Opinion
Docket No. 66, Calendar No. 42,880.
Decided January 2, 1945.
Appeal from Alpena; Smith (Fred P.), J. Submitted October 5, 1944. (Docket No. 66, Calendar No. 42,880.) Decided January 2, 1945.
Case by Anthony Summar, administrator of the estate of Christ Chipouras, deceased, against Besser Manufacturing Company, a Michigan corporation, and John L. Sullivan for damages caused by negligent death of plaintiff's decedent. Declaration dismissed on motion. Plaintiff appeals. Affirmed.
Black Black, for plaintiff.
Carl R. Henry ( L.J. Carey and Geo. J. Cooper, of counsel), for defendant.
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., October 19, 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 Ed.), title 16, chap. 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." Kaiser v. North (syllabus), 292 Mich. 49.
To the same effect see Meyer v. Weimaster, 278 Mich. 370; Eskovitz v. Berger, 276 Mich. 536; and Edison v. Keene, 262 Mich. 611. 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.
To the same effect, see, also, Bement v. Railway Co., 194 Mich. 64 (L.R.A. 1917 E, 322); In re McLouth's Estate, 290 Mich. 311; and Maki v. George R. Cooke Co. (C.C.A.), 124 Fed. 2d 663 (146 A.L.R. 1352).
But plaintiff makes the further contention that notwithstanding the one-year limitation for 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. at L. 411; 50 USCA, Appendix, § 1 et seq., p. 189. 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-the-enemy act which provides:
"Definitions. The word `enemy' as used herein, shall be deemed to mean, for the purposes of such trading and of this Act —
"(a) Any individual, partnership, or other body of individuals, of any nationality, resident within the territory (including that occupied by the military or naval forces) of any nation with which the United States is at war. * * *" Act of October 6, 1917, chapter 106, 40 Stat. at L. 411; 50 USCA, Appendix, § 1, p. 189.
But here again, in accord with modern authorities about to be cited, we conclude that under the circumstances noted concerning the residence and citizenship of the widow and of the two children with her, this suit might have been prosecuted in their behalf notwithstanding the provisions of the trading-with-the-enemy act, and therefore the running of the applicable one-year limitation statute was not tolled. As above noted, this conclusion likewise applies to the daughter Virginia.
While it is true that early cases both in the United States and in England held to the letter of the various laws preventing business intercourse with de jure enemy aliens and prosecution of suits in our courts by such enemy aliens, yet later cases are unanimous in relaxing such restrictions and applying reasonable tests to determine if the action would, in fact, "aid the enemy."
"But from the conclusion that the plaintiff occupies the status of an enemy alien, it does not necessarily follow that the complaint should be dismissed. If it would further the purpose of the act, and not violate its spirit, jurisdiction should be retained to the extent of permitting the action to go to judgment and the avails — in the event the plaintiff recovers — should be released to the alien property custodian.
"True, the expressions in the above cases exclude entertaining the suit of an enemy alien for any purpose. They hold the issue to be jurisdictional. But the more reasonable doctrine, I think, is to permit the action to proceed to judgment unless that course would grant advantage to the enemy. To put it differently, the test is not solely that of enemy status, but rather the effect of entertaining jurisdiction. This less rigorous and more reasonable doctrine finds enunciation in up-to-date cases." Drewry v. Onassis, 179 Misc. 578 ( 39 N.Y. Supp. [2d] 688).
"Access to our courts would not be denied to an enemy alien simply because of his status as such and that a cause of action possessed by him could be prosecuted to judgment upon condition that the avails thereof, if and when recovered, were controlled by impoundment with an appropriate governmental agency." Lederer v. Kahn, 179 Misc. 586 ( 39 N.Y. Supp. [2d] 696).
"Even if petitioner were a nonresident enemy alien, it might be more appropriate to release the amount of his claim to the alien property custodian rather than to the claimants; and this is precisely what was done in Birge-Forbes Co. v. Heye, 251 U.S. 317, 323 ( 40 Sup. Ct. 160, 64 L.Ed. 286, 289), in which this court said that the sole objection to giving judgment for an alien enemy `goes only so far as it would give aid and comfort to the other side.' The ancient rule against suits by resident alien enemies has survived only so far as necessary to prevent use of the courts to accomplish a purpose which might hamper our own war efforts or give aid to the enemy. This may be taken as the sound principle of the common law today." Ex parte Kumezo Kawato, 317 U.S. 69 ( 63 Sup. Ct. 115, 87 L.Ed. 58).
"There is nothing `mysteriously noxious' * * * in a judgment for an alien enemy. Objection to it in these days goes only so far as it would give aid and comfort to the other side. * * * Such aid and comfort were prevented by the provision that the sum recovered should be paid over to the alien property custodian, and the judgment in this respect was correct. When the alien enemy is defendant justice to him may require the suspension of the case." Birge-Forbes Co. v. Heye, 251 U.S. 317 ( 40 Sup. Ct. 160, 64 L.Ed. 286).
In two recent cases, courts have held that residents of the United States who are nationals of nations at war with the United States may maintain suits in our courts. See Matsuda v. Luond, 52 Cal.App. 453 ( 126 Pac. [2d] 359), and also Ex parte Kumezo Kawato, supra. Under the above authorities we cannot conceive that, had this action been started seasonably, the case would have been dismissed on the ground that the heirs of Christ Chipouras or any of them were, as enemy aliens, barred from prosecuting this suit by the administrator. Under the circumstances this action should have been started within the one-year period of limitation. Not having been so started, we cannot now say that the de jure status of the heirs or of any of them is sufficient to excuse belated prosecution of this suit or to toll the running of the limitation statute.
It is further urged by plaintiff that the one-year limitation in the District of Columbia Code should not be held to bar his cause of action because (1) "the parties to this action did not reside in the District of Columbia during the year" next following Chipouras' death, and (2) "the application of the limitation of the Columbia statute as a bar in this case would contravene the Michigan statute," 3 Comp. Laws 1929, § 13979 (Stat. Ann. § 27.608). Neither of these contentions is tenable.
As to residence it may be noted that two of the heirs were residents of the District of Columbia during all of the period in question; but aside from that circumstance, it is provided in substance by the District of Columbia Code (1940), Motor Vehicle Title 40, § 40-403, that by operating a motor vehicle on any public highway of the District of Columbia both the nonresident owner of the vehicle and his agent who operates such vehicle subject themselves in a suit of this character to the jurisdiction of the courts of the District of Columbia, the statute providing for service of process upon the Columbia "director of vehicles and traffic" and by registered mail upon non-resident defendants with "return receipt" filed in the cause. Thus this suit could have been prosecuted in the District of Columbia by plaintiff within the one-year limitation. Failing to do so terminated the right to bring suit in the District of Columbia and likewise in the courts of Michigan.
The District of Columbia statute does not "contravene" the above-cited Michigan statute because the latter statute provides for suspending running of the statute of limitations only "When any person shall be disabled to prosecute an action in the courts of this State;" and as hereinbefore noted, no reason appears why plaintiff might not have brought this action in Michigan within the year limitation provided in the statute by which the cause of action was created.
The judgment entered in the circuit court in favor of defendants is affirmed. Defendants may have costs of both courts.
STARR, C.J., and BUTZEL, BUSHNELL, SHARPE, BOYLES, and REID, JJ., concurred with NORTH, J. WIEST, J., concurred in the result.