Dickerson v. Heide, Docket No. 25536

• Decision Date: 28 May 1976
• Docket Number: Docket No. 25536
• Citation: 69 Mich.App. 303,244 N.W.2d 459
• Parties: Everest DICKERSON and Lyla Dickerson, Plaintiffs-Appellees, v. Ronald O. HEIDE and Patricia Heide, d/b/a White House Inn; Theodore James Cihos and Chester Ronald Robison, d/b/a Tero's Lounge; and John Stirk, d/b/a Big John's Bar, jointly and severally, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

Page 459

244 N.W.2d 459

69 Mich.App. 303

Everest DICKERSON and Lyla Dickerson, Plaintiffs-Appellees, v. Ronald O. HEIDE and Patricia Heide, d/b/a White House Inn Theodore James Cihos and Chester Ronald Robison, d/b/a Tero's Lounge; and John Stirk, d/b/a Big John's Bar, jointly and severally, Defendants-Appellants.

Docket No. 25536.

Court of Appeals of Michigan.

May 28, 1976.

Released for Publication Aug. 11, 1976.

Carl R. Burdick, St. Joseph, for Heide.

Ryan, McQuillan, VanderPloeg & Fette by James B. McQuillan, St. Joseph, for Cihos and Robison.

Cholette, Perkins & Buchanan by Sherman H. Cone, Grand Rapids, for Stirk.

Sloan & McCarthy by James Thomas Sloan, Jr., Kalamazoo, for plaintiffs-appellees.

Before GILLIS, P.J., and KAUFMAN and QUINNELL, ^* JJ.

KAUFMAN, Judge.

Defendants appeal, by leave granted, from a denial by the Berrien County Circuit Court of their motion for summary judgment against plaintiffs, GCR 1963, 117.2(1).

Plaintiffs commenced this action under the dramshop act, M.C.L.A. § 436.22; M.S.A. § 18.993, to recover damages for the death of their son, John Dickerson. The complaint alleged that on or about March 17, 1973, defendant tavern owners sold or furnished alcoholic beverages to one Terry Knepple when he was intoxicated in violation of M.C.L.A. § 436.29; M.S.A. § 18.1000. Plaintiffs' son was killed when riding in Knepple's car that evening when Knepple drove it into a tree.

In addition to the instant action, this accident produced one other lawsuit, an action commenced in Cass County Circuit Court under the wrongful death statute, M.C.L.A. § 600.2922; M.S.A. § 27A.2922. The wrongful death litigation was instituted by one James Regan, decedent's personal administrator. After numerous preliminary proceedings, both cases were assigned to Berrien County Circuit Court Judge Julian Hughes.

In the instant case, defendants' summary judgment motion, the subject of this appeal, was based on the 'name and retain' provision of the dramshop act. After providing a cause of action against a dramshop owner to individuals who have suffered injury because the owner has sold intoxicating liquors to a visibly intoxicated person or to a minor, the act requires, in its so-called 'name and retain' provision:

'No action against a retailer or wholesaler or anyone covered by this act or his surety, shall be commenced unless the minor or the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.'

Defendants argue here, as they did at trial, that plaintiffs' failure to name and retain Terry Knepple, the alleged intoxicated driver, requires the dismissal of plaintiffs' cause of action. Defendants rely on the literal language of the above quoted portion of the dramshop act, a portion which contains no exceptions.

Plaintiffs make several arguments in response. Of these, we find only one cogent. The essence of this argument is that even if plaintiffs had named Knepple, they could not possibly have retained him in the lawsuit. This is so because the only cause of action which could have been asserted against Knepple would have been one predicated on the wrongful death act, M.C.L.A. § 600.2922; M.S.A. § 27A.2922. Under that act, however,

'Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, * * *.'

Because plaintiffs were not decedent's personal representative, they could not bring a wrongful death action against Knepple. Therefore, plaintiffs could name Knepple, but they could not retain him.

We are, thus, confronted by that antagonist of jurisprudence, the 'Great Two-Horned Dilemma'. Defendants ask us to read the name and retain provision as a literal requirement. Plaintiffs argue that to do so would cause an absurd result which the Legislature's infinite wisdom never could have intended.

Three recent opinions have considered the case of the missing drunk and have resolved it differently. In Salas v. Clements, 57 Mich.App. 367, 226 N.W.2d 101 (1975), Lv. granted 394 Mich. 813 (1975), plaintiffs were assaulted and injured by an allegedly intoxicated person in defendant's tavern. Because plaintiffs could not determine the identity of the intoxicated individual, he was not named in plaintiffs' dramshop action against the bar owner. The trial court granted a defense motion based on the name and retain provision. This Court, in affirming the trial court, rejected plaintiffs' due process and equal protection attacks on the name and retain provision. The Salas panel found two functions of the provision which legitimized it against constitutional attack. It reasoned:

'The 'name and retain' provision will, to some extent, reduce tavern-owner liability by restricting recourse to the dramshop act. The provision will eliminate the common practice whereby the intoxicated person enters into a settlement with the injured plaintiff for a token sum, and thereafter energentically assists the plaintiff with the prosecution of a suit against the tavern owner. The provision will also discourage possible collusion and perjury by those too weak to resist the obvious temptation inherent in the original dramshop act which has now been recognized by the Legislature and corrected through this amendment.' Id. at p. 372, 226 N.W.2d at p. 104.

The next relevant case to come before this Court was Spaccarotelli v. Ferdibar, 67 Mich.App. 29, 239 N.W.2d 750 (1976). There, as in Salas, plaintiffs sued for injuries incurred in a barroom fight. Although the identity of the intoxicated assailant was known, he could not be located for proper service despite plaintiffs' diligent efforts. The trial court denied defendant tavern owners' summary judgment motion. It reasoned that the Legislature did not intend the dramshop owner to become free of liability under such circumstances. This Court reversed the trial court and granted summary judgment against plaintiffs. It found Salas to be dispositive nad to require a summary judgment where a plaintiff was, through no fault of his own, unable to name and retain the intoxicated person.

In Scholten v. Rhodes, 67 Mich.App. 736, 242 N.W.2d 509 (1976), although plaintiffs knew the identity of the intoxicated person and could have served him with process, they were prevented by law from any possible recovery against him. The suit was brought by Donald Scholten and his father, Robert. Donald, a minor, had purchased beer from defendant's store. He allegedly became intoxicated and walked into the path of a motorcycle. Defendant moved for a summary judgment because plaintiff Robert Scholten had not named and retained as a defendant the minor, his son, pursuant to the dramshop act. Plaintiff responded that, because at law, plaintiff father was responsible for his son's medical expenses and, therefore, could not obtain any recovery from his son, the application of the name and retain provision would cause an absured and unintended...