Burke v. Angies, Inc.

• Decision Date: 09 September 1985
• Docket Number: Docket No. 71989
• Citation: 373 N.W.2d 187,143 Mich.App. 683
• Parties: Janet BURKE, Jeffrey Burke, individually, and Jeffrey Burke, as Personal Representative of the Estate of Myles J. Burke, III, Plaintiffs-Appellees, v. ANGIES, INC., a Michigan corporation, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 187

373 N.W.2d 187

143 Mich.App. 683

Janet BURKE, Jeffrey Burke, individually, and Jeffrey Burke as Personal Representative of the Estate of Myles J. Burke, III, Plaintiffs-Appellees, v. ANGIES, INC., a Michigan corporation, Defendant-Appellant.

Docket No. 71989.

Court of Appeals of Michigan.

Submitted April 18, 1984.

Decided June 19, 1985.

Released for Publication Sept. 9, 1985.

Lobb & Weiss, P.C. (by Joseph R. Lobb and N. Dwight Teachworth), Southfield, for plaintiffs-appellees.

Kaufman, Payton & Kallas (by Constantine N. Kallas), Southfield, for defendant-appellant.

Before HOLBROOK, P.J., and CYNAR and T. GILLESPIE ^*, JJ.

PER CURIAM.

In this dramshop action, brought pursuant to M.C.L. Sec. 436.22; M.S.A. Sec. 18.993, defendant appeals as of right from the order denying its motion for a new trial. The action arose from the death of 19-year-old Colleen Burke. The jury had returned a verdict for $175,000 for Janet Burke (Colleen's mother), $25,000 for Jeffrey Burke (Colleen's brother), and $10,000 for the Estate of Myles Burke III (Colleen's father).

Defendant is the tavern where Colleen had spent the evening on the night of her death. Defendant's policy at that time permitted 18, 19 and 20-year-olds to enter the bar. To prevent minors from being served, the hands of those over 21 would be stamped. Colleen and the two who were with her, one of her brothers and a friend, were minors and none had their hands stamped. Nonetheless, all three were served alcohol. Testimony at trial was unclear as to how obviously drunk Colleen was while at the bar and upon leaving. On the way home she was so noisy in the car that her brother stopped the car on the road and had her exit from the car. When they tried to have Colleen re-enter the car, she refused and ran away. After a while they left the area without her, being unable to locate her. While walking home Colleen was struck by a car in a hit-and-run accident, which caused her death. On appeal defendant raises many allegations of error in the admission of evidence, in the awarding of attorney fees and costs, and in not granting its motion for a mistrial.

Defendant alleges that error occurred in permitting the jury to be told that a blood alcohol level of .10% gives rise to a presumption of intoxication as that level is not applicable to civil actions. M.C.L. Sec. 257.625a(1); M.S.A. Sec. 9.2325(1) provides in pertinent part that:

"The amount of alcohol * * * in the driver's blood * * * shall admissible into evidence in a criminal prosecution * * *." (Emphasis supplied.)

While we agree that such standard is not applicable and that error occurred, we find this to be harmless error. GCR 1963, 529.1. In any event, as Colleen was already deceased at the time her blood sample was taken, her blood alcohol content was admissible. Hubenschmidt v. Schears, 403 Mich. 486, 270 N.W.2d 2 (1978). We do not find the mention of the .10% presumption to have unduly prejudiced defendant. In the instant case the .10% level was only mentioned twice; in the plaintiff's opening argument and in deposition testimony by an expert witness. This was not the situation in Groth v. DeGrandchamp, 71 Mich.App. 439, 248 N.W.2d 576 (1976), lv. den. 400 Mich. 808 (1977), where this presumption was to be included in the jury instructions. Therefore, we find that the admission of the blood alcohol level was harmless error in this case. GCR 1963, 529.1.

Defendant contends that error occurred in the admission of Colleen's blood test results because there was no testimony as to who transported the tube of blood from the autopsy room to the laboratory. However, our review of the record reveals that the blood was hand-carried by one of three people and that the standard procedure was to have the blood hand-carried one flight of stairs. Defendant has not alleged that the blood was not Colleen's or that the sample was in any way tampered with or even that an opportunity to tamper with the sample occurred. We believe the factors enumerated in Gard v. Michigan Produce Haulers, 20 Mich.App. 402, 407, 174 N.W.2d 73 (1969), lv. den. 383 Mich. 777 (1970), were followed. We will not add a requirement that we must know exactly which of the three men carried the sample. What is crucial is that the methods were reliable, that we know who conducted the test, that the blood was timely taken from the particular individual and labeled, that the instruments were sterile and that the method and procedure used in transporting is known. We do not find this to amount to a break in the chain of custody, as the blood was in the custody of one of the three men.

