Anthony v. Forgrave , 126 Mich. App. 489 ( 1983 )

126 Mich. App. 489 (1983) 337 N.W.2d 546

ANTHONY
v.
FORGRAVE

Docket No. 59455.

Michigan Court of Appeals.

Decided June 21, 1983.

Goodman, Eden, Millender & Bedrosian (by William H. Goodman), for plaintiff.

Kerr, Russell & Weber (by Patrick McLain), for defendants.

Before: D.F. WALSH, P.J., and BEASLEY and T.R. THOMAS,^[*] JJ.

D.F. WALSH, P.J.

Plaintiff, James Anthony, administrator of the estate of his deceased daughter, Leah Anthony, appeals by leave granted from the Wayne County Circuit Court's order changing venue to Oakland County. The court found that plaintiff's claim arose wholly in Oakland County. MCL 600.1627; MSA 27A.1627. Finding that venue had been improperly laid in Wayne County, the court granted the motion of defendants Dr. Edward G. Forgrave and Northwest Pediatrics, P.C., for a change of venue. GCR 1963, 404.^[1]

According to plaintiff, his three-year-old daughter Leah became very ill during the night of July 14-15, 1980. In the early morning hours of July 15, plaintiff's wife made a telephone call from the Anthony family's Wayne County home to defendant Northwest Pediatrics, defendant Forgrave's professional corporation. The corporation's offices are in Oakland County, as is Dr. Forgrave's residence. The corporation's answering service connected Mrs. Anthony with Dr. Forgrave, who was in Oakland County. She described Leah's condition to the doctor, who advised that the child be treated with aspirin and sponge baths. He also advised Mrs. Anthony not to take Leah to the hospital unless the child began to choke. Plaintiff and his wife continued to observe Leah periodically throughout the night. They found her dead at 8 a.m. Alleging negligent diagnosis and treatment, plaintiff seeks damages from defendants for the wrongful death of his daughter.

In their motion to change venue improperly laid, defendants argued that plaintiff's complaint established that the alleged malpractice occurred only in Oakland County. The trial court agreed, ruling that "the cause of action arose when Dr. Forgraves [sic] gave the advice which was in Oakland County".

In reviewing the circuit court's decision, we must determine if the court clearly erred in ruling that venue was improperly laid. Shock Bros, Inc v Morbark Industries, Inc, 411 Mich. 696; 311 NW2d 722 (1981). We find that the court clearly erred.

MCL 600.1627; MSA 27A.1627 provides in pertinent part that, "the county in which all or a part of the cause of action arose is a proper county in which to commence and try the action".

In the wrongful death case of Catanese v Heggen, 115 Mich. App. 301; 320 NW2d 351 (1982), the majority concluded that venue had been properly laid in Wayne County, where the death had occurred, since death was a necessary "part" of the wrongful death cause of action. The majority observed that venue would have also been properly laid in Oakland County, where the underlying medical malpractice had taken place, since the malpractice was also "part" of the cause of action. In dissent, Judge BEASLEY noted the general rule that, absent a specific statute governing wrongful death actions, venue in such actions is determined according to the venue statutes governing personal injury actions. Venue is to be laid according to the principles which would have governed if the injured person had not died and was suing to recover damages for the wrongful conduct. Anno: Venue of Wrongful Death Action, 36 ALR2d 1146; 22 Am Jur 2d, Death, § 189, p 741. Pursuant to MCL 600.1621; MSA 27A.1621, and MCL 600.1627; MSA 27A.1627, venue was properly laid, according to Judge BEASLEY, only in Oakland County — the defendants' place of residence and business, and the situs of the alleged negligent diagnosis and treatment.

In our judgment, Judge BEASLEY'S dissent is the better reasoned and more persuasive approach. We hold that, in a wrongful death action, venue is determined through application of the venue statutes governing personal injury actions; focus is on the cause of action which underlies the wrongful death claim. For purposes of this appeal, therefore, we must determine if all or part of plaintiff's claim for medical malpractice arose in Wayne County. MCL 600.1627; MSA 27A.1627.^[2]

In Harshberger v Reliable-Aire, Inc, 619 S.W.2d 478 (Tex Civ App, 1981), the Texas court affirmed the denial of the defendants' request for a change of venue. The plaintiff alleged the defendants' tortious interference with its business relations and conspiracy to restrain trade. After finding that a telephone call from the individual defendant to the plaintiff's agents constituted a part of each of the plaintiff's causes of action, the court found that venue had been properly laid in the county where the plaintiff's agents had been located at the time of the telephone call:

