Petrusha v. Korinek

• Decision Date: 01 April 1927
• Docket Number: No. 40.,40.
• Citation: 237 Mich. 583,213 N.W. 188
• Parties: PETRUSHA v. KORINEK et al.
• Court: Michigan Supreme Court

237 Mich. 583

213 N.W. 188

PETRUSHA

v.KORINEK et al.

No. 40.

Supreme Court of Michigan.

April 1, 1927.

Error to Circuit Court, Gogebic County; George O. Driscoll, Judge.

Action by Mary Petrusha, administratrix of the estate of Michael Harrington, deceased, against John M. Korinek, and another, copartners doing business as the De Luxe Cab Company. From a judgment for plaintiff, defendants bring error. Reversed, and new trial granted.

Argued before the Entire Bench. Charles M. Humphrey, of Ironwood, E. W. MacPherran, of Duluth, Minn., and Ivan D. Wright, of Ironwood, for appellants.

Edward W. Massie, of Ironwood, for appellee.

STEERE, J.

Plaintiff had judgment in the above-entitled case in the circuit court of Gogebic county in the sum of $3,416 as damages for the wrongful death of her intestate imputed to the negligence of defendants.

The accident which resulted in deceased's death occurred in the county of Iron, Wis., at a small location called Cary, located a short distance west of the city of Hurley, Wis., which is close to the west boundary line of Michigan and directly across the Montreal river from the city of Ironwood, Mich., the two being connected by a highway bridge over the river. Highway No. 77 of Wisconsin extends westerly from Hurley through Cary location, from where it is straight for half a mile or more east and a considerable distance west. At Cary the traveled portion of the highway is 30 feet wide, with a cement sidewalk along its south side, and an interurban electric line along its north side. Cary is a regular stopping place for the interurban line. At its stopping station there is a platform on the north side of the railway track, but passengers customarily took and left the car from the south side at the edge of the highway.

Defendants are partners, located and doing business in the city of Ironwood, Mich., under the name of the De Luxe Cab Company. Michael Harrington, deceased, was also a resident of Ironwood. At the time of his death he was 31 years of age, a common laborer, unmarried, with no dependents so far as shown. His only disclosed relatives were his sister, Mary Petrusha, and an adult brother, Daniel Harrington.

On the evening of April 21, 1925, deceased went with a companion named Carl Edwall to the Cary location, where they remained until about 11 o'clock, when they started for the interurban station to take a car back to Ironwood. In doing so they walked for a distance along the cement walk on the south side of the highway until opposite the station and turning to the north on the highway looked for lights east and west. They saw nothing to the east, but observed the headlight of the approaching street car they were about to take a short distance to the west, and crossed the highway to the south side of the railway track, where they stopped and stood waiting for it to stop. It was then but a short distance away. As they stood there a rapidly driven taxicab belonging to defendants and carrying passengers came from the east and struck the two men down. The taxicab driver was shown to have defective vision; one eye being blinded by a traumatic cataract. Edwall, though severely injured, survived. Harrington was mortally injured. He was soon taken in a cab back to the Twin City Hospital in Ironwood, Mich. arriving there in a dying condition not long before 12 o'clock. His death occurred about 4 o'clock on the morning of April 22, 1925. There was testimony that for a portion of the time at least he was conscious and made exclamations of pain and suffering.

One of defendants' assignments of error is denial of a motion to direct a verdict for them, on the ground that no actionable negligence on the part of the taxicab driver was shown, and, if so, deceased was guilty of contributory negligence. We are of opinion there was sufficient testimonmy to carry those questions to the jury.

The more serious question is the ruling of the court that the lex fori rather than the lex loci obtained on trial of the cause, the court saying in reply to the argument of defendants' counsel:

‘If he had a cause of action in Wisconsin it was a transferred cause of action; he brought that over into Michigan. He died in Michigan, and by virtue of the Michigan statute that cause of action survived to his personal representative.’

The court thereafter guided the trial and instructed the jury along the lines of our Michigan statutes on that subject, including the measure of damages under our so-called survival act (Comp. Laws, § 12383 et seq.).

As to the pleadings, this action was begun by a special administrator of deceased, under a declaration containing two counts, one based on the death act (Comp. Laws, §§ 14577, 14578) and the other on the survival act of this state, pleading in them certain provisions of the Wisconsin motor vehicle laws and penalties for their violation. To the defendant pleaded the general issue. Plaintiff, as general administratrix of deceased, was substituted for the special administrator, and an amended declaration was filed. It was substantially the same as the first, including the rather lengthy quotations from the Wisconsin motor vehicle law, but omitting to count on the death act, plaintiff planting her claim on the survival act. To this defendants pleaded the general issue with special notice that on the trial they would give in evidence, and insist upon in their defense, sections 4255 and 4256 of the General Statutes of Wisconsin, quoted at length. Proof of these was tendered at the trial, but plaintiff's objection to their admission was sustained.

The two sections of the Wisconsin Statutes pleaded by defendant, cited as 2 Wis. Stat. 1921, §§ 4255 and 4256 (now appearing in 1 Wis. Stat. 1925, p. 2218, as 331.03 and 331.04), so far as material here, are:

‘ Recovery for Death by Wrongful Act. Section 4255. Whenever the death of a person shall be caused by a 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; provided, that such action shall be brought for a death caused in this state.

‘ Who to Bring Action; Damages Limited. Section 4256. Every such action shall be brought by and in the name of the personal representative of such deceased person, and the...