Hylo v. Mich. Sur. Co.

• Decision Date: 12 November 1948
• Docket Number: No. 39.,39.
• Parties: HYLO v. MICHIGAN SURETY CO.
• Court: Michigan Supreme Court

322 Mich. 568

34 N.W.2d 443

HYLO

v.MICHIGAN SURETY CO.

No. 39.

Supreme Court of Michigan.

Nov. 12, 1948.

OPINION TEXT STARTS HERE Appeal to Supreme Court from Circuit Court, Alger County; Herbert W. Runnels, Judge.

Suit for wrongful death in an automobile accident by Josephine Hylo against Michigan Surety Company, a Michigan corporation. Judgment for plaintiff and defendant appeals.

Judgment affirmed.

Before the Entire Bench.

George S. Baldwin, of Munising, and Roscoe W. Baldwin, of Marquette, for plaintiff-appellee.

Shields, Ballard, Jennings & Bishop, of Lansing, for defendant-appellant.

BOYLES, Justice.

The plaintiff Josephine Hylo brought this suit against the defendant Michigan Surety Company to recover damages claimed to have been suffered by reason of the wrongful killing of her father Martin Hylo, October 7, 1944, by an automobile driven by one Virgil Wright while Wright was in an intoxicated condition. It is conceded that Wright was intoxicated at the time of the accident, that he negligently operated his automobile on the wrong side of a public highway, ran into and injured Martin Hylo causing his death. The defendant surety company is the surety on the statutory bonds of two different tavern keepers duly licensed to sell intoxicating liquors on the premises. The plaintiff, claiming that she had been injured in her property and means of support by reason of the negligent killing of her father and the loss of his wages and contributions, brought suit against said defendant as surety on the bonds of the two tavern keepers who are alleged to have unlawfully sold the intoxicating liquor to Virgil Wright which caused or contributed to his intoxication and the resulting damages.

The case was tried by jury which returned a verdict of $4,250 for the plaintiff. From the judgment entered thereon the defendant appeals. The questions urged for reversal involve the construction of certain statutes.

The provisions of the so-called civil damage act¹ on which plaintiff relies for recovery of damages, in so far as they apply to the instant case, are as follows:

‘* * * 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 of furnishing to any such persons any intoxicating liquor, shall have a right of action in his or her name against the person who shall by such selling or giving of any such liquor have caused or contributed to the intoxication of said person or persons or who shall have caused or contributed to any such injury, and the principal and sureties to any bond given under this law shall be liable, severally and jointly, with the person or persons selling, giving or furnishing any spirituous, intoxicating or malt liquors as aforesaid’.

‘As a condition precedent to the approval and granting of any license, and annually thereafter, the following persons shall make, execute and deliver to the commission a bond or bonds, * * * in the following amounts:

‘1. * * *

‘2. * * * retailers of spirits for consumption on the premises, a bond or bonds in the sum of not less than $5,000 nor more than $10,000, 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 intoxicated, and that he will pay all damages actual and exemplary 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 any such alcoholic liquor.'

The bonds which were furnished by the defendant surety company for the two tavern keepers involved were each in the sum of $5,000, and a part of the conditions in each bond was as follows:

‘Now Therefore the Conditions of this Obligation is such that if the principal shall well and truly keep and perform all and singular the terms and conditions of his contract of license and/or permit or permits, and any modifications thereof, * * * and

‘Conditioned Further, that if the said principal will not directly or indirectly, by himself, his elerk, agent or servant at any time sell, furnish, give or deliver any alcoholic liquor to a minor, nor to any adult person who is at the time intoxicated, and that if the said principal will pay all damages, actual and exemplary that may be adjudged to any person or persons for injuries inflicted upon such person or persons either in person or in property or means of support or otherwise, by reason of the said principal, selling, furnishing, giving or delivering any such alcoholic liquor, then this obligation shall be void; otherwise to remain in full force and effect.'

The three questions urged by appellant for reversal are (1) Does the act confer upon an adult daughter a cause of action for the death of her father caused by an intoxicated person, (2) Under the act, must the plaintiff, in order to recover damages from the surety, prove that there was an unlawful sale of intoxicating liquor-i. e., a sale to a person who was intoxicated at the time of such sale, and (3) Was the verdict contrary to the great weight of the evidence.

(1) The plaintiff was 22 years of age. The statute gives a right of action for damages to ‘every * * * child * * * or other persons who shall be injured in person or property, means of support or otherwise, * * *.’ The appellant claims that this should be construed as if it read, ‘every * * * minor child * * *’; and that therefore it does not confer a right of action on an adult ‘child.’ We do not so construe the statute. The plaintiff, although an adult is still the child of her father Martin Hylo. It is conceded that Martin Hylo was Josephine Hylo's father, and it follows that she is his child. Furthermore, appellant ignores that part of the act which gives a right of action for damages to ‘other persons' who shall be injured in person or property, means of support or otherwise. Conceding, arguendo, that the plaintiff is not the ‘child’ of her father Martin Hylo, it would necessarily follow that she came within the designation of an ‘other person,’ under the express wording of the statute. The statute does not limit the right of action to the named persons, or to such persons, as might be legally dependent on Martin Hylo for support. ‘Under the statute giving a right of action to ‘every wife, child, parent, guardian, husband, or other person,’ injured by an intoxicated person, the words ‘or other person’ were intended to cover all persons so injured.' Flower v. Witkovsky (syllabus), 69 Mich. 371, 37 N.W. 364.

See, also, Clinton v. Laning, 61 Mich. 355, 28 N.W. 125;Eddy v. Courtright, 91 Mich. 264, 51 N.W. 887;In re Miller's Estate, 160 Mich. 309, 125 N.W. 2;Heikkala, v. Isaacson, 178 Mich. 176, 181, 144 N.W. 508, 50 L.R.A., N.S., 857; Butzin v. Bonk, 303 Mich. 522, 6 N.W.2d 765.

(2) It is conceded that Virgil Wright was intoxicated when he fatally injured Martin Hylo, shortly before 10 o'clock in the evening of October 7, 1944. One Ted Compton testified that a little after 3 o'clock in the afternoon of said day Virgil Wright, together with said Compton, his cousin, went to ‘Baij's' tavern and that Wright drank ‘about two whiskeys and * * * about two or three beers' while there; that Wright and Compton then went to the other one of said taverns, the ‘Corktown Bar,’ where Wright consumed ‘two or three’ drinks, either beer or whiskey, before Compton left shortly before 5 o'clock; that Virgil Wright remained in said tavern, in a booth, and was in ‘Baij's' tavern when Compton returned to that tavern about 7 o'clock in the evening. At that time Wright's car was still parked at the same place he had left it, about 3 o'clock, when he and Compton first went to Baij's tavern. At about 7:00 or 7:30, Compton testified, Virgil Wright was standing at the bar in Baij's tavern. Compton testified:

‘Q. Did he give any indication of being under the influence of liquor at that time? A. It seemed he was drinking a lot more than he was then. You would know he was drinking. He did not invite me up to the bar for a drink.'

Compton also testified that after he left the first tavern (about 5 o'clock) he went home. He said:

‘Q. Where did you say you went after you left the tavern? A. After I left the tavern I went home.

‘Q. That was after the accident? A. No. After the accident that was when what's his name took me home.

‘Q. After you left the tavern you each had eight or nine drinks? A. Yes.

‘Q. You would feel eight or...