Sestito v. Knop

• Decision Date: 17 November 1961
• Docket Number: No. 13441.,13441.
• Citation: 297 F.2d 33
• Parties: Pauline SESTITO, Plaintiff-Appellant, v. Charles M. KNOP, and Insurance Company of North America, a foreign corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

297 F.2d 33 (1961)

Pauline SESTITO, Plaintiff-Appellant, v. Charles M. KNOP, and Insurance Company of North America, a foreign corporation, Defendants-Appellees.

No. 13441.

United States Court of Appeals Seventh Circuit.

November 17, 1961.

John R. Collins, Milwaukee, Wis., Paul Rahm, Iron Mountain, Mich., Steven E. Keane, Foley, Sammond & Lardner, Milwaukee, Wis., for plaintiff-appellant.

Kurt H. Frauen, Arthur Wickham, Wickham, Borgelt, Skogstad & Powell, Milwaukee, Wis., for defendants-appellees.

Before HASTINGS, Chief Judge, and CASTLE and SWYGERT, Circuit Judges.

SWYGERT, Circuit Judge.

This action was brought by plaintiff, Pauline Sestito, to recover for the loss of consortium of her husband and for services she had rendered him as a result of the alleged negligence of defendant, Charles M. Knop. The asserted claim arises out of an automobile collision occurring in Wisconsin which resulted in personal injuries to plaintiff's husband, Bruno Sestito. The District Court granted defendants' motion to dismiss on the ground that plaintiff's claim for damages is not recognized in the State of Wisconsin.

The marital domicile of the plaintiff and her husband is in the State of Michigan. It is undisputed that under Michigan law a wife may recover for services and loss of consortium when her husband is injured due to the negligence of a third party. Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960). It is also undisputed that she has no such cause of action in Wisconsin, Nickel v. Hardware Mutual Casualty Co., 269 Wis. 647, 70 N.W.2d 205 (1955). Thus, the sole issue is whether the District Court should apply the law of the State of Michigan or the law of the State of Wisconsin in determining if plaintiff may pursue her claim. In resolving the issue, the Court is bound to apply the conflict of laws rule of Wisconsin, which is the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941).

Wisconsin courts have not had occasion to pass upon the point presented here. However, it is agreed that it is the lex loci delicti, which determines the right to recover in a tort action. The place of the wrong has been defined as "* * * The state where the last event necessary to make an actor liable for an alleged tort takes place," Restatement of the Law of Conflict of Laws, Section 377.

Plaintiff contends that her action is distinct from that of her husband and that the wrong done to her consisted of an injury to the marital relation and is thereby to be governed by the law of the situs of this relationship. According to plaintiff's theory, her interest is in the nature of a property interest. Consequently, she claims the last event necessary to make defendant liable occurred where this interest was located, not where her husband was injured, and that the interest was located in the domiciliary state.

We cannot agree with plaintiff's contention. The turning point of this case is the fact that plaintiff's action is derivative; it is collateral to the husband's injury. Analogous, are cases which arise under the Wrongful Death Statutes. In such cases the right of the...