Putnam, J.
This is an appeal on questions of law from a judgment of the Probate Court of Stark County denying the prayer of the petition of Mike Bort to present his claim against the estate of Harry H. Howe after the four-month period had elapsed from the appointment of the administrator of his estate, pursuant to Section 2117.07, Revised Code.
That denial is the assignment of error. The facts can be summarized from the record as follows:
In February 1957, Mike Bort was at home in bed in Ma-honing County; the decedent, driving along the public highway, lost control of his car which left the highway and ran 200 feet or thereabouts into the house of the claimant, knocking him out of bed. He suffered a broken leg, cranial concussion, and lacerations and contusions of the body. He was hospitalized from then on until March 3, and again from November 27, 1957, to January 10, 1958, as a result of his injuries. Shortly after his injuries, claimant engaged an attorney, John Willo of Youngstown, to look after his interests as a result of the collision. Willo contacted Howe in Stark County and through him his insurance company, The State Automobile Mutual Insurance Company of Columbus. Shortly, thereafter, in the early summer at least, a Mr. Wilkie, the insurance adjuster, contacted Willo and entered into active negotiations for the adjustment of the claim. These negotiations continued at intervals of two or three weeks
until the middle of December. The adjuster was during this time asking for various medical reports and examinations of the claimant and for an asking price on the settlement of the claim. Some of this information was, from time to time, furnished him.
In the meantime, Howe died on August 17,1957, and an administrator was appointed for his estate on September 4, 1957. From that time on until a week or so before Christmas, the adjuster for the insurance company, although meeting regularly with Attorney Willo, never disclosed to him or to the claimant that Howe was dead, that an administrator had been appointed or that he was thereafter negotiating for the estate. Some time in late November, the date is not certain, both the claimant and his attorney had heard rumors of Howe’s death and, at the December meeting above referred to, Willo asked the adjuster if it were true that Howe was dead. The adjuster then stated that Howe had died three or four weeks before that time. Thereafter, the date is not certain, Willo wrote to the Probate Court of Stark County to inquire of the facts. On January 6,.1958, his letter was answered. The four-month limitation had, in the meantime, expired. The claimant then, on January 11, filed his petition in Probate Court for permission to present his claim for his injuries. The petition alleged only the ground set out in subsection .(A) of Section 2117.07, Revised Code, viz., lack of knowledge of the death of the decedent or the appointment of an administrator. The court set the cause for hearing, and it was heard pursuant thereto on February 18. Three months later, on May 19, the court rendered an opinion denying permission to file the claim. On May 26, the entry thereof not having been journalized, a request was made by the appellant that the court make a separate finding of facts and conclusions of law. On June 18, claimant filed a motion for leave to amend his petition to conform to the evidence by adding thereto the additional ground of fraud and misrepresentation. Obviously this referred to the last part of subsection (B) of Section 2117.07, Revised Code, and the adjuster’s testimony that Howe’s death occurred only three or four weeks before the December meeting of the adjuster and Attorney Willo. This motion was denied, and on June 24 the court rendered its finding of facts and
conclusions of law holding that claimant had actual knowledge of the death within the four-month period and denying the motion of the appellant to amend its petition in accordance with the proof and refusing to consider the record in that regard. On June 24, these findings and judgments were made and shortly thereafter reduced to judgment by entry. The court based its conclusion upon the sole fact that the claimant had actual knowledge of the death of the decedent within the four-month period. As above stated this appeal on questions of law results.
In the final analysis the question this court has to determine is whether the trial court abused its discretion in denying claimant the right to file his claim. However, some preliminary questions must be disposed of first, in the light of the questions presented.
It is the contention of the appellee that since the final nine-months period for filing claims expired on June 4, 1958, and the final decision of the court was rendered thereafter, in no event could the lower court permit the filing of this claim. This is not the law and should not be. This question has been discussed thoroughly in the case of
In re Estate of Erbaugh,
73 Ohio App., 533, 57 N. E. (2d), 294. The conclusion in that case was that the time dates back to the filing of the petition under Section 2117.07, Revised Code. In this we concur. Any other interpretation would present an absurd situation whereby, among other things, the delay of a court in rendering a decision could defeat a claim.
It is further the contention of the appellee that the motion to amend the petition in conformity to the proof is not specified in the words of the statute and, therefore, not effective. The statute provides, in subsection (B), that the court may authorize a claimant to present his claim if: “the claimant’s failure to present his claim
* *■ *
was due to any wrongful act or statement on the part of the executor or administrator or his attorney.” Fraud and misrepresentation are broader terms than wrongful act or statement and would and should include the same. The court was not deceived in the nature of the claim or the amendment requested. The matter was fully briefed and argued. It had to do with the adjuster’s testimony where it appeared in the record that he made a knowingly wrongful
statement as to the time of the death of Howe. If that statement can be attributed to the administrator either on the grounds of agency or attorney in law or in fact, then certainly it would come within the part of that section last above quoted.
