Genesee Merchants Bank & Trust Co. v. Bourrie

• Decision Date: 10 May 1965
• Docket Number: No. 77,77
• Citation: 134 N.W.2d 713,375 Mich. 383
• Parties: GENESEE MERCHANTS BANK & TRUST COMPANY, Special Administrator of the Estate of Duane B. Owings, Deceased, Plaintiff and Appellant, v. Alta E. BOURRIE, d/b/a Yellow Jacket Bar, Michigan Surety Company, Homer E. Bush, d/b/a 1220 Bar, Ohio Casualty Insurance Company, and Arthur P. Makuch, d/b/a Red Rooster, Defendants and Appellees.
• Court: Michigan Supreme Court

Page 713

134 N.W.2d 713

375 Mich. 383

GENESEE MERCHANTS BANK & TRUST COMPANY, Special Administrator of the Estate of Duane B. Owings Deceased, Plaintiff and Appellant, v. Alta E. BOURRIE, d/b/a Yellow Jacket Bar, Michigan Surety Company, Homer E. Bush, d/b/a 1220 Bar, Ohio Casualty Insurance Company, and Arthur P. Makuch, d/b/a Red Rooster Defendants and Appellees.

No. 77.

Supreme Court of Michigan.

May 10, 1965.

Beagle, Benton & Hicks, by C. Robert Beltz, Flint, for plaintiff and appellant.

Patterson & Patterson & Barrett, by Gerald G. White, Pontiac, for defendant Alta E. Bourrie, d/b/a Yellow Jacket Bar.

Before the Entire Bench, except SMITH, J.

KAVANAGH, Chief, justice.

Plaintiff's declaration of February 14, 1962, alleged defendant liquor licensees' liability under the Michigan dram shop act, ¹ so called, for the death of plaintiff's decedent. Plaintiff appeals as of right from grant of defendants' motions to dismiss filed after defendants had, by answer, denied liability.

On January 9, 1960, decedent allegedly was intoxicated when served alcoholic beverages by defendant bar owners. He was killed that evening when his car overturned as he was driving, admittedly negligently (speeding), in Genesee county. The aggravated intoxication was allegedly a proximate cause of the death.

The action was started on January 9, 1962, by praecipe and summons issued in the name of plaintiff as special administrator of the estate of decedent. The declaration, filed on February 14, 1962, was in plaintiff's name as special administrator of the estate of decedent and as guardian of the estates of decedent's two minor children.

Two of the defendant bar owners separately moved to dismiss for failure to state a cause of action because decedent was not innocent of wrongdoing. The third joined verbally in these motions to dismiss. Defendants also filed motions to strike, one aimed at plaintiff's standing as guardian on grounds that praecipe and summons did not assert a claim by plaintiff in that capacity, and one aimed at the naming of the minor children on the multiple grounds of misjoinder of separate causes of action and invalidity because of failure to amend the summons. The first of this series of motions was filed April 3, 1962.

On April 5, 1962, plaintiff filed motion to amend the summons and praecipe to conform to the declaration.

All motions were argued April 9, 1962, and the matter was taken under advisement. The court did not issue and sign the order granting defendants' motions to dismiss until December 27, 1962, and it was not filed until January 10, 1963. On January 18, 1963, plaintiff filed claim of appeal.

On February 21, 1963, plaintiff filed a motion for delayed rehearing based on the fact that the suit was alive during the advent of the new General Court Rules, which dictated a different result.

On June 17, 1963, the trial court filed its opinion denying the motion for a rehearing, the denial being predicated on the court's lack of jurisdiction to entertain such motion during the pendency of an appeal.

On stipulation of the parties, the trial court has since ordered this appeal dismissed as to two of the three defendant bar owners. Hence, the only appellees remaining are Alta E. Bourrie, d/b/a Yellow Jacket Bar, and her statutory surety, joinable because jointly and severally liable.

The first issue to be determined is the applicability to this case of the General Court Rules of 1963. We ruled in Twomley v. Arnold, 372 Mich. 230, 125 N.W.2d 860, that a case dismissed by order signed in December 1962 was thereby disposed of under the former practice despite the delay in entry of the order until January 1963. GCR 1963, 14, makes the new rules effective January 1, 1963, and applicable to all proceedings subsequent to that date in actions brought before that date, unless it would not be feasible or would work injustice. Since a final order had been signed in this case before the effective date of GCR 1963, the latter rules do not govern any proceedings in this case.

Plaintiff urges that its motion for rehearing was erroneously denied, and cites in support of its position Janes v. Hope Evangelical United Brethern Church, 359 Mich. 561, 103 N.W.2d 420. That case quoted Miles v. Harkins, 335 Mich. 453, 455, 56 N.W.2d 254:

"We have many times held that Court Rule No. 56, § 1, does not nullify Court Rule No. 48 relative to the trial court's discretion to grant a rehearing." (359 Mich. p. 564, 103 N.W.2d p. 422)

Both of those cases were equity cases and involved motions under old Court Rule No. 48, which would not apply to this motion, made under the former practice in a law case. Therefore, the trial court did not err in ruling that old Court Rule No. 56, § 1, applied to vest exclusive jurisdiction in this Court.

In answer to plaintiff's claim that the trial court erred in refusing to permit the substitution as a real party in interest of the widow of plaintiff's decedent, defendants indicate that the substitution of the widow was not moved for until after the order of dismissal, on the motion for rehearing. Since the record reveals no earlier request, any right to such substitution has been waived.

Plaintiff's declaration and motion to amend each indicates that the action is being brought under the death by wrongful act statute, ² and neither mentions nor cites the dram shop act. ³

Plaintiff claims that the action could properly be brought only under the wrongful death act by reason of the provision added by the 1939 amendment ⁴ as the last sentence of the act:

'All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act.' (Emphasis supplied.)

Plaintiff was not precluded by the above provision from instituting an action under the dram shop act which provides a distinct statutory right of action directly in favor of 'every wife, husband, child, parent, guardian or other persons who shall be injured in person or property means of support or otherwise, by an intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons and intoxicating liquor.' Under the dram shop act the personal representative of the decedent is not a proper party plaintiff.

The dram shop act does not depend at all upon any condition such as specified in section 1 of the death act, that the wrongful act is 'such as would, if death had not ensued have entitled the party injured to maintain an action...