Larabell v. Schuknecht
| Decision Date | 03 April 1944 |
| Docket Number | No. 35.,35. |
| Citation | 14 N.W.2d 50,308 Mich. 419 |
| Parties | LARABELL v. SCHUKNECHT et al. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Suit by Clayton C. Larabell, Sr., against Fredericka Schuknecht and another to recover ordinary and exemplary damages for the death of plaintiff's minor son which allegedly was due to a violation of the liquor law by named defendant. Verdict and judgment for plaintiff, and defendants appeal.
Judgment reversed and cause remanded for new trial.
Appeal from Circuit Court, St. Clair County; Fred W. George, judge.
Before the Entire Bench.
Robert E. Plunkett, of Detroit, for appellants.
Watson & Inman, of Port Huron, for appellee.
Plaintiff as father of a deceased minor brought suit against Fredericka Schuknecht, herein called the defendant, and the American Bonding Company, the surety on her bond, claiming that his son's death was due to a violation of the liquor law by the defendant who ran the tavern. Liability is claimed under section 22 of Act No. 8, Pub.Acts 1933, Extra Session (Stat.Ann. § 18.993). On June 28, 1942, plaintiff's decedent, almost 18 years of age, accompanied by two other young men over 21 years of age, all residing in Algonac, Michigan, went to Detroit. After dinner they went to a theatre and then drove back home. They stopped at the Schuknecht tavern near Algonac, Michigan, at 11:30 p. m. It was shown that defendant sold each of the boys two and one-half glasses of beer. The boys then went to the Tassie tavern, also not far from Algonac, and there each of them was served with three bottles of beer. They remained at the Tassie tavern until its closing time about 2 a. m. As they started for their car, the path led through a wooden arch-way consisting of two upright posts with an eight-inch beam on top of the posts about nine feet from the ground. Plaintiff's decedent leaped in the air, caught the cross-beam, swung on it and jumped off. The other boys who were shorter in stature were not able to perform this feat. Plaintiff's decedent then attempted it a second time. The swinging on the beam evidently moved it off the upright posts and as plaintiff dropped to the ground, the beam fell upon his head and crushed his skull. He died shortly thereafter. Plaintiff began suit against defendant and her bonding company and also against the owners of the Tassie tavern and their bonding company. The suit was discontinued as to defendant and her bonding company and the instant suit was begun against them alone. The suit against the Tassies and their bonding company was dismissed upon the payment to the plaintiff of the sum of $1,800 in consideration of a covenant not to sue the Tassies and their bonding company. Defendant in the instant suit did not set forth this agreement not to sue in the original answer, but at the opening of the case in the absence of the jury, the attorneys for defendant moved the court that they be permitted to amend their answer so as to show as a special defense that the sum of $1,800 had been paid in full compensation for the damages or in mitigation of any damages that might be recovered for the injury. In the declaration in the instant case, it was sought to recover ordinary and exemplary damages for the entire injury.
Plaintiff's attorney stated that he made no objection as to the timeliness of the motion but insisted that it be denied for legal reasons. The trial judge stated that there was only one case before him and what happened in another case, in which the defendants were not parties, had nothing to do with the issue in the case being tried, and he therefore denied the motion. No testimony was introduced showing the payment of $1,800 from the Tassies and their bonding company. The jury awarded a verdict of $1,500 against defendant. The judge denied a subsequent motion by defendants asking for the satisfaction of the judgment of $1,500 in the instant case on the ground, as the jury found, that the entire damage for the injury was only $1,500 and plaintiff had already received $1,800 more than the amount of the judgment for damages for the same injury. Defendants appeal, claiming that they should have been permitted to show the receipt of the $1,800 in mitigation of the damages or in full satisfaction thereof.
Under section 22 of Act No. 8, Pub.Acts 1933, Extra Session (Stat.Ann. § 18.993), suit may be brought against any person or persons who caused or contributed to the intoxication or to the injury resulting...
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