Salas v. Clements

• Citation: 247 N.W.2d 889,399 Mich. 103
• Decision Date: 01 May 1976
• Docket Number: No. 1,1
• Parties: Rafael SALAS, JR., and Gilbert Garza, Plaintiffs-Appellants, v. Mary E. CLEMENTS d/b/a Memory Club Bar, Defendant-Appellee. ,
• Court: Supreme Court of Michigan

Page 889

247 N.W.2d 889

399 Mich. 103

Rafael SALAS, JR., and Gilbert Garza, Plaintiffs-Appellants, v. Mary E. CLEMENTS d/b/a Memory Club Bar, Defendant-Appellee.

No. 1, May Term, 1976.

Supreme Court of Michigan.

Dec. 27, 1976.

Lopatin, Miller, Bindes & Freedman, Detroit, for plaintiff-appellants; Michael H. Feiler, Detroit, of counsel.

Seth H. Barsky, Southfield, for defendant-appellee.

WILLIAMS, Justice.

The issue in this case is whether plaintiffs, who claim they do not know the identity of an alleged intoxicated person who injured them, are barred from maintaining a cause of action under the Michigan dram shop act, because they did not 'name and retain' the alleged intoxicated person as defendant as required by the 'name and retain' amendment to the act.

We hold that the 'name and retain' amendment only applies to those injured plaintiffs who know the identity of the intoxicated person. Accordingly, we reverse the Court of Appeals and the trial court and remand to the trial court for disposition of this case in a manner not inconsistent with this opinion.

I--FACTS

At approximately one o'clock on the morning of November 23, 1972, plaintiffs were assaulted by an unknown person while at defendant's tavern. On April 19, 1973 plaintiffs commenced this action in Wayne County Circuit Court, alleging that defendant furnished and continued to furnish intoxicating beverages to this person while he was in an intoxicated state. Because plaintiffs were unable to ascertain the identity of this person, he was not named a defendant in this action as required by the 'name and retain' amendment (1972 P.A. 196) to M.C.L.A. § 436.22; M.S.A. § 18.993, which provides in pertinent part that 'no action against a retailer * * * shall be commenced unless the * * * alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.' Consequently, the trial court granted defendant's motion for summary judgment on the grounds that plaintiffs failed to comply with this statutory requirement.

On January 7, 1975, the Court of Appeals affirmed the trial court, holding that this amendment does not violate the equal protection and due process clauses of the Michigan Constitution or the comparable provisions of the Federal Constitution.

Plaintiffs applied for leave to appeal. This Court granted leave July 23, 1975.

II--DISCUSSION

As stated, Supra, the essential issue in this case is whether plaintiffs, who claim they do not know the identity of the alleged intoxicated person who injured them, are barred from maintaining a cause of action under the Michigan dram shop act, M.C.L.A. § 436.22; M.S.A. § 18.993, because they did not 'name and retain' the alleged intoxicated person as defendant, as required by the 'name and retain' amendment to the act.

The 'name and retain' amendment provides, in pertinent part:

'No action against a retailer * * * shall be commenced unless * * * the alleged intoxicated person is a named defendant in the action and is retained in the action until the litigation is concluded by trial or settlement.' (1972 P.A. 196)

The dram shop act is part of the Liquor Control Act. As the Court of Appeals in Gray v. Blackman, 30 Mich.App. 212, 213, 186 N.W.2d 76, 77 (1971) observed:

'The object of the Liquor Control Act, as indicated in its title, is the regulation and control of liquor traffic.'

In Flower v. Witkovsky, 69 Mich. 371, 375, 37 N.W. 364 (1888), this Court stated the essential purpose of the dram shop act:

'The main purpose of the act is to regulate and prohibit the sale of liquors, to provide when it shall be lawful and when it shall be unlawful, and what remedies may be resorted to in cases of unlawful selling and injuries resulting from such unlawful sales.

'These things all belong to one primary object, which is the distinguishing of lawful from unlawful sales under the law, and providing penalties and remedies against unlawful sales, and the natural consequences resulting therefrom.'

Accordingly, as one means of regulating and controlling the sale of liquor, the dram shop act provides (in part):

'Every wife, husband, child, parent, guardian or other persons who shall be injured in person or property, means of support or otherwise, by a visibly intoxicated person by reason of the unlawful selling, giving or furnishing to any such persons any intoxicating liquor, and the sale is proven to be a proximate cause of the injury or death, 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 * * *' M.C.L.A. § 436.22; M.S.A. § 18.993.

