Hasty v. Broughton

• Decision Date: 04 May 1984
• Docket Number: Docket No. 72178
• Parties: Cary HASTY, Plaintiff-Appellant, v. Zona BROUGHTON, d/b/a Maple Tavern, Defendant-Appellee. 133 Mich.App. 107, 348 N.W.2d 299
• Court: Court of Appeal of Michigan — District of US

Page 299

348 N.W.2d 299

Cary HASTY, Plaintiff-Appellant, v. Zona BROUGHTON, d/b/a Maple Tavern, Defendant-Appellee.

Docket No. 72178.

133 Mich.App. 107, 348 N.W.2d 299

Court of Appeals of Michigan.

Submitted Dec. 12, 1983.

Decided March 21, 1984.

Released for Publication May 4, 1984.

[133 MICHAPP 108] Rose & Rose by James M. Rose, Montague, for plaintiff-appellant.

Kaufman, Payton & Kallas by Frank S. Spies, Grand Rapids, for defendant-appellee.

Before HOLBROOK, P.J., and BRONSON and TAHVONEN, ^* JJ.

BRONSON, Judge.

Plaintiff appeals as of right a circuit court order dismissing plaintiff's complaint. On November 24, 1982, defendant sold beer to plaintiff, then a minor and visibly intoxicated. After leaving defendant's premises, plaintiff was injured in an auto accident.

Plaintiff filed a complaint against defendant on February 11, 1983, under the provisions of the dramshop act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993. On June 9, 1983, the circuit court granted accelerated judgment to defendant. The circuit court ruled that [133 MICHAPP 109] the amended dramshop act did not provide plaintiff with a cause of action.

The dramshop act, M.C.L. Sec. 436.22; M.S.A. Sec. 18.993, was amended in 1980. Prior to amendment, the statute provided:

"Sec. 22. As a condition precedent to the approval and granting of any license, the following persons shall make, execute and deliver to the commission a bond or bonds, said bond or bonds to be executed by any surety company or companies authorized to do business in the state or in the discretion of the commission by approved personal surety running to the people of the state, in the following amounts:

* * *

"(2) Retailers of beer or wine for consumption on the premises, a bond or bonds in the sum of not less than $3,000.00 nor more than $5,000.00, in the discretion of the commission; retailers of spirits for consumption on the premises, a bond or bonds in the sum of not less than $5,000.00 nor more than $10,000.00, in the discretion of the commission, conditioned that any such retailer or specially designated merchant will not directly or indirectly, by himself, his clerk or agent or servant at any time sell, furnish, give or deliver any alcoholic liquor to a minor except as provided in this act, nor to any adult person whatever who is at the time visibly intoxicated, and that he will pay all actual damages that may be adjudged to any person or persons, including those hereinafter mentioned, ¹ for injuries inflicted [133 MICHAPP 110] upon him or them either in person or property or means of support or otherwise, by reason of his selling, furnishing, giving or delivering any such alcoholic liquor." (Footnote added.)

The Michigan Supreme Court consistently interpreted the old statute to preclude the intoxicated person from bringing an action for his or her own injuries. Kangas v. Suchorski, 372 Mich. 396, 126 N.W.2d 803 (1964); Morton v. Roth, 189 Mich. 198, 155 N.W. 459 (1915).

"Doubtless the [dramshop] statute might have extended its benefits to the intoxicated person, but if such were the intent it is surprising that it was not distinctly and unequivocally expressed. It was as easy to designate the party himself as it was his wife, child, guardian, etc. Moreover the man himself may generally be supposed to be injured in some degree by intoxication, so that his case would furnish the most frequent occasion for a suit if he should see fit to resort to legal proceedings. It would be very remarkable that a statute in enumerating the persons who should share in its benefits should omit to name the very one who would most often be entitled to its aid." Brooks v. Cook, 44 Mich. 617, 618-619, 7 N.W. 216 (1880).

