Barton v. Benedict
| Citation | 197 N.W.2d 898,39 Mich.App. 517 |
| Decision Date | 27 March 1972 |
| Docket Number | Docket No. 11340,No. 2,2 |
| Parties | William BARTON, Administrator of the Estate of Pamela Barton, Deceased, William Barton and Beverly Barton, Plaintiffs-Appellants, v. Rudolph R. BENEDICT, d/b/a Huntington Inn, and Wolverine Insurance Company, a Michigan corporation, Defendant-Appellants, Fred H. Gabelman and William J. Pape, d/b/a Courtesy Bar, and Ohio Casualty Insurance Company, a foreign corporation, Defendants |
| Court | Court of Appeal of Michigan (US) |
Tony Ferris, Mt. Clemens, for plaintiffs-appellants.
Gilbert E. Metry, Detroit, for defendants-appellees. Before McGREGOR, P.J., and BRONSON and TARGONSKI, * JJ.
On June 20, 1966, Pamela Barton, then 12 years of age, was killed as a result of the negligent operation of a motor vehicle by one Harold F. Anderson while he was intoxicated. This action was brought under the dramshop act, M.C.L.A. § 436.22; M.S.A. § 18.993, alleging that the defendants, Rudolph R. Benedict, doing business as Huntington Inn, and Fred H. Gableman and William J. Pape, doing business as Courtesy Bar (hereinafter referred to as Huntington Inn and Courtesy Bar) violated the dramshop act by causing or contributing to the intoxication of the said Harold F. Anderson.
The Courtesy Bar and Harold F. Anderson entered into a consent judgment in favor of the plaintiffs in the amount of $750 each, or a total of $1,500. Trial was held as to the issues involving defendant Huntington Inn.
The only factual issue in dispute in the trial of this cause was as to the liability of defendant under the statute. On that issue, the trial court found for the plaintiffs, holding that the defendant violated the provisions of the statute regarding the sale of intoxicating beverages to an intoxicated person. The trial court found that the plaintiffs sustained their burden of proof in that regard and that the defendant was liable under the statute.
The parties stipulated that the accident in question was the proximate cause of the death of Pamela Barton, that the decedent was never conscious after the impact, and that she suffered no conscious pain of suffering. It was further stipulated that the out- of-pocket expenses for medical and hospital care, and burial amounted to $2,332.04.
The first issue presented is whether, under the dramshop act, the plaintiffs could recover damages for the expense of the birth of the child, the expenses of raising the child, and the loss of companionship. The trial court decided this question against the plaintiffs and in favor of the defendant, and did not allow damages for expenses of the birth of the child, the raising of the child, and the loss of companionship.
The dramshop act provides:
'Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, shall have a right of action * * * against the person who shall be such selling or giving of any such liquor have caused or contributed to the intoxication of such person * * * and in any action provided for in this section, the plaintiff shall have the right to recover actual and exemplary damages * * * In case of the death of either party, the action or right of action given in this section shall survive to or against his or her executor or administrator * * *.'
It is apparent from the statute's language that the nature of the action, and therefore the measure of damages, is the same whether or not death results. Since the statute contains its own special survival provision, dramshop actions in death cases are properly brought under the dramshop act rather than the wrongful death act, M.C.L.A. § 600.2922; M.S.A. § 27A.2922. Genesee Merchants Bank & Trust Co. v. Bourrie, 375 Mich. 383, 134 N.W.2d 713 (1965). The dramshop act, M.C.L.A. § 436,22, Supra, provides for the recovery of actual and exemplary damages for injuries to person or property, means of support, or otherwise. Since, in the instant case, the person killed was a minor, and the trial court found that there were not sufficient proofs of any future contributions by the child, the question becomes whether the cost of raising the child and the loss of companionship are 'injuries (to) person or property * * * or otherwise.'
