Friend v. Campbell

• Decision Date: 03 December 1980
• Docket Number: Docket No. 49252
• Citation: Friend v. Campbell, 301 N.W.2d 503, 102 Mich.App. 278 (Mich. App. 1980)
• Parties: Michael A. FRIEND, Administrator of the Estate of Helen Friend, deceased, Michael A. Friend, Administrator of the Estate of George Friend, deceased, Margie Friend, individually and as daughter of Helen Friend, Georgina Friend and Michael Knight, Plaintiffs-Appellants, v. Alfred Jack CAMPBELL, National Indemnity Company, and Wolverine Insurance Company, jointly and severally, Defendants, and Edward Nasser and Marjorie Nasser, husband and wife, d/b/a Nasser's Bar, and Sophie H. Bond, d/b/a Pike's Bar, jointly and severally, Defendants-Appellees.
• Court: Court of Appeal of Michigan

Page 503

301 N.W.2d 503

102 Mich.App. 278

Michael A. FRIEND, Administrator of the Estate of Helen Friend, deceased, Michael A. Friend, Administrator of the Estate of George Friend, deceased, Margie Friend individually and as daughter of Helen Friend, Georgina Friend and Michael Knight, Plaintiffs-Appellants, v.Alfred Jack CAMPBELL, National Indemnity Company, and Wolverine Insurance Company, jointly and severally, Defendants and Edward Nasser and Marjorie Nasser, husband and wife, d/b/a Nasser's Bar, and Sophie H. Bond, d/b/a Pike's Bar, jointly and severally, Defendants-Appellees.

Docket No. 49252.

Court of Appeals of Michigan.

Dec. 3, 1980.

Rehearing Denied Jan. 21, 1981.

Released for Publication Feb. 20, 1981.

William R. Smith, Marquette, for plaintiffs-appellants.

Michael E. Makinen, Hancock, for Nasser.

Vincent R. Petrucelli, Iron River, for Bond and Pikes Bar.

Before GILLIS, P. J., and BASHARA and CYNAR, JJ.

GILLIS, Presiding Judge.

In this case, plaintiffs sued the defendants for damages resulting from a collision between plaintiffs' vehicle and a vehicle driven by defendantAlfred Jack Campbell.The appellees were sued under the dramshop act, M.C.L. § 436.22;M.S.A. § 18.993, because they allegedly sold intoxicating liquor to Campbell at a time when he was already intoxicated and the sales were a proximate cause of the plaintiffs' injuries.At trial, the jury returned a verdict of no cause of action against the dramshop defendants¹ and plaintiffs appeal as of right.

At trial, plaintiffs requested but were denied ² an instruction which would have required the jury to apportion damages due the plaintiffs by Campbell and the two bars according to their comparative fault.The concept of comparative fault was espoused by plaintiffs as analogous to the doctrine of comparative negligence first adopted in Michigan in Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511(1979).Plaintiffs now assert that the refusal to give the instruction was reversible error.³

Under the dramshop act, M.C.L. § 436.22;M.S.A. § 18.993, an injured person has a statutory cause of action against anyone who unlawfully sells intoxicating liquor to a visibly intoxicated person and the sale is a proximate cause of the injury or death.Four elements must be proven in such a case: "(1) the immediate tortfeasor was an intoxicated person; (2)defendants, or their agents, sold intoxicating liquors to the tortfeasor; (3) as a result of such sale, the tortfeasor continued in an intoxicated condition until the time of the accident; and (4) such intoxication was the cause or contributing cause of plaintiff's injury."Pesola v. Pawlowski, 45 Mich.App. 516, 518-519, 206 N.W.2d 780(1973).

The proofs in a dramshop case do not depend upon the defendant's fault."(T)he basis of liability asserted against defendant tavern owners is purely statutory and does not depend on proof of intentional wrongdoing or negligence.However careful a tavern owner may be, if he makes an unlawful sale that contributes to plaintiff's injury he is fully liable therefor."Duncan v. Beres, 15 Mich.App. 318, 331, 166 N.W.2d 678(1968).

Before 1970, as between a defendant driver and a dramshop defendant, the latter had no right of contribution from the former (and, apparently, vice versa); contribution existed between joint tortfeasors because their liability was premised on a common theory.The dramshop defendant's liability was (and is) statutory; the driver's liability was (and is) grounded in negligence.Virgilio v. Hartfield, 4 Mich.App. 582, 585, 145 N.W.2d 367(1966).As between two or more dramshop defendants, the right of contribution was found to exist, precisely because their equities were (and are) equal: they"are under a common burden, obligation or liability to the plaintiff, statutorily or otherwise imposed or assumed".Duncan v. Beres, 15 Mich.App. 318, 323, 166 N.W.2d 678.

