Schnabl v. Ford Motor Co.

• Decision Date: 30 March 1972
• Docket Number: No. 19,19
• Citation: 195 N.W.2d 602,54 Wis.2d 345
• Parties: Margaret M. SCHNABL, Admnx. of the Estate of Barbara M. Austin, Decd., etc., Appellant, v. FORD MOTOR COMPANY, a foreign Corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 602

195 N.W.2d 602

54 Wis.2d 345

Margaret M. SCHNABL, Admnx. of the Estate of Barbara M Austin, Decd., etc., Appellant, v. FORD MOTOR COMPANY, a foreign Corporation, et al., Respondents.

No. 19.

Supreme Court of Wisconsin.

March 30, 1972.

Rehearing Denied June 6, 1972.

Action for wrongful death commenced by appellant Margaret M. Schnabl, as administratrix of the estate of Barbara M. Austin, deceased, and as general guardian of the minor children of the deceased, against respondents Ford Motor Company and Jack White, Inc.

In January of 1966, Barbara M. Austin purchased a new Ford Galaxy LTD from respondent Jack White, Inc., which operates a car dealership in the city of Wauwatosa. The car was equipped with seat belts. On April 8, 1966, Mrs. Austin was involved in a one-car roll-over accident while driving in Indiana. During the course of the accident, the seat belt Mrs. Austin was wearing broke, which allegedly allowed her to be thrown about inside the car, thus resulting in her death. Appellant was appointed the administratrix of the estate of the deceased and general guardian of the deceased's children. After the estate was settled, appellant was relieved of her appointment as personal representative by an order of the probate court entered on October 23, 1968.

Appellant, claiming to act both as guardian for the children and as personal representative of the estate, commenced an action for wrongful death against the respondents on April 4, 1969. The complaint alleged that respondents were negligent in supplying seat belts of insufficient strength, in failing to properly install the belts, in failing to adequately test the belts, and in failing to adopt inspection and quality control measures with respect to the belts. It was also alleged that respondents had breached the warranties they had expressly or impliedly made to the deceased relating to the adequacy of the seat belts.

Respondents moved for summary judgment, producing affidavits which stated that the seat belts were manufactured and installed in Minnesota, and that any acts of negligence on the part of Ford Motor Company occurred in that state. The affidavits also averred that since the accident and the resulting death occurred in Indiana, the wrongful death statute of that state should apply. Since Indiana law requires that an action for wrongful death be brought by the personal representative of the deceased's estate and since appellant had been dismissed as administratrix prior to the commencement of this action, respondents contended that appellant lacked the capacity to sue. Furthermore, the Indiana statute requires a wrongful death action to be brought within two years from the date of death; respondents therefore asserted that the action was barred by the statute of limitations. The trial court concluded that Indiana law should apply and that the action was therefore untimely. A summary judgment was granted in favor of each respondent; appeal is taken from those judgments. Additional facts will be stated in the opinion.

Edward P. Rudolph, Rudolph & Moore, Milwaukee, for appellant.

Merten, Connell & Sisolak, Milwaukee, for Ford Motor Co.

Borgelt, Powell, Peterson & Frauen, Milwaukee, for Jack White, Inc.

HANLEY, Justice.

Two issues are presented on this appeal:

(1) Does this court have jurisdiction to hear an appeal when the notice of appeal was served on respondent's attorneys rather than on respondents personally; and

(2) Is the wrongful death statute of Wisconsin applicable to grant a remedy to a Wisconsin decedent's children where defective seat belts, bought by decedent with a new car from defendants in Wisconsin, broke, during a roll-over accident while passing through Indiana? Appellate Jurisdiction.

Respondents' first contention is that, inasmuch as appellant served the notice of appeal on trial counsel rather than personally on respondents or on someone expressly authorized to accept service for respondents, the appeal was improperly commenced and that this court lacks jurisdiction as a result. The same contention was presented and rejected prior to oral argument, when this court denied a motion to dismiss the appeal. The statute relating to service of a notice of appeal is sec. 274.11, Stats., which states in part:

'Appeal, how taken and perfected; notice; costs. (1) An appeal is taken by serving a notice of appeal signed by the appellant or his attorney on each party adverse to him upon the appeal who appeared in the action or proceeding, . . .'

