Howard v. Pulver

• Decision Date: 08 January 1951
• Docket Number: No. 60,60
• Citation: 329 Mich. 415,45 N.W.2d 530
• Parties: HOWARD v. PULVER.
• Court: Michigan Supreme Court

Page 530

45 N.W.2d 530

329 Mich. 415

HOWARD v. PULVER.

No. 60.

Supreme Court of Michigan.

Jan. 8, 1951.

Charles H. Burnham, Battle Creek, for appellant.

Brown, Jamieson, Dyll, Marentay & Erickson, Detroit, for appellee.

Before the Entire Bench.

SHARPE, Justice.

This case involves an appeal from the circuit court of Wayne county denying plaintiff's motion to substitute a party plaintiff an action brought against defendant.

The facts are not in dispute. Paul W. Howard, decedent and a resident of the State of Illinois, was involved in an accident in the State of Indiana with defendant Harry Pulver, a citizen and resident of Wayne county, Michigan. Paul W. Howard died from injuries received in the accident.

Subsequently, Milton B. Howard was appointed administrator of the estate of Paul W. Howard, deceased, by a probate court of Cook county, Illinois. On December 18, 1947, plaintiff as administrator brought an action in the circuit court of Wayne county against Harry Pulver who filed his appearance and answer to plaintiff's declaration. The matter came to the attention of the court on the pre-trial docket at which time counsel for defendant raised the objection that the action was brought by and in the name of a foreign administrator. Subsequently, an ancillary administrator was appointed and plaintiff's motion to substitute the ancillary administrator as party plaintiff was granted.

On November 28, 1949, defendant filed a motion for a rehearing on the court's order denying defendant's motion to dismiss and granting plaintiff's motion to substitute. On January 6, 1950, the court granted defendant's motion to dismiss. Plaintiff appeals.

The first question that arises out of the bringing of the instant action is: May an administrator, appointed by an Illinois court, prosecute an action in Michigan for the wrongful death of his decedent under an Indiana statute, 2 Burns' Ind.Stat. 1946 Replacement, § 2-404, which provides that in actions for death, the personal representative of deceased may bring action against one causing the death of his deceased by wrongful act or omission, if the decedent living might have brought an action? Under Indiana law the action must be brought within 2 years after the death. In the case at bar Paul W. Howard died December 29, 1946. The present action was instituted December 18, 1947, and on November 15, 1949, the order of substitution was entered.

Since the cause of action arose as the result of injuries and death of plaintiff's decedent in the State of Indiana, the liability for the negligence or wrong is governed by the laws of the State of Indiana. See Kaiser v. North, 292 Mich. 49, 289 N.W. 325, and Summar v. Besser Manufacturing Co., 310 Mich. 347, 17 N.W.2d 209.

Defendant urges that an administrator appointed in Illinois has no authority to bring an action in Michigan and relies upon Jones v. Turner, 249 Mich. 403, 228 N.W. 796, 797. We there said:

'Plaintiff was appointed administrator of his father's estate by a probate court in Illinois. No ancillary administration of that estate was had in Michigan.

'The assets of a deceased person located in this State constitute a trust fund for the payment of the creditors of the deceased therein, regardless of the domicile of deceased. In re Colburn's Estate, 153 Mich. 206, 116 N.W. 986, 18 L.R.A.,N.S., 149, 126 Am.St.Rep. 479; In re Stevens' Estate, 171 Mich. 486, 137 N.W. 627.

'The appointment of plaintiff as administrator by the court of Illinois has no extraterritorial force. As a foreign administrator he has no control over or interest in the real or personal estate of the intestate in this state. Thayer v. Lane, Walk. Ch. 200.

'His grant of administration by the court of Illinois is strictly confined in authority and operation to the limits of the territory of the state granting it. It cannot confer, as a matter of right, any authority to collect the assets of the deceased in nay other state. * * *

'No Michigan statute gives a foreign executor or administrator the right to sue in the courts of this state in a case like the present. The trial court was without jurisdiction to render a valid judgment in favor of plaintiff as administrator. Being without jurisdiction, the judgment of the trial court is void.'