Defendant contends that it was error for the trial judge to have granted plaintiffs a protective order which prevented defendant from discussing, in defendant's opening statement, the possibility of Colleen's having used marijuana on the night of her death. Defendant admitted that discovery had revealed no evidence of consumption of marijuana on that night, but it sought to produce evidence of decedent's prior consumption of marijuana to establish a probable cause for her condition on the night in question. The trial court ruled that such evidence would be more prejudicial than probative under MRE 403 and granted the protective order. Such an evidentiary ruling is within the discretion of the trial judge. Kovacs v. Chesapeake & Ohio R. Co., 134 Mich.App. 514, 537, 351 N.W.2d 581 (1984). We find the case at bar to be distinguishable from Anderson v. Harry's Army Surplus, Inc., 117 Mich.App. 601, 324 N.W.2d 96 (1982), as in Anderson there was evidence of drug use on the night of the incident.

Defendant also alleges that it was error to admit photographs of the deceased's corpse and the scene of the accident. Defendant claims that the location and manner of Colleen's death were not in issue, however our review of the record reveals that defendant did contest the location of the body, and it was necessary for the plaintiffs to prove that Colleen's intoxicated condition contributed to the accident. The trial court specifically found that the photographs were not so gruesome as to inflame a jury. Nor do we find the fact that the photographs of the accident scene were taken in the daylight rather than at night to have caused any possible prejudice to defendant.

"As with all evidence, the admission of photographs on the grounds that they are more probative than prejudicial is within the discretion of the trial court. MRE 403; City of Grand Rapids v Assfy, 44 Mich App 473, 476; 205 NW2d 502 (1973). It is clear from the record in this case that the trial court exercised its discretion in ruling the photographs admissible. We find no abuse in the exercise of that discretion since the photographs were calmly described by the plaintiff who does not appear to have created a dramatic scene in the courtroom upon viewing the photographs. Nor can we say that the photographs were completely irrelevant to any material issue of fact, such as damages suffered by plaintiff. We find no error. See Amedeo v Grand Rapids & Indiana R Co, 215 Mich 37, 55; 183 NW 929 (1921); Carreras v Honeggers & Co, Inc, 68 Mich App 716, 724-725; 244 NW2d 10 (1976)." Kovacs, supra, 134 Mich.App. pp. 537-538, 351 N.W.2d 581.

Defendant next assigns error in the trial court's allowing plaintiffs to state that defendant violated the Michigan Constitution by serving alcohol to a minor, when the suit was under the dramshop act. We find no error. The Constitution provides the basis for the dramshop act, which is a remedy. It is the Constitution that renders the sales to minors unlawful. See Const. 1963, art. 4, Sec. 40.

The next complaint defendant presents is that it was entitled to summary judgment as the intoxicated person was not named and retained as required by the statute. In the instant case the intoxicated person was deceased, and the plaintiffs are close family members. In Newman v. Hoholik, 138 Mich.App. 66, 359 N.W.2d 253 (1984), this Court discussed the holding of Putney v. Haskins, 414 Mich. 181, 324 N.W.2d 729 (1982), reh. den. 414 Mich. 1111 (1982), and said:

"Nowhere in the Putney opinion does the Supreme Court expressly or impliedly suggest that the name and retain requirement admits of no exception. To the contrary, the Court affirms the continuing viability of Salas v Clements [399 Mich. 103, 247 N.W.2d 889 (1976) ], supra, both in terms of the specific exception recognized in Salas and the underlying rationale that the 'name and retain' provision should not be construed to produce an 'unreasonable, unjust result' in light of the purpose of the provision. Putney, supra [414 Mich. at] pp 186, 190 .

"Conspicuously absent from the Putney opinion is any reference to Scholten [v. Rhoades, 67 Mich.App. 736, 242 N.W.2d 509 (1976), supra, Dickerson [v. Heide, 69 Mich.App. 303, 244 N.W.2d 459 (1976) ], supra, or Schutz [v. Murphy, 99 Mich.App. 386, 297 N.W.2d 676 (1980) ], supra. We find no indication in Putney that the Supreme Court impliedly abrogated the holdings in those opinions. Instead, the Court's seemingly deliberate use of narrow language, express affirmance of Salas, supra, and omission of any reference to Scholten or its progeny, convince us that Scholten is still 'good law'. And since, in our opinion, it is, indeed, a good and sensible law which permits an injured person to maintain a dramshop action without naming and retaining as a party defendant a close family member against whom the plaintiff has no cause of action, we hold that John E. Newman was not required to name and retain his father in order to maintain his action against the defendants Hoholik." Newman, supra, 138 Mich.App. p. 72, 359 N.W.2d 253. (Footnote omitted.)

Defendant cites Moran v. McNew, 134 Mich.App. 764, 766, 351 N.W.2d 881 (1982), as support for the idea that no exceptions are allowed in the name and retain provision. We do not agree with that brief summary judgment. We adopt Newman, supra.

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