Szlinis v. Moulded Fiber Glass Companies, Inc.

263 N.W.2d 282, 80 Mich. App. 55, 1977 Mich. App. LEXIS 1255

• Court: Michigan Court of Appeals
• Decided: December 5, 1977
• Docket: Docket 27773
• Status: Published

Opinions

R. E. Robinson, J.

In the late afternoon of June 28, 1969, plaintiffs decedents, Gilbert Cross and his wife Mary Ann, set out for a brief sail from their cottage on the Ontario shore of Lake Erie in a small sailboat accompanied by another couple, Norman and Beverly Lentz, the boat’s owners, who had recently purchased it new. Approximately 10 hours later, in the early hours of June 29, the boat was found partially submerged within a quarter of a mile from the point of departure. The bodies of the four occupants were found at various times up to August 10, 1969, and at various locations scattered over a distance of 50 miles from the Cross cottage. All were in Canadian waters or on Canadian shores.

On July 15, 1971, plaintiff sued Moulded Fiber Glass Companies, Inc., for wrongful death charging in two counts, negligence and warranty. There were other defendants who are not involved in this appeal.

Defendant moved for accelerated judgment, citing Ontario’s one year statute of limitations as a bar, and this motion was granted. On appeal, this Court reversed and returned for trial to establish the place of death. Szlinis v Moulded Fiber Glass Companies, Inc, 51 Mich App 620; 215 NW2d 777 (1974).

The proofs before a jury established, and both sides concede, that death could not have occurred in Michigan waters, but that it could have occurred either in Ontario or Ohio waters.

At the close of plaintiff’s proofs, defendant moved for a directed verdict on the grounds that plaintiff’s claim was barred under both Ontario’s one year statute of limitations and under Ohio’s two year statute. The trial court granted the motion as to the negligence count and denied it as to the warranty count. At the close of proofs, the jury returned a verdict against defendant-appellee in the sum of $235,000.

Subsequently defendant moved for judgment notwithstanding the verdict and this was ultimately granted, the trial court basing its decision on Parish v B F Goodrich Co, 395 Mich 271; 235 NW2d 570 (1975). Plaintiff’s appeal from that decision raises several issues worthy of discussion, the most critical one being the applicability of Parish to these facts.

I.

Plaintiff first charges that the trial court erred when it permitted defendant, during the trial, to amend its pleadings to assert the Ohio statute of limitations as a bar. We do not agree.

GCR 1963, 118.3 provides:

"When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. In such case an amendment of the pleadings to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment. If evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, amendment to conform to such proof shall not be allowed unless the party desiring amendment satisfies the court that the amendment and the admission of such evidence would not prejudice the objecting party in maintaining his action or defense upon the merits. The court may grant a continuance to enable the objecting party to meet such evidence.”

The place of death has been uncertain from the beginning of this case and is uncertain as of this writing. The only thing known on the subject with certainty is that death did not occur in Michigan waters, and that it occurred either in Ontario waters or in Ohio waters. At this point, Michigan’s borrowing statute, being the Uniform Statute of Limitations on Foreign Claims Act, becomes important:

"The period of limitation applicable to a claim accruing outside of this state shall be either that prescribed by the law of the place where the claim accrued or by the law of this state, whichever bars the claim.” MCLÁ 600.5861(2); MSA 27A.586K2)

Defendant has from the beginning asserted limitations as a bar to plaintiff’s claim, the initial basis asserted being the Ontario statute. However, a reading of the trial transcript, particularly the testimony of Dr. Saylor, persuades us that from the pretrial on, by the implied consent of the parties, this case was tried with a view to determining whether death occurred in Michigan, Canadian or Ohio waters. The assertion of the Ohio limitations by amendment during the trial only made the pleadings conform to the proofs and raised no new issue. Pleger v Bouwman, 61 Mich App 558; 233 NW2d 82 (1975). Plaintiff relies heavily on Wilson v Eubanks, 36 Mich App 287; 193 NW2d 353 (1971), to support his claim that a failure to plead the bar of a foreign statute of limitations in the first responsive pleading is not amendable, but see Bigelow v Walraven, 392 Mich 566; 221 NW2d 328 (1974). We find no abuse of discretion by the trial judge in allowing this amendment to the pleadings.

II.

Plaintiff next charges error by the trial court in taking judicial notice of the Ontario and Ohio statutes of limitation. Again we disagree.

"Courts ordinarily do not take judicial notice of the laws of a foreign country, but the rule is otherwise where it is so provided by statute.” 31 CJS, Evidence, § 21, 867.

