Scholten v. Rhoades

• Court: Court of Appeal of Michigan
• Writing for the Court: ALLEN
• Citation: Scholten v. Rhoades, 242 N.W.2d 509, 67 Mich.App. 736 (Mich. App. 1976)
• Decision Date: 09 March 1976
• Docket Number: Docket No. 25039
• Parties: Donald SCHOLTEN and Robert Scholten, Plaintiffs-Appellees, v. Rodney Allen RHOADES, Defendant, and Walter J. Miskowski, d/b/a the Quick Stop, and Walter J. Miskowski, Individually, Defendants-Appellants. 67 Mich.App. 736, 242 N.W.2d 509

Page 509

242 N.W.2d 509

Donald SCHOLTEN and Robert Scholten, Plaintiffs-Appellees, v. Rodney Allen RHOADES, Defendant and Walter J. Miskowski, d/b/a the Quick Stop, and Walter J Miskowski, Individually, Defendants-Appellants.

Docket No. 25039.

67 Mich.App. 736, 242 N.W.2d 509

Court of Appeals of Michigan.

March 9, 1976.

Released for Publication June 8, 1976.

[67 MICHAPP 738] James, Dark & Craig by J. William Dark, Kalamazoo, for rhoades.

Troff, Lilly, Piatt, File & Doyle by Timothy Kragt, Kalamazoo, for Miskowski.

Daudert & Barron by Charles J. Daudert, Kalamazoo, for plaintiffs-appellees.

Before QUINN, P.J., and J. H. GILLIS and ALLEN, JJ.

ALLEN, Judge.

Does the 'name and retain' provision of the 1972 amendment to the dramshop act ¹ mandate that in an action brought by a father for the medical expenses of his minor son, allegedly incurred by reason of being served intoxicants, the son must be joined as a party defendant? This issue of first impression arises by leave granted on the following facts.

Plaintiff Donald R. Scholten was struck and injured on September 9, 1972, by a motorcycle operated by Rodney Allen Rhoades as Scholten walked across a street in Kalamazoo County. He and his father, Robert Scholten, commenced this action against Rhoades and defendant Walter J. Miskowski, owner-operator of a beer and wine store known as the Quick Stop. Plaintiffs' complaint averred that immediately before the accident, Donald R. Scholten purchased beer at the Quick Stop although he was a minor at the time; he consumed the beer subsequent to the sale, which sale and consumption were the proximate cause of his injury; as a result of his consumption of intoxicating beverages, his judgment was impaired,[67 MICHAPP 739] causing him to misjudge the distance and direction of the motorcycle and impairing his ability to take evasive action to avoid the collision.

Defendant Miskowski moved for summary judgment against both plaintiffs. Although the lower court granted the motion as to Donald R. Scholten on the grounds that his negligence barred him from recovery as a matter of law, summary judgment as to Robert Scholten, grounded upon the failure of Robert Scholten to add his son as a party defendant pursuant to the 'name and retain' provision of the dramshop act, was denied. Defendant Miskowski successfully sought leave to appeal in this Court.

Defendant claims that under the clear language of the dramshop act, Robert Scholten was required to add Donald R. Scholten as a party defendant in order to maintain this suit. Plaintiffs submit the Legislature never intended that an injured minor or intoxicated person be named as a defendant in a suit brought by one responsible for his medical expense where the intoxicated person or minor is injured as a result of his own actions due to the effects of the wrongful sale of intoxicating beverages and argue that statutes should be construed to conform to the intent of the Legislature. The trial judge agreed with plaintiffs. ²

The pivotal part of the statute appears in the third from the final sentence of the amendatory act, Supra, which reads as follows:

[67 MICHAPP 740] 'No action against a retailer or wholesaler or anyone covered by this act or his surety, shall be commenced unless the minor or 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.'

The basic provisions of the dramshop act have been in existence since 1887. See Eddy v. Courtright, 91 Mich. 264, 267, 51 N.W. 887 (1892). Language virtually identical to the present dramshop act in its pre-1972 form sets forth who may be a party plaintiff and under what conditions suit may be instituted. Over the years this language has been consistently construed liberally.

In Eddy v. Courtright, 91 Mich. 264, 267, 51 N.W. 887, this Court said:

"This court has always construed this statute liberally, and has not deemed that the true legislative intent was to be ascertained by any strained or narrow construction of the words employed.'

'The Court then proceeded to cite other cases as illustrative of the fact that the Court has uniformly given a liberal construction to the language of the act. King v. Haley, 86 Ill. 106 (29 Am.Rep. 14); Thomas v. Dansby, 74 Mich. 398, 41 N.W. 1088 (1889); Doty v. Postal, 87 Mich. 143, 49 N.W. 534 (1891).' LaBlue v. Specker, 358 Mich. 558, 568, 100 N.W.2d 445, 450 (1960).

