Summar v. Besser Mfg. Co.

• Decision Date: 02 January 1945
• Docket Number: No. 66.,66.
• Citation: 310 Mich. 347,17 N.W.2d 209
• Parties: SUMMAR v. BESSER MFG. CO. et al.
• Court: Michigan Supreme Court

310 Mich. 347

17 N.W.2d 209

SUMMAR

v.BESSER MFG. CO. et al.

No. 66.

Supreme Court of Michigan.

Jan. 2, 1945.

OPINION TEXT STARTS HERE Appeal from Circuit Court, Alpena County; Fred P. Smith, judge.

Action by Anthony Summar, administrator of the estate of Christ Chipouras, deceased, against the Besser Manufacturing Company and John L. Sullivan, jointly and severally, to recover for the death of plaintiff's intestate in an automobile accident. From an order dismissing plaintiff's declaration, plaintiff appeals.

Affirmed.

Before the Entire Bench.

Black & Black, of Detroit, for plaintiff and appellant.

Carl R. Henry, of Alpena (L. J. Carey and Geo. J. Cooper, both of Detroit, of counsel), for defendants and appellees.

NORTH, Justice.

This is an appeal from the trial court's order dismissing the plaintiff's declaration. Plaintiff is the administrator of the estate of Christ Chipouras, deceased. Plaintiff filed the declaration February 11, 1944, basing his action on an automobile accident which occurred in Washington, D. C., October19, 1941, and in which Chipouras was so seriously injured that he died within a few hours. The plaintiff alleges the defendant corporation of Alpena, Michigan, was the owner, and Sullivan the driver, of the car which killed Chipouras. The heirs of the deceased are: Polixeni the widow, Georgia a daughter and Gust a son, all nationals and residents of Greece; Virginia Summar a daughter who is a national of Greece but a resident of Michigan; Catherine Scandalos and Cleopatra Formant, daughters who are both nationals of the United States and residents of Washington, D. C.

While plaintiff's declaration asserts a right of recovery ‘by reason and virtue of the statutes and laws (common law) of the District of Columbia and the State of Michigan,’ we hold, for reasons hereinafter noted, that plaintiff's right to recover is governed solely by the appropriate statutory provisions of the District of Columbia; from which we quote the following:

‘§ 16-1201(21:1). ‘Cause of action’ defined-Damages-Limitation. Whenever by an injury done or happening within the limits of the District of Columbia the death of a person shall be caused by the wrongful act, * * * the person who or corporation which would have been liable if death had not ensued shall be liable to an action for damages for such death, notwithstanding the death of the person injured * * *; and such damages shall be assessed with reference to the injury resulting from such act, neglect or default causing such death, to the widow and next of kin of such deceased person: Provided, That in no case shall the recovery under this title exceed the sum of ten thousand dollars * * *.'

‘§ 16-1202(21:2) Party plaintiff-Statute of limitations. Every such action shall be brought by and in the name of the personal representative of such deceased person, and within one year after the death of the party injured.’ District of Columbia Code (1940 Edition), Chapter 12.

The trial court dismissed plaintiff's action on the ground in part that, as the cause was predicated on the quoted District of Columbia statute, which includes a one-year limitation within which to bring suit, and since plaintiff failed to institute suit within one year, the action was and is barred. But plaintiff takes the position that the District of Columbia limitation statute is not applicable in this case in the Michigan court; but instead the Michigan statute of limitations, by which the suit would not be barred, is applicable and controlling. This position taken by plaintiff is not tenable.

While the plaintiff had an undoubted right to sue in this State for a wrong perpetrated in another jurisdiction, it is equally true in a tort case that the law of the place where the wrong was committed governs right of recovery.

‘The liability for an alleged tort is determined by the law of the place of injury regardless of the law of the forum in which an action therefor is instituted.’ (Syllabus) Kaiser v. North, 292 Mich. 49, 289 N.W. 325.

