134 N.E.2d 852 | Ohio Ct. App. | 1956
These two separate actions are appealed to this court on questions of law from judgments of the Probate Court of Cuyahoga County whereby the petitioners were authorized to present claims against the estate of Dr. Frank M. Natherson, formerly a practicing physician, more than four months after the appointment of his widow, Esther M. Natherson, as the administratrix of his estate.
The petitioners, Evelyn Kenney and Harold Kenney, wife and husband, respectively, filed substantially identical petitions in Probate Court. The claim of the wife, Evelyn Kenney, is for damages arising out of alleged malpractice by the decedent who is charged with negligence in the performance of a gall bladder operation upon her on or about February 17, 1954. The claim of the husband, Harold Kenney, is for loss of her services. The cases are considered together because identical issues are involved, it having been stipulated that the testimony introduced upon the hearings in Probate Court should apply equally to both cases.
Dr. Natherson died June 19, 1954. The administratrix was appointed July 13, 1954. On March 25, 1955, over eight months later, the plaintiffs, appellees herein, filed their petitions seeking authority to file claims against the decedent's estate. Each of the petitions alleged that the claims were not presented to the administratrix within the time prescribed by law for the following reasons:
1. "Claimant did not have actual notice of the decedent's death or of the appointment of his administratrix within sufficient *477
time to present her claim within the period prescribed by Section
2. "Decedent willfully and maliciously concealed from her the malpractice which he had performed upon her, so that she did not learn until recently of the tort committed against her by the decedent."
Hearings were held in Probate Court on July 18, 1955, and on October 24, 1955, the Probate Court entered orders allowing the presentation of the claims pursuant to the petitions.
The appellant assigns as error that such orders are contrary to law and against the weight and sufficiency of the evidence adduced at the trial.
Section
Section
"(A) That the claimant did not have actual notice of the decedent's death or of the appointment of the executor or administrator in sufficient time to present his claim within the period prescribed by Section
"(B) That the claimant's failure to present his claim was due to the absence of the executor or administrator from his usual place of residence or business during a substantial part of such period or was due to any wrongful act or statement on the part of the executor or administrator or his attorney;
"(C) That the claimant was subject to any legal disability during such period or any part thereof."
Appellant claims that the foregoing provisions of Section
The appellees claim that they have qualified themselves under subsection (A) of Section
The claim of the appellees that they are qualified under *478
subsection (A) of Section
The appellees' second argument for affirmance of the decision of the Probate Court obviously does not constitute a basis for relief within the provisions of Section
In our view of the record in this case, we do not find that the decedent was guilty of attempting to conceal or cover up any failure on his part with respect to the gall bladder operation performed on the petitioner Evelyn Kenney. It appears, as shown by the record, that the general conduct of the decedent physician was such as to negative the idea of fraud or concealment, although it is also clear that he did not explain to the patient the precise nature of her post-operative condition. Neither is it shown by the record that he knew the exact nature of that condition. Also, his act of calling in another surgeon to perform a second operation rather than attempting to perform it himself tends to dispel a fraudulent intent to conceal the reasons for the failure of the first operation. However, in our opinion, this is immaterial because of the limitations provided by the statute and our interpretation of the decided cases. Sections
In some other jurisdictions a clear distinction is made between nonclaim statutes as such and general statutes of limitation. For instance, in the case of Yniestra v.Tarleton,
Applying this principle to the facts in the instant case, it is quite obvious, as heretofore indicated, that the petitioners have failed to prove any one of the grounds requisite for relief under the provisions of the statute. In our opinion the provisions of this section of the Code (Section
It is perhaps for that reason that petitioners seek to justify their contention upon general equitable principles outside of the statute and cite the case of Sugar River Bank v.Fairbank,
"It is generally held that, unless otherwise provided by the statute, the fraudulent concealment of the existence of a claim or cause of action, either by decedent in his lifetime * * * does not affect the operation of the nonclaim statute or defer the beginning of the statutory period to the time when the facts are discovered; * * *"
Cited in support are Burling v. Estate of Allvord,
From the foregoing authoritative decisions and text, we *481 conclude that the allowance of claims after four months must be in conformity with the statute and not predicated on general equitable principles outside the purview of the statute.
One further question remains to be considered. That is the claim of the petitioners that the fraudulent concealment by decedent of his alleged negligence affords a remedy which the petitioners may employ on the ground that the statute of limitations is not tolled until the fraud or concealment is discovered. The obvious answer to this claim is, we think, that the action does not have its inception in fraud but rather is founded upon negligence or malpractice. The statute of limitations, providing for an action based upon fraud, is not here applicable for the reason that it is the rule of law that the provisions of Section
"A fraudulent concealment by which the plaintiff has been delayed will not enlarge the time for bringing an action under the statute of limitations."
To the same effect see also: Howk v. Minnick (1869),
We are well aware that this view of the law is such that in the instant case the petitioners are precluded from a right of action for negligence or malpractice, but this is in accord with the established law of Ohio on the subject and we are not privileged by judicial decree to enlarge upon the plain provisions of legislative enactment.
In considering the legislative intent with respect to the enactment of Section
It is our conclusion, for the reasons stated, that the judgment of the Probate Court in allowing the claims of petitioners must be reversed and the cause remanded to Probate Court with instructions to deny the application of petitioners for allowance to file the "late claims."
Judgment reversed and cause remanded.
KOVACHY, P. J., and SKEEL, J., concur.