Smith v. Woronoff

• Decision Date: 18 April 1977
• Docket Number: 25471,Docket Nos. 25470
• Citation: 75 Mich.App. 24,254 N.W.2d 637
• Parties: Cecilia A. SMITH, Individually and as next friend of Brian Smith, Regina Smith, Richard Smith and Cheryl Smith, minors, and Roberta Yancey, Individually and as next friend of Patricia Yancey and Pamela Yancey, minors, Plaintiffs- Appellants, v. Barney WORONOFF, d/b/a Dexter Bar, Defendant-Appellee, and Herbert Love, Defendant. Herbert LOVE, Plaintiff and Counter-Defendant, and Geraldine Love, Plaintiff, v. Robert Lee SMITH, Jr., Defendant, Counter-Plaintiff, and Third-Party Plaintiff-Appellant, v. Barney WORONOFF, d/b/a Dexter Bar, Third-Party Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 637

254 N.W.2d 637

75 Mich.App. 24

Cecilia A. SMITH, Individually and as next friend of Brian

Smith, Regina Smith, Richard Smith and Cheryl Smith, minors,

and Roberta Yancey, Individually and as next friend of

Patricia Yancey and Pamela Yancey, minors, Plaintiffs- Appellants, v. Barney WORONOFF, d/b/a Dexter Bar, Defendant-Appellee, and Herbert Love, Defendant.

Herbert LOVE, Plaintiff and Counter-Defendant, and Geraldine Love, Plaintiff, v. Robert Lee SMITH, Jr., Defendant, Counter-Plaintiff, and Third-Party Plaintiff-Appellant, v. Barney WORONOFF, d/b/a Dexter Bar, Third-Party Defendant-Appellee.

Docket Nos. 25470, 25471.

Court of Appeals of Michigan.

April 18, 1977.

Released for Publication June 22, 1977.

Sheldon Wachler, Southfield, for plaintiffs-appellants.

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

Before BRONSON, P. J., and BASHARA and HORN, ^* JJ.

BRONSON, Presiding Judge.

These appeals are from orders granting summary judgment in favor of appellee Barney Woronoff, doing business as Dexter Bar, in two cases which were consolidated below. The cases arose out of one factual occurrence, an automobile accident, which resulted in several parties seeking recovery for injuries against the Dexter Bar under the dramshop act. M.C.L.A. § 436.22; M.S.A. § 18.993.

The automobile accident occurred on November 15, 1970, and involved one vehicle driven by Herbert Love and another driven by Robert Lee Smith, Jr. Love instituted a negligence action for damages against Smith. Smith counterclaimed and filed a third-party claim against the Dexter Bar under the dramshop act.

The other action was begun by the passengers in the Smith vehicle, against Love and the Dexter Bar. The cases were consolidated below and discovery proceeded to completion.

On June 23, 1975, the Dexter Bar was dismissed from each action after identical motions for summary judgment were granted. Smith and his passengers now appeal by right. We reverse.

Summary judgment was requested and granted pursuant to GCR 1963, 117.2(3). The Dexter Bar asserted that there was no genuine issue of fact as to whether the bar had served an intoxicating beverage to Love on the night of the accident. Such an unlawful sale is one element of a dramshop action which a party seeking recovery under that act must prove. Rizzo v. Kretschmer, 389 Mich. 363, 369-370, 207 N.W.2d 316 (1973).

Discovery having been completed, the trial judge examined affidavits filed by the parties, the pleadings, depositions, and other submitted evidence in ruling on the motion for summary judgment. See GCR 1963, 117.3. He concluded that if the case were to go to trial, the parties seeking recovery against the bar would be unable to present any substantive evidence that Love was served an intoxicating beverage at the Dexter Bar on the date of the accident. Summary judgment was accordingly granted. We think that the summary judgment was inappropriately granted and that the dismissal of the Dexter Bar from these actions was erroneous.

A motion for summary judgment grounded on no genuine issue as to a material fact is designed to test whether there is factual support for a claim. In Rizzo, supra, at 371, 207 N.W.2d at 319, the Supreme Court quoted with approval the following Authors' Comments to the court rule:

" 'When summary judgment is claimed for lack of factual merit, the court must be careful not to substitute a summary hearing for a trial. The trial may be avoided only if the record presented at the hearing shows that, * * *; or (2) an essential element of proof of the claim or defense cannot be supplied.

" 'If a motion asserts a hiatus in essential proof, the court must be satisfied that it is impossible for the claim or defense to be supported at trial because of some deficiency which cannot be overcome.' " (Emphasis in Supreme Court opinion.)

In this case the Dexter Bar, by its motion and affidavit, identified the illegal sale alleged in appellants' pleadings as the fact which, although appearing to be controverted in the pleadings, was in reality undisputed. At that point, the burden was on the appellants to come forward with a showing that there was evidence making the fact of the sale a disputed issue. Summary judgment is properly granted unless the party opposing the motion shows the court some such evidence. Rizzo, supra; Durant v. Stahlin, 375 Mich. 628, 640, 658, 135 N.W.2d 392 (1965).

