southern Ohio Savings Bank & Trust Company et al.
    Decided, August 20, 1923.
    
      Jurisdiction — Damage from Negligent Operation of an Automobile_ Owner Resident in Another County — Mis Death Occurs before Suit is Brought — Situs of Action Against his Administrator.
    
    An automobile collision occurred in Montgomery county where plaintiff, the injured party, lived. Before action was brought the defendant, a resident of Hamilton county, died. Plaintiff thereupon brought suit against the administrator in the common pleas court . of Montgomery county.
    
      Meld: That court hail jurisdiction to summon the administrator under the provisions of Section 6290 and 6308, General Code.
    
      1. L. ,.Jacobson and W. S. Rhotehamel, Attorneys for Plaintiff.
    
      Virgil J. Dorfmeier and BeCamp, Sutphin é Brumleve, Attorneys for Defendant.
   McCray, J.

The plaintiff secured a verdict for $250 upon a claim for property damage resulting from the negligent operation of a automobile in Montgomery eonnty, the plaintiff’s place of residence, by the son of William Brown who then lived in Hamilton county. Before the action was commenced the latter died; and under Sec., 6308, General - Code, ■ a summons was issued bringing the defendant, The Southern Ohio Savings Bank & Trust Company, before the .court. It continuously protested against the jurisdiction of the court over the person of the administrator.

- .Two motions were filed promptly, one asking for a new trial and the other for an arrest of judgment. They were submitted upon brief where the argument was confined entirely to the question of jurisdiction.

A brief period of time intervened between the collision of the automobiles and William Brown’s death. Under the provisions of See. .6308 and the established authority found in the decision of Allen v. Smith, 84 O, S.. 283, this court would have had jurisdiction during that time. Upon his death the right of action survived against his estate by the direct provisions of Section 11235, General Code. The question arising here comes only through the substitution of the administrator as defendant in the place of William Brown, deceased.

The authority under which service may be made upon the defendant, if at all, is found in Sections 6290 and 6308. The action may be brought'1 against such owner in the county wherein such injured person resides.” An owner is defined as including ■'any person, firm or corporation having title to a motor vehicle or the exclusive right to the use thereof for a period of greater than thirty days, other than a manufacturer or dealer.”

• It-has been-held to be a remedial statute and, therefore, should be liberally construed to accomplish its laudable- purpose which is to add to -the plaintiff’s rights "an additional provision as to venue.'” Gorey v. Black, 100 O. S., 73 at 78 and 79. We find nothing in the act which is for the defendant’s benefit. Being a remedial statute and one which is to be liberally construed, unless there is some exception, the administrator must come under the general rule; especially, when, as in this case, the right existed to- summon William Brown within the jurisdiction for a short period before' his' death. - His •administrator, therefore, is receiving what the decedent was subject to. It is an easy step under Section 11235 for the administrator to succeed to his obligations.

■ The general statute which lays the venue in civil actions is Section 11277, General Code. It authorizes actions to be brought against the administrator in either of two jurisdictions; where he is appointed or resides. Carrying out this provision, summons may issue to any county in the state against an administrator. The spirit manifested by this statute harmonizes, we think, with the construction which should be given to Section 6308 and shows clearly that an administrator occupies no special exemption from being called to answer a summons issued in a remote part of the state if the phraseology of the statute warrants it. ITe may not remain stationary and require all litigants to come 'to him where the law provides otherwise.

This view is strengthened by the court’s ruling in the case of the American Steel & Wire Co. v. Meyers, 11 O. N. P. (N.S.), 652. It is said that foreign executors are subject to suit in the same manner in which they are permitted to sue; and service by publication may be had in an attachment suit against a nonresident executor where decedent’s property is attached within the state. See Craig v. R. R. C.o., 2 O. N. P. 64, and Manley v. Parks, 68 Kan., 377. An executor has no official residence. Thompson v. Wood, 115 Cal., 301

