Szlinis v. Moulded Fiberglass Companies, Inc. (Moulded Fiberglass Boat Co., a Division), Docket Nos. 15136
| Decision Date | 04 March 1974 |
| Docket Number | No. 1,Docket Nos. 15136,15785,1 |
| Citation | 51 Mich.App. 620,215 N.W.2d 777 |
| Parties | , 1974 A.M.C. 1596 William J. SZLINIS, Executor of the Estate of Gilbert Ashley Croos, Deceased, and Mary Ann McGuire Cross, Deceased, Plaintiff-Appellant, v. MOULDED FIBERGLASS COMPANIES, INC. (MOULDED FIBERGLASS BOAT CO., A DIVISION), et al., defendants-Appellees. Frances KING, as Administratrix of the Estate of Norman T. Lentz, Deceased, and Beverly J. Lentz, Deceased, Plaintiff-Appellant, v. MOULDED FIBERGLASS COMPANIES, INC. (MOULDED FIBERGLASS BOAT COMPANY, A DIVISION), and Gibbs Boat Company, a Michigan corporation, Defendants- Appellees |
| Court | Court of Appeal of Michigan — District of US |
Clair R. Carney, Davies, Rudzki & Zeder, Raymond A. Ballard, Foster, Meadows & Ballard, Detroit, for appellant Frances King.
John R. Wilder, Southfield, for appellant Szlinis.
John A. Kruse, Detroit, for appellee Fiberglass.
William J. Braunlich, Jr., Monroe, for appellee Gibbs.
Marvin H. Gadd, Southfield, for North American Rockwell.
Before J. H. GILLIS, P.J., and R. B. BURNS and CAMPBELL,* JJ.
In an opinion dated July 17, 1972, the trial judge granted defendants' motion for accelerated judgment in the Szlinis case. GCR 1963, 116.1(5). The trial judge found that plaintiff's cause of action had accrued in Canada, felt that plaintiff's affidavits had failed to establish the existence of a material question of fact regarding the place of the drowning and applied the Ontario 1-year statute of limitations to bar plaintiff's claim. On September 26, 1972, the trial judge gave plaintiff in the King case 90 days to present evidence to show that the drowning occurred in American waters. The trial judge stated that if plaintiff presented no evidence, defendants' motion for accelerated judgment would be granted. Plaintiff responded with the same affidavits and documents which had been filed in the Szlinis case but on November 9, 1972, the trial judge granted defendants' motion for accelerated judgment and held that plaintiff's cause of action was barred by the 1-year Ontario statute of limitations.
The issue is whether or not the trial court in each of the above cases erred in holding that plaintiffs' cause of action accrued in Ontario and was therefore barred by Ontario's 1-year statute of limitations applicable to wrongful death actions. To resolve this question we must determine whether or not a question of fact was presented below, whether a judge or jury had to decide that question, and who had the burden to prove that plaintiff's claims were or were not barred by the Ontario statute of limitations.
In the Szlinis case plaintiff pled that his decedents were passengers on a sailboat which was underway in Lake Erie off of Rondeau Park, Ontario, Canada. The boat capsized in Lake Erie. In plaintiff's first complaint there was no specific allegation of where the deaths occurred. Plaintiff filed a demand for a jury trial.
Plaintiff filed a first and second amended complaint alleging that plaintiff's decedents were the passengers in a boat in Lake Erie and that the decedents drowned in Lake Erie without any specific allegation made as to whether the drowning occurred in American or Canadian waters.
The plaintiff in the King case also complained that her decedents were passengers on a sailboat which sank in Lake Erie and further alleged that the drowing occurred in Lake Erie. The defendants in the King case alleged that the accident occurred in Canada and plaintiff's decedents drowned in Canadian water. Defendants demanded a jury trial.
The plaintiff in the King case filed an amended complaint and once again alleged that her decedents drowned in Lake Erie and further alleged that the boat 'capsized either in Canadian waters or American or International waters causing the plaintiff's decedents to drown.'
In Szlinis defendants moved for an accelerated judgment arguing that plaintiff's claim was barred by the Ontario statute of limitations. GCR 1963, 116.1(5). In response to defendants' request for admissions plaintiff replied that the exact place of drowning was unknown to plaintiff.
In answer to defendants' motion plaintiff relied upon a weather report from the Canadian Department of Transportation which indicated the weather and wind conditions on the night in question. Plaintiff also attached an affidavit of a marine surveyor who stated the recovery of the boat in Canadian waters did not establish that drowning occurred in Canada. The marine surveyor also stated in his affidavit that, based upon the weather reports submitted, the boat could have capsized in the American waters. Plaintiff also attached an affidavit of an oceanographer who noted that buoys placed in American waters are carried by currents in Lake Erie to the Canadian side of the lake. He further stated that since the bodies were not discovered until 17 to 43 days after the parties set sail, it was his opinion that the drowning may have occurred in the American side of the lake. Although this witness could not say exactly were the place of the drownings was, he did state there was insufficient evidence to conclude that plaintiff's decedents had died in Canadian waters. In both cases defendants failed to offer any evidence as to the place of drowning.
According to Anderson v. Sanders, 14 Mich.App. 58, 60, 165 N.W.2d 290, 292 (1968), the 'permissible inquiry' of a trial court pursuant to a motion for accelerated judgment does not 'include fact finding except where the facts are such that no erasoanble minds might disagree (omitted citation)'.
In the case of Bronson v. J. L. Hudson Co., 376 Mich. 98, 101--102, 135 N.W.2d 388, 389--390 (1965), it was held that a directed verdict should not have been granted where there was some evidence from which the jury could have inferred that some irritating factor was present in an article of clothing and that irritant was the proximate cause of plaintiff's injury. In Bronson testimony was presented to show that plaintiff was in perfectly good health before she purchased a slip from defendant. However, after wearing the slip she began to itch, her skin broke out into a rash and her eyes and tongue became swollen. While a doctor testified that the wearing of the slip 'containing an irritant 'could cause a severe...
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