See also Barton v. Benedict, 39 Mich.App. 517, 521, 197 N.W.2d 898 (1972). Under the construction given the statute, dramshop actions may be broadly classified in three groups (I) by a parent or child killed or injured By a third party as a result of intoxicants served to the third party by a defendant dramshop establishment; (II) by a parent or child killed or injured Through the child's or parent's own misdoing by reason of intoxicants served to them by a defendant dramshop establishment[67 MICHAPP 741] ; (III) by an intoxicated adult or minor for injuries sustained as a result of being served intoxicants by defendant dramshop establishment. Group I cases are far and away the typical case which has been addressed by the court on many occasions. In such cases recovery is allowed upon proofs properly presented. Barton v. Benedict, supra; Podbielski v. Argyle Bowl, Inc., 44 Mich.App. 280, 205 N.W.2d 240 (1973), Aff'd 392 Mich. 380, 220 N.W.2d 397 (1974). Group II is the atypical and less frequent situation. Nevertheless, recovery is allowed and the fact that the minor child or adult contributed to his own intoxication is no defense. In Eddy v. Courtright, 91 Mich. 264, 51 N.W. 887 (1892), plaintiff brought action under the dramshop statute of 1887 ³ to recover for an injury occasioned plaintiff when defendant sold intoxicants to her adult son on whom she depended in part for her support, who by reason of his intoxication was drowned. Recovery was allowed. In LaBlue v. Specker, supra, the guardian of a minor child who was conceived but as yet unborn prior to the father's death brought suit under the current dramshop statute (pre-1972 amendment form) for loss of support when her father, a minor, purchased intoxicants at defendant's place of business and as a result of such intoxication was killed in an accident while driving in an intoxicated condition. Again recovery was allowed. Robertson v. Devereaux, 32 Mich.App. 85, 188 N.W.2d 209 (1971), was an action brought by the mother, as executrix, against defendant beer and wine licensee for damages when defendant allegedly made sales of beer to her son who became intoxicated and drove his automobile in a grossly negligent manner resulting[67 MICHAPP 742] in his death. Summary judgment in favor of the defendant, on the grounds that the personal representative of the deceased person was not a proper party plaintiff under the dramshop act, was reversed.

In Group III situations the courts have consistently denied recovery on the rationale that the person who caused the evil by purchasing liquor may not complain of evil which he himself has caused. Rosecrants v. Shoemaker,60 Mich. 4, 26 N.W. 794 (1886); Malone v. Lambrecht, 305 Mich. 58, 8 N.W.2d 910 (1943); Kangas v. Suchorski, 372 Mich. 396, 126 N.W.2d 803 (1964). However, though the injured intoxicant himself may not recover his dependents may recover.

'Frequently, as in Bourrie (Genesee Merchants Bank & Trust Co. v. Bourrie (1965), 375 Mich. 383, 134 N.W.2d 713), the deceased person was himself intoxicated at the time he suffered physical injuries and cannot recover because of his own fault; under the dramshop act his dependents may, nevertheless, recover even though the decedent upon whom they are dependent was intoxicated or at fault.' Robertson v. Devereaux, supra, 32 Mich.App. at 91, 188 N.W.2d at 213.

The dramshop statute gives the parent an action in his own name and the action is not a derivative suit. Matson v. State Farm Mutual Automobile Insurance Co., 65 Mich.App. 713, 238 N.W.2d 380 (1975).

Given this background we now turn to our consideration fo the 'name and retain' amendment 1972 P.A. 196 effective June 29, 1972. This amendment has been construed by this Court: Salas v. Clements, 57 Mich.App. 367, 226 N.W.2d 101 (1975); Spaccarotelli v. Ferdibar, 67 Mich.App. 29, 239 N.W.2d 750 (1976). ⁴ In both cases this Court held [67 MICHAPP 743] that the dramshop action may not be maintained if plaintiff fails to name and retain the alleged intoxicated person. However, both of these cases involved Group I situations. No case has yet presented a Group II situation. Thus, the narrow issue involved in the present appeal is whether the Legislature, in enacting the amendment referred to, intended that it mandatorily apply in all suits or whether it intended that it be mandatory only where a third party intoxicant precipitated the loss or where special circumstances would, sans dramshop suit, give plaintiff a recognized cause of action. ⁵ We hold the latter interpretation to be correct.

In sustaining the amendment in Salas v. Clements, supra, the court referred to the sound policy reason supporting the amendment that the provision would eliminate the practice under which the third party intoxicated person enters into a settlement with the injured plaintiff for a token sum and thereafter joins forces with the plaintiff against the tavern owner. In this manner the third party intoxicant relieves himself of any possible excess coverage liability. This rationale policy reason is nonexistent in the Group II situation. A parent is legally responsible for the medical bills of his minor child and to secure a judgment for such sums against the child is meaningless. Furthermore, unlike Group I situations where plaintiff has a recognized cause of action against the third party intoxicant, a child has no cause of action against his father or father's estate for injuries or death of the father due to the father's voluntary [67 MICHAPP...