Yount v. National Bank of Jackson, 59

• Decision Date: 03 April 1950
• Docket Number: No. 59,59
• Citation: 42 N.W.2d 110,17 A.L.R.2d 685,327 Mich. 342
• Parties: , 17 A.L.R.2d 685 YOUNT v. NATIONAL BANK OF JACKSON.
• Court: Michigan Supreme Court

Page 110

42 N.W.2d 110

327 Mich. 342, 17 A.L.R.2d 685

YOUNT v. NATIONAL BANK OF JACKSON.

No. 59.

Supreme Court of Michigan.

April 3, 1950.

Phillip C. Kelly, Jackson, for plaintiff and appellant.

John S. Denton, Jackson, Kleinstiver & Anderson, Jackson, for defendant and appellee.

Before the Entire Bench.

SHARPE, Justice.

Plaintiff, as administrator of the Estate of Phyllis Yount, deceased, brought an action against defendant, executor of the extate of Zimri J. Davis, deceased, for damages for the death of plaintiff's decedent as provided by the laws of the State of Alabama.

The facts are not in dispute. Zimri J. Davis and wife together with Phyllis Yount were driving from Michigan to Florida. On November 16, 1948, while the parties were in Alabama and while Mr. Davis was driving the car, they were involved in an automobile accident. Mr. Davis was killed in the accident. Phyllis Yount, who was also injured, survived him a few hours and Mrs. Davis died a day or two later. An administrator was appointed for the estate of Phyllis Yount in the probate court of Jackson county, Michigan, and an executor for the estate of Mr. Davis was also appointed by the probate court of Jackson county, Michigan. All three of the deceased parties were residents of Jackson county at the time of the fatal accident.

The action was brought under section 123 of title 7 of the Code of Alabama (1940) which provides as follows: 'A personal representative may maintain an action, and recover such damages as the jury may assess in a court of competent jurisdiction within the State of Alabama, and not elsewhere for the wrongful act, omission, or negligence of any person or persons, or corporation, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission, or negligence, if it had not caused death. Such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained, though there has not been prosecution, or conviction, or acquittal of the defendant for the wrongful act, or omission, or negligence; and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate.'

Following the filing of the declaration, defendant filed a motion to dismiss the declaration because it fails to state a cause of action, giving as reasons therefor the following:

'1. That the statutes, code and laws of the State of Alabama, wherein the accident occurred, do not give an original right or cause of action for negligence or alleged wrongful death against the estate or personal representatives of a deceased alleged tortfeasor or wrongdoer, and the plaintiff has no enforcible claim for or on account of the death of his decedent against the estate of said deceased or his personal representative. That the plaintiff's declaration alleges the death of both plaintiff's decedent and defendant's testator, prior to the commencement of suit.

'2. That the alleged cause or right of action set forth in plaintiff's declaration did not and does not survive the death of Zimri J. Davis, deceased, under the statutes, code, and laws of the State of Alabama.

'3. That no original right or cause of action is given by, or arises or exists under, the statutes, code or laws of the State of Alabama in favor of the said plaintiff, against the estate of Zimri J. Davis, deceased, nor against his personal representatives nor against the defendant executor of his estate.'

The trial court granted the motion to dismiss. Plaintiff appeals and urges that an action for wrongful death, occurring in the State of Alabama, may be maintained in Michigan against the estate of the person causing death when both parties were residents of and domiciled in Michigan at the time of the fatal accident and both estates are being administered in Michigan.

In deciding this case we have in mind that the alleged tortfeasor predeceased plaintiff's decedent and that no court action has been instituted in Alabama. It is the general rule that matters relating to the right of action are governed by the laws of the state where the cause of action arose and all matters relating purely to the remedy are governed by the laws of the state where the action is instituted. See Edison v. Keene, 262 Mich. 611, 247 N.W. 757; Perkins v. Great Central Transport Corporation, 262 Mich. 616, 247 N.W. 759; Eskovitz v. Berger, 276 Mich. 536, 268 N.W. 883; Bostrom v. Jennings, 326 Mich. 146, 40 N.W.2d 97. It follows that an examination of the laws and decisions of Alabama is necessary in view of the fact that the declaration filed in this cause is based upon the Alabama statutes.

Section 3 of title 1 of the Code of Alabama (1940) adopts the common law of England, so far as it is not inconsistent with the laws and institutions of that state. Citation of authority is unnecessary to support the rule that at common law actions ex delicto do not survive the death of the tortfeasor.

The statute in question (Code (1940) title 7, § 123) speaks in terms of 'an action' and not a cause of action. It provides, 'Such action shall not abate by the death of the defendant'.

In Ex parte Corder, 222 Ala. 694, 134 So. 130, the Supreme Court of Alabama said: 'We observe that section 5712, Code*,...