Davis v. Terrien

• Decision Date: 22 September 1961
• Docket Number: No. 39,39
• Citation: 364 Mich. 82,110 N.W.2d 754
• Parties: Richard DAVIS, Plaintiff and Appellant v. George E. TERRIEN, Violet Terrien, Albert E. Terrien and Alma Terrien, jointly and severally, d/b/a Terrien's Bar, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 754

110 N.W.2d 754

364 Mich. 82

Richard DAVIS, Plaintiff and Appellant v. George E. TERRIEN, Violet Terrien, Albert E. Terrien and Alma Terrien, jointly and severally, d/b/a Terrien's Bar, Defendants and Appellees.

No. 39.

Supreme Court of Michigan.

Sept. 22, 1961.

Albert Lopatin, Detroit, for appellant.

Clayton F. Jennings, Lansing, Fletcher L. Renton, Royal Oak, for appellees.

Before the Entire Bench.

DETHMERS, Chief Justice.

This action was brought under the civil damage act. C.L.S.1956, § 436.22, as amended by P.A.1958, No. 152 (Stat.Ann.1959 Cum.Supp. § 18.993). Plaintiff charged in his declaration that he had entered defendants' tavern; that while there one of defendants' employees unlawfully served one Celestine P. Johnson with beer while he was intoxicated; that after drinking some of that beer, which contributed further to his intoxication, Johnson, as a result, struck plaintiff and caused him the injuries for which this suit was brought.

A jury returned a verdict of $20,000 for plaintiff. Having reserved decision on defendants' previous motions for directed verdict, the trial judge entered a judgment non obstante veredicto for defendants on the ground that plaintiff had failed to offer competent evidence of an illegal furnishing of liquor to Johnson by defendants and that the opposite had been proved by undisputed testimony.

Reliance by defense rests largely on Wyatt v. Chosay, 330 Mich. 661, 48 N.W.2d 195, 200, as authority that the burden was on plaintiff to establish that Johnson was intoxicated when he injured plaintiff and also, as constituting the unlawful sale to him, that he was so when defendants sold the liquor to him and that there was a causal connection between that unlawful sale and plaintiff's injuries. That is the law. Our on in that case sets forth much of the applicable law on this subject. While the burden of proof is on plaintiff, Wyatt and many other cases also hold that on review of a judgment non obstante veredicto against him we must view the testimony in the light most favorable to him.

The disputed question in this case was whether Johnson was intoxicated when defendants' employee sold him the liquor and when he struck plaintiff. There was testimony by Johnson, by the bartender and by a police officer that he was not. Perhaps it should have been, but apparently was not, believed by the jury. It is not for us to weigh the testimony but to determine, from a most favorable view of the evidence for plaintiff, whether there was competent proof to go to the jury that Johnson was intoxicated at those times. If so, it was for the jury and not for the court to decide the case.

Plaintiff's testimony included the following:

1. That at about 11:00 p. m., while he was in defendants' tavern, Johnson started to molest him, that he complained of it to defendants' bartender and that the latter told Johnson he had had enough to drink and that he should go home, but that that bartender nevertheless served Johnson with another...