Todd v. Biglow

• Decision Date: 17 January 1974
• Docket Number: Docket No. 16711,No. 2,2
• Citation: 51 Mich.App. 346,214 N.W.2d 733
• Parties: Shirley TODD, Plaintiff-Appellant, v. Richard R. BIGLOW and Wolverine Insurance Co., Defendants-Appellees
• Court: Court of Appeal of Michigan — District of US

Page 733

214 N.W.2d 733

51 Mich.App. 346

Shirley TODD, Plaintiff-Appellant, v. Richard R. BIGLOW and Wolverine Insurance Co., Defendants-Appellees.

Docket No. 16711.

Court of Appeals of Michigan, Division No. 2.

Jan. 17, 1974.

Released for Publication Feb. 19, 1974.

Leave to Appeal Denied April 24, 1974.

F. Eugene Welper, Jr., MacRitchie & Welper, Hillsdale, for plaintiff-appellant.

Lewis I. Loren, Dimmers, Dimmers & Loren, Hillsdale, for defendants-appellees.

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

BASHARA, Presiding Judge.

On the night of July 6, 1968, Shirley Todd, appellant herein, and her husband met another couple at the Big Oaks Tavern in Moscow, Michigan. They were later joined at their table by a bachelor friend. Numerous rounds of beers were ordered and paid for by the men through an agreed monetary arrangement.

The appellant did not pay for any of the libations nor did she order for anyone but herself. It is undisputed that appellant's husband consumed not only his own alcoholic beverages, but 3 or 4 of those which had been ordered for appellant.

The Todds left the Big Oaks Tavern at about 12:30 a.m. with Mr. Todd at the wheel of their auto. The record discloses that Mr. Todd was probably intoxicated, and while driving in this condition overturned his automobile, seriously injuring the appellant.

The appellant commenced suit against the owner of the tavern and his insurer, under the dramshop act. ¹ Depositions were taken from appellant, her husband, appellee owner of the tavern, and two waitresses employed by appellee on the fateful evening.

Appellees filed a motion for summary judgment stating that 'plaintiff (appellant) has failed to state a cause of action upon which relief can be granted'. Their motion was based on the grounds that appellant was not an innocent party and could not recover under dramshop act provisions. The trial judge agreed and after considering briefs, depositions, and oral argument, granted the motion for summary judgment in favor of appellees. It is upon the aforementioned factual framework that this appeal is staged.

Appellant first alleges error by the trial judge when he examined the depositions and interrogatories of the parties in deciding the motion for summary judgment. Appellant contends that only the pleadings and stipulated facts are relevant in deciding such a motion. The problem of determining what evidence should be used by the trial court in disposing of certain motions for summary judgment has existed since the adoption of GCR 1963, 117. ² A motion based solely on GCR 1963, 117.2(1) or 117.2(2) (formerly motion to dismiss and judgment on the pleadings, respectively) is to be tested by the pleadings alone. Chatham Super Markets, Inc. v. Ajax Asphalt Paving, Inc., 370 Mich. 334, 121 N.W.2d 836 (1963); Johnston's Administrator v. United Airlines, 23 Mich.App. 279, 178 N.W.2d 536 (1970). Interrogatories and depositions are relevant only if the ground stated for summary judgment is that there is no genuine issue of material fact--not if it is asserted that the pleading fails to state a claim or defense. Drouillard v. City of Roseville, 9 Mich.App. 239, 156 N.W.2d 628 (1967). The members of the bench and bar have had little difficulty in determining that motions brought under GCR 1963, 117.2(3) for no genuine issue of material fact are controlled by GCR 1963, 117.3 requiring reference to evidence beyond the pleadings in testing the motion. See Rizzo v. Kretschmer, 389 Mich. 363, 207 N.W.2d 316 (1973). The trouble arises, as the Author's Comments to this rule, ³ state:

'when affidavits are filed supporting a motion grounded ostensibly upon subrules 117.2(1) and (2), but seeking judgment under 117.2(3)'.

The authors indicate that in these situations the courts have proceeded to analyze the motion on the basis of GCR 1963, 117.2(3) as long as neither party is misled:

'However, in decision under Rule 117, the court has proceeded to an examination of the question of the existence of a material issue of fact, where affidavits in support of the motion have been filed, although the motion read as one grounded upon failure to state valid cause of action. (Citations omitted.) To the extent that the party opposing the motion is not misled, and is prepared to show that a question of fact does exist, the hearing should proceed on that basis, to achieve the benefits intended by the integration of functions under Rule 117. If, however, the party opposing the mottion is misled to believe that only a challenge to the legal sufficiency of his pleading is intended, it would be unjust to proceed under subrule 117.2(3), unless a reasonable opportunity is granted to file opposing affidavits.' ⁴

It is because the instant case presents a situation analogous to that used in the foregoing hypothetical example that we review the record for possible prejudice. Although the motion was apparently brought under GCR 1963, 117.2(1) it is clear that all concerned were proceeding under GCR 1963, 117.2(3). The oral argument and depositions were directed to the question of appellant's participation in causing the intoxication of her husband. Further, the parties stipulated to the use of the depositions and interrogatories by the trial judge in deciding the motion. We find no prejudice or surprise to the appellant by the trial judge's use of such documents.

The second issue raised is of far greater import. It is well stated by the parties in the following rather lengthy question:

Was the trial judge correct when he ruled that under the Michigan dramshop act in effect in July of 1968, a wife is barred, as a matter of law, from recovery against a tavern owner for injuries sustained when she voluntarily accompanied her husband to a tavern, drank intoxicating beverages purchased by others, did not protest when her husband consumed some of the drinks bought for her, and voluntarily became a passenger in a vehicle operated by her husband when she knew that he was in an intoxicated condition?

It is clear that in Michigan recovery under the dramshop act is not extended to a third person who actively participates in causing the inebriation complained of. The theory for this rule had its genesis in the ancient case of Rosecrants v. Shoemaker, 60 Mich. 4, 26 N.W. 794 (1886); ⁵ and was most clearly...