Drinan v. AJ Lindemann & Hoverson Co.

• Decision Date: 27 February 1953
• Docket Number: No. 10723.,10723.
• Parties: DRINAN v. A. J. LINDEMANN & HOVERSON CO.
• Court: U.S. Court of Appeals — Seventh Circuit

202 F.2d 271 (1953)

DRINAN v. A. J. LINDEMANN & HOVERSON CO.

No. 10723.

United States Court of Appeals Seventh Circuit.

February 27, 1953.

Henry L. Beers and William Caughey, by William T. Caughey, Muskegon, Mich., Bitker & Marshall, by Philip G. Marshall, Milwaukee, Wis., Floyd H. Skinner and Alphonse Lewis, Jr., Grand Rapids, Mich., for appellant.

Glenn R. Dougherty, Suel O. Arnold and Dougherty, Arnold & Waters, all of Milwaukee, Wis., for appellee.

Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.

MAJOR, Chief Judge.

Plaintiff, on the 19th day of March, 1951, was appointed by the Probate Court for the County of Muskegon, State of Michigan, as Special Administrator of the estate of Beatrice Williams, deceased. On the day of his appointment he commenced the instant action in the United States District Court for the Eastern District of Wisconsin, purportedly predicated upon the Michigan Wrongful Death Act as amended in 1939, Act No. 297, Pub. Acts 1939, Stat. Ann.1944, Cum.Supp. § 27.711-12.

The complaint alleged, so far as here material, that plaintiff's decedent, on March 20, 1948, ignited an oil stove manufactured by the defendant which, because of its negligent and defective manufacture, exploded, burning the decedent to such a degree that she died shortly thereafter. The complaint contained an allegation that "plaintiff's decedent was severely burned causing her to suffer great and excruciating pain and agony for a period of some hours before her death." The complaint also alleged that the decedent was a married woman, having one child of tender years partly dependent upon decedent's earnings for support and maintenance, and that decedent's husband had become liable for hospital, doctor, nurses and similar expenses. Damages were sought in the amount of $100,000. Jurisdiction of the District Court was invoked because of diversity of citizenship, with the requisite amount involved.

As shown, the complaint was filed one day short of three years from the date of decedent's death. Defendant by its answer invoked three defenses. The first was a general denial of defendant's negligence. The second was that the suit was barred by § 330.19(5) of the Wisconsin Statutes, which provides in substance that "No action to recover damages for injury to the person shall be maintained unless, within two years after the happening of the event causing such damages, notice in writing, signed by the party damaged, his agent or attorney, shall be served upon the person or corporation by whom it is claimed such damage was caused." The section sets forth the information which shall be contained in the notice and how it shall be served, and provides that notice is not required where an action is actually commenced within two years and the complaint served within two years after happening of the event causing such damages. Under this defense it was alleged and is presently admitted that no notice was served upon the defendant and no action commenced within the two years. The third was that the suit was barred by subsection (3), § 330.21 of the Wisconsin Statutes, which provides that actions for wrongful death must be brought within two years after the cause of action has accrued.

The District Court in its memorandum opinion held, citing cases in support thereof, that the third defense was not available to defendant inasmuch as the two-year limitation thereby pleaded applied only to a right of action created by the Wisconsin Wrongful Death Act — in other words, that it was not controlling here where death occurred in another State. Defendant raises no question in this court as to the propriety of the holding of the District Court in this respect. Under these circumstances, we find no necessity to cite or discuss the cases upon which the District Court relied and we accept the ruling as to this defense.

The District Court, however, sustained the defense secondly pleaded, that is, that the action was barred by the two-year notice requirement of § 330.19(5), and thereupon ordered a dismissal of the complaint. It is from this order that the appeal comes to this court.

Plaintiff contends that § 330.19(5) is without application and that, if any limitation period of the State of Wisconsin is to be given effect, it is § 330.19(4), which provides that certain actions must be commenced within six years, among which is "An action upon a liability created by statute when a different limitation is not prescribed by law." Obviously if the two-year notice provision contained in subsection (5) (second defense) is applicable, the six-year limitation provision contained in subsection (4) is of no benefit to the plaintiff. Conversely, if the former subsection is not applicable, it appears equally obvious that the six-year limitation period of the latter subsection is controlling and that plaintiff's action was commenced in time.

As shown, subsection (5) (second defense) is applicable solely to an "action to recover damages for an injury to the person." As we understand defendant's position, it is that the instant action is one for "an injury to the person" because of the allegation in the complaint that "plaintiff's decedent was severely burned causing her to suffer great and excruciating pain and agony for a period of some hours before her death." In view of defendant's argument, it is fair to assume that in the absence of this allegation there would be no basis for the contention that § 330.19(5) of the Wisconsin Statute is controlling.

The question whether the action is for personal injuries must be determined by the law of the State of Michigan wherein decedent's injuries were sustained and death occurred. This involves a number of statutory provisions as well as court decisions interpretative thereof. The action is purportedly predicated upon the following provision of the Michigan Statute as amended in 1939 (citation supra), which provides:

"Sec. 1. Be it enacted by the senate and house of representatives of the state of Michigan, whenever the death of a person or injuries resulting in death, shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act." (Italics supplied.)

This section had been in force since 1848, except the italicized words, which were added by the 1939 amendment.

Section 2 of this Act sets forth by whom and the manner in which such an action may be brought and provides that damages may be given for a pecuniary injury resulting from such death, damages for the reasonable medical, hospital, funeral and burial...