Ray v. Taft

• Decision Date: 06 July 1983
• Docket Number: Docket Nos. 58840,58873
• Citation: 125 Mich.App. 314,336 N.W.2d 469
• Parties: Alan RAY, Plaintiff-Appellant, v. Albert T. TAFT and Harold Pukoff d/b/a the Squire Pub, jointly and severally, Defendants-Appellees, and Dennis Taft d/b/a the Squire Pub and Frank St. Clair, Jr., jointly and severally, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 469

336 N.W.2d 469

125 Mich.App. 314

Alan RAY, Plaintiff-Appellant, v. Albert T. TAFT and Harold Pukoff d/b/a the Squire Pub, jointly and severally, Defendants-Appellees, and Dennis Taft d/b/a the Squire Pub and Frank St. Clair, Jr.,

jointly and severally, Defendants.

Docket Nos. 58840, 58873.

Court of Appeals of Michigan.

Submitted Dec. 22, 1982.

Decided May 3, 1983.

Released for Publication July 6, 1983.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by Fred W. Gerow and Ernest R. Bazzana, Detroit, for plaintiff-appellant.

M. Glenn Grossman, Detroit, for defendant-appellee Albert T. Taft.

Bell & Hertler, P.C. by John W. Bell, Pontiac, for defendant-appellee Pukoff.

Before V.J. BRENNAN, P.J., and KELLY and GRAVES, ^* JJ.

GRAVES, Judge.

On July 2, 1977, plaintiff, while operating his motorcycle, was struck from behind by an automobile driven by defendant St. Clair. Prior to the accident, defendant St. Clair had consumed beer at the Squire Pub. At that time, defendant Pukoff owned and operated the pub. On January 3, 1978, defendants Albert Taft and Dennis Taft were appointed co-receivers of the Squire Pub pursuant to their prior security interest in the Pub's assets. However, the court order appointing them co-receivers was erroneously dated January 3, 1977. The liquor license which was associated with the Squire Pub was transferred from the Tafts as co-receivers for Pukoff to Carmine F. Buffone on August 22, 1980.

On July 20, 1978, plaintiff filed his negligence complaint against defendant St. Clair. On April 18, 1979, plaintiff filed his first amended complaint which added a dramshop action, M.C.L. Sec. 436.22(3); M.S.A. Sec. 18.993(3), against "Albert T. Taft, Dennis H. Taft, d.b.a. The Squire Pub, jointly and individually". On January 17, 1980, plaintiff filed his second amended complaint which amended his dramshop action so as to name "Albert T. Taft, Dennis H. Taft, Harold Pukoff, d.b.a. The Squire Pub, jointly and severally". However, because of difficulties in serving process on defendant Pukoff, substituted service on Pukoff was not effective until sometime after July 9, 1980. Defendant Pukoff timely moved for accelerated judgment pursuant to GCR 1963, 116.1(5) on July 24, 1980, claiming that the two-year dramshop statute of limitations, M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5), barred the claim against him. The trial court granted Pukoff's motion for accelerated judgment.

Defendant Albert Taft moved for summary judgment on February 27, 1981. In response to the motion, plaintiff implicitly admitted the truth of Albert Taft's averments but moved for leave to amend the complaint so as to specify that the Tafts were being sued as trustees of the Squire Pub and not as its owners. The trial court rendered the motion to amend moot by granting the motion for summary judgment pursuant to GCR 1963, 117.2(3).

Plaintiff first argues that the trial court erred by granting accelerated judgment in favor of defendant Pukoff pursuant to GCR 1963, 116.1(5). We disagree. It is unquestioned that defendant Pukoff's motion for accelerated judgment was timely filed pursuant to GCR 1963, 116.1. It is equally clear that a dramshop claim must be filed within two years from the date of the injury arising from the selling, giving or furnishing of intoxicating liquor to the person causing the injury. M.C.L. Sec. 436.22(5); M.S.A. Sec. 18.993(5); Browder v. International Fidelity Ins. Co., 413 Mich. 603, 615, 321 N.W.2d 668 (1982).

Commencement of an action against one party usually does not operate to toll the running of the applicable period of limitation as to other persons not named as defendants in the suit. Matti Awdish, Inc. v. Williams, 117 Mich.App. 270, 277-278, 323 N.W.2d 666 (1982). As the Court noted in Forest v. Parmalee (On Rehearing), 60 Mich.App. 401, 406-407, 231 N.W.2d 378 (1975), aff'd on other grds., 402 Mich. 348, 262 N.W.2d 653 (1978):

"According to Anno: Change in party after statute of limitations has run, 8 A.L.R.2d 6, Sec. 53, p. 112, it is 'well settled' that:

" 'Where a defendant is brought into an action for the first time upon the filing of an amended or supplemental complaint, the filing of the amendment constitutes the commencement of the action in so far as such new defendant is concerned. The statutory period runs until the time of the filing of the amendment, and if at that time the action is barred, a party thus subsequently brought in may avail himself of the plea.'