Since the dramshop act is remedial in nature, it should be construed liberally to meet those ends. See La Blue v. Specker, 358 Mich. 558, 100 N.W.2d 445 (1960). It would therefore appear that the 'actual' damages of the dramshop act should be interpreted as no more restrictive than the 'pecuniary' damages of the wrongful death act. 1 If the measure of damages under the dramshop act is read to mean damages co-extensive with the 'pecuniary' damages of the wrongful death act, it is clear that plaintiffs here should be allowed to prove and recover for their 'investment in the life of the child,' I.e., the cost of raising the child from birth until the time of death. See Rohm v. Stroud, 386 Mich. 693, 194 N.W.2d 307 (1972); see also Haupt v. Yale Rubber Co., 29 Mich.App. 225, 185 N.W.2d 161 (1970). 2
There is not, however, any right to recover for loss of companionship or mental suffering. Loss of companionship or mental suffering has been allowed under the dramshop act for such loss of companionship and mental suffering which arises out of the fact that a previously sober man is rendered a drunkard as a result of illegal liquor sales. Friend v. Dunks, 37 Mich. 25 (1877); Radley v. Seider, 99 Mich. 431, 58 N.W. 366 (1894); Lucker v. Liske, 111 Mich. 683, 70 N.W. 421 (1897).
It has been held, however, that mental anguish resulting from an injury is not recoverable under the dramshop act. Sissing v. Beach, 99 Mich. 439, 58 N.W. 364 (1894); Spray v. Ayotte, 161 Mich. 593, 126 N.W. 630 (1910); Billett v. Michigan Bonding & Surety Co., 195 Mich. 202, 161 N.W. 908 (1917). Since loss of companionship can be considered to be merely a specific form of mental anguish, by inference damages for loss of companionship arising out of injury or death would not be recoverable under the dramshop act. See also Breckon v. Franklin Fuel Co., 383 Mich. 251, 174 N.W.2d 836 (1970), where it was held that loss of companionship was not includable as pecuniary damages.
It would appear that the proper measure of damages which would be recoverable by the parents for the death of their minor child in a dramshop action, if proven would be: (1) cost of medical care arising out of the accident (and, by inference, the cost of burial), 3 Thomas v. Dansby, 74 Mich. 398, 41 N.W. 1088 (1889); Spencer v. Johnson, 185 Mich. 85, 151 N.W. 684 (1915); (2) loss of support (which would include any loss of services or income over and above the future cost of raising the child; (3) loss of their investment in the life of the child; and (4) exemplary damages, if wilfulness is proven. Consequently, it was error for the trial court to hold, as a matter of law, that plaintiffs could not recover for the loss of their investment in the life of their child.
The second issue raised on appeal is whether or not the judgment rendered in a subsequent dramshop action can be mitigated and set off by the amounts recovered by plaintiffs in their settlement with the intoxicated driver, where death results without conscious pain and suffering and plaintiffs have settled out of court with the driver of the automobile causing the death. The trial court adopted the reasoning in ...
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Tebo v. Havlik
...persons.80 The holding in Virgilio v. Hartfield, 4 Mich.App. 582, 145 N.W.2d 367 (1966), was adverted to in Barton v. Benedict, 39 Mich.App. 517, 523, 197 N.W.2d 898 (1972), rev'd on other grounds sub nom. Podbielski v. Argyle Bowl, Inc., 392 Mich. 380, 220 N.W.2d 397 (1974), where the Cour......
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Putney v. Gibson
......Hartfield (1966), 4 Mich.App. 582, 145 N.W.2d 367." (Footnote deleted.) . In the case of Barton v. Benedict 39 Mich.App. [94 MICHAPP 481] 517, 197 N.W.2d 898 (1972), it was ruled that it is necessary to allow mitigation of a dramshop judgment ......
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Podbielski v. Argyle Bowl, Inc., 16
...... This Court subsequently granted leave to resolve an apparent conflict between the present case and the case of Barton v. Benedict, 39 Mich.App. 517, 197 N.W.2d 898 (1972). 3. In its opinion below the Court of Appeals explained[392 Mich. 383] its ......
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Tebo v. Havlik
...We will not sidestep the collateral source rule on the ground that the insurance was mandatory. The case of Barton v. Benedict, 39 Mich.App. 517, 197 N.W.2d 898 (1972), overruled on other grounds in Podbielski v. Argyle Bowl, Inc., 392 Mich. 380, 220 N.W.2d 397 (1974), cited by defendants, ......