Spaccarotelli v. Ferdibar

• Decision Date: 26 January 1976
• Docket Number: Docket No. 22133
• Citation: 67 Mich.App. 29,239 N.W.2d 750
• Parties: Joseph SPACCAROTELLI, by his next friend, Dollie Spaccarotelli, an Dollie Spaccarotelli, Plaintiffs-Appellees, v. Frank J. FERDIBAR and Gertrude D. Ferdibar d/b/a Ferdi's Bar, Defendants-Appellants. 67 Mich.App. 29, 239 N.W.2d 750
• Court: Court of Appeal of Michigan — District of US

Page 750

239 N.W.2d 750

Joseph SPACCAROTELLI, by his next friend, Dollie Spaccarotelli, an Dollie Spaccarotelli Plaintiffs-Appellees, v. Frank J. FERDIBAR and Gertrude D. Ferdibar d/b/a Ferdi's Bar, Defendants-Appellants.

Docket No. 22133.

67 Mich.App. 29, 239 N.W.2d 750

Court of Appeals of Michigan.

Jan. 26, 1976.

Released for Publication March 24, 1976.

[67 MICHAPP 30] Alexander, Buchanan & Seavitt, by Wayne L. Ogne, Detroit, for defendants-appellants.

Gittleman & Paskel, by Michael A. Thomas, Detroit, for plaintiffs-appellees.

Before BRONSON, P.J., and BASHARA and CAVANAGH, JJ.

CAVANAGH, Judge.

This is an action under the dramshop act, M.C.L.A. § 436.22; M.S.A. § 18.993, as amended. On November 5, 1972, plaintiff, Joseph Spaccarotelli, got into a fight with Gary Ish in defendants' bar. Plaintiffs commenced this action for injuries allegedly caused to Joseph Spaccarotelli in that incident.

Defendant were timely and properly served with process. However, in spite of due diligence exercised by plaintiffs to locate and serve the alleged assailant, Gary Ish was not served with process. Accordingly, the cause was dismissed or stood to be dismissed against him after the summons became invalid pursuant to GCR 1963, 102.4, as amended, effective July 1, 1972. Thereafter, defendants moved for summary judgment of dismissal as to them on the grounds that Ish had not been 'named and retained' in the action as required by a 1972 amendment to the dramshop act, 1972 P.A. 196; M.C.L.A. § 436.22; M.S.A. § 18.993.

[67 MICHAPP 31] In its opinion denying the motion, the trial court stated:

'By reason, therefore, of the statute, it is claimed that the cause of action directed against the dramshop owners must be dismissed.

'It is the position of the plaintiffs that the dismissal is through no fault of his (sic), that it is by operation of law and that for this court now to dismiss the case would leave him remedyless.

'The point is an interesting one. I have no cases on hand. I appreciate that it is necessary to have some precedential authority for guidance of the trial bench. Therefore, I appreciate the interest that you lawyers have in this problem and your willingness to pursue it to the Court of Appeals so that we may have decision.

'The easiest way, I suppose, for me to handle this problem would be to dismiss the case, and then you would have an absolute appeal directly to the Court of Appeals on that issue. On the other hand, that would be contrary to what I want to do in the case. What I want to do in the case is to say that the dismissal by operation of law to my mind does not come within the provisions of this statute, which was intended, it seems to me, for the protection of the dram shop owners so as to require the continuation of the alleged intoxicated person in the case so that relief could be afforded on behalf of the dram shop owners against such person.

'To my mind, the leaving the dram shop owners free under these circumstances was never the intention of the Legislature, and I hold that the motion for summary judgment on this point is, therefore, denied.'

The order denying motion for summary judgment was entered October 4, 1974, and we granted leave.

M.C.L.A. § 436.22; M.S.A. § 18.993, creating a cause of action for persons injured as the result of the sale of intoxicants, provides in relevant part:

'No action against a retailer or wholesaler or anyone [67 MICHAPP 32] 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.' (Emphasis added).

The provision was only recently added, operating prospectively as of June 29, 1972. Koehler v. DRT...