Holland v. Eaton, s. 20

• Decision Date: 04 May 1964
• Docket Number: 23,Nos. 20,s. 20
• Parties: Shirley HOLLAND, Plaintiff and Appellant, v. Grant EATON, Jr., individually and d/b/a Grand Hotel, et al., Defendants and Appellees. The ESTATE of Roy Robert HOLLAND, Deceased, by Shirley Holland, Administratrix, Plaintiff and Appellant, v. Grant EATON, Jr., individually and d/b/a Grand Hotel, et al., Defendants and Appellees. The ESTATE of Steven HOLLAND, a Minor, by Shirley Holland, his Guardian, Plaintiff and Appellant. v. Grant EATON, Jr., individually and d/b/a Grand Hotel, et al., Defendants and Appellees. The ESTATE of Cheryl HOLLAND, a Minor, by Shirley Holland, her guardian, Plaintiff and Appellant. v. Grant EATON, Jr., individually and d/b/a Grand Hotel, et al., Defendants and Appellees.
• Court: Michigan Supreme Court

Page 892

127 N.W.2d 892

373 Mich. 34

Shirley HOLLAND, Plaintiff and Appellant, v. Grant EATON, Jr., individually and d/b/a Grand Hotel, et

al., Defendants and Appellees.

The ESTATE of Roy Robert HOLLAND, Deceased, by Shirley

Holland, Administratrix, Plaintiff and Appellant, v. Grant EATON, Jr., individually and d/b/a Grand Hotel, et

al., Defendants and Appellees.

The ESTATE of Steven HOLLAND, a Minor, by Shirley Holland, his Guardian, Plaintiff and Appellant. v. Grant EATON, Jr., individually and d/b/a Grand Hotel, et

al., Defendants and Appellees.

The ESTATE of Cheryl HOLLAND, a Minor, by Shirley Holland, her guardian, Plaintiff and Appellant. v. Grant EATON, Jr., individually and d/b/a Grand Hotel, et

al., Defendants and Appellees.

Nos. 20, 23.

Supreme Court of Michigan.

May 4, 1964.

James A. Brisbois, Saginaw, for plaintiffs and appellants, Peter F. Cicinelli, Eugene D. Mossner, Saginaw, of counsel.

Richard F. Biringer, Coldwater, for defendants-appellees, Grant Eaton, Jr., Arnold K. Walkup and A. Donald Walkup.

Before the Entire Bench.

KAVANAGH, Chief Justice.

In these 4 cases, consolidated on appeal, plaintiffs appeal from orders granting defendants' motions to dismiss. The grounds for these motions were that the actions were barred by the 2-year limitation in the Michigan civil damage act ¹ on the time within which suits under the act must be brought.

Plaintiff Shirley Holland and the estates of her 3 minor children commenced these actions in Branch circuit court on February 14, 1962, by filing declarations alleging joint and several liability of defendant liquor licensees under the civil damage act, popularly known as the dram shop act, for injuries incurred in an automobile collision which allegedly occurred on February 8, 1960.

The declarations assert as the basis for defendants' liability the following allegations: Plaintiff Shirley Holland and 2 of her minor children, ages 2 and 4, were injured and 1 of her children, age 6, was killed as a result of a collision on highway U S 27 in Branch county between the car in which they were traveling and a car driven by one Harold Raymond Powers of Angola, Indiana. The Immediate cause of the collision was allegedly the negligent crossing of the center line of the highway by the Powers auto.

Plaintiffs allege that at the time of the accident Powers was intoxicated, that his intoxication was a proximate cause of the collision, and that his intoxication was caused and intensified by alcoholic beverages served him by defendant bar owners contrary to the provisions of the dram shop act.

Prior to the instant actions, a suit brought by plaintiff Shirley Holland in Saginaw circuit court on June 13, 1960, against Powers, to which the present defendants were joined as parties defendant on motion of plaintiff, was dismissed as to the present defendants in October 1961 and March 1962 without prejudice on grounds of lack of valid service on and lack of jurisdiction over the present defendants, none of whom met the validity of service test of C.L.S. 1956, § 613.27 (Stat.Ann.1959 Cum.Supp. § 27.757), of being residents of the county in which suit was brought. Defendant Powers, apparently validly served as a nonresident motorist under C.L.S. 1961, §§ 257.403-257.403a, as amended (Stat.Ann.1960 Rev. §§ 9.2103-9.2103(1)), was dismissed on stipulation and not made a party to the second suit because of 'an amicable adjustment of the differences between plaintiff Shirley Holland and Harold Raymond Powers.'

In the instant suits, defendants, without answering the declarations, moved to dismiss on the grounds that plaintiffs, having commenced suit 2 years and 6 days after the collision, were precluded from recovery by the 2-year limitation period added to the dram shop act by legislative amendment in 1958. ² The provision reads:

'Any action shall be instituted within 2 years after the happening of the event.'

On objection to the motions to dismiss and on appeal, plaintiffs admit that the usual rule is that a limitation period contained in a statute creating a right of action is construed as a limitation on the right itself. Bement v. Grand Rapids & Indiana Railway Co., 194 Mich. 64, 160 N.W. 424, L.R.A.1917E, 322; Bigelow v. Otis, 267 Mich. 409, 255 N.W. 270. The effect of this is that the various exceptions or savings provisions of the general statute of limitations on personal actions ³ do not effect a tolling of the limitation period as they do in application to the general statute of limitations, which is considered not a limitation of right but one only of remedy. Plaintiffs argue, however, that for various reasons the several savings provisions do apply to the present cases.

It can be said at the outset of this discussion that all 4 of these actions would have qualified under various of the savings provisions in effect at the time if these provisions were applicable. The mother's action was commenced within 1 year after her original suit was dismissed, not on the merits, as required by C.L.1948, § 609.19 (Stat.Ann. § 27.611). The suits by the estates of the 2 surviving children, through their guardian (mother), were brought within the period of their minority plus the particular statutory period as required by C.L.1948, § 609.15 (Stat.Ann. § 27.607). The suit by the estate of the deceased child was instituted within 2 years after the date of granting of letters testamentary (September 22, 1961), as required by C.L.1948, § 609.18 (Stat.Ann. § 27.610).

It is true, as plaintiffs suggest, that prior to the 1958 insertion of a time limitation in the dram shop act, the general statute of limitations, with its attendant savings provisions, as applicable to tort actions, effected the only statutory time limitation on suits under the dram shop act. Plaintiffs insist that, for reasons of public policy and on the strength of certain rules of statutory construction, the proper interpretation of the 1958 amendment leads to the conclusion that the legislature intended to remove the dram shop act from application of the general statute of limitations only to the extent of the basic statutory period (thereby reduced from 3 to 2 years), and not in derogation of the equity-dictated remedy-saving provisions.

Policy considerations in view of changing circumstances could be strongly determinative of this Court's direction, as recently they were in a New Jersey case, ⁴ in considering abrogation of the commonlaw rule of lack of liability of liquor licensees for injuries to third persons or their property by an intoxicated person. Since, however, the legislature has acted in the area...