Kertson v. Johnson, 28715.

• Decision Date: 08 April 1932
• Docket Number: No. 28715.,28715.
• Citation: 185 Minn. 591,242 N.W. 329
• Parties: KERTSON v. JOHNSON et al.
• Court: Minnesota Supreme Court

242 N.W. 329

185 Minn. 591

KERTSON v. JOHNSON et al.

No. 28715.

Supreme Court of Minnesota.

April 8, 1932.

Appeal from District Court, Hennepin County; W. W. Bardwell, Judge.

Action by James A. Kertson against Mary Johnson, as administratrix of the estate of George H. Johnson, deceased and another. From orders sustaining demurrers of both defendants to the complaint, the plaintiff appeals.

Orders reversed.

Neil Hughes, Wm. E. MacGregor, and R. C. Andrews, all of Minneapolis, for appellant.

Sweet, Johnson & Sands, of Minneapolis (Ingham, MacPhail, Blodgett & Kelly, of Minneapolis, of counsel), for respondents.

LORING, J.

The plaintiff was injured in an automobile accident in Wisconsin due to the alleged negligence of defendant's intestate. He brought suit in Minnesota against both the personal representative of the deceased tort-feasor and the company which carried the liability insurance on the deceased's car. Both defendants demurred on the grounds that the court had no jurisdiction either of the defendants or of the subject-matter, and that the complaint did not state a cause of action. Both demurrers were sustained, and the plaintiff appealed.

The plaintiff has pleaded the statutes of Wisconsin relative to the operation of motor vehicles and the construction to be placed upon automobile liability insurance policies as well as to what actions survive. The pleaded statute in regard to insurance reads as follows: "85.93. Accident insurance, liability of insurer. Any bond or policy of insurance covering liability to others by reason of the operation of a motor vehicle shall be deemed and construed to contain the following conditions: That the insurer shall be liable to the persons entitled to recover for the death of any person, or for injury to person or property, irrespective of whether such liability be in præsenti or contingent and to become fixed or certain by final judgment against the insured, when caused by the negligent operation, maintenance, use or defective construction of the vehicle described therein, such liability not to exceed the amount named in said bond or policy."

The statute relative to survival is as follows: "331.01. What actions survive. In addition to the actions which survive at common law the following shall also survive: Actions for the recovery of personal property or the unlawful withholding or conversion thereof, for the recovery of the possession of real estate and for the unlawful withholding of the possession thereof, for assault and battery, false imprisonment or other damage to the person, for all damage done to the property rights or interests of another, for goods taken and carried away, for damages done to real or personal estate, equitable actions to set aside conveyances of real estate, to compel a reconveyance thereof, or to quiet the title thereto, and for a specific performance of contracts relating to real estate; provided this act shall have no application to pending litigation."

The questions presented are: (1) Does liability for a tort of the kind alleged survive in Wisconsin against the estate of the tortfeasor? (2) If so, can it be enforced in the courts of Minnesota where such liability does not survive? (3) If it does so survive and can be enforced, is the insurer a proper party defendant, and does the complaint state a cause of action against it?

1. That liability for tort of this character committed in Wisconsin survives the tortfeasor's death by the law of that state seems to be well established. Had Johnson's estate been probated in Wisconsin and jurisdiction there obtained in a suit by this plaintiff on the same grounds as here alleged, there appears to be no question that the suit could have been maintained. Mesar v. Southern Surety Co., 197 Wis. 578, 222 N. W. 809, where the numerous Wisconsin cases to that effect are cited.

2. In the case of Chubbuck v. Holloway, 182 Minn. 225, 234 N. W. 314, 868, this court fully covered the question of public policy in permitting a suit here on a cause of action based upon liability surviving under the laws of Wisconsin; though not under those of Minnesota, and we see no reason to change our views as there expressed.

3. The defendant administratrix earnestly contends that no jurisdiction of the estate of the deceased is...