McMillan v. Puckett

• Citation: 678 So.2d 652
• Decision Date: 16 May 1996
• Docket Number: No. 94-IA-00166-SCT,94-IA-00166-SCT
• Parties: Dr. Beverly A. McMILLAN and Mississippi Baptist Medical Center v. Thomas D. PUCKETT and Tamara L. Puckett, Individually and on Behalf of the Wrongful Death Heirs of Sandra L. Puckett, Deceased.
• Court: United States State Supreme Court of Mississippi

Page 652

678 So.2d 652

Dr. Beverly A. McMILLAN and Mississippi Baptist Medical Center v. Thomas D. PUCKETT and Tamara L. Puckett, Individually and on

Behalf of the Wrongful Death Heirs of Sandra L.

Puckett, Deceased.

No. 94-IA-00166-SCT.

Supreme Court of Mississippi.

May 16, 1996.

Rehearing Denied Aug. 22, 1996.

Al Nuzzo, Markow Walker Reeves & Anderson, Jackson; Alan C. Goodman, Williams Jelliffe & Arnold, Ridgeland; Cary E. Bufkin, Eugene R. Naylor, Shell Buford Bufkin Callicutt & Perry, Jackson, for appellants.

Crymes G. Pittman, Robert G. Germany, Pittman Germany Roberts & Welsh, Jackson, for appellees.

En Banc.

McRAE, Justice, for the Court:

In this Interlocutory Appeal from an order of the Leake County Circuit Court denying the appellants' motion for a change of venue, we are asked to consider where venue is proper in a wrongful death action. We find that the circuit court correctly ruled that venue was proper in Leake County, where Sandra Puckett died, and conclude that a wrongful death action may be brought in the county where the death occurred, thus commencing the cause of action, or in the county where the wrongful act causing the death took place pursuant to Miss.Code Ann. § 11-11-3, which provides that venue is proper where the cause of action occurred or accrued.

I.

Thomas and Tamara Puckett filed a wrongful death action in the Leake County Circuit Court on December 8, 1992, seeking damages for the death of their infant daughter, Sandra Puckett. The complaint alleged that after Tamara Puckett was admitted to the Mississippi Baptist Medical Center in labor on June 29, 1991, Dr. McMillan was negligent in her examination and treatment of the mother and her yet unborn child; that Dr. McMillan failed to advise the Pucketts of the risks associated with the various medical procedures performed upon both mother and baby and failed to obtain their informed consent; and that the Medical Center, through its employees, was negligent in its treatment of both Tamara and Sandra Puckett. The negligent acts, deviations from the standard of care, and lack of informed consent which occurred on June 29, 1991 in Hinds County, Mississippi, are alleged to have resulted ultimately in the infant's death on December 31, 1991 in Leake County, Mississippi, causing the Puckett family extreme mental anguish and anxiety.

Dr. McMillan resides in and practices medicine in Hinds County, Mississippi. The Medical Center, likewise has its sole place of business in Hinds County. Consequently, the defendants moved for a change of venue from Leake County to the First Judicial District of Hinds County. That motion was denied on August 20, 1993. The circuit court found that the cause of action had accrued in Leake County and therefore, that venue was proper there. Dr. McMillan then requested certification for an interlocutory appeal which was denied by the trial court but subsequently granted by this Court. McMillan v. Puckett, 641 So.2d 757 (Miss.1994).

II.

Dr. McMillan and the Medical Center contend that venue is proper only in Hinds County, where the events that are alleged to have caused Sandra Puckett's death took place, and not in Leake County, where she died. We disagree.

Wrongful death action in Mississippi are controlled by Miss.Code Ann. § 11-7-13, which, in relevant part, provides:

Whenever the death of any person shall be caused by any real, wrongful or negligent act or omission ... as would, if death had not ensued, have entitled the party injured or damaged thereby to maintain an action and recover damages in respect thereof ... and such deceased person shall have left a widow or children or both, or husband or father or mother, or sister, or brother, the person or corporation, or both that would have been liable if death had not ensued, and the representatives of such person shall be liable for damages, notwithstanding the death....

The statute makes no provision for the venue of such actions. Instead, we turn to the general venue statute, Miss Code Ann. § 11-11-3, which provides for venue as follows:

Civil actions of which the circuit court has original jurisdiction shall be commenced in the county in which the defendant or any of them may be found or in the county where the cause of action may occur or accrue and, if the defendant is a domestic corporation, in the county in which said corporation is domiciled or in the county where the cause of action may occur or accrue ...

