King v. Partridge, Docket No. 2475

• Citation: 157 N.W.2d 417,9 Mich.App. 540
• Decision Date: 19 March 1968
• Docket Number: No. 2,Docket No. 2475,2
• Parties: Marcus KING, Guardian of the Estate of Rhonda King, and Marcus King and Claudine King, Plaintiffs-Appellees, v. Pauline PARTRIDGE, formerly Pauline Lockard, and Virginia Payne, Individually and d/b/a Payne's Bar, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 417

157 N.W.2d 417

9 Mich.App. 540

Marcus KING, Guardian of the Estate of Rhonda King, and Marcus King and Claudine King, Plaintiffs-Appellees, v. Pauline PARTRIDGE, formerly Pauline Lockard, and Virginia

Payne, Individually and d/b/a Payne's Bar,

Defendants-Appellants.

Docket No. 2475.

Court of Appeals of Michigan, Division No. 2.

March 19, 1968.

Released for Publication April 10, 1968.

Leave to Appeal Denied July 24, 1968.

Caplan & Barsky, Detroit, for appellant; Edward M. Miller, Birmingham, of counsel.

Anthony J. Mansour, Robert A. Collins, Flint, for appellee; Donn D. Parker, Flint, of counsel.

Before T. G. KAVANAGH, P.J., and FITZGERALD and McGREGOR, JJ.

T. G. KAVANAGH, Presiding Judge.

This is an appeal from a finding of the trial court that the defendant retail liquor licensee, Virginia Payne, was liable under the Michigan civil damage act, C.L.S. 1961, § 436.22 (Stat.Ann.1968 Cum.Supp. § 18.993), for the intoxication of and injuries caused by her barmaid, Pauline Partridge.

On February 3, 1962, Marcus King, his wife Claudine and daughter Rhonda were injured when the car in which they were riding was struck head on by a car driven by Pauline Partridge, a barmaid at Payne's Bar. Action was started by the Kings against Pauline Partridge and Virginia Payne, owner of Payne's Bar. Judgment was entered for plaintiffs.

Defendant Patridge did not defend the suit and this appeal is prosecuted by defendant Payne only. She asserts that the trial court erred in holding that the Michigan civil damage act, C.L.S.1961, § 436.22 (Stat.Ann.1968 Cum.Supp. § 18.993), permitted recovery against a bar owner for damages caused by an intoxicated employee of the bar owner who had served herself intoxicating beverages while working at the bar.

The appellant contends that, absent proof that the employee served herself the owner's liquor with permission, such service must be held to be a wrongful taking which could not render the bar owner liable under the civil damage act.

The pertinent part of the act reads: C.L.S.1961, § 436.22 (Stat.Ann.1968 Cum.Supp. § 18.993):

'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 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.'

Thus the act is concerned with the 'unlawful selling, giving or furnishing.' We agree with appellant that it is not intended to apply to a wrongful taking of intoxicants. We cannot, however, agree that under the circumstances of this case the taking by the employee must be held to be wrongful. Rather than presume the employee violated orders, we feel she should be presumed to have followed them; hence her taking, in the absence of proof to the contrary, should be regarded as a taking with the knowledge and consent of the owner. This, then, would be a furnishing or giving and, if the employee be intoxicated, unlawful under the act. The trial court's holding was completely in accord with the responsibilities attaching to a master-servant relationship where an 'employer, who leaves to his subordinates a discretion which they abuse, is responsible as if he had approved their action.' Smith v. Webster (1871), 23 Mich. 298, 299.

Appellants next contend that the trial court erred in its findings, asserting on appeal that plaintiffs offered no proof to support their case and showed no causal connection between the barmaid's alleged intoxication and the injuries suffered.

At the trial, plaintiff presented witnesses who testified as to Mrs. Partridge's activities...