What is the law as to whether the adjuster of the insurance company, under the facts of the instant case, was the agent or attorney in fact of the administrator? We have been cited the case of
In re Estate of Basmajian,
142 Ohio St., 483, 52 N. E. (2d), 985, by the appellant. The appellee contends that this is no authority under the facts of the present case. True it is that the facts are somewhat different, but broad principles are therein pronounced, and we think it points the way to the true answer in this case. The second paragraph of the syllabus of that case is as follows:
“A provision in a policy of indemnity insurance whereby the insurer reserved the right to allow, defend or settle all claims within the limits of the policy, growing out of an accident covered by such policy, creates a binding and legal obligan on upon the administrator of the estate of such deceased assured to permit such insurer to exercise its judgment and to determine the disposition to be made of any such asserted claims.”
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Putnam, J.
This is an appeal on questions of law from a judgment of the Probate Court of Stark County denying the prayer of the petition of Mike Bort to present his claim against the estate of Harry H. Howe after the four-month period had elapsed from the appointment of the administrator of his estate, pursuant to Section 2117.07, Revised Code.
That denial is the assignment of error. The facts can be summarized from the record as follows:
In February 1957, Mike Bort was at home in bed in Ma-honing County; the decedent, driving along the public highway, lost control of his car which left the highway and ran 200 feet or thereabouts into the house of the claimant, knocking him out of bed. He suffered a broken leg, cranial concussion, and lacerations and contusions of the body. He was hospitalized from then on until March 3, and again from November 27, 1957, to January 10, 1958, as a result of his injuries. Shortly after his injuries, claimant engaged an attorney, John Willo of Youngstown, to look after his interests as a result of the collision. Willo contacted Howe in Stark County and through him his insurance company, The State Automobile Mutual Insurance Company of Columbus. Shortly, thereafter, in the early summer at least, a Mr. Wilkie, the insurance adjuster, contacted Willo and entered into active negotiations for the adjustment of the claim. These negotiations continued at intervals of two or three weeks
until the middle of December. The adjuster was during this time asking for various medical reports and examinations of the claimant and for an asking price on the settlement of the claim. Some of this information was, from time to time, furnished him.
In the meantime, Howe died on August 17,1957, and an administrator was appointed for his estate on September 4, 1957. From that time on until a week or so before Christmas, the adjuster for the insurance company, although meeting regularly with Attorney Willo, never disclosed to him or to the claimant that Howe was dead, that an administrator had been appointed or that he was thereafter negotiating for the estate. Some time in late November, the date is not certain, both the claimant and his attorney had heard rumors of Howe’s death and, at the December meeting above referred to, Willo asked the adjuster if it were true that Howe was dead. The adjuster then stated that Howe had died three or four weeks before that time. Thereafter, the date is not certain, Willo wrote to the Probate Court of Stark County to inquire of the facts. On January 6,.1958, his letter was answered. The four-month limitation had, in the meantime, expired. The claimant then, on January 11, filed his petition in Probate Court for permission to present his claim for his injuries. The petition alleged only the ground set out in subsection .(A) of Section 2117.07, Revised Code, viz., lack of knowledge of the death of the decedent or the appointment of an administrator. The court set the cause for hearing, and it was heard pursuant thereto on February 18. Three months later, on May 19, the court rendered an opinion denying permission to file the claim. On May 26, the entry thereof not having been journalized, a request was made by the appellant that the court make a separate finding of facts and conclusions of law. On June 18, claimant filed a motion for leave to amend his petition to conform to the evidence by adding thereto the additional ground of fraud and misrepresentation. Obviously this referred to the last part of subsection (B) of Section 2117.07, Revised Code, and the adjuster’s testimony that Howe’s death occurred only three or four weeks before the December meeting of the adjuster and Attorney Willo. This motion was denied, and on June 24 the court rendered its finding of facts and
conclusions of law holding that claimant had actual knowledge of the death within the four-month period and denying the motion of the appellant to amend its petition in accordance with the proof and refusing to consider the record in that regard. On June 24, these findings and judgments were made and shortly thereafter reduced to judgment by entry. The court based its conclusion upon the sole fact that the claimant had actual knowledge of the death of the decedent within the four-month period. As above stated this appeal on questions of law results.
In the final analysis the question this court has to determine is whether the trial court abused its discretion in denying claimant the right to file his claim. However, some preliminary questions must be disposed of first, in the light of the questions presented.
It is the contention of the appellee that since the final nine-months period for filing claims expired on June 4, 1958, and the final decision of the court was rendered thereafter, in no event could the lower court permit the filing of this claim. This is not the law and should not be. This question has been discussed thoroughly in the case of
In re Estate of Erbaugh,
73 Ohio App., 533, 57 N. E. (2d), 294. The conclusion in that case was that the time dates back to the filing of the petition under Section 2117.07, Revised Code. In this we concur. Any other interpretation would present an absurd situation whereby, among other things, the delay of a court in rendering a decision could defeat a claim.