The theory that the intoxicated person, as a "noninnocent party", is barred from recovery has been extended to deny recovery by injured third persons who actively participated in the events leading to the intoxication of the individual responsible for the third person's injuries. Kangas v. Suchorski, supra; Morton v. Roth, supra; Gregory v. Kurtis, 108 Mich.App. 443, 310 N.W.2d 415 (1981); Dahn v. Sheets, 104 Mich.App. 584, 305 N.W.2d 547 (1981), lv. den. 412 Mich. 928 (1982).

In 1980 the Legislature amended the bonding requirements provision in the dramshop act. The above-quoted subsection was also amended as follows:

[133 MICHAPP 111] "(3) A retail licensee shall not directly or indirectly, individually or by a clerk, agent, or servant sell, furnish, give, or deliver alcoholic liquor to a minor except as provided in this act, nor to a person who is visibly intoxicated. A retail licensee who violates this subdivision shall pay all actual damages that may be awarded to a person for injuries inflicted upon the person, the person's property or means of support, or otherwise resulting from the selling, furnishing, giving, or delivering of alcoholic liquor to the person." M.C.L. Sec. 436.22(3); M.S.A. Sec. 18.993(3) (emphasis indicates amended language).

Subsection 5 was amended to provide:

"A wife, husband, child, parent, guardian or other person injured in person, property, means of support, or otherwise, by a visibly intoxicated person by reason of the unlawful selling, giving, or furnishing of intoxicating liquor to the person, if the sale is proven to be a proximate cause of the injury or death, shall have a right of action in his or her name against the person who by the selling, giving, or furnishing the liquor has caused or contributed to the intoxication of the person or who has caused or contributed to the injury." M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5) (emphasis indicates amended language).

In cases decided after the effective date of the amendment, the appellate courts have not specifically addressed the statute as amended. In Cornack v. Sweeney, 127 Mich.App. 375, 339 N.W.2d 26 (1983), and Lucido v. Apollo Lanes & Bar, Inc., 123 Mich.App. 267, 333 N.W.2d 246 (1983), lv. den. 417 Mich. 1087 (1983), this Court held the "noninnocent rule" applied to intoxicated minors. In Cavalier Ins. Corp. v. Monroe Boat Club, 122 Mich.App. 268, 332 N.W.2d 464 (1982), lv. den. 417 Mich. 1078 (1983), this Court reaffirmed the rule that the intoxicated person has no right of action under the dramshop act. All three cases interpreted the statute as it read prior to the 1980 amendment.

[133 MICHAPP 112] Plaintiff argues that the amended subsection of the dramshop act allows the noninnocent intoxicated person to seek recovery for his or her own injuries. We disagree. Case law precedent, rules of statutory construction, and public policy refute plaintiff's interpretation.

Plaintiff focuses on the following amended language:

"A retail licensee who violates this subdivision shall pay all actual damages that may be awarded to a person for injuries inflicted upon the person, the person's property or means of support, or otherwise resulting from the selling, furnishing, giving, or delivering of alcoholic liquor to the person." (Emphasis indicates amended language.)

The corresponding portion of the old statute provided that retailers violating the act:

"[W]ill pay all actual damages that may be adjudged to any person or persons, including those hereinafter mentioned, for injuries inflicted upon him or them either in person or property or means of support or otherwise, by reason of his selling, furnishing, giving or delivering."

Two apparent purposes of the amendment were to remove gender-specific language and to simplify the grammatical structure of the subsection. Plaintiff urges that statutory construction reveals a substantive change in the law. However, the statutory analysis suggested by plaintiff could just as well have been used to construe the old statute as providing the intoxicated person a right of recovery. Indeed, such an analysis was advanced by plaintiff's predecessors only to be consistently rejected by our courts. Notwithstanding the addition of the final three words--"to the person"--to the [133 MICHAPP 113] subsection, it would violate clear precedent to now endorse plaintiff's argument.

The...