The statute does appear to require personal service of the notice of appeal upon the parties adverse to the appellant. However, this court has held that substituted service upon the respondent's trial counsel is sufficient to confer jurisdiction over parties on appeal. As this court stated in Hooker v. Hooker (1959), 8 Wis.2d 331, 337, 99 N.W.2d 113, 116:

'. . . It is our view that when a party retains an attorney to appear in an action, the party contemplates the usual and ordinary proceedings which may be taken after judgment, and the statutory provisions for appeal and review of the judgment within specified periods from the date of entry, and that in the absence of a substitution or withdrawal of the attorney of record, service of notice upon such attorney is sufficient in all such proceedings and is authorized by sec. 269.37.' ¹

The above view reflects the realities of appellate practice. There is little room for doubt that trial counsel would immediately notify his client that an appeal was being taken from a judgment in the client's favor. Similarly, the client would, in the typical case, expect his trial attorney to represent him on appeal. Certainly, there is no injustice or want of due process in allowing trial counsel to accept service of notice of appeal on his client's behalf.

Wrongful Death Action.

The trial court in this case granted summary judgment in favor of respondents on the grounds that the Indiana two-year statute of limitations in wrongful death actions had run, thereby barring this action. Summary judgment is a useful tool for the promotion of efficiency in the administration of justice, since it can be used to prevent sham pleadings and delay and to terminate the case on its merits. Seventeen Seventy-Six Peachtree Corp. v. Miller (1969), 41 Wis.2d 410, 414, 164 N.W.2d 278. It is, however, a drastic remedy which should be granted only in unusual circumstances. As stated in Thompson v. Dairyland Mutual Ins. Co. (1966), 30 Wis.2d 187, 190, 140 N.W.2d 200, 202:

'. . . A defendant is not entitled to summary judgment unless the facts presented conclusively show that the plaintiff's action has no merit and cannot be maintained. Summary judgment should not be granted where there are substantial fact issues to be determined, when the evidence on a material issue is in conflict, or when there are permissible inferences from undisputed facts that would permit a different result.'

It is conceded that, if the Indiana wrongful death statute applies, the action was not brought until the governing statute of limitations had run. However, if this action was properly brought under the Wisconsin wrongful death statute, as appellant contends, it was commenced within the three-year limitation established by sec. 893.205(2), Stats. The question, therefore, is whether appellant can bring an action for wrongful death under the Wisconsin statute, where the death occurred in Indiana, but allegedly resulted from negligence or breach of warranty which took place in this state.

The Wisconsin wrongful death statute, sec. 895.03, Stats., reads as follows:

'Recovery for death by wrongful act. 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 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.' (Emphasis supplied.)

The right to recover for wrongful death is purely statutory, since no such right existed under the common law. Cogger v. Trudell (1967), 35 Wis.2d 350, 353, 151 N.W.2d 146. Wrongful death statutes, insofar as they alleviate the harshness of the common law rule, are remedial, and should therefore be broadly construed to effectuate their purpose. Kwaterski v. State Farm Mutual Automobile Ins. Co. (1967), 34 Wis.2d 14, 21, 148 N.W.2d 107.

Respondents contend that since the seat belt broke as a result of an accident in Indiana, the death was not 'caused in this state,' and that the Wisconsin statute is therefore inapplicable. This contention confuses the term 'caused' with the word 'occurring.' The argument ignores the allegations in the complaint that the breach of warranty or negligence of the respondents in this state 'caused' the seat belt to break. To support the proposition that the Wisconsin wrongful death statute cannot be applied when death results in some other state, respondents cite Bain v. Northern Pacific Ry. Co. (1904), 120 Wis. 412, 98 N.W. 241; White v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. (1911), 147 Wis. 141, 133 N.W. 148; Anderson v. Miller Scrap Iron Co. (1922), 176 Wis. 521, 182 N.W. 852, 187 N.W. 746; and Shaver v. Soo Line R.R. Co. (D.C.Wis.1968), 284 F.Supp. 701. However, none of these cases support respondents' contention, since they all involve deaths which were plainly 'caused' in other states; none of the above-cited cases involved allegations that death resulted from a wrongful act, neglect or default occurring in Wisconsin.

Rather, this case is governed by Rudiger v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co. (1896), 94 Wis. 191, 68 N.W. 661, wherein it is stated at pages 194 and 195, 68 N.W. at page 662:

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