Cornack v. Sweeney

• Decision Date: 19 October 1983
• Docket Number: Docket No. 62972
• Citation: 127 Mich.App. 375,339 N.W.2d 26
• Parties: Betty J. CORNACK, As Next Friend of Michael John Cornack, a Minor, and Betty J. Cornack, Individually, Plaintiffs-Appellees, v. Mabel SWEENEY and Grace Bell d/b/a Lakeview Grocery, Defendants-Appellants. 127 Mich.App. 375, 339 N.W.2d 26
• Court: Court of Appeal of Michigan — District of US

Page 26

339 N.W.2d 26

Betty J. CORNACK, As Next Friend of Michael John Cornack, a Minor, and Betty J. Cornack, Individually Plaintiffs-Appellees, v. Mabel SWEENEY and Grace Bell d/b/a Lakeview Grocery Defendants-Appellants.

Docket No. 62972.

127 Mich.App. 375, 339 N.W.2d 26

Court of Appeals of Michigan.

Submitted April 8, 1983.

Decided July 19, 1983.

Released for Publication Oct. 19, 1983.

[127 MICHAPP 376] Marston, Sachs, Nunn, Kates, Kadushin & O'Hare, P.C. by Kathleen L. Bogas, Detroit, for plaintiffs-appellees.

Kaufman, Payton & Kallas by Constantine N. Kallas, Southfield, for defendants-appellants.

Before WAHLS, P.J., and GRIBBS and WARSHAWSKY, ^* JJ.

GRIBBS, Judge.

The defendants, Mabel Sweeney and Grace Bell, doing business as Lakeview Grocery, bring an interlocutory appeal from a denial of their motion for partial summary judgment. Michael John Cornack, a minor, allegedly purchased alcoholic beverages from the defendants. Plaintiff alleges that the sale was illegal since Michael was visibly intoxicated and was a minor. Later, while driving an automobile, Michael allegedly lost control of the vehicle and struck a parked automobile, causing injuries to himself. Intoxication is alleged as the cause of the accident. Betty J. Cornack, Michael's mother, individually and as next friend of Michael, sued the defendants for common law negligence and under the dramshop act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993. ¹ The defendants moved for [127 MICHAPP 377] summary judgment against Michael Cornack arguing that no common law action exists and that the allegedly intoxicated person is barred from recovering under the dramshop act. The trial court denied the motion, prompting this appeal. We reverse.

I

First, the defendants are correct in their assertion that no common law action remains for negligently selling alcohol to minors or visibly intoxicated persons. The Michigan Supreme Court considered this issue in Browder v. International Fidelity Ins. Co., 413 Mich. 603, 611-612, 321 N.W.2d 668 (1982), and declared:

"Upon examination of the dramshop act, it becomes clear that the particular objective of the Legislature in enacting it was to discourage bars from selling intoxicating beverages to minors or visibly intoxicated persons and to provide for recovery under certain circumstances by those injured as a result of the illegal sale of intoxicating liquor.

"As the emphasized portions of the statute demonstrate, the Legislature used clear and unambiguous language. The Legislature obviously intended the cause of action * * * provided in the dramshop act to be the exclusive cause of action * * *."

Thus, the trial court should have granted partial summary judgment on the common law claim.

[127 MICHAPP 378]

II

We next consider whether Michael Cornack is barred from recovery under the dramshop act as an intoxicated minor. Jurisdictions are split on whether an intoxicated person can recover for his own injuries. Some hold that he can; others hold that he cannot. See Anno., 65 A.L.R.2d 923, Sec. 4, pp. 927-928. The plaintiff concedes that Michigan is among those states which deny recovery ² but argues that this rule applies only to intoxicated adults. There is no doubt that a minor driver is held to the same standard of conduct as an adult. Constantino v. Wolverine Ins. Co., 407 Mich. 896, 284 N.W.2d 463 (1979). The issue for our consideration is whether an intoxicated minor driver is excepted from this rule under the dramshop act. We hold that he is not. In this regard, the dramshop act treats intoxicated minors as it would intoxicated adults.

The Michigan Supreme Court has held that intoxicated adults may not recover for their injuries.

"Doubtless the [dramshop] statute might have extended its benefits to the intoxicated person, but if such were the intent it is surprising that it was not distinctly and unequivocally expressed. It was as easy to designate the party himself as it was his wife, child, guardian, etc. Moreover the man himself may generally be supposed to be injured in some degree by intoxication, so that his case would furnish the most frequent occasion for a suit if he should see fit to resort to legal proceedings. It would be very remarkable that a statute in enumerating the persons who should share in its benefits should omit to name the very one who would most often be entitled to its aid. But it is a sensible and [127 MICHAPP 379] well understood rule of construction that when after an enumeration, the statute employs some general term to embrace other cases, the other cases must be understood to be cases of the same general character, sort or kind with those named. Hawkins v. Great Western R. Co., 17 Mich. 57 [1868]; McDade v. People, 29 Mich. 50 [1874], and cases cited. Apply this rule here, and the party intoxicated is excluded." Brooks v. Cook, 44 Mich. 617, 618-619, 7 N.W. 216 (1880).

There is no indication that the Legislature intended to except minors from this rule. The plaintiff correctly points out that the Michigan cases to date have dealt only with intoxicated adults, but the holdings of those cases are clearly applicable to minors. Had the Legislature intended a remedy for...