Jones v. Bourrie

• Decision Date: 07 March 1963
• Docket Number: No. 16,16
• Citation: 120 N.W.2d 236,369 Mich. 473
• Parties: Kenneth Y. JONES, Plaintiff and Appellant, v. Alta E. BOURRIE, d/b/a Yellow Jacket Bar, Defendant and Appellee.
• Court: Michigan Supreme Court

Page 236

120 N.W.2d 236

369 Mich. 473

Kenneth Y. JONES, Plaintiff and Appellant, v. Alta E. BOURRIE, d/b/a Yellow Jacket Bar, Defendant and Appellee.

No. 16.

Supreme Court of Michigan.

March 7, 1963.

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

Patterson, Patterson & Barrett, by Gerald G. White, Pontiac, for defendant and appellee.

Before the Entire Bench.

KELLY, Justice.

Plaintiff filed his declaration on March 21, 1962, alleging violation of the statute in serving liquor (on January 2 and 3, 1960) to one David Lee Wicker when said Wicker was in an intoxicated condition. Plaintiff was a guest passenger in the Wicker automobile and on the morning of January 3, 1960, after leaving defendant's establishment, Wicker's automobile was involved in an accident. Plaintiff suffered serious injuries and brought this action against defendant under C.L.1948, § 436.29 (Stat.Ann.1957 Rev. § 18.1000), 'as well as the common law.'

C.L.1948, § 436.29 provides:

'No vendor shall give away any alcoholic liquor of any kind or description at any time in connection with his business except manufacturers for consumption on the premises only. On vendor shall sell any alcoholic liquor to any person in an intoxicated condition.'

Defendant moved to dismiss, claiming 'that our legislature created the only civil cause of action for illegal sale of intoxicants by Act No. 8, § 22, P.A.1933 (Ex.Sess.) as amended by Act No. 281, P.A.1937. MSA 18.993 [Comp.Laws 1948, § 436.22]:

'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 any intoxicating liquor, shall have a right of action,'

and, also, because the declaration was filed over 2 years after the claimed illegal sale plaintiff was barred by the provisions of the above statute which further provides: 'Any action shall be instituted within 2 years after the happening of the event.' Pub.Acts 1958, No. 152.

The court granted defendant's motion to dismiss, and plaintiff appeals claiming the court erred in answering in the negative the following question:

'Does the conduct proscribed by MSA 18.1000 coupled with the language of MSA 18.1015, which provides both a criminal and civil remedy for the selling of alcoholic liquor in violation of the Michigan liquor control act, give rise to a separate statutory duty and action apart from MSA 18.993, as amended?' C.L.1948, § 436.44 (Stat.Ann.1957 Rev. § 18.1015) provides:

'Any person engaged in the business of selling or keeping for sale alcoholic liquor in violation of the provisions of this act, whether as owner, clerk, agent, servant or employe, shall be equally liable, as principal, both civilly and criminally, for the violation of the provisions of this act, or any person or principal shall be liable, both civilly and criminally, for the acts of his clerk, servant, agent or employe, for the violation of the provisions of this act.'

Plaintiff contends that because his declaration states a cause of action at common law predicated upon statutory duty, the 3-year statute of limitations for common law negligence applies; that 'In this state it has been held that the violation of a statute is considered negligence per se' (citing Hardaway v. Consolidated Paper Co., 366 Mich. 190, 114 N.W.2d 236, 256); that 'Since MSA 18.993, as amended, is in derogation of the common law, it must be viewed restrictively. Since this is the case and no express language exists which attempts to pre-empt the field, the intent and purpose evident in MSA 18.1000 and 18.1015 should be effectuated.'

Plaintiff emphasizes his theory of recovery at common law on Waynick v. Chicago's Last Department Store, 7 Cir., 269 F.2d 322 (1959); certiorari denied 362 U.S. 903, 80 S.Ct. 611, 4 L.Ed.2d 554. The 7th Court of Appeals found in Waynick that the Michigan liquor control act is probably 'not applicable where a sale of intoxicating...