To the same effect, see Meyer v. Weimaster, 278 Mich. 370, 270 N.W. 715;Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883; and Edison v. Keene, 262 Mich. 611, 247 N.W. 757. Further, this Court long ago recognized there was no common law right to a civil action for a death caused by a wrongful act. In Hyatt v. Adams, 16 Mich. 180, 184, Mr. Justice Christiancy said:

‘It is admitted on all hands, and cannot be denied that, at common law, no civil action could be maintained for the death of a human being, caused by the wrongful act or negligence of another, or for any damages suffered by any person in consequence of such death.’

Plaintiff herein had no common law right of action. Instead his right of action, if any, was solely under the quoted statute which created such right of action. Since this right of action is a creature of the statute, one who brings suit to enforce a right under the statute is restricted by the statutory limitation of time within which suit must be brought.

‘The applicable rule is that, as the cause of action is created by statute, the statutory conditions, including the period of limitations, must be complied with. The limitation of time is a limitation on the right to recover.’ Bigelow v. Otis, 267 Mich. 409, 412, 255 N.W. 270, 271.

To the same effect, see also Bement v. Grand Rapids, Etc., R. Co., 194 Mich. 64, 160 N.W. 424, L.R.A.1917E, 322;In re McLouth's Estate, 290 Mich. 311, 287 N.W. 477; and Maki v. George R. Cooke Co., 6 Cir., 124 F.2d 663, 146 A.L.R. 1352.

But plaintiff makes the further contention that notwithstanding the one-year limitationfor bringing the action as provided in the District of Columbia Code is held applicable to the instant case, the running of this statute was tolled by reason of the citizenship and residence of some or all of the heirs of the deceased, they being the real parties in interest. This contention on the part of plaintiff is made in consequence of the Federal act commonly referred to as Trading with the Enemy Act. Act of October 6, 1917, Chapter 106, 40 Stat. 411, 50 U.S.C.A.Appendix, § 1 et seq. It is sufficient to note that the Trading with the Enemy Act suspends the right of enemy aliens under certain circumstances to prosecute suits in either our Federal or State courts. The defendants take the position that the Trading with the Enemy Act is not applicable to suits in tort; and the trial court so held. It is unnecessary for purposes of decision in the instant case to go into the details of whether such holding is or is not wholly accurate. Instead, without so adjudicating, we may decide this case on the assumption that, as plaintiff contends, the Trading with the Enemy Act is applicable to this tort case; and so assuming determine whether or not the residence or citizenship of the heirs of deceased or of any of them were such as to toll the running of the applicable limitation statute. As to the status of these heirs the record presents three different situations.

(1) As hereinbefore noted, two of the daughters of deceased were citizens of the United States and residents of Washington, D. C. at the time of the accident and continued as such at the time suit was brought. Clearly as to these two daughters no circumstance is revealed which would justify holding that the running of the statute of limitations was tolled.

(2) Another daughter, Virginia Summar, is a national of Greece but she was a resident of Michigan at the time of the accident and continued as such until this suit was instituted. It was upon her petition that plaintiff was appointed administrator of the estate of Christ Chipouras, deceased; and such appointment was obviously procured by the daughter Virginia for the purpose of bringing this suit. There is no obvious reason why this daughter could not have instituted like proceedings within the year next following the death of her father as well as at a later time. And further under the authorities hereinafter noted, it must be held that the circumstance of Virginia being a national of Greece did not bar her from timely instituting suit and therefore did not toll the running of the applicable limitation statute.

(3) Again, as stated earlier herein, the widow of deceased, his daughter Georgia and his son Gust were, at the time of the accident and since that time, nationals and residents of Greece; and further that during the period between the accident and the bringing of this suit Greece was occupied by military forces of Germany with which the United States was and is at war. Because of this circumstance plaintiff contends they are alien enemies. For the purpose of decision herein we may assume that such contention is well founded under the terms of the Trading with...