Inland Seas Boat Co. v. Brown

399 N.E.2d 579, 61 Ohio App. 2d 120, 15 Ohio Op. 3d 142, 1979 Ohio App. LEXIS 8396

• Court: Ohio Court of Appeals
• Decided: February 8, 1979
• Docket: 37809
• Status: Published

Opinions

Day, J.

Defendant-appellee, George M. Brown (defendant), was appointed statutory agent for plaintiff-appellant, Inland Seas Boat Company (plaintiff or Company). For a short time after June 1951, defendant performed legal services for the Company but had no further contact with plaintiff until the matters involved in the instant case arose in 1969.

Plaintiff maintained its.principal office in Cleveland until 1957 when it moved its operation to Sandusky, Ohio. Defendant was not informed of the move. Plaintiffs articles were not amended to reflect the change in its principal place of business until 1970. A new statutory agent was appointed at that same time.

On October 10, 1969, a complaint was filed in the Common Pleas Court of Cuyahoga County under Levan v. Inland Seas Boat Co., Case No. 877,818. The return of service indicated that the Sheriff had served defendant on October 28, 1969. Defendant called Levan’s office, spoke to an attorney Wagner and advised him that defendant knew nothing about Inland Seas Boat Company. On December 19,1969, a default notice in the case Levan v. Inland Seas Boat Co. was forwarded to defendant. He made no attempt to locate the Company. Instead he threw away the papers. A default judgment was rendered for Levan against the Company on December 31, 1969. The amount of the judgment was $3,000.

The Company first learned of Levan’s suit against it when execution was levied on its property at the Cleveland Boat Show in January of 1970.

Efforts to vacate the judgment failed. The Company paid $3,794.20 to satisfy the Levan judgment and sued Defendant Brown alleging negligence and malpractice. 1

A bench trial on stipulated facts resulted in a judgment for the defendant. Plaintiff appealed assigning five errors which are set out in the margin. 2 The majority finds none of the assignments well taken. The judgment is affirmed.

I.

A formal opinion would probably not be justified in this case were it not for the unique application of negligence principles in the court below.

II.

Although the legal conclusions of the trial court are somewhat murky, a fair rendering supports this summary:

(1) The Company was negligent in removing its principal place of business from one county to another without advising its statutory agent.

(2) The Company was negligent in not designating a new agent when it changed its principal place of business from one county to another. 3

(3) The statutory agent originally designated continued as agent until a successor was named despite the Company’s dereliction and was negligent in not continuing to act in a manner “consistent with that of a reasonable prudent statutory agent.”

(4) Although the statutory agent was negligent in throwing away suit papers without notifying the Company, the Plaintiff Company was contributorily negligent for noncompliance with R. C. 1701.07, and, therefore, cannot prevail. 4

III.

The plaintiff seeks to avoid the trial court’s negligence conclusions by the argument that it was not negligent in not complying with R. C. 1701.07, but that if it were, the doctrine of last clear chance absolves it of the consequences.

A reviewing court will not go behind a trial court’s conclusions unless those conclusions could not find support in a reasonable mind. It is clear that reasonable minds could differ on the negligence issues in this case. Accordingly, the trial court’s determination of plaintiff’s negligence as a proximate cause of plaintiff’s loss must stand. Thus, the plaintiff’s contributing negligence defeats his cause unless the doctrine of last clear chance applies.

However, the last clear chance contention avails the plaintiff nothing. For its negligence continued up to and including the negligent conduct of its then statutory agent — the defendant in the instant case. The doctrine of last clear chance is unavailable to a plaintiff whose own negligence has not ceased in time to allow the negligent defendant to avoid the injury. It is not “ * * * available for the purpose of excusing contributory negligence continuing up to and at the time of the accident.***” Pennsylvania Co. v. Hart (1920), 101 Ohio St. 196, 199.

While an “accident” is not involved in the instant case, the analogy from the Hart decision is obvious and compelling. Moreover, it was reasonably foreseeable by the plaintiff that the defendant statutory agent would consider his agency terminated and act accordingly after more than eighteen years of inactivity which included no communication.

The majority concludes that the first three assignments of error are without merit.

IV.

The fourth and fifth assignments argue a right to recover on a contract theory. However, the pleadings do not allege and the stipulated facts do not support a claim in contract.

The fourth and fifth assignments of error are without merit.

Judgment affirmed.

Parrino, P. J., concurs. Krupansky, J., dissents.

1 No assignment of error pursues the malpractice point. Therefore, it need not be addresssed here, App. R. 12(A).

2 “Assignments of Error

*”1. The trial court errored [sic] in holding that appellant was contributorily negligent since Section 1701.07 of the Revised Code does not require a corporation which relocates its plant to [sic] and its articles of incorporation to reflect a change in the principle [sic] office and thereby designate a new principle [sic] office.

“2. The trial court errored [sic] in determining that appellant was contributorily negligent since even assuming arguendo that the articles of incorporation must be amended to reflect a new principle [sic] office when the physical offices are relocated, such a requirement is for the protection of the public and not the statutory agent and thus the duty violated does not flow to appellee.

“3. The trial court errored [sic] in barring recovery by appellant since even assuming arguendo that appellant was contributorily negligent, under the doctrine of last clear chance liability was clearly established.

“4. It was error for the trial court to limit its consideration solely to a theory of negligence since evidence and argument was presented at trial under alternative theories of negligence and breach of contract pursuant to Rule 15(B) which requires that theories outside the scope of the initial complaint be considered in the absence of objection.

“5. The trial court errored [sic] in holding for appellee since liability was clearly established under a theory of breach of contract.”

3 Section 1701.07 Statutory agent.

“(A) Every corporation shall have and maintain an agent (sometimes referred to as the ‘statutory agent’), upon whom any process, notice, or demand required or permitted by statute to be served upon a corporation may be served. Such agent may be a natural person who is a resident of the county in this state in which the principal office of the corporation is located,, or may be a domestic corporation or a foreign corporation holding a license as such under the laws of this state which is authorized by its articles of incorporation to act as such agent, and which has a business address in the county in this state in which is located the principal office of the corporation designating such agent.” (Emphasis added.)

4 Conclusions of Law Nos. 14-18; cf. R. C. 1701.07 (A).