Thaut v. Finley

• Decision Date: 28 November 1973
• Docket Number: Docket No. 15197,No. 3,3
• Citation: 50 Mich.App. 611,213 N.W.2d 820
• Parties: Daniel THAUT, Administrator of the Estate of Marta Sue Thaut, Deceased, Plaintiff-Appellant, v. John FINLEY et al., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 820

213 N.W.2d 820

50 Mich.App. 611

Daniel THAUT, Administrator of the Estate of Marta Sue Thaut, Deceased, Plaintiff-Appellant, v. John FINLEY et al., Defendants-Appellees.

Docket No. 15197.

Court of Appeals of Michigan, Division No. 3.

Nov. 28, 1973.

Released for Publication Jan. 16, 1974.

Leonard B. Shulman, Leitson, Dean, Dean, Segar & Hart, Flint, for plaintiff-appellant

Howard S. Otto, Otto & Otto, Saginaw, for Dittenber.

James W. Tarter, Stanley Zimostrad, Bay City, for Aites.

Before DANHOF, P.J., and McGREGOR and MILES,* JJ.

ON REHEARING

McGREGOR, Judge.

The recent decision of another panel of this Court, in Lover v. Sampson, 44 Mich.App. 173, 205 N.W.2d 69 (1972), occasions our grant of plaintiff's application for rehearing in the instant case. The patent conflict between the holding in Lover and our opinion in this matter compels us to reconsider our decision.

In Lover, the Court held that defendants, not subject to strict liability under the dramshop act ¹ because not 'engaged in the business of selling alcoholic beverages' ², may be liable for furnishing alcoholic beverages in violation of other penal statutes regulating the distribution or consumption of such beverages. Specifically, the Court indicated that defendants' violations of statutes prohibiting the furnishing of intoxicants to minors without a doctor's prescription ³ and the consumption of alcoholic beverages on public highways ⁴ could constitute negligence per se and, accordingly, give rise to a civil cause of action. In our initial opinion in the instant case, we held that violation of the statute prohibiting furnishing intoxicants to minors did not create a civil cause of action. That holding was premised upon the fact that the penal statute contained no legislative expression of intent to create a civil cause of action for its violation. Having carefully considered both the Lover decision and other pertinent authority, we are constrained to admit we erred.

In Michigan, violation of a statute is negligence per se if the statute was intended to protect a class of persons, including the plaintiff, from the type of harm which resulted from its violation. Hardaway v. Consolidated Paper Co., 366 Mich. 190, 114 N.W.2d 236 (1962); Douglas v. Edgewater Park Co., 369 Mich. 320, 119 N.W.2d 567 (1963); Morton v. Wibright, 31 Mich.App. 8, 187 N.W.2d 254 (1971). This is so, even though the statute does not, as is normally the case, contain a provision respecting civil liability.

In the instant case, it would be absurd indeed to maintain that one of the purposes of the statute in question was not to protect the public from the risk of injury caused by intoxicated minors. Thus, defendants' alleged violation of the statute would, If proven, ⁵ constitute negligence per se under Michigan law. ⁶

The applicability of these general principles to cases involving the violation of penal statutes regulating the distribution of intoxicants is recognized in Jones v. Bourrie, 369 Mich. 473, 120 N.W.2d 236 (1963). In that case, the Court, in dicta, noted that, in the absence of a liquor control act creating a civil cause of action, such a cause of action could arise by virtue of the defendant's violation of penal statutes governing alcoholic beverages. ⁷

In view of the authorities discussed above, plaintiff's complaint did state a cause of action and the trial court erred in granting defendants' motion for summary judgment.

Reversed, and remanded for further proceedings consistent with this opinion.

* WENDELL A. MILES, Circuit Judge for the 20th Judicial Circuit, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, § 23 as amended in 1968.

1 M.C.L.A. § 436.22; M.S.A. § 18.993.

2 44 Mich.App. 173, 180, 205 N.W.2d 69, 72 (1972).

3 M.C.L.A. § 750.141a; M.S.A. §...