We think the plain terms of the statute authorizes summons to issue against the administrator. The decedent had title to the automobile at the time of the accident; and could, therefore, be sued here. The time to take the status which fixes jurisdiction is the date of the collision, we believe. Sargent v. Machias, 65 Me, 591; Gale v. Blaikie, 126 Mass., 274; and Kuhleman v. Schule, 35 Mo., 142. And as conditions existed then this court had jurisdiction. But if this conclusion is wrong, upon the death and the appointment of decedent the title to the automobile vested in. the administrator. 3 Schouler Ex. & Adm. (6 Ed.) Sec. 2061; 1 Rockel Prob. Prac. (3 Ed.), Sec. 506. The right to exclude possession and management of the automobile was in the administrator. 3 Schouler Ex. & Adm. (6 Ed.) Sec. 2228 and 2246. This continues during the whole administration and is for a period of greater than thirty days. Shattuc v. Watson, 164 Mich., 167. The administrator may exercise like acts of' control. He may vote the corporate stock which belonged to the decedent. Cook on Corporations, Sec. 612; Fletcher on Corporations, Sec., 1667; and Schouler (6 Ed.), Sec. 2274. The executor has been held to be the “owner” of personal property for purposes of taxation. People v. Purdy, 129 N. Y. Sup., 273; Bank v. Omaha, 67 Neb. 50; and Chan v. South Omaha, 85 Neb., 434. The person in possession under a leasehold estate was held to be the owner under the statute authorizing mechanic’s liens. Dutrow v. Wilson, 4 O. S., 101. An owner is defined, “to have a legal or rightful title to; to have; to possess,” in the case of R. R. Co. v. Walker, 45 O. S., 577 at 585. See, also, Price v. Wood, 25 Nev., 203 at 215; and LaVergne v. Evans, 166 Ala., 289.

We have observed the cpiestion in the ease of Little v. Milk Co. 23 O. N. P. (N.S.), 422 at 424 which leaves the impression that there is a doubt whether a summons can be issued against an owner living in another county, on a claim growing out of the negligent act of his servant. The act of the servant is the act of the master. Shearman & Redfield’s Negligence (6 Ed.) Sec. 142, N. 6. We are of the opinion that this principle settles the question conclusively; for all well known common law doctrines can not be expressly copied into the statutes. These doctrines are in force, however, and must be taken into consideration when the statutes are applied: This must be assumed.

In construing the words “injured person” the Court of Appeals in this district has held that they mean that the personal representative of a person who has died from such an injury is entitled to bring the suit because he stands in the place of the decedent. Rinehart v. Furnace Co., 32 O. C. A., 476. The opposite conclusion was reached by the court of the First District holding that a strict construction was necessary in applying this statute which, we think, is not in accord with Gorey v. Black, 100 O. S., 73. D’Amico v. Brill, Ohio Law Bul. & Rep., p. 94, of March 12, 1923. In the case at bar, the question presented is the converse, viz: Can the administrator be compelled to answer a suit?

The motion filed by the defendant on June 22, 1922 is said to have entered appearance by offering a defense to the merits in the claim “that William Brown, the deceased, was not driving or operating the automobile at the time of the accident. ’ ’ An affidavit was filed September 16, 1922, in support of the motion, which concluded with the words, “that he was driving the car in his own behalf and was not at the time acting as an agent or employee of the owner of the said car.” It was signed and sworn to by the decedent’s son. This language is for the purpose of showing that the action ought not to be maintained; not that the court has no jurisdiction over the person. It seems to go to the merits of the case and has no reference to jurisdiction; for whether he was driving it or the son was driving it can make no difference on the question of jurisdiction, if 'it was being driven in the business of the father; but it would make a difference on the merits if the son was driving in his own behalf. Both the motion and the affidavit must refer to the merits of the ease. Under the ruling of the Supreme Court in Elliott v. Lawhead, 43 O. S., 171 at 177, whenever the motion involves the merits of the case, it is held to be a voluntary appearance.

At the beginning of the trial there was a motion interposed upon behalf of the defendant asking °for judgment on the pleadings. In order to grant this motion the court would have been required to take all the averments as they stood, and consider simply a question of law. Rheinheimer v. Insurance Co., 77 O. S., 360 at 372. In taking the averments of the answer we must, therefore, consider that the defendant is “protesting against the jurisdiction of the court over it in this action;” and, while we adhere to the opinion that this motion was properly overruled because of the general denial contained in the answer, we do not find that defendant thereby entered its appearance. Smith v. Freshwater, 4 O. App. 335.

Upon reason and authority we are of the opinion that the court has jurisdiction; and that defendant’s appearance has been entered by urging the merits of the case in the motion and. affidavit. This requires that the motion be overruled.  