Longstreth v. Fitzgibbon

• Decision Date: 06 July 1983
• Docket Number: Docket No. 62234
• Citation: 125 Mich.App. 261,335 N.W.2d 677
• Parties: James H. LONGSTRETH, as personal representative for the Estate of Jamie H. Longstreth, Deceased, and James H. Longstreth and Carol Longstreth, Individually, Plaintiffs- Appellants, v. Dennis FITZGIBBON, as personal representative of the Estate of Bryan Fitzgibbon, Deceased, Gary L. Jackson and Francis L. Jackson, Individually and d/b/a Our Bar, Defendants, and Edward Gensel, Mrs. Edward Gensel, Samuel Langston and Myrna Langston, Defendants-Appellees. 125 Mich.App. 261, 335 N.W.2d 677
• Court: Court of Appeal of Michigan — District of US

Page 677

335 N.W.2d 677

James H. LONGSTRETH, as personal representative for the

Estate of Jamie H. Longstreth, Deceased, and James

H. Longstreth and Carol Longstreth, Individually, Plaintiffs- Appellants, v. Dennis FITZGIBBON, as personal representative of the Estate

of Bryan Fitzgibbon, Deceased, Gary L. Jackson and

Francis L. Jackson, Individually and

d/b/a Our Bar, Defendants,

and

Edward Gensel, Mrs. Edward Gensel, Samuel Langston and Myrna

Langston, Defendants-Appellees.

Docket No. 62234.

125 Mich.App. 261, 335 N.W.2d 677

Court of Appeals of Michigan.

Submitted Nov. 10, 1982.

Decided March 29, 1983.

Released for Publication July 6, 1983.

[125 MICHAPP 262] LeFevre, Swartz & Wilson by Martin B. Wilson, Saginaw, for plaintiffs-appellants.

Collison, Chasnis & Dogger, P.C. by Charles C. Collison, Saginaw, for Gensels.

Terence J. O'Neill, Saginaw, for Langstons.

Before T.M. BURNS, P.J., and BEASLEY and HANSEN, ^* JJ.

PER CURIAM.

Following a wedding reception on the evening of July 7, 1979, plaintiffs' decedent, Jamie H. Longstreth, was killed in an automobile collision. On November 12, 1980, plaintiffs, James H. Longstreth, individually, and as personal representative for the estate of Jamie H. Longstreth, deceased and Carol Longstreth filed a complaint in the Midland County Circuit Court against seven defendants, including Edward Gensel, Iola Gensel, Samuel Langston and Myrna Langston (hereinafter defendants), the hosts for the wedding reception. After the trial court granted defendants' motions for summary judgment on the ground that plaintiffs failed to state a cause of action, plaintiffs appeal as of right.

In their complaint, plaintiffs alleged that defendants, who hosted a wedding reception that the [125 MICHAPP 263] decedent, a minor, attended, owed a statutory duty not to furnish, or allow to be furnished, intoxicating beverages to the decedent. Plaintiffs further alleged that defendants breached this statutory duty by furnishing, or allowing to be furnished, intoxicating liquor to the decedent, and that the furnishing of alcoholic beverages to the decedent constituted negligence, which was a proximate cause of his death.

In their motions for summary judgment under GCR 1963, 117.2(1), defendants maintained that a cause of action is not available in our state against persons who serve intoxicating liquors to social guests in private homes. Furthermore, they contended that wedding receptions are not regulated by the Michigan Liquor Control Act. ¹

In granting defendants' motions for summary judgment, the trial court held that the statute which proscribes the selling or furnishing of alcoholic beverages to minors applies only to licensees under the Liquor Control Act.

The parties to this appeal agree that prior to the Legislature's repeal of M.C.L. Sec. 750.141a; M.S.A. Sec. 28.336(1), ² a civil cause of action existed for damages sustained as a result of a person furnishing alcoholic liquor to a minor. This penal statute provided:

"Any person, who knowingly gives or furnishes any alcoholic beverage to a minor except upon authority of and pursuant to a prescription of a duly licensed physician, shall be guilty of a misdemeanor, and if the furnishing involved any consideration, the person shall be imprisoned for not more than 1 year or fined not more than $1,000.00 or both."