In 1972, the dram shop act was amended to include the so-called 'name and retain' provision, stated Supra. In the instant case, the Court of Appeals accurately characterized the object of this amendment as follows:

'* * * The provision will eliminate the common practice whereby the intoxicated person enters into a settlement with the injured plaintiff for a token sum, and thereafter energetically assists the plaintiff with the prosecution of a suit against the tavern owner. The provisions will also discourage possible collusion and perjury by those too weak to resist the obvious temptation inherent in the original dramshop act, which has now been recognized by the Legislature and corrected through this amendment.' 57 Mich.App. 367, 372, 226 N.W.2d 101, 104 (1975).

In determining whether plaintiffs in this case are barred from suing under the dram shop act, we must keep in mind the fundamental rule of statutory construction that departure from the literal construction of a statute is justified when such construction would produce an absurd and unjust result and would be clearly inconsistent with the purposes and policies of the act in question. Pacific Insurance Co., Limited v. Oregon Automobile Insurance Co., 53 Hawaii 208, 211, 490 P.2d 899, 901 (1971). See, also, Attorney General v. Detroit U.R. Co., 210 Mich. 227, 257, 177 N.W. 726, 177 N.W. 1023 (1920); In re Petition of State Highway Commission, 383 Mich. 709, 714--715, 178 N.W.2d 923 (1970); Holy Trinity Church v. United States, 143 U.S. 457, 458, 460, 12 S.Ct. 511, 36 L.Ed. 226 (1892). See also, Sands, Sutherland Statutory Construction, Volume 2A, § 45.12.

Literally construed, the 'name and retain' amendment bars an injured person from maintaining a cause of action under the dram shop act if, in fact, he does not 'name and retain' the alleged intoxicated person as defendant--regardless of whether the injured person knows the identity of the alleged intoxicated person. We believe this literal construction produces an unreasonable, unjust result, a result which is inconsistent with the purpose of the 'name and retain' amendment and the dram shop act itself. To suggest that an injured plaintiff 'name and retain' as defendant an intoxicated person whose identity he does not know in order to prevent collusion between the intoxicated person and the injured plaintiff is patently absurd. If a plaintiff does not know the identity of the intoxicated person, there is no basis for concern that such a person, in collusion with plaintiff, could 'energetically (assist) the plaintiff with the prosecution of a suit against the tavern owner.' Furthermore, the requirement that an injured person 'name and retain' as defendant an intoxicated person whose identity he does not know in order to maintain a cause of action under the dram shop act frustrates the essential purpose of the act. Such a requirement would Encourage collusion, tempting the liquor licensee and a tortfeasor to hide the identity of the tortfeasor from the injured plaintiff. A liquor licensee who in fact created or continued in the creation of the state of the intoxicant would thus be able to escape liability from suit under the dram shop act. We do not believe the Legislature intended these kinds of results.

Accordingly, we hold that the 'name and retain' amendment only applies to those injured plaintiffs who know the identity of the alleged intoxicated person. Whether or not an injured plaintiff knows the identify of the alleged intoxicated person shall be determined by the judge at a hearing. The injured plaintiff must show that he did not, in fact, know the identity of the alleged intoxicated person and that he exercised due diligence in attempting to ascertain the identity of the alleged intoxicated person.

Having decided the opinion on these grounds, we find it unnecessary to discuss the constitutional questions raised in this appeal.

We reverse the Court of Appeals and the trial court and remand to the trial court for disposition of this case in a manner not inconsistent with this opinion.

No costs, a public question.

KAVANAGH, C.J., and FITZGERALD, LINDEMER, LEVIN and COLEMAN, JJ., concur.

RYAN, Justice.

I dissent.

Eschewing the constitutional analysis for which leave was granted in this case, this Court nevertheless holds that the 'name and retain' amendment ¹ to Dram Shop Act applies only to those plaintiffs who know the identity of the intoxicated person.

The result, of course, is the creation by judicial fiat of an exception to the legislative determination that No one may maintain a dram shop action against a liquor supplier unless he names and retains in the action the alleged intoxicated person. Today's judgment simply suspends the application of that statute to all plaintiffs who establish at a newly mandated hearing that in the exercise of due diligence they were unable to ascertain the identity of the person who injured them.

The justification for exempting an entire class of prospective plaintiffs from the requirements of the...