Wahl v. Brothers

• Decision Date: 25 March 1975
• Docket Number: No. 2,Docket No. 20185--6,2
• Parties: Maurice David WAHL, Plaintiff-Appellant, v. James K. BROTHERS, d/b/a The Boat, Defendant-Appellee. Dennis Raymond LEONARD, Plaintiff-Appellant, v. James K. BROTHERS, d/b/a The Boat, Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 311

230 N.W.2d 311

60 Mich.App. 66

Maurice David WAHL, Plaintiff-Appellant, v. James K. BROTHERS, d/b/a The Boat, Defendant-Appellee.

Dennis Raymond LEONARD, Plaintiff-Appellant, v. James K. BROTHERS, d/b/a The Boat, Defendant-Appellee.

Docket No. 20185--6.

Court of Appeals of Michigan, Division No. 2.

March 25, 1975.

Released for Publication June 26, 1975.

Weinstein, Kroll & Gordon by A. D. Rosati, Detroit, for plaintiff-appellant.

Ulanoff, Ross & Summer by Stuart A. Ulanoff, Southfield, for defendant-appellee.

Before T. M. BURNS, P.J., and D. E. HOLBROOK and KELLY, JJ.

T. M. BURNS, Presiding Judge.

On July 29, 1969, plaintiffs ¹ were passengers in a vehicle traveling on Ortonville Road in Brandon Township. Plaintiffs' vehicle was struck by another vehicle as the latter was exiting from the parking lot of defendant's tavern. As a result of the accident, both plaintiffs suffered considerable injury. On January 27, 1972, almost 2 1/2 years after the collision, plaintiffs instituted this action against the defendant under the dramshop act. M.C.L.A. § 436.22; M.S.A. § 18.993.

On March 29, 1972, defendant filed a motion for accelerated judgment on the ground that the action was barred by the 2-year period of limitation contained in the dramshop act. Following oral argument, the trial court denied defendant's motion without prejudice. Defendant later refiled the same motion, and on April 10, 1974, the trial court granted the motion for accelerated judgment. An order of accelerated judgment was entered on April 18, 1974. Plaintiffs appeal as of right from this order.

In Holland v. Eaton, 373 Mich. 34, 127 N.W.2d 892 (1964), the Michigan Supreme Court held that the savings provision of the general statute of limitations ² does not pertain to actions under the dramshop act. In holding that there was no provision extending the time for suit by minors in dramshop actions, the Court did not pass upon the question of the constitutionality of this limitation period as applied to minors. This question is now before us.

Plaintiffs argue that the 2-year limitation period in the dramshop act is unconstitutional as a violation of both equal protection and due process provisions of the Michigan and Federal Constitutions. It is plaintiffs' position that unless the savings provisions of the general statute are applicable, the limitation period in the dramshop act is constitutionally infirm. Their equal protection argument is based on the assertion that the statute arbitrarily creates, as to minors 2 classes of tortfeasors, ³ and then distinguishes unreasonably between them. According to this theory, impermissible discrimination exists because a tavern-owner's exposure to liability for a minor's cause of action is limited to 2 years under the act, whereas any other tortfeasor's exposure continues until the minor reaches the age of majority plus one year. Plaintiffs claim that there is no legitimate state interest served by this preferential treatment and that the creation of this arbitrary and unreasonable classification violates the Supreme Court's recent decision in Reich v. State Highway Department, 386 Mich. 617, 194 N.W.2d 700 (1972).

The equal protection guaranty of the Michigan Constitution ⁴ is applied under the same standards as the corresponding provision of the Federal Constitution. ⁵ Fox v. Employment Security Commission, 379 Mich. 579, 153 N.W.2d 644 (1967). State legislatures have a wide range of discretion in establishing classifications in the exercise of their powers to regulate. Fox, supra, p. 588, 153 N.W.2d 644. The 'rational basis' test applies when the law allegedly infringing equal protection creates no fundamental rights. Plaintiffs' claim falls within this class and, therefore, if any reasonable relation exists between the classification and a legitimate state interest, no denial of equal protection will be found. Wilkins v. Ann Arbor City Clerk, 385 Mich. 670, 679--680, 189 N.W.2d 423, 427 (1971). As this Court stated in Kriger v. South Oakland County Mutual Aid Pact, 49 Mich.App. 7, 12, 211 N.W.2d 228, 231 (1973):

"Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State's objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.' McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961).'