Former MCLA 600.2114; MSA 27A.2114 permitted courts to take judicial notice of the laws of a sister state, and Michigan case law which recognized such authority relied on this statute or its predecessor. But there is no authority under present statutes for our courts to take judicial notice of either the statutes of sister states or of a foreign government, MCLA 600.2114a, 600.2118a(3); MSA 27A.2114G), 27A.2118(1)(3).

In his brief in opposition to defendant’s motion for judgment notwithstanding the verdict, however, plaintiff stipulated that Ontario had a one year statute of limitations, RSO 1950, ch 132, § 5 (actually RSO 1970, ch 164, § 5, is the applicable section), and that Ohio had a two year statute of limitations (ORC 2125.02). He further stipulated the same during oral argument on defendant’s motion for directed verdict at the close of plaintiff’s proofs. Plaintiff cannot now assert for the first time on appeal that the trial court has no authority to take judicial notice of foreign statutes. Mauricio v Tobias, 52 Mich App 127; 216 NW2d 602 (1974), and cases cited therein.

Appellant makes the point that various Michigan (MCLA 600.5852; MSA 27A.5852, MCLA 600.5853; MSA 27A.5853), Ohio (ORC 2305.15), and Ontario (RSO 1970, ch 246, § 48) statutes tolled the running of the limitation statute. These statutes are directed toward defendants who are not amenable to the jurisdiction of the forum state and are not applicable to this case. But again this issue was not raised below and cannot be raised for the first time in this Court. Mauricio, supra.

III.

Plaintiff asserts that defendant extended the limitation period by fraudulently concealing the existence of plaintiffs cause of action. This issue Was not raised in the trial court and will not be heard here. Mauricio, supra.

IV.

Plaintiff finds error in the trial court’s ruling that a cause of action for wrongful death resulting froíñ a defective product accrues at the time of death. If the cause of action accrued at the time the defect was discovered, as urged by plaintiff, then plaintiffs claim is not barred by either the Ontario or Ohio limitations statute.

ffhe principle announced by Justice Cooley in Price v Hopkin, 13 Mich 318, 324 (1865), is still valid today:

"The general power of the legislature to pass statutes of limitation is hot doubted. * * * But the legislative authority is not so entirely unlimited that, under the name óf a statute limiting the time within which a party shall résort to his legal remedy, all remedy whatsoever may be taken away. * * * It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought.”

In the case before us, the jury apparently found that death resulted from latent defects in the construction of the sailboat, and there is support fór this finding in the record. Plaintiff contends that his cause of action should not accrue "earlier than the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered”, the claimed defect, paraphrasing Dyke v Richard, 390 Mich 739, 747; 213 NW2d 185 (1973). Continuing, plaintiff urges that any earlier accrual date is directly contrary to the principle enunciated in Price, supra, since it was more than a year after death before testing by experts disclosed the defects, and such time, according to plaintiff, was the minimum time during which discovery could have been made with the exercise of reasonable diligence. Recent case law makes it unnecessary to inquire into the validity of this factual claim.

Michigan’s borrowing statute, supra, which makes applicable the law of the forum or the law of the situs "whichever bars the claim” (emphasis supplied), requires us to examine not only the time period of the limitation statute but also the accrual time of the cause of action which triggers the running of the limitation period. Waldron v Armstrong Rubber Co (On Remand), 64 Mich App 626, 636; 236 NW2d 722 (1975).

The basis for action in this case, whether applying the law of Michigan, Ontario or Ohio, rests in a wrongful death statute.

Michigan

The wrongful death statute—

"Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default * * * . All actions for such death, or injuries resulting in death, shall be brought only under this section”. MCLA 600.2922; MSA 27A.2922.

Limitations—

"The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property”. MCLA 600.5805(7); MSA 27A.5805(7).

MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805), the three-year statute of limitations, applies to wrongful death actions”. Rhule v Armstrong, 20 Mich App 573, 574; 174 NW2d 292 (1969), aff’d, 384 Mich 709; 187 NW2d 223 (1971), citing Coury v General Motors Corp, 376 Mich 248; 137 NW2d 134 (1965), and Kushmaul v Consumers Power Co, 3 Mich App 626; 143 NW2d 154 (1966).

Accrual—

"the cause of action for a wrongful death and damages resulting therefrom accrues when that death occurs”. Coury, supra, at 251, see also Rhule, supra, 384 Mich at 717.

Ontario

The wrongful death statute (The Fatal Accidents Act)—

"Where the death of a person has been caused by such wrongful act, neglect or default, as, if death had not ensued, would have entitled the person injured to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensued, is liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under circumstances amounting in law to culpable homicide”. RSO 1970, ch 164, § 2.

"Not more than one action lies for and in respect of the same subject-matter of complaint and every such action shall be commenced within twelve months after the death of the deceased and not afterwards.” RSO 1970, ch 164, § 5.