"As authority for their argument, defendants cite to this Court numerous cases holding that in a contract action, the location of the speaker when the contract was accepted is controlling for venue purposes. * * *

"In opposition plaintiff cites authority holding that a fraud cause of action takes place for venue purposes in the county where the words are heard by the person defrauded. * * *

"The present case, an action in tort, both common law and statutory, is more closely analogous to the rules applicable to fraud cases than to the rules applicable to contract cases. It is true that Harshberger was speaking from Nueces County, but his voice was heard in Cameron County, and his ultimatum was communicated to plaintiff in Cameron County. We are of the opinion that part of both the common law and statutory torts were committed in Cameron County. Direct authority for this conclusion is Hayter v Hudgens, 236 S.W. 232, 234 (Tex Civ App — Texarkana 1921, no writ), where the court held that a defendant speaking over the telephone from Nacogdoches County to the plaintiff in Rusk County committed fraud in Rusk County. The court stated: ``We do not see that the fact that the offer was made by Hayter (defendant) over the telephone made it any less an offer to appellee in Rusk County than it would have been if Hayter had gone in person to Rusk County and there made it to appellee.'

"In the present case, the effect of the words spoken by Harshberger were not complete until they were communicated to plaintiff in Cameron County. * * *

"It would have made no difference if the words had been uttered in person by Harshberger to plaintiff in Cameron County. The location of the listener fixes venue as a matter of law in the present case." 619 S.W.2d 482. (Citations omitted.)

We are persuaded that the Harshberger court's analysis applies to the instant facts and that plaintiff's claim for medical malpractice arose wholly in Wayne County. While Dr. Forgrave was speaking from Oakland County, his advice was communicated to Mrs. Anthony in Wayne County. His words were of no effect until that communication was made. The fact that the advice was given over the telephone did not remove its essential character as being rendered in Wayne County.

We hold that the circuit court clearly erred in granting defendants' motion for change of venue improperly laid. GCR 1963, 404. Plaintiff's claim arose in Wayne County; venue was, therefore, properly laid in Wayne County under MCL 600.1627; MSA 27A.1627.^[3]

The order changing venue is vacated; this cause is remanded to Wayne County Circuit Court for further proceedings.

T.R. THOMAS, J., concurred.

BEASLEY, J. (concurring in result).

Venue was changed from Wayne County to Oakland County on the basis that the trial court believed plaintiff's claim arose wholly in Oakland County. The majority reverse, holding that the cause of action arose wholly in Wayne County.

I concur in the analysis of the majority, except I believe that where a tort is based on advice given on the telephone, venue may be found in either the locus of the caller or the locus of the receiver. This means that in this case, venue was proper in either Wayne County, where the parent of the deceased child placed the call, or Oakland County, where the doctor on the telephone made the allegedly negligent diagnosis. Under these circumstances, I would believe that plaintiff's action was properly commenced in Wayne County, as venue had been properly laid in that county.

Thus, I would conclude that the action of the Wayne Circuit Court in switching venue to Oakland County was erroneous. Consequently, I concur in the result reached by the majority, namely, that the order changing venue should be vacated and the cause remanded to Wayne County Circuit Court for further proceedings, but for a different reason than that indicated by the majority.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] It is not disputed that plaintiff's sole possible avenue for establishing venue in Wayne County is MCL 600.1627; MSA 27A.1627. Under MCL 600.1621; MSA 27A.1621, only Oakland County would be a proper situs for this action since that is where Dr. Forgrave resides and conducts his business.

[2] In support of their motion for a change of venue, defendants cited dictum in People v Consumers Power Co, 275 Mich. 86, 92; 265 N.W. 785 (1936), for the proposition that the situs of the wrongful act, not the situs of the injury, governs the determination of venue. We need not determine the validity of that dictum since we conclude, infra, that the wrongful act in this case occurred in Wayne County. For a critical commentary on the Consumers Power dictum, see 32 Michigan Compiled Laws Annotated, Practice Commentary to MCL 600.1627, by Carl S. Hawkins, pp 620-621.

[3] Upon a proper showing of inconvenience, defendants may seek change of venue properly laid. GCR 1963, 403. We also note that venue would have been properly laid in Oakland County, not under MCL 600.1627; MSA 27A.1627, but under MCL 600.1621; MSA 27A.1621. See fn 1 supra.