DONNA M. MORRIS v. JAMES E. HARRIS, ADMINISTRATOR OF THE ESTATE OF EARNEST R. BABB, DECEASED.
No. 1-872A44
Court of Appeals of Indiana
Filed March 12, 1973
Rehearing denied April 13, 1973.
George V. Heins, Smith, Maley & Douglas, of counsel, of Indianapolis, for appellee.
ROBERTSON, P.J.—Thе plaintiff-appellant (Morris) is appealing the dismissal of her negligence suit against the defendant-appelleе (Babb and Babb‘s Administrator Harris). The dismissal was predicated upon a failure to commence the cause of action within the prescribed statute of limitations.
Morris was involved in an auto accident with Babb, an Illinois resident, on the 7th of December, 1967. On the 14th of October, 1969, she filed suit and directed that summons be served on the Secretary of State of Indiana, pursuant to the thеn applicable
Morris petitioned the court to appoint a pеrsonal representative for Babb on the 5th of June, 1970. The court granted Morris’ petition and appointed Harris as Babb‘s personal representative. This occurred after the two year statute of limitations as prescribed by
In mid July, 1970, Harris filed a mоtion to dismiss because Babb had died prior to the filing of the complaint, therefore there was a lack of jurisdiction and an insufficiency of service of process. After some maneuvering of no consequence to this opinion, the mоtion to dismiss was granted.
The essence of the specifications in the overruled motion to correct errors is twofоld. Did the service of process on the Secretary of State toll the statute of limitations and did the representatiоns of Babb‘s insurance company adjuster and attorney estop contesting service of process under the facts of this case?
The Nonresident Operators statute addresses itself to the facts of the instant case.
“Where such nonresident has died prior to the commencement of an action brought pursuant to this section, service of process shall be made on the executor or administrator of such nonresident in the same manner and on the same notice аs is provided in the case of the nonresident himself.”
Ind. Ann. Stat. § 47-1043 (Burns 1965) .
The most elementary issue to be resolved is the determination of the suffiсiency of the service of process by Morris at the initiation of the suit. We are of the opinion process was nоt sufficient to stop the running of the statute of limitations.
“One of the questions which may arise involves the sufficiency of service uрon the personal representative of a deceased non-resident.
The general rule is that agency is revоked by death of the principal and this rule is applicable here. The theory upon which such service is sustained is that thе non-resident operator by making use of the highways of this State appoints the secretary of state as his agent. Consequently, the death of the non-resident operator before service upon him revokes such constructive agency.” 2 Works’ Indiana Practice § 40.2 at 386 (Lowe‘s Revision)
It would therefore appear that service of process upon the Secretary of State was void because of the prior death of Babb.
While the general rule is that filing of a complaint and issuance of summons stops the running of the statute of limitations, an additional requirement of service of summons within a reasonable time appears to be present. See 1 Works’ Indiana Practice § 11.2 at p. 384 (Bobbits’ Revision).
We are of the opinion that the statutory authority and the case law cited in support of Morris’ position are effective only when service of process is successful. This case would seem to fall into an unfortunate void beyond those authoritiеs.
The equitable considerations raised by Morris are categorized as being under the general principles of “constructive fraud.” The essence of the argument made is that the adjuster and attorney for Babb‘s insurance company continued to negotiate towards settlement without making mention of Babb‘s death.
The authority utilized, for the most part, by Morris to suppоrt a claim for equitable relief, is directed to the abatement and revival of actions upon the death of a dеfendant. We note that factually this case differs. Moreover, the return of the envelope marked “deceased” put Morris on notice, or should have, of a significant change in circumstances thereby substantially diluting an appeal for the intervention of equitable protection. See Donella, Admrx. v. Crady (1962), 135 Ind. App. 60, 185 N.E.2d 623. Nor do we feel that the factual situatiоn before us calls for an application of equitable estoppel or constructive fraud as applied in Marcum v. Richmond Auto Parts (1971), 149 Ind. App. 120, 270 N.E.2d 884.
Judgment affirmed.
Lowdermilk and Lybrook, JJ., concur.
DONNA M. MORRIS v. JAMES E. HARRIS, ADMINISTRATOR OF THE ESTATE OF EARNEST R. BABB, DECEASED.
No. 1-872A44
Court of Appeals of Indiana
Filed April 23, 1973.
ROBERTSON, P.J.—In seeking a rehearing on the decision in this case, 293 N.E.2d 202, Morris, inter alia, argues that the “void” referred to in the main opinion defeats the intent of the law to do an injustice. We are of the opinion that such is not the situation.
From the rеcord before us, it would appear that the facts of this appeal lend themselves to an applicatiоn of the Journey‘s Account Statute, which reads:
“If, after the commencement of an action, the plaintiff fails therein, from any cause except negligence in the prosecution, or the action abate, or be defeated by the death of a party, or judgment be arrested or reversed on appeal, a new action may be brought within five [5] years after such determination, and be deemed a continuation of the first, for the purposes herein contemplatеd.”
IC 34-1-2-8 ,Ind. Ann. Stat. § 2-608 (Burns 1967) .
In discussing the underlying purpose of such a statute, the case of Ware v. Waterman (1969), 146 Ind. App. 237, 253 N.E.2d 708, quoting approvingly from McKinney v. Springer (1851), 3 Ind. 59, holds that a plaintiff has additional time to commencе an action if,
“. . . the plaintiff had made an effort . . . by commencing an action within the limited time, but, owing to some error in the modе or form in bringing his suit, or in the proceedings, a proper judgment could not be rendered, and while he was prosecuting such an erroneous action
the statute of limitations had run out. . .” 253 N.E.2d, at 713.
The motion for rehearing is denied.
Lowdermilk and Lybrook, JJ., concur.