Catanese v. Heggen

Beasley, J.

(dissenting). I respectfully dissent.

In this medical malpractice action, both defendants either reside in or are established in Oakland County, and the alleged acts of malpractice arose in Oakland County. In wrongful death cases, *307the general rule for the determination of venue is that the action may be instituted in conformity with the venue statute governing personal injury actions. An exception to the general rule is where a state’s wrongful death statute specifically contains a venue provision. Supporting these conclusions are the following authorities:

"In the absence of a venue statute specifically applicable to actions to recover for wrongful death, or where a particular wrongful death case lacks characteristics making some other specific venue statute applicable, it would seem to be the general rule that a wrongful death action is properly brought if, and only if, it is in accordance with the provision of the statute dealing with the venue of civil actions generally.” (Footnote omitted.) Anno: Venue of wrongful death actions, 36 ALR2d 1146, 1150.
"The form of the action for wrongful death is sometimes expressly provided for by the statute giving the right of action. In the absence of such a provision, the action should, it has been said, be tried in the same manner and be governed by the same general principles of practice as it would have been if the injured person had not died and was suing to recover damages for the wrongful act.
"If there is a venue statute specifically applicable to actions for wrongful death, then, of course, proper venue requires compliance with such statutory provision. But absent any venue statute specifically applicable to an action for wrongful death, it seems that the action may be brought wherever the defendant may be, in accordance with the venue statute governing actions for personal injuries or civil actions generally, unless the defendant is one as to whom there is a specifically applicable venue statute, such as a corporation, a receiver of a corporation, or a carrier, in which case the statutes setting out the venue of actions against corporations, receivers of corporations, and carriers, respectively, control.” (Footnotes omitted.) 22 Am Jur 2d, Death, § 189, p 741.

*308In Cottengim’s Administrator v Adams’ Administratrix,1 the Kentucky Court of Appeals stated:

"There could be no possible reason for the Legislature to make a distinction in the venue of the two actions both of which grow out of the same state of facts which affect directly the same victim. We think the Legislature in § 74 in making the venue local in a personal injury action and limiting it to 'the county in which the defendant resides, or in which the injury is done’ certainly intended to include death as well as personal injury in the phrase 'in which the injury is done’.”

Our wrongful death statute2 does not contain a specific venue provision. Therefore, the general venue statutes control the proper forum for this action. Oakland County, where the defendants are respectively resident and established and where the alleged malpractice occurred, is where venue is properly laid.3 The fact that plaintiffs decedent died in Wayne County does not, ipso facto, make Wayne County a proper forum for the action. Venue was not properly laid in Wayne County.4

I would hold that the trial court did not clearly err in granting defendants’ motion for change of venue.5 Therefore, I would vote to affirm the trial court’s ruling._

255 SW2d 637, 638; 36 ALR2d 1142, 1144 (Ky App, 1953). See also A-1 Truck Service, Inc v Kivenas, 371 So 2d 495 (Fla App, 1979), Nagy v Swann, 56 Ohio Misc 33; 10 Ohio Ops 3d 69 (Common Pleas, 1978).

MCL 600.2922; MSA 27A.2922.

MCL 600.1621; MSA 27A.1621, MCL 600.1627; MSA 27A.1627, Hunter v Doe, 61 Mich App 465, 467; 233 NW2d 39 (1975).

Id.

Shock Bros, Inc v Morbark Industries, Inc, 411 Mich 696, 699; 311 NW2d 722 (1981).