Accrual — Upon the death of the decedent. See RSO 1970, ch 164, § 5 above.

"The limitation period specified in the Fatal Accidents Act is absolute.” J. S. Williams, Limitation of Actions in Canada (1972), p 184. (Footnote omitted.)

Ohio

"When the death of a person is caused by wrongful act, neglect, or default which would have entitled the party injured to maintain an action and recover damages if death had not ensued, the corporation which or the person who would have been liable if death had not ensued * * * shall be liable to an action for damages, notwithstanding the death of the person injured.” ORC 2125.01.

"Except as otherwise provided by law, every such action must be commenced within two years after the death of such deceased person.” ORC 2125.02.

Accrual — Upon the death of the decedent. See ORC 2125.02 above.

"It would seem, therefore, settled in Ohio that the time limitation in the wrongful-death statute does not constitute a remedial limitation upon the right of action. Commencing the action within the prescribed time is a necessary element of the right to bring it and if a petition shows upon its face that it is not filed within the two-year period, a demurrer to it must be sustained, not because a statute of limitation is interposed as a defense but because an averment of an essential element of the action is absent”. Sabol v Pekoc, 148 Ohio St 545, 554; 76 NE2d 84 (1947).

Since Michigan’s death act contains no statute of limitations, the limitation has been supplied by court construction which adopts the three-year tort statute as the limitation. Rhule, supra, 20 Mich App at 574. Contrary to our statute, the Ontario and Ohio death acts each contain their own limitations which commence to run on date of death.

Counsel on both sides of this controversy rely on Parish, supra, to support their positions in this case. It is our opinion that Parish, or that part of it which speaks to the limitation period and its accrual, is not applicable here. Although it, like this case, involves an assertion of liability based on warranty of an allegedly defective product, the asserted liability does not depend for its existence on the death act. It perhaps should be noted, however, that applying Parish, which found the three-year tort statute applicable to product warranty cases (whether based on tort or contract) and established the accrual date as the date when all the elements of the cause of action are present, would produce the same result as is reached here under the wrongful death act, i.e., a three-year limitation period commencing on date of death.

Plaintiff urges upon us Dyke, supra, in support of his claim that the period of limitations commences when the defect was discovered or by diligent effort should have been discovered. This argument overlooks the fact that the opinion in Dyke restricted this approach to malpractice cases. Likewise does Parish restrict such an approach to those cases involving consumer actions against suppliers of services. We hold that plaintiff’s claim accrued on the date of death, and, following Parish, supra, we hold that it accrued where injury (death) and damage were suffered. Whether this was in Ontario or in Ohio waters, plaintiffs claim is barred by the statute of limitations, be it Ontario’s one-year statute or Ohio’s two-year statute.

Plaintiff finally asserts that Michigan’s borrowing statute violates his right to equal protection of the laws by discriminating against Michigan residents killed outside the state. We disagree.

Contrary to plaintiffs first asserted claim of discrimination, Michigan obviously does provide a forum for those injured outside the state.

The more valid question is plaintiffs assertion that the borrowing statute discriminates between Michigan residents injured in Michigan and Michigan residents injured outside Michigan where the limitation periods are frequently shorter than Michigan’s. Since this is true, we must inquire whether there is a reasonable relation between the classes thus created and the purpose of the statute.

This purpose, as stated in Parish, is to resolve possible conflicts of laws that may arise when a plaintiffs claim arises outside the forum and to limit forum shopping. Parish, supra, at 278. The tendency of this statute is to bar residents of Michigan and nonresidents alike, who suffer personal injury outside of this state, from maintaining an action in Michigan unless commenced not later than the time allowed by the state of injury. Parish, supra, at 284. The borrowing statute unquestionably resolves many conflicts of laws questions. It thus appears not only that the purpose of the statute is reasonable, but that there is a reasonable relation between its purpose and the unequal classes which it creates.

If this appears to produce a harsh result, we refer the reader to Justice Levin’s comment in Parish, supra, at 283-284:

"But the Legislature could have both barred nonresidents from coming into this state in search of a longer statute of limitations and allowed Michigan residents (who generally are not forum shopping) the benefit of Michigan’s frequently longer limitational period by exempting, as many states have, its own residents from the restrictions of its borrowing statute.

"The Legislature, however, on the recommendation of the Commissioners on Uniform State Laws, has chosen an undifferentiating course barring Michigan residents, as well as nonresidents, from maintaining actions in Michigan courts that accrue in another state and which are time-barred in that state. This suggests that there is no legislative policy of special concern for Michigan residents overriding the considerations which prompted the Commissioners on Uniform State Laws to make residence irrelevant.”

Affirmed, with costs to defendants.

J. H. Gillis, P. J., concurred.