Plaintiff urges that under the death act of Indiana, 2 Burns' Ind.Stat. 1946 Replacement, § 2-404, it is provided that such action shall be brought by and in the name of the personal representative of the deceased person for the benefit of the persons designated by the statute; and that while the statute names the personal representative of the deceased, he does not represent the deceased as to his general estate, but only as to his relationship with the persons named as beneficiaries by the statute, and, as such, is only the designee of the beneficiaries named in the statute and acts only as a trustee for their benefit.

In view of the fact that the liability for the alleged wrongful act is governed by Indiana law, it becomes necessary to examine its death act. The pertinent part of the act reads as follows: 'When the death of one is caused by the wrongful act or omission of another, the personal representative of the former may maintain an action therefor against the latter, if the former might have maintained an action had he or she (as the case may be) lived, against the latter for an injury for the same act or omission. When the death of one is caused by the wrongful act or omission of another, the action shall be commenced by the personal representative of the decedent within two (2) years, and the damages can not exceed ten thousand dollars ($10,000), and subject to the provisions of this act, shall inure to the exclusive benefit of the widow or widower, as the case may be, and to the dependent children, if any, or dependent next of kin, to be distributed in the same manner as the personal property of the deceased. * * *'

The death act creates a new right of action not known to the common law, applying only when death results from injuries and the right of action vests in the personal representative of the deceased.

The issue involved is one of first impression in this State, but has been passed upon in other jurisdictions. In Wiener v. Pharmaceuticals, Inc., 298 N.Y. 346, 83 N.E.2d 673, 674, Patricia A. Wiener, an infant, died in Detroit, Michigan. Her father, R. J. Wiener, was appointed administrator by a probate court of Michigan and brought an action in a New York court to recover damages for the infant's wrongful death allegedly occasioned by one of defendant's products which had been administered to the child. Defendant made a motion to dismiss the cause of action on the ground that plaintiff lacked standing to sue in New York courts. The New York Court of Appeals affirmed the trial court's denial of the motion to dismiss and said:

'It is settled that as a general rule a foreign administrator may not sue in the courts of this State without first obtaining ancillary letters. * * *

'We come, then, to an important question--hitherto expressly left open by this court, Baldwin v. Powell, supra, 294 N.Y. at page 134, 61 N.E.2d at page 413; Wikoff v. Hirschel, supra, 258 N.Y. at pages 31, 32, 179 N.E. at page 250--as to whether a foreign administrator, suing as special statutory trustee to recover damages for wrongful death, has the legal capacity to maintain such a suit in our courts.

'It has been repeatedly observed that the reason for insisting that a foreign administrator obtain ancillary letters before suing in another State is to assure that the decedent's domestic creditors shall have their claims paid out of any fund recovered for the benefit of the debrtor's estate. for the benefit of the debtor's estate.

'The rule barring foreign administrators from our courts is just and reasonable only if applied in cases, first, where there are domestic creditors, and second, where the foreign administrator sues to recover a fund in which such creditors may share. Obviously, no prejudice threatens local creditors of the decedent if the wrongful death statute makes no provision for recovery on behalf of the general estate and, in fact, bars creditors' claims against the proceeds. Suing under such a statute, plaintiff acts, not as an officer of the foreign court appointed by it as alter ego for the estate, but as a trustee for the designated beneficiaries, the actual and real parties in interest. In such a case, the amount recovered truly constitutes a special fund for their exclusive benefit, and, since it is not subject to the claims of others, no danger exists that failure to require local qualification may harm or prejudice domestic creditors. With the primary and, perhaps only reason for the rule thus removed, the rule itself has no sensible application and should not be invoked in this class of case.

'For that reason, we conclude, as have the courts of a number of other jurisdictions, that a foreign administrator, suing as statutory trustee, has standing to maintain a wrongful death action in this State upon the strength of his original letters.'

In Pearson v. Norfolk & W. Ry. Co., D.C., 286 F. 429, 430, Ambrose Pearson was killed in West Virginia. A. C. Pearson was appointed administrator of the estate of Ambrose Pearson in North Carolina. He brought an action in Virginia for the wrongful death of decedent. Defendant raised the issue of the right of a foreign administrator to maintain the action. In affirming such right the court said:

'In this state there is no statute giving foreign representatives a right to sue, and the rule that a foreign representative may not sue in the courts of this state to recover assets of his decedent's estate for administration remains in full force. Dickinson v. McCraw, 4 Rand., Val., 158, 160; Andrews v. Avory, 14...