Gray v. Blackman, Docket No. 8769

• Decision Date: 27 January 1971
• Docket Number: Docket No. 8769,No. 1,1
• Citation: 186 N.W.2d 76,30 Mich.App. 212
• Parties: Wayne O'Neal GRAY, Plaintiff-Appellant, v. Orelin BLACKMAN, individually and d/b/a Whitey & Millie's Bar, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 76

186 N.W.2d 76

30 Mich.App. 212

Wayne O'Neal GRAY, Plaintiff-Appellant, v. Orelin BLACKMAN, individually and d/b/a Whitey & Millie's Bar, Defendant-Appellee.

Docket No. 8769.

Court of Appeals of Michigan, Division No. 1.

Jan. 27, 1971.

Released for Publication April 30, 1971.

Balfour Peisner, Detroit, for plaintiff-appellant.

Harry Okrent, Detroit, for defendant-appellee.

Before LESINSKI, C.J., and LEVIN and O'HARA, ^* JJ.

PER CURIAM.

Plaintiff Wayne Gray brought this suit pursuant to the section of the Liquor Control Act commonly referred to as the Dram Shop Act (M.C.L.A. § 436.22 (Stat.Ann.1970 Cum.Supp. § 18.993)), alleging that defendant Orelin Blackman wrongfully served liquor to an intoxicated person who subsequently injured plaintiff. Defendant moved for and was granted summary judgment on the ground that the action was barred by the two year limitation period contained in the act. Plaintiff appeals as of right.

Plaintiff's sole contention on appeal is that the limitations portion of the Dram Shop Act is beyond the scope of the title of the Liquor Control Act (M.C.L.A. § 436.1 et seq. (Stat.Ann.1957 Rev. § 18.971 et seq.)), and is, therefore, unconstitutional. ¹ We do not agree.

The object of the Liquor Control Act, as indicated in its title, is the regulation and control of liquor traffic. Beacon Club v. Kalamazoo County Sheriff (1952), 332 Mich. 412, 52 N.W.2d 165. The civil cause of action created by the act is an exclusive remedy in derogation of the common law. LeGault v. Klebba (1967), 7 Mich.App. 640, 152 N.W.2d 712; Virgilio v. Hartfield (1966), 4 Mich.App. 582, 145 N.W.2d 367. Inclusion of a provision for such civil remedy has been held germane to the title of a prior act controlling and regulating the business of selling intoxicants pursuant to similar requirements of the 1850 Constitution. ² Sisson v. Lampert (1910), 159 Mich. 509, 124 N.W. 513. We find no reason to depart from that ruling.

Since the statute creates a right of action, the limitation period therein contained is to be construed as a limitation on the right itself. Bement v. Grand Rapids & I.R. Co. (1916), 194 Mich. 64, 160 N.W. 424; Holland v. Eaton (1964), 373 Mich. 34, 127 N.W.2d 892. We find the limitation period sufficiently germane and incidental to the creation of the civil remedy to be embraced within the title of the Liquor Control Act. See Loomis v. Rogers (1917), 197 Mich. 265, 163 N.W. 1018; Naudzius v. Lahr (1931), 253 Mich. 216, 234 N.W. 581.

Affirmed. Costs to defendant.

* MICHAEL D. O'HARA, former Associate Justice of the Michigan Supreme Court, appointed by the Supreme Court for the hearing month of December, 1971, pursuant to § 306 P.A.1964, No. 281.

1 Const.1963, art. 4, § 24, provides:

'No law shall embrace more than one object, which shall be expressed in its title.'

2 Const.1850, art. 4, § 20.