A party challenging a statutory classification on equal protection grounds has the heavy burden of showing that the classification has no reasonable basis. Wilkins v. Ann Arbor City Clerk, Supra. We think that the following rule adopted by the Kriger Court from Wood v. Jackson County, 463 S.W.2d 834, 835 (Mo.1971), is applicable:

"It is a general rule that equal protection of the laws is not denied by a course of procedure which is applied to legal proceedings in which a particular person is affected, if such a course would also be applied to any other person in the state under similar circumstances and conditions. Equal protection of the laws of a state is extended to persons within its jurisdiction, within the meaning of the Fourteenth Amendment to the Federal Constitution, when its courts are open to them on the same condition as to others in like circumstances, with like rules of evidence and modes of procedure, for the security of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts.' 16 Am.Jur.2d, Constitutional Law, § 533, p. 923.'

Plaintiffs have failed to sustain their heavy burden of showing that the 2-year limitation period found in M.C.L.A. § 436.22; M.S.A. § 18.993 denies equal protection of the laws. The provision imposes a requirement on those who use the act which is procedural in nature. See Koehler v. DRT Sportservice, Inc., 55 Mich.App. 567, 223 N.W.2d 461 (1974). This procedural requirement applies to each and every person who seeks to bring an action under the dramshop act. As such, it does not discriminate against any particular class or group of people. In Reich v. State Highway Department, Supra, the Supreme Court held the 60-day notice provision of M.C.L.A. & 691.1404; M.S.A. § 3.996(104) unconstitutional since it sought to split the natural class of tortfeasors into private tortfeasors to whom no notice of claim is owed and governmental tortfeasors to whom notice is owed. That notice provision was held to be a special statute of limitation which arbitrarily barred the actions of governmental negligence victims after only 60 days. Although there is language in Reich supportive of plaintiffs' position, that decision cannot be properly extended to the full limitation period as plaintiffs request. Restrictive notice requirements are considerably different than a requirement that a case be brought within 2 years. This argument is more properly directed to the Supreme Court. ⁶

The challenged section of the act can also be sustained on other grounds. The dramshop act creates a statutory cause of action unknown to the common law. Koehler v. DRT Sportservice, Inc., Supra; Behnke v. Pierson, 21 Mich.App. 219, 175 N.W.2d 303 (1970); LeGault v. Klebba, 7 Mich.App. 640, 152 N.W.2d 712 (1967). Since dramshop liability is an entirely statutory creation which imposes strict and vicarious liability on tavern owners it was reasonable for the Legislature to confine this liability via a definite time limitation for the institution of all suits. The pervasiveness of the remedy under the dramshop act and the stringent treatment to which the tavern owner is subjected dictates a limitation period which requires all potential plaintiffs to file claims within 2 years. Equal treatment of all potential plaintiffs allows for the legislation to strike a balance between the rights of potential plaintiffs and those of tavern owners. Statutes of limitations give the opposing party a fair opportunity to defend, relieve the judiciary of stale claims, and protect defendants from protracted fear of litigation. Bigelow v. Walraven, 392 Mich. 566, 221 N.W.2d 328 (1974). These considerations constitute a rational basis for the enactment of the limitation provision of the statute.

Furthermore, where the Legislature has acted to create a right, it may also act to impose restrictions on the exercise of that right.

'It is the general rule that that which the legislature gives, it may take away. A statutory defense, or a statutory right, though a valuable right, is not a vested right, and the holder thereof may be deprived...