"An exception to this rule is that the additional defendant may be brought in after the expiration of the statute of limitations where the new party is a necessary party, or acquired its interest in the subject matter of the suit 'pendente lite' or where the amendment 'merely corrects a defect in the original proceeding'. 8 ALR2d 6, 112. * * * As a general rule, the statute of limitations continues to run in favor of an alleged joint tort-feasor until it is made a party to a suit. 8 ALR2d 6, Sec. 58, p 120. 51 Am Jur 2d, Limitation of Actions, Secs. 272, 277, pp 798, 800. See also Ciotti v. Ullrich, 267 Mich 136, 138-139; 255 NW 179 (1934), for the general rule that suit is not considered having been commenced against a new defendant until that person is made a party."

None of the aforementioned exceptions cited in Forest, supra, apply to plaintiff. Pukoff did not acquire his interest in the subject matter of the suit "pendente lite". Although plaintiff argues that the amended complaint merely corrects a defect, i.e., a misnomer, the record clearly reveals that a situation of mere misnomer did not exist. A misnomer results

"where the right party is served under a wrong name or in an incorrect capacity. In this situation, the courts have deemed the applicable statute of limitations tolled because the true defendant had notice of the litigation and was not prejudiced by the amendment. For a general discussion of the misnomer problem, including citations, see Cobb v Mid-Continent Telephone Service Corp. [90 Mich App 349], 354-357 [; 282 NW2d 317 (1979) ]." Matti Awdish, Inc., supra, 117 Mich.App. p. 279, 323 N.W.2d 666.

In the case at bar, plaintiff erroneously assumes that the true defendant was the Squire Pub and thus reasons that he served it in the wrong name, i.e., defendants Taft instead of defendant Pukoff. However, the place in which the liquor is sold, given or furnished is not the defendant. Rather, M.C.L. Sec. 436.22(5), M.S.A. Sec. 18.993(5) provides that the person who sells, gives or furnishes the liquor is the true defendant in a dramshop action. Because defendant Pukoff was the true defendant, the trial court did not encounter a misnomer situation. Pukoff was not named as a defendant until after the expiration of the period of limitation, and he was not served in either his right name or a wrong name until after the expiration of the statutory period of limitation. Neither is there anything in the record to suggest that Pukoff had actual notice or constructive notice of the lawsuit within the limitations period.

Plaintiff further argues that Pukoff was a necessary party to the dramshop action so as to be within one of the exceptions stated in Forest, supra. Although M.C.L. Sec. 436.22(5), M.S.A. Sec. 18.993(5) requires the intoxicated person to be named as a necessary party defendant in a dramshop action, the converse is not true, i.e., the retailer of liquor is not a necessary party in a negligence action against an intoxicated driver. Plaintiff filed his initial suit against an alleged intoxicated driver, and Pukoff was not a necessary party in an action against a defendant driver involved in the collision. Neither was Pukoff a necessary party in any action filed against that business entity known as "The Squire Pub", because a dramshop action is not even commenced until the person who allegedly sold, gave or furnished the liquor is joined as a defendant.

Plaintiff's failure to comply with the applicable statute of limitations is not excused by any alleged "due diligence" on the part of plaintiff in attempting to identify the liquor licensee. Such an argument is neither legally nor factually persuasive in the context of the facts presented in the case at bar. Statutes of limitation serve a vital and necessary function in the legal system. " 'Statutes of limitation are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. An important public policy lies at their foundation. They stimulate to activity and punish negligence. While time is constantly destroying the evidence of rights, they supply its place by a presumption which renders proof unnecessary. Mere delay, extending to the limit prescribed, is itself a conclusive bar. The bane and antidote go together.' " Charpentier v. Young, 83 Mich.App. 145, 151, 268 N.W.2d 322 (1978), citing Wood v. Carpenter, 101 U.S. 135, 139, 25 L.Ed. 807, 808 (1879).

In view of the strong policy considerations favoring statutes of limitation, we hold that plaintiff's reliance upon a misdated court order did not constitute due diligence sufficient to toll the running of the statutory period of limitation. Defendant Pukoff should not be denied the protections afforded by the...