In 1970, the Michigan Supreme Court issued an opinion which seemingly abrogated the rule that no right of contribution existed between one or more dramshop defendants and the intoxicated driver.Moyses v. Spartan Asphalt Paving Co., 383 Mich. 314, 174 N.W.2d 797(1970).In its stead was placed the concept that:

"If the jury believed that both original defendants and the third-party defendants were responsible for the injuries to the plaintiff, then a basis for allowing contribution would exist.All of the defendants would share a common liability to the plaintiff because the type of injuries suffered by the plaintiff are not apportionable amongst the various defendants on any rational basis.Where two or more individuals are responsible for an accident which produces a single indivisible injury, each individual wrongdoer may be held liable for the entire amount of the damages and thus each of the defendants shares a common liability with the others that are also responsible for the injury."Caldwell v. Fox, 394 Mich. 401, 420, fn. 5, 231 N.W.2d 46(1975), citingMoyses, 383 Mich. 314, 330, 174 N.W.2d 797.

Moyses was subsequently cited in Herrera v. Voris, 365 F.Supp. 744, 745-747(E.D.Mich., 1973), aff'd. sub. nom.Frank v. Voris, 503 F.2d 1023(C.A.6, 1974), for the proposition that a driver defendant may seek contribution from the tavern which he claimed illegally sold the liquor to him.The Sixth Circuit specifically stated that Moyses superceded Virgilio v. Hartfield, supra, on this issue.503 F.2d 1023, 1024-1025.

No Michigan cases were found which specifically apply Moyses in the context of a dramshop case.But see, Putney v. Gibson, 94 Mich.App. 466, 479-481, 486, 289 N.W.2d 837(1979), lv. gtd. 408 Mich. 897(1980), where another panel of this Court recently stated that a dramshop defendant cannot require contribution from the intoxicated driver defendant.This statement was made on the basis of Duncan v. Beres, supra, andVirgilio v. Hartfield, supra.Neither Moyses, supra, nor Herrera v. Voris, supra, were referred to in the opinion.

While Michigan law still provides that neither the intoxicated driver nor the dramshop defendants may seek contribution from the other for damages assessed in a dramshop case, Putney v. Gibson, supra, even if we were to follow the Federal courts' interpretation of Moyses, supra, the instant plaintiffs' position would not be enhanced.As noted by the Court in Caldwell, the right to contribution as enunciated in Moyses exists because each defendant, regardless of the theory on which he is sued, is responsible for an accident which produced a "single indivisible injury", an injury which is "not apportionable amongst the various defendants on any rational basis".394 Mich. 401, 420, fn. 5, 231 N.W.2d 46.The logical extension of the foregoing statement is that, where the right to contribution is founded on such a rationale, the plaintiff is not entitled to an instruction which would require the jury to apportion damages on the basis of comparative fault.

Our conclusion is further strengthened by the recognition that fault is not an issue in dramshop cases, ⁴Duncan v. Beres, supra, and that contribution is, by statute, effected on a pro rata basis.M.C.L. § 600.2925a: M.S.A. § 27A.2925(1).See, in this regard, Sexton v. American Aggregates, 60 Mich.App. 524, 537, 231 N.W.2d 449(1975), where another panel of this Court noted that the statutory provision for pro rata contribution between joint tortfeasors "would seem to preclude our adoption of the 'relative fault' theory" espoused by the defendant therein.

The specific question presented by plaintiffs is obviously one of first impression in Michigan.In a related area of the law, however, this Court recently held that "(t)he doctrine of comparative negligence does not mandate abandonment of joint and several liability".Weeks v. Feltner, 99 Mich.App. 392, 297 N.W.2d 678(1980).In Weeks, plaintiff alleged that injuries she sustained in a sexual assault in her apartment were proximately caused by the negligence of the owners of the apartment complex and the realty company which managed the complex.Defendants requested but were denied a jury instruction which would have required an apportionment of the damages between the defendants.The Court rejected defendants' argument that "comparative negligence requires that a defendant only be liable to the extent of his own wrongdoing, not only in relation to the plaintiff, but in relation to other defendants as well".99 Mich.App. 395, 297 N.W.2d 678.Rather, the Court ruled that the doctrine of comparative negligence is primarily directed at insuring "fair and adequate compensation for injured pl...