It is the phrase "where the cause of action may occur or accrue" that serves as a point of consternation between the parties. Dr. McMillan and the Medical Center urge a narrow construction of the phrase to mean where the alleged act of negligence occurred. The Pucketts, on the other hand, champion an interpretation consistent with our finding of when a wrongful death cause of action accrues for purposes of the statute of limitations. We have no question that venue is proper in Hinds County, where the individual defendant may be found and where the defendant corporation is domiciled. At issue, therefore, is whether venue is also proper in Leake County, where Sandra Puckett died, as well as in Hinds County, where the injuries that are alleged to have caused her death were inflicted.

A tort is not complete until an injury occurs. Smith v. Temco, Inc., 252 So.2d 212, 216 (Miss.1971). In this, as in any other wrongful death action brought pursuant to Miss.Code Ann. § 11-7-13 (1972), there is no injury, and hence, no cause of action until a death occurs. Sweeney v. Preston, 642 So.2d 332, 336 (Miss.1994); Gentry v. Wallace, 606 So.2d 1117, 1123 (Miss.1992). Thus, for statute of limitations purposes, we have found that a wrongful death action cannot accrue prior to the death of the decedent. Gentry, 606 So.2d at 1123. No distinction can be made between when an action accrues and where it accrues. Accordingly, while the Pucketts might have been able to bring a negligence or a malpractice action for the injuries caused to Mrs. Puckett and their daughter prior to the infant's death, a wrongful death cause of action did not accrue until December 31, 1991 in Leake County. Only then and there did they have an actionable claim for Sandra's death against Dr. McMillan and the Medical Center.

In Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 706 (Miss.1990), wherein we found that a cause of action accrued only when illness was discovered in asbestosis cases and not when the plaintiff was first exposed to the toxic substance, we stated that "[a] cause of action accrues only when it comes into existence as an enforceable claim; that is when the right to sue becomes vested." Applying that principle in the wrongful death context as we did in Sweeney and Preston, the Montana Supreme Court recently applied its finding that a cause of action for wrongful death did not accrue until a death occurred, rather than at the time of the wrongful conduct that caused the death, for purposes of the statute of limitations, to the same venue question now before this Court. Gabriel v. School District Number 4, Libby, Montana, 264 Mont. 177, 179-180, 870 P.2d 1351, 1352 (1994), citing Carroll v. W.R. Grace & Co., 252 Mont. 485, 830 P.2d 1253 (1992). Finding that venue was appropriate where the decedent died and not where the alleged wrongful conduct that led to his death occurred, the Court announced:

Carroll stands for the proposition that death is a critical, and the final, element in the accrual of a wrongful death action. If the claim does not accrue until the death occurs, it cannot "arise" under § 25-2-126, MCA, until the death occurs. Simply put, no wrongful death claim exists until the death occurs; therefore, the claim cannot "arise" for venue purposes until that time. As a logical corollary to Carroll, we conclude that a wrongful death claim arises under § 25-2-126, MCA, where the death occurs.

Gabriel, 264 Mont. at 180, 870 P.2d at 1352.

We have held that the terms " 'occur' and 'accrue' are not synonymous, legally or otherwise, as the disjunctive connector forthrightly suggests." Flight Line, Inc. v. Tanksley, 608 So.2d 1149, 1156 (Miss.1992). In Flight Line, we further explained:

We read accrual in its formalistic sense. A cause of action accrues when it comes into existence as an enforceable claim, that is, when the right to sue becomes vested. Forman v. Mississippi Publishers Corp., 195 Miss. 90, 104, 14 So.2d 344, 346 (1943). This may well mean the moment injury is inflicted, that point in space and time when the last legally significant fact is found. "Occur" is a less formalistic term. It is event oriented to its core. It connotes conduct and phenomena and imports no preference among all of those necessary that a plaintiff may sue. It is certainly true in cases such as this the action--the improper loading in Vicksburg--was harmless when done "and on account of which no action could accrue, until the injury took place." What Masonite [Corp. v. Burnham, 164 Miss. 840, 146 So. 292 (1933) ] misses is that the converse is equally true. The injury could not, as a matter of common sense, take place had it not been for the conduct in the county of origin. The mere fact of injury in Chicago could not be actionable without negligence somewhere, here (at least in part) in Warren County.

* * * * * *

The words "occur or accrue" within the statute are at least broad enough to include the place where the injury is inflicted, but this does not and cannot exclude the place where substantial parts of the injury-causing conduct occurred ...

Flight Line, 608 So.2d at 1156-1157 (emphasis added).

We have recognized that "[a] cause of action accrues only when it comes into existence as an enforceable claim," defining "accrue" to mean when the right to sue becomes vested. Owens-Illinois, Inc. v. Edwards, 573 So.2d 704, 706 (Miss.1990); Rankin v. Mark, 238 Miss. 858, 120 So.2d 435 (1960); Aultman v. Kelly, 236 Miss. 1, 109 So.2d 344 (1959); Walley v. Hunt, 212 Miss....