In the present case, among the data considered by the trial judge in ruling on defendant's summary judgment motion were depositions by Herbert Love, the allegedly intoxicated driver, and by Dexter May, the only bar employee working on the night of the accident. May testified that she did not serve any intoxicating beverage to Mr. Love on the night in question. Love's testimony on this issue was similarly unequivocal in denying that he had been served, furnished, or sold any intoxicating beverage while in the Dexter Bar on the night in question. The depositions of both Love and May indicate that Love entered the bar at about 1:00 a. m. on the night in question carrying some shrimp which he had obtained from a nearby take-out restaurant and ate them in the Dexter Bar without drinking any intoxicating beverage.

In addition to the depositions, the trial judge considered the effect of a transcript of a traffic court proceeding concerning this accident which had been held on December 18, 1970. Love was called as a witness at that proceeding and testified, under oath, that he had been at the Dexter Bar prior to the accident on the night in question and had drunk beer there.

The judge was also faced with other evidence tending to impeach Love's credibility, including evidence that Herbert Love was a former employee of the Dexter Bar.

Summary judgment was granted to the bar because the appellants were unable to show the existence of any evidence, admissible against the bar at trial, showing that there had been an illegal sale.

Appellants assert that summary judgment was improperly granted and present two theories in support of this position:

1. That Love's sworn testimony in traffic court that he had drunk beer at the Dexter Bar on the night in question should be admissible at trial against the Dexter Bar as substantive evidence of an illegal sale and that therefore there was a disputed factual question presented as to the alleged sale;

2. That even if the traffic court testimony was not admissible against the bar, that it would be admissible to impeach Love's trial testimony and, along with other factors affecting his credibility, would permit a jury to disbelieve testimonial denials of an illegal sale.

We must reject appellants' first claim.

If Love were to deny at trial that he had been served an intoxicating beverage, his traffic court testimony to the contrary undoubtedly would be admissible against him as substantive evidence that he had drunk beer at the Dexter Bar. As a prior inconsistent statement, it would also be admissible to impeach Love's trial testimony. It would not, however, be admissible against the appellee bar as substantive evidence of an illegal sale. A prior inconsistent statement of a witness is not admissible as substantive evidence of matters asserted therein, nor is an admission by one defendant admissible as substantive evidence against a codefendant. Perry v. F. Byrd, Inc., 280 Mich. 580, 274 N.W. 335 (1937); Gibbard v. Cursan, 225 Mich. 311, 324, 196 N.W. 398 (1923); Rosenberg v. Mageda, 251 Mich. 696, 232 N.W. 397 (1930); Ghezzi v. Holly, 22 Mich.App. 157, 177 N.W.2d 247 (1970).

Appellants ask that we discard this rule of evidence and adopt the "progressive rule" which would admit the prior inconsistent statements of a witness as substantive proof of matters asserted therein, as an exception to the hearsay rule.

We need not discuss the wisdom of appellants' position, nor the numerous authorities from other jurisdictions which appellants cite. We are bound by the Michigan Supreme Court cases which have followed the traditional rule. For a discussion of the merits of the traditional rule, see the plurality opinion in Ruhala v. Roby, 379 Mich 102, 150 N.W.2d 146 (1967), albeit that the opinion is precedentially inconclusive because not signed by a majority of the justices hearing the case.

Despite our conclusion on this first issue, we need not reach appellants' second claim. We may assume for purposes of this opinion that appellants would not have a jury submissible case against the appellee bar if, upon going to trial, the only evidence they can present as to an illegal sale is the impeached denials by Love and May. Whether a directed verdict in favor of the appellee would then be appropriate is not the question before us. The issue presented upon determination of a motion for summary judgment based on no genuine issue of fact is not a determination of whether plaintiff has a jury submissible case. The distinction was made in Rizzo, supra, 389 Mich. at 379, 207 N.W.2d at 324:

"At this point the test is whether the data properly produced after the original pleadings is sufficient to permit the plaintiff to go to trial and proceed with his proofs. It is no more than that. It is not a judgment that the plaintiff necessarily has a case sufficient to go to a jury."

The question presented is simply whether a genuine issue of fact has been raised.

Some guidance on this question is provided by language of the Supreme Court in Brown v. Pointer, 390 Mich. 346, 354, 212 N.W.2d 201, 205 (1973), which, though not determinative of the instant case, is instructive:

"We add that we agree with the Court of Appeals that where the truth of a material factual assertion of a movant's affidavit depends on the affiant's credibility, there inheres a genuine issue to be decided at a trial by the trier of fact and a motion for summary judgment cannot be granted. Arber v. Stahlin, 382 Mich. 300, 309, 170 N.W.2d 45 (1969); Durant v. Stahlin, 375 Mich. 628,...