Chovan v. EI Du Pont De Nemours & Company, Civ. A. No. 21607.

CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)
Writing for the CourtMiller, Canfield, Paddock & Stone, by George E. Bushnell, Jr., Detroit, Mich., for defendant DuPont
Citation217 F. Supp. 808
PartiesHermine CHOVAN, Administratrix of the Estate of Samuel Chovan, deceased, and Hermine Chovan, Plaintiff, v. E. I. DU PONT DE NEMOURS & COMPANY, a Delaware Corporation, and The Ensign-Bickford Company, a Connecticut Corporation, Defendants.
Docket NumberCiv. A. No. 21607.
Decision Date24 May 1963

217 F. Supp. 808

Hermine CHOVAN, Administratrix of the Estate of Samuel Chovan, deceased, and Hermine Chovan, Plaintiff,
v.
E. I. DU PONT DE NEMOURS & COMPANY, a Delaware Corporation, and The Ensign-Bickford Company, a Connecticut Corporation, Defendants.

Civ. A. No. 21607.

United States District Court E. D. Michigan, S. D.

May 24, 1963.


217 F. Supp. 809

Markle & Markle, by Fergus Markle, Detroit, Mich., for plaintiff.

Miller, Canfield, Paddock & Stone, by George E. Bushnell, Jr., Detroit, Mich., for defendant DuPont.

Dickinson, Wright, McKean & Cudlip, by Fred W. Freeman and John A. Ziegler, Jr., Detroit, Mich., for defendant Ensign-Bickford.

McCREE, District Judge.

This is a wrongful death action brought by Hermine Chovan, Administratrix of the Estate of Samuel Chovan, deceased, against E. I. DuPont de Nemours & Company, a Delaware Corporation and the Ensign-Bickford Company, a Connecticut Corporation. The jurisdictional requirements of diversity and dollar amount are pleaded.

Plaintiff alleges that blasting caps manufactured by DuPont and fuse and hot wire fuse lighters manufactured by Ensign-Bickford were defective and caused a dynamite charge to explode prematurely resulting in the death of Samuel Chovan, a miner employed by Mauthe Mining Company in Gogebic County, Michigan. The fatal accident occurred in October, 1958.

Defendant Ensign-Bickford Company appeared specially and moved to quash the return of service of summons and complaint on the ground of lack of jurisdiction.

Service was made on the Ensign-Bickford Corporation on January 2, 1963, in Simsbury, Connecticut by the United States Marshal pursuant to the Michigan General Court Rules of 1963, and the Michigan Revised Judicature Act. (Act No. 236, P.A.1961) Both the Act and the Rules became effective January 1, 1963.

Defendant asserted in support of its motion that the Revised Judicature Act does not operate retroactively upon a cause of action which arose in 1958 and that retroactive application would impair vested rights in violation of the Fourteenth Amendment to the United States Constitution. Defendant Ensign-Bickford also claimed that it lacks the contacts with Michigan which would constitutionally subject it to limited in personam jurisdiction of this court. When the motion was argued orally, defendant withdrew its claim that service was made in violation of rule 4(f) of the Federal Rules of Civil Procedure.

The major issues before the court are:

1. Are the provisions of the Michigan Revised Judicature Act relating to jurisdiction restricted to causes of action arising after its effective date, January 1, 1963?
2. Does defendant Ensign-Bickford Company have sufficient contacts with the State of Michigan to render it amenable to limited personal jurisdiction?

1. Provisions of the Michigan Revised Judicature Act relating to

217 F. Supp. 810
jurisdiction are not restricted to causes of action arising after January 1, 1963, its effective date.

The service of summons in this case was accomplished pursuant to Federal Rule 4(d) (7) which permits service of process in the manner allowed by state law. Defendant has conceded that the state law involved is the law of the state in which the Federal Court is held (in this case Michigan) and not the law of the state in which service was made (in this case Connecticut). Michigan Court Rule 105.9, in effect on the date service was accomplished, provides:

"Service of a summons and a copy of the complaint * * * shall confer personal jurisdiction over a defendant having any of the contacts, ties, or relations with this state as specified in RJA Chapter 7, by giving notice to the defendant of the pendency of the action and an opportunity to defend. There is no territorial limitation on the range of the service of such notice."

The Revised Judicature Act, Chapter 7, Section 715 (M.S.A. § 27A.715) provides:

"The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:
"(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort."

It is defendant's claim that there is an absence of legislative intent to make Court Rule 105.9 and RJA Section 715 applicable to causes of action which arose prior to the effective date. Defendant bases its claim upon the language of Section 715 and does not refer the court to committee reports or similar material.

The statutory language applies by its terms to one who, at the time of the effective date, occupies a particular relationship arising out of certain acts. A statute is not retroactive merely because it may depend upon antecedent facts for its operation. Cox v. Hart, 260 U.S. 427, 435, 43 S.Ct. 154, 67 L.Ed. 332 (1922). See also Nelson v. Miller, 11 Ill.2d 378, 143 N.E.2d 673 (1957).