It is further the contention of the appellee that the motion to amend the petition in conformity to the proof is not specified in the words of the statute and, therefore, not effective. The statute provides, in subsection (B), that the court may authorize a claimant to present his claim if: “the claimant’s failure to present his claim
* *■ *
was due to any wrongful act or statement on the part of the executor or administrator or his attorney.” Fraud and misrepresentation are broader terms than wrongful act or statement and would and should include the same. The court was not deceived in the nature of the claim or the amendment requested. The matter was fully briefed and argued. It had to do with the adjuster’s testimony where it appeared in the record that he made a knowingly wrongful
statement as to the time of the death of Howe. If that statement can be attributed to the administrator either on the grounds of agency or attorney in law or in fact, then certainly it would come within the part of that section last above quoted.
What is the law as to whether the adjuster of the insurance company, under the facts of the instant case, was the agent or attorney in fact of the administrator? We have been cited the case of
In re Estate of Basmajian,
142 Ohio St., 483, 52 N. E. (2d), 985, by the appellant. The appellee contends that this is no authority under the facts of the present case. True it is that the facts are somewhat different, but broad principles are therein pronounced, and we think it points the way to the true answer in this case. The second paragraph of the syllabus of that case is as follows:
“A provision in a policy of indemnity insurance whereby the insurer reserved the right to allow, defend or settle all claims within the limits of the policy, growing out of an accident covered by such policy, creates a binding and legal obligan on upon the administrator of the estate of such deceased assured to permit such insurer to exercise its judgment and to determine the disposition to be made of any such asserted claims.”
In such a case, surely as a matter of law, the insurance company is the agent of the administrator as far as matters concerning the claim is concerned, where there is an ultimate liability on the insurance company. Under the facts in the instant case, as developed by the testimony and arguments and briefs of counsel, there can be no doubt that the insurance company had an ultimate liability and that it was the agent of the administrator in the presentation and the rejection of claims and that the administrator was bound by the acts and statements of its adjuster who was the agent of the administrator.
It is also argued by the appellee that there was no duty on the administrator to notify the claimant of the death of his decedent. This is true. If the statement of the adjuster had only gone to the fact of death, there would be no argument. However, where the adjuster went beyond that fact and then deliberately stated a fact which he must have known not to be true, that the death occurred only three or four weeks before the middle of December or thereabouts, the conclusion is ines
capable that be did so with the intent to deceive and to lull the claimant into repose, while holding out the hope of a favorable settlement. We might here also record the fact that the record shows that this hope was also extended to the claimant during most of the time that the proposition was pending in the Probate Court up until June 1958 when the final decision was rendered. There could be no more vivid illustration of a wrongful statement.
With these matters disposed of in our minds, what is the law binding upon this court as to disturbing the discretion of the lower court under this statute? In the first place it is established law in Ohio that this section (2117.07), being of a remedial nature, is to be construed liberally in favor of the claimant. (See
In re Estate of Price,
87 Ohio App., 23, 93 N. E. [2d], 769, the fourth paragraph of the syllabus.) With this pronouncement we agree. True it is that this section (2117.07) is designed to facilitate the settlement of estates, but in the instant case a delay of six days, compared with the delay of the trial court of three months after having heard the case, cannot be construed as an element mitigating against the claimant in this regard.
After all, the judicial process is designed to promote substantial justice. While a reviewing court cannot pass upon the merits of a controversy as such, nor can we take general equitable principles into consideration as was perhaps allowable under a former analogous statute, we can and should bear these matters in mind when passing upon an alleged abuse of discretion in a trial court.
It is true that this statute, Section 2117.07, Revised Code, uses the word “may” in connection with the finding on the exemptions therein contained. However, it is held in the case of
In re Estate of Gogan,
63 Ohio Law Abs., 69, 108 N. E. (2d), 170, that this use did not prevent a reviewing court from finding an abuse of discretion where the facts in the particular case warranted it. With this pronouncement we are in accord. We are not unmindful of the pronouncement in the case of
State, ex rel. Fulton, Supt.,
v.
Coburn,
133 Ohio St., 192, 12 N. E. (2d), 471, to the effect that reviewing courts should be slow to hold that an abuse of discretion existed in lower courts.
However, in the instant case, in accordance with the views above expressed, it is onr considered judgment that the trial court abused its discretion in not allowing the claimant to present his claim. The delay was trifling. No injury to the estate by reason of the delay was shown. The claim on its face had merits. Substantial justice would seemingly require an adjudication of the merits thereof. The request for an amendment to the petition, if not exactly timely, in effect apprised the court of the question presented; it was based on adequate grounds. The failure of the court to grant the motion was evidently based upon technical grounds. It was not based upon grounds of substantial justice. This was not in accord with the spirit of the statute as we view it.
We consequently hold that the trial court abused its discretion in refusing to allow the filing of the claim as petitioned for by the claimant in its original petition and in its petition to amend its original petition. This court, coming now on to adjudicate under the evidence in this case and the law applicable thereto, renders the judgment which the lower court should have rendered, and that is that the prayer of the petition be allowed; that the original petition be amended to conform to the proof; and that under the proof and under the law the claimant should be, and hereby is, allowed the right to file his claim.
Judgment accordingly.
McLaughlin, J., concurs.