LeGault v. Klebba, Docket No. 2488

• Decision Date: 03 October 1967
• Docket Number: No. 2,Docket No. 2488,2
• Citation: 7 Mich.App. 640,152 N.W.2d 712
• Parties: Raymond LeGAULT, Plaintiff, v. Frank KLEBBA, d/b/a Half-Way Tavern, Defendant and Third-Party Plaintiff-Appellant, v. John MAZURE and Emma Mazure, Third-Party Defendants-Appellees, John Gosdzinski and Irene Gosdzinski, jointly and severally, Third-Party Defendants
• Court: Court of Appeal of Michigan — District of US

Page 712

152 N.W.2d 712

7 Mich.App. 640

Raymond LeGAULT, Plaintiff, v.Frank KLEBBA, d/b/a Half-Way Tavern, Defendant and Third-Party Plaintiff-Appellant, v.John MAZURE and Emma Mazure, Third-Party Defendants-Appellees,John Gosdzinski and Irene Gosdzinski, jointly and severally,

Third-Party Defendants.

Docket No. 2488.

Court of Appeals of Michigan, Division No. 2.

Oct. 3, 1967.

Okrent, Baun & Vulpe, Detroit, for appellant Klebba.

Patterson & Patterson, Bay City, for plaintiff LeGault.

Thomas R. McAllister, Bad Axe, for third-party defendants Gosdzinski.

Philip Woodworth, Bad Axe, for appellee Mazure.

Before QUINN, P.J., and McGREGOR and MILLER, ^* JJ.

McGREGOR, Judge.

On a spring evening in 1964, Leonard Gosdzinski allegedly became intoxicated at a private wedding reception, sponsored by the third party defendants, the appellees herein.Upon leaving the reception, he stopped at the tavern owned by the appellants and consumed a shot of whiskey.The appellants claim Mr. Gosdzinski was loud and belligerent at the tavern and that they sold him a drink just to get rid of him.If the appellants indeed desired to have Mr. Gosdzinski leave their establishment, they were successful, for he soon departed in his auto.However, he did not go far, as he was fatally injured a short time later in a head-on collision.Gary Lee LeGault, the 18-year-old son of the original plaintiff in this action was the driver of the other automobile involved in the head-on collision, and was killed instantly.

This action was initiated by the father of Gary LeGault against the appellants, under § 22 of the Michigan Liquor control act, C.L.S.1961, § 436.22(Stat.Ann.1965 Cum.Supp. § 18.993), often referred to as the dram shop act.The appellants moved to bring in the appellees as third-party defendants on the theory that any intoxication of Leonard Gosdzinski was accomplished at the wedding reception sponsored by the appellees and, therefore, they should be responsible for Mr. Gosdzinski's actions under the rules of common-law negligence.The trial court allowed the motion, heard arguments on the merits of the third-party action, and gave summary judgment of no cause of action as to the third-party defendants-appellees.

At common law, there was no action available against those who sold intoxicants to a person who later caused injury.30 Am.Jur., Intoxicating Liquors, § 520 at p. 821;48 C.J.S.Intoxicating Liquors§ 430 at p. 716; Annot.75 A.L.R.2d 835.In Michigan, recovery for such injury caused by an intoxicated person is exclusively statutory;Holland v. Eaton(1964), 373 Mich. 34, 127 N.W.2d 892;Kangas v. Suchorski(1964), 372 Mich. 396, 126 N.W.2d 803; and though remedial, the statute must be strictly construed.Holland v. Eaton, supra.An effort to enlarge the statute was aptly commented upon by the Michigan Supreme Court in Malone v. Lambrecht(1943), 305 Mich. 58, 62, 8 N.W.2d 910, 912;

'The statute does not so provide.Whether such a provision should be embodied in our statute is within the province of the legislature, not the courts.'

and the basic principle of construction--Expressio unius est exclusio alterius--indicates a legislative intent not to create liability outside the extent to which it has acted.While some courts have given a more liberal interpretation to dram shop statutes as to commercial vendors of...