[125 MICHAPP 264] The aforecited repealed statute was substantially reenacted and may now be found at M.C.L. Sec. 436.33; M.S.A. Sec. 18.1004: ³

"(1) Alcoholic liquor shall not be sold or furnished to a person unless the person has attained 21 years of age. A person who knowingly sells or furnishes alcoholic liquor to a person who is less than 21 years of age, or who fails to make diligent inquiry as to whether the person is less than 21 years of age, is guilty of a misdemeanor. A suitable sign which describes this section and the penalties for violating this section shall be posted in a conspicuous place in each room where alcoholic liquors are sold. The signs shall be approved and furnished by the state liquor control commission.

"(2) In an action for the violation of this section, proof that the defendant or the defendant's agent or employee demanded and was shown, before furnishing alcoholic liquor to a person under 21 years of age, a motor vehicle operator's license or a registration certificate issued by the federal selective service, or other bona fide documentary evidence of the age and identity of that person, shall be a defense to an action under this section."

In Lover v. Sampson ⁴ and Thaut v. Finley (On Rehearing), ⁵ this Court held that a common law cause of action for damages may arise upon a violation of a Michigan statute which prohibits the dispensation of alcoholic beverages to minors. In Lover, we stated:

"In the absence of a dramshop action, plaintiffs must seek redress based upon common-law precepts. The defendants, citing a headnote in Corpus Juris Secundum, assert that 'no remedy exists against the dispenser of liquor for injuries and damages resulting from [125 MICHAPP 265] the acts of intoxicated persons except to the extent provided for by statute'.

"We cannot agree for the reason that the defendants have failed to recognize a more circumscribed rule recognized in the jurisdiction to the effect that it is not a tort to sell or give alcoholic beverages to a strong and able-bodied man. Manuel v. Weitzman, [386 Mich. 157, 191 N.W.2d 474] supra; Hollerud v. Malamis, 20 Mich App 748, 754-755 (1969).

"Plaintiffs' suit in the instant case is not predicated upon the defendants furnishing alcoholic beverages to a strong and able-bodied man. Rather, plaintiffs' cause of action stems from the defendants' actions of allegedly furnishing intoxicants to minors.

"Therefore, the principle which would have barred plaintiffs' suit had the alcohol been furnished to strong and able-bodied men is not in point with and is not controlling in the facts of the case at bar wherein alcohol was dispensed to minors." (Footnote omitted.) ⁶

More recently, in Christensen v. Parrish, ⁷ we held that a violation of the now repealed M.C.L. Sec. 750.141a; M.S.A. Sec. 28.336(1) gives rise to a prima facie case of negligence, whereas the Lover and Thaut cases held that a violation of the statute constituted negligence per se. ⁸

Thus, we are called upon in this appeal to decide in light of the 1978 repeal of M.C.L. Sec. 750.141a; M.S.A. Sec. 28.336(1) and the inclusion of a similar statute in the dramshop act, whether a civil cause of action [125 MICHAPP 266] continues to exist against a social host for furnishing alcoholic beverages to a minor, where the furnishing of the liquor is a proximate cause of an injury or death.

Our review of the current statute, M.C.L. Sec. 436.33; M.S.A. Sec. 18.1004, which prohibits the selling or furnishing of alcoholic beverages to a minor, leads us to conclude that its application is not limited to Liquor Control Act licensees; rather, it is applicable to all persons who violate its terms. We believe that the Legislature did not intend to eliminate the misdemeanor offense attendant to the furnishing of alcoholic beverages to minors by persons other than licensees under the Liquor Control Act. We note that the Legislature chose to use the word "person" as opposed to retailer, vendor, or licensee in regard to the prohibition against knowingly selling or furnishing liquor to a person who has not attained 21 years of age. ⁹

Additionally, the succeeding statute in the Liquor Control Act, M.C.L. Sec. 436.33a; M.S.A. Sec. 18.1004(1), provides that it is a misdemeanor for a minor to transport or possess, with knowledge, alcoholic beverages in a motor vehicle. Certainly, this statute does not apply solely to retailers of alcohol.

Accordingly, we hold that a civil cause of action continues to exist for injuries or death caused by the furnishing of liquor to a minor by a social host or other persons not falling under the purview of the Liquor Control Act.

In the matter at bar, plaintiffs' complaint contains the...