Generally, statutes relating to procedure apply to pending as well as to future proceedings. The rule which forbids application of new enactments or revisions to pending actions generally applies only to statutes dealing with substantive rights. Sampeyreac v. United States, 32 U.S. (7 Pet.) 222, 238, 8 L.Ed. 665 (1833); Railroad Co. v. Grant, 98 U.S. (8 Otto) 398, 25 L.Ed. 231 (1878); Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409 (1916); Dargel v. Henderson, 200 F.2d 564, 566 (Em. C.A., 1952); Fancher v. Clark, 127 F. Supp. 452, 460 (D.C.Colo., 1954); Hadlich v. American Mail Line, 82 F.Supp. 562 (N.D.Calif.1949); 2 Sutherland, Statutory Construction, 3rd ed., § 2212 (1943). "The aim being procedural, it is axiomatic that, unless the contrary appears, the provisions are applicable to pending proceedings." United States v. National City Lines, 80 F.Supp. 734, 738 (S.D.Calif.1948). See also Beebe v. Birkett, 108 Mich. 234, 65 N.W. 970 (1896).

Defendant cites in support of its argument RJA Section 9905(1), M.S.A. § 27A.9905, which provides:

"Except as specifically stated or reasonably inferred from the provisions of this act, this act shall not impair or affect any act done, offense committed or right accruing, accrued, or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time this act takes effect, but the same may be enjoyed, asserted, enforced, prosecuted, or inflicted as if this act had not been passed."
217 F. Supp. 811

Since the procedural provisions of the RJA were intended to govern all litigation subsequent to its effective date it may be reasonably inferred that it applies to causes of action which arose or were pending prior to such date. Section 9905 may operate as a savings clause for substantive or vested rights but without more, this section does not appear to be intended to forbid entirely the application of the RJA to the procedural aspects of pending litigation.

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23 practice notes
  • Krueger v. Rheem Mfg. Co., 52349
    • United States
    • United States State Supreme Court of Iowa
    • March 7, 1967
    ...Teague v. Damascus (Wash.) 183 F.Supp. 446, (personal service outside the Page 145 state); Chovan v. E. I. DuPont De Nemours & Co., 217 F.Supp. 808 (Mich.) (not substituted The decisions are based on the theory expressed in McGee v. International Life Ins. Co., supra, 355 U.S. loc. cit. 226......
  • Hunt v. Nevada State Bank, s. 41697--41703
    • United States
    • Supreme Court of Minnesota (US)
    • October 22, 1969
    ...428, 19 A.L.R.3d 131; Woodring v. Hall, 200 Kan. 597, 438 P.2d 135. [285 Minn. 99] Chovan v. E. I. DuPont DeNemours & Co. (E.D.Mich.) 217 F.Supp. 808, has been a helpful opinion because the arguments and statutory context were quite similar to those in the present situation. The action was ......
  • Adams Dairy Company v. National Dairy Products Corp., 11994-1
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • October 24, 1968
    ...have likewise recognized and made use of the "distinction." See, for example, Chovan v. E. I. DuPont De Nemours & Co., (E.D.Mich.1963) 217 F.Supp. 808, in which it was determined that Michigan's new single act statute should be applied retrospectively. The defendants in that case expressly ......
  • Harmon v. Eudaily
    • United States
    • Superior Court of Delaware
    • September 5, 1979
    ...D.Md., 360 F.Supp. 997 (1973); Coreil v. Pearson, W.D.La., 242 F.Supp. 802 (1965); Chovan v. E. I. DuPont de Nemours & Co., E.D.Mich., 217 F.Supp. 808 (1963); Hoen v. District Court, 152 Colo. 451, 412 P.2d 428, 19 A.L.R.3d 131 (1966); Gordon v. Granstedt, 54 Haw. 597, 513 P.2d 165 (1973) (......
  • Request a trial to view additional results
23 cases
  • Krueger v. Rheem Mfg. Co., No. 52349
    • United States
    • United States State Supreme Court of Iowa
    • March 7, 1967
    ...Teague v. Damascus (Wash.) 183 F.Supp. 446, (personal service outside the Page 145 state); Chovan v. E. I. DuPont De Nemours & Co., 217 F.Supp. 808 (Mich.) (not substituted The decisions are based on the theory expressed in McGee v. International Life Ins. Co., supra, 355 U.S. loc. cit. 226......
  • Adams Dairy Company v. National Dairy Products Corp., No. 11994-1
    • United States
    • U.S. District Court — Western District of Missouri
    • October 24, 1968
    ...have likewise recognized and made use of the "distinction." See, for example, Chovan v. E. I. DuPont De Nemours & Co., (E.D.Mich.1963) 217 F.Supp. 808, in which it was determined that Michigan's new single act statute should be applied retrospectively. The defendants in that case expressly ......
  • Hunt v. Nevada State Bank, Nos. 41697--41703
    • United States
    • Supreme Court of Minnesota (US)
    • October 22, 1969
    ...428, 19 A.L.R.3d 131; Woodring v. Hall, 200 Kan. 597, 438 P.2d 135. [285 Minn. 99] Chovan v. E. I. DuPont DeNemours & Co. (E.D.Mich.) 217 F.Supp. 808, has been a helpful opinion because the arguments and statutory context were quite similar to those in the present situation. The action was ......
  • Harmon v. Eudaily
    • United States
    • Superior Court of Delaware
    • September 5, 1979
    ...D.Md., 360 F.Supp. 997 (1973); Coreil v. Pearson, W.D.La., 242 F.Supp. 802 (1965); Chovan v. E. I. DuPont de Nemours & Co., E.D.Mich., 217 F.Supp. 808 (1963); Hoen v. District Court, 152 Colo. 451, 412 P.2d 428, 19 A.L.R.3d 131 (1966); Gordon v. Granstedt, 54 Haw. 597, 513 P.2d 165 (1973) (......
  • Request a trial to view additional results

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