Wingert v. Carpenter

Michigan Supreme Court

Wingert v. Carpenter

59 N.W. 662, 101 Mich. 395

CourtMichigan Supreme Court

DecidedJuly 5, 1894

StatusPublished

Cited by34 cases

This text of 59 N.W. 662 (Wingert v. Carpenter) is published on Counsel Stack Legal Research, covering Michigan Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wingert v. Carpenter, 59 N.W. 662, 101 Mich. 395 (Mich. 1894).

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Opinion

Grant, J.

The relator, as administrator of the estate of Alexander Wingert, deceased, brought suit in the circuit court for the county of Wayne to recover damages for the death of said Alexander, alleged to have been caused by the negligence of the defendant, the Star Line of Steamers, a corporation organized and doing business under the laws of Michigan.

The deceased was drowned July 11, 1892, in Canadian waters. Suit was commenced on September 23, 1892, by filing declaration and entering rule to plead. Plaintiff based his right of recovery on How. Stat. §§ 8313, 8314. The case came to trial, and the court directed a verdict for the defendant, for the reason that the cause of action arose and the death occurred within the province of Ontario, wholly without the jurisdiction of this State, and that the Michigan statute relied upon had no application. Subsequently the verdict was set aside, in order to give the relator the opportunity to move to amend his declaration. He submitted an amended declaration with his motion to [397]*397amend. The motion was denied, and the purpose of this petition is to compel respondent to permit the filing of this amended declaration. The Canadian statute counted upon is set forth in the amended declaration, and provides that the action must be commenced within 12 months after the death of the deceased person. When .the amendment was proposed, the 12 months had expired.

The cause of action arose in Canada, and under Canadian laws. If the plaintiff has any right of action, it is by virtue of those laws. The question must therefore be determined by the same rule that would hold were this the commencement of a suit. The statute of limitations cannot be evaded under the guise of an amendment. Gorman v. Circuit Judge, 27 Mich. 138. The Canadian statute establishes the liability and provides the remedy. It must control. The right of action, having become barred in Canada, is barred here. The Harrisburg, 119 U. S. 214.

The writ must be denied.

The other Justices concurred.

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Grant, J.

The relator, as administrator of the estate of Alexander Wingert, deceased, brought suit in the circuit court for the county of Wayne to recover damages for the death of said Alexander, alleged to have been caused by the negligence of the defendant, the Star Line of Steamers, a corporation organized and doing business under the laws of Michigan.

The deceased was drowned July 11, 1892, in Canadian waters. Suit was commenced on September 23, 1892, by filing declaration and entering rule to plead. Plaintiff based his right of recovery on How. Stat. §§ 8313, 8314. The case came to trial, and the court directed a verdict for the defendant, for the reason that the cause of action arose and the death occurred within the province of Ontario, wholly without the jurisdiction of this State, and that the Michigan statute relied upon had no application. Subsequently the verdict was set aside, in order to give the relator the opportunity to move to amend his declaration. He submitted an amended declaration with his motion to [397]*397amend. The motion was denied, and the purpose of this petition is to compel respondent to permit the filing of this amended declaration. The Canadian statute counted upon is set forth in the amended declaration, and provides that the action must be commenced within 12 months after the death of the deceased person. When .the amendment was proposed, the 12 months had expired.

The cause of action arose in Canada, and under Canadian laws. If the plaintiff has any right of action, it is by virtue of those laws. The question must therefore be determined by the same rule that would hold were this the commencement of a suit. The statute of limitations cannot be evaded under the guise of an amendment. Gorman v. Circuit Judge, 27 Mich. 138. The Canadian statute establishes the liability and provides the remedy. It must control. The right of action, having become barred in Canada, is barred here. The Harrisburg, 119 U. S. 214.

The writ must be denied.

The other Justices concurred.

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Bluebook (online)

59 N.W. 662, 101 Mich. 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wingert-v-carpenter